<PAGE>
MARKED TO SHOW CHANGES
As filed with the Securities and Exchange Commission on January
^20, 1995
Registration No. 33-51775
33-51775-01
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Post-Effective Amendment No. ^ 2
To
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TOLL CORP.
and
TOLL BROTHERS, INC.
(Exact name of registrant as specified in its charter)
22-2485860 - Toll Corp.
Delaware 22-2416878 - Toll Brothers, Inc.
(State or other (I.R.S. Employer Identification
jurisdiction of Number)
incorporation)
3103 Philmont Avenue
Huntingdon Valley, Pennsylvania 19006
(215) 938-8000
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
Robert I. Toll
Chairman of the Board and
Chief Executive Officer
Toll Brothers, Inc.
3103 Philmont Avenue
Huntingdon Valley, Pennsylvania 19006
(215) 938-8000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Copies to:
Mark K. Kessler, Esquire John Schuster, Esquire
Wolf, Block, Schorr and Solis-Cohen Cahill Gordon & Reindel
Twelfth Floor Packard Building 80 Pine Street
Philadelphia, Pennsylvania 19102 New York, New York 10005
Approximate date of commencement of proposed sale to the
public: From time to time after the effective date of the
Registration Statement.
If the only securities being registered on this Form are
to be offered pursuant to dividend or interest reinvestment plans,
please check the following box. [ ]
If any of the securities being registered on this Form
are to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, other than securities offered
only in connection with dividend or interest reinvestment plans,
check the following box. [X]
The Registrant hereby amends this registration statement
on such date or dates as may be necessary to delay its effective
date until the registrant shall file a further amendment which
specifically states that this registration statement shall
thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the registration statement shall
become effective on such date as the Commission, acting pursuant to
said Section 8(a), may determine.
Introductory Note
This Post-Effective Amendment No. ^ 2 to Registration Statement
Nos. 33-51775 and 33-51775-01 is being filed with the Securities
and Exchange Commission in order to include a revised Exhibit ^
4.1 thereto. The Prospectus which forms a part of this Post-
Effective Amendment No. ^ 2 is identical to the Prospectus as filed
with the Securities and Exchange on December 30, 1993, which
Prospectus is not separately included in this Post-Effective
Amendment No. ^ 2.
<PAGE>
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following sets forth the expenses in connection with
the issuance and distribution of the Securities being registered,
other than underwriting discounts and commissions:
Securities and Exchange Commission
registration fee................................... $ 86,207
Printing and Engraving.............................. 200,000
Rating agency fees.................................. 60,000
Blue Sky fees and expenses.......................... 30,000
Legal fees and expenses............................. 300,000
Accounting fees and expenses........................ 100,000
Trustee fees and expenses........................... 20,000
Miscellaneous....................................... 23,793
Total............................................ $820,000
The foregoing, except for the Securities and Exchange
Commission registration fee, are estimates.
Item 15. Indemnification of Directors and Officers.
For information regarding provisions under which a
director or officer of Toll or the Company may be insured or
indemnified in any manner against any liability which he may incur
in his capacity as such, reference is made to Section 145 of the
Delaware General Corporation Law, which provides in its entirety as
follows:
(a) A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by
or in the right of the corporation) by reason of the fact that he
is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts
paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good
faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had no reasonable cause to
believe his conduct was unlawful. The termination of any action,
suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good
faith and in a manner which he reasonably believed to be in or not
opposed to the best interests of the corporation, and, with respect
to any criminal action or proceeding, had reasonable cause to
believe that his conduct was unlawful.
(b) A corporation may indemnify any person who was or is
a party or is threatened to be made a party to any threatened,
pending or completed action or suit by or in the right of the
corporation to procure a judgment in its favor by reason of the
fact that he is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or
settlement of such action or suit if he acted in good faith and in
a manner he reasonably believed to be in or not opposed to the best
interests of the corporation and except that no indemnification
shall be made in respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable to the
corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem
proper.
(c) To the extent that a director, officer, employee or
agent of a corporation has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to
in subsections (a) and (b) in this section, or in defense of any
claim, issue or matter therein, he shall be indemnified against
expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of
this section (unless ordered by a court) shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he has met
the applicable standard of conduct set forth in subsections (a) and
(b) of this section. Such determination shall be made (1) by ^ a
majority vote of ^ the directors who ^ are not parties to such
action, suit or proceeding, even though less than a quorum, or (2)
if ^ there are no such directors, or if such directors so ^
direct, by independent legal counsel in a written opinion, or (3)
by the shareholders.
(e) Expenses (including attorneys' fees) incurred by an
officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be
paid by the corporation in advance of the final disposition of such
action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall
ultimately be determined that he is not entitled to be indemnified
by the corporation as authorized in this section. Such expenses
(including attorneys' fees) incurred by other employees and agents
may be so paid upon such terms and conditions, if any, as the board
of directors deems appropriate.
(f) The indemnification and advancement of expenses
provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which
those seeking indemnification or advancement of expenses may be
entitled under any by-law, agreement, vote of shareholders or
disinterested directors or otherwise, both as to action in his
official capacity and as to action in another capacity while
holding such office.
(g) A corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability
asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under
the provisions of this section.
(h) For purposes of this section, references to "the
corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if
its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or
agents, so that any person who is or was a director, officer,
employee or agent of such constituent corporation, or is or was
serving at the request of such constituent corporation as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand
in the same position under the provisions of this section with
respect to the resulting or surviving corporation as he would have
with respect to such constituent corporation if its separate
existence had continued.
(i) For purposes of this section, reference to "other
enterprises" shall include employee benefit plans; references to
"fines" shall include any excise taxes assessed on a person with
respect to any employee benefit plan; and references to "serving at
the request of the corporation" shall include any service as a
director, officer, employee or agent with respect to an employee
benefit plan, its participants or beneficiaries; and a person who
acted in good faith and in a manner he reasonably believed to be in
the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed
to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses
provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent
and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with
exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this
section or under any bylaw, agreement, vote of shareholders or
disinterested directors, or otherwise. The Court of Chancery may
summarily determine a corporation's obligation to advance expenses
(including attorneys' fees).
See also Article VI of the Company's Certificate of
Incorporation, as amended, Article 8 of Toll's Certificate of
Incorporation, as amended, Article VII of the Company's By-Laws, as
amended, and Article VIII of Toll's By-Laws, as amended, pursuant
to which each Registrant is granted the power to indemnify any
director, officer, employee or agent of such Registrant.
See also Section 6 of the Underwriting Agreement Basic
Provisions, filed as Exhibit 1 hereto, pursuant to which the
Underwriters agree to indemnify the Registrants and their
respective directors, officers and controlling persons against
certain liabilities, including liabilities under the Securities Act
of 1933.
Item 16. Exhibits
*1 Form of Underwriting Agreement Basic Provisions.
^ 4.1 ^ Indenture among Toll, as issuer, the Company, as
guarantor, and ^ Security Trust Company, National
Association, as Trustee, including Form of Guarantee and
Form of Note.
*5 Opinion and Consent of Wolf, Block, Schorr and
Solis-Cohen.
*12 Statement of Computation of Ratios of Earnings to Fixed
Charges.
*24.1 Consent of Wolf, Block, Schorr and Solis-Cohen (included
as part of Exhibit 5).
24.2 Consent of Ernst & Young.
*25 Powers of Attorney (included on signature pages of this
Registration Statement).
*26 Form T-1, Statement of Eligibility and Qualification
under the Trust Indenture Act of 1939.
________________________
* Previously filed.
Item 17. Undertakings.
(a) The undersigned Registrants hereby undertake:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
Registration Statement:
(i) To include any prospectus required by
section 10(a)(3) of the Securities Act of 1933;
(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;
(iii) to include any material information with
respect to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such information
in the Registration Statement; provided, however, that the
undertakings set forth in clauses (i) and (ii) of this paragraph
shall not apply if the information required to be included in such
post-effective amendment is contained in periodic reports filed by
the ^ Registrants pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference
in this Registration Statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new registration
statement relating to the ^ securities offered therein, and the
offering of such ^ securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-
effective amendment any of the Securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrants hereby undertake that,
for purposes of determining any liability under the Securities Act
of 1933, each filing of the Registrants' annual reports pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that
is incorporated by reference in this ^ Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(c) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the Registrants pursuant to the
foregoing provisions, or otherwise, the Registrants have been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the ^ Act ^ and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Registrants of expenses incurred or
paid by a director, officer or controlling person of the
Registrants in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
Registrants will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
<PAGE>
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Post-Effective Amendment No. ^ 2 to
the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Lower
Moreland, Commonwealth of Pennsylvania, on January ^20, 1995.
TOLL CORP.
By: *
_______________________________
Robert I. Toll, Chairman
Pursuant to the requirements of the Securities Act of
1933, this Post-Effective Amendment No. ^ 2 to the Registration
Statement has been signed by the following persons in the
capacities indicated on January ^20, 1995.
Signature Title
*
_______________________ Chairman of the Board, Chief
Robert I. Toll Executive Officer and Director
(Principal Executive Officer)
*
______________________ President, Chief Operating
Bruce E. Toll Officer, Secretary and
Secretary and Director
*
______________________ Senior Vice President,
Joel H. Rassman Treasurer, Chief Financial Officer
(Principal Financial Officer)
/s/ Joseph R. Sicree Chief Accounting Officer
- -----------------------
Joseph R. Sicree (Principal Accounting Officer)
*By:/s/ Joseph R. Sicree
- ---------------------------------------
Joseph R. Sicree, Attorney-in-Fact
Pursuant to powers of attorney
previously filed as part of this
Registration Statement.
<PAGE>
<PAGE>
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Post-Effective Amendment No. ^ 2 to
the Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the Township of Lower
Moreland, Commonwealth of Pennsylvania, on January ^20, 1995.
TOLL BROTHERS, INC.
By: *
______________________________
Robert I. Toll, Chairman
Pursuant to the requirements of the Securities Act of
1933, this Post-Effective Amendment No. ^ 2 to the Registration
Statement has been signed by the following persons in the
capacities indicated on January ^20, 1995.
Signature Title
*
_________________________ Chairman of the Board, Chief
Robert I. Toll Executive Officer and Director
(Principal Executive Officer)
*
_________________________ President, Chief Operating Officer,
Bruce E. Toll Secretary and Director
*
_________________________ Director
Robert S. Blank
*
_________________________ Director
Richard J. Braemer
*
_________________________ Director
Roger S. Hillas
*
_________________________ Director
Carl B. Marbach
*
_________________________ Director
Paul Shapiro
*
_________________________ Senior Vice President, Treasurer,
Joel H. Rassman Chief Financial Officer
(Principal Financial Officer)
/s/ Joseph R. Sicree
- -------------------------- Chief Accounting Officer
Joseph R. Sicree (Principal Accounting Officer)
*By:/s/ Joseph R. Sicree
-----------------------------------
Joseph R. Sicree, Attorney-in-Fact
Pursuant to powers of attorney
previously filed as part of this
Registration Statement.
<PAGE>
TOLL CORP., as Issuer
TOLL BROTHERS, INC., as Guarantor
Debt Securities
__________________________
Dated as of January 15, 1994
Security Trust Company, National Association, Trustee
<PAGE>
<PAGE>
CROSS-REFERENCE TABLE
TIA
Section Section Indenture
310(a)(1)........................... 9.10
(a)(2)........................... 9.10
(a)(3)........................... N.A.
(a)(4)........................... N.A.
(b).............................. 9.08; 9.10;
13.02
(c).............................. N.A.
311(a).............................. 9.11
(b).............................. 9.11
(c).............................. N.A.
312(a).............................. 2.05
(b).............................. 13.03
(c).............................. 13.03
313(a).............................. 9.06
(b)(1)........................... N.A.
(b)(2)........................... 9.06
(c).............................. 9.06; 13.02
(d).............................. 9.06
314(a).............................. 4.03; 13.02
(b).............................. N.A.
(c)(1)........................... 13.04
(c)(2)........................... 13.04
(c)(3)........................... N.A.
(d).............................. N.A.
(e).............................. 13.05
(f).............................. N.A.
315(a).............................. 9.01(b)
(b).............................. 9.05; 13.02
(c).............................. 9.01(a)
(d).............................. 9.01(c)
(e).............................. 8.11
316(a)(last sentence)............... 13.06
(a)(1)(A)........................ 8.05
(a)(1)(B)........................ 8.04
(a)(2)........................... N.A.
(b).............................. 8.07
317(a)(1)........................... 8.08
(a)(2)........................... 8.09
(b).............................. 2.04
318(a).............................. 13.01
N.A. means Not Applicable.
Note: This cross-reference table shall not, for any purpose,
be deemed to be a part of the Indenture.
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TABLE OF CONTENTS
Article Section Heading Page
1 DEFINITIONS AND INCORPORATION BY REFERENCE
1.01. Definitions................................ 1
1.02. Incorporation by Reference of Trust
Indenture Act.......................... 6
1.03. Incorporation by Reference of
Provisions of Securities............... 6
1.04. Rules of Construction................... 7
2 THE SECURITIES
2.01. Form and Dating......................... 7
2.02. Execution and Authentication............ 8
2.03. Registrar and Paying Agent.............. 9
2.04. Paying Agent To Hold Money in Trust..... 9
2.05. Securityholder Lists.................... 10
2.06. Transfer and Exchange................... 10
2.07. Replacement Securities.................. 10
2.08. Outstanding Securities.................. 10
2.09. Temporary Securities.................... 11
2.10. Cancellation............................ 11
2.11. Defaulted Interest...................... 12
2.12. Global Securities ...................... 12
3 REDEMPTION
3.01. Notices to Trustee...................... 12
3.02. Selection of Securities To Be
Redeemed............................... 13
3.03. Notice of Redemption.................... 13
3.04. Effect of Notice of Redemption.......... 14
3.05. Deposit of Redemption Price............. 14
3.06. Securities Redeemed in Part............. 14
4 COVENANTS
4.01. Payment of Securities................... 14
4.02. SEC Reports............................. 15
4.03. Compliance Certificate.................. 15
5 SUCCESSOR CORPORATION
5.01. When Company and the Guarantor
May Merge, etc......................... 15
6 SUBORDINATION
6.01. Agreement To Subordinate................ 16
6.02. Company Not To Make Payments with
Respect to Securities in Certain
Circumstances.......................... 16
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<PAGE>
Article Section Heading Page
6.03. Securities Subordinated to Prior
Payment of All Senior Indebtedness
of the Company on Dissolution,
Liquidation or Reorganization of the
Company.................................. 17
6.04. Securityholders To Be Subrogated
to Rights of Holders of Senior
Indebtedness of the Company.............. 18
6.05. Obligation of the Company Unconditional... 19
6.06. Knowledge of Trustee...................... 19
6.07. Application by Trustee of Monies
Deposited with It........................ 20
6.08. Subordination Rights Not Impaired by Acts
or Omissions of Company or Holders of
Senior Indebtedness of the Company....... 20
6.09. Securityholders Authorize Trustee To
Effectuate Subordination of Securities... 20
6.10. Right of Trustee To Hold Senior
Indebtedness of the Company.............. 21
6.11. Article Six Not To Prevent Events
of Default............................... 21
7 GUARANTEE
7.01. Guarantee................................. 21
7.02. Agreement To Subordinate.................. 23
7.03. Guarantor Not To Make Payments with
Respect to Securities in Certain
Circumstances............................ 23
7.04. Guarantee Subordinated to Prior Payment of
All Senior Indebtedness of the Guarantor
on Dissolution, Liquidation or
Reorganization of the Guarantor......... 24
7.05. Securityholders To Be Subrogated to
Rights of Holders of Senior Indebtedness
of the Guarantor......................... 26
7.06. Obligation of the Guarantor
Unconditional............................ 26
7.07. Knowledge of Trustee...................... 27
7.08. Application by Trustee of Monies
Deposited with It........................ 27
7.09. Subordination Rights Not Impaired by Acts
or Omissions of Guarantor or Holders of
Senior Indebtedness of the Guarantor..... 27
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PAGE
<PAGE>
Article Section Heading Page
7.10. Securityholders Authorize Trustee To
Effectuate Subordination of Guarantee.... 28
7.11. Right of Trustee To Hold Senior
Indebtedness of the Guarantor............ 28
7.12. Article 7 Not To Prevent Events of
Default.................................. 28
7.13. Execution and Delivery of Guarantee....... 28
7.14. Subordination of Indebtedness Owed by the
Company to the Guarantor................. 29
7.15. Officers' Certificate..................... 29
8 DEFAULTS AND REMEDIES
8.01. Events of Default......................... 29
8.02. Acceleration.............................. 31
8.03. Other Remedies............................ 32
8.04. Waiver of Past Defaults................... 32
8.05. Control by Majority....................... 33
8.06. Limitation on Suits....................... 33
8.07. Rights of Holders To Receive Payment...... 33
8.08. Collection Suit by Trustee................ 33
8.09. Trustee May File Proofs of Claim.......... 34
8.10. Priorities................................ 34
8.11. Undertaking for Costs..................... 34
9 TRUSTEE
9.01. Duties of Trustee......................... 35
9.02. Rights of Trustee......................... 36
9.03. Individual Rights of Trustee.............. 36
9.04. Trustee Disclaimer........................ 36
9.05. Notice of Defaults........................ 36
9.06. Reports by Trustee to Holders............. 36
9.07. Compensation and Indemnity................ 37
9.08. Replacement of Trustee.................... 37
9.09. Successor Trustee by Merger, etc.......... 38
9.10. Eligibility; Disqualification............. 38
9.11. Preferential Collection of Claims Against
Company................................ 39
10 CONVERSION OF ^SECURITIES
10.01 Applicability of Article.................. 39
10.02. Conversion Privilege...................... 39
10.03. Manner of Exercise of Conversion
Privilege................................ 40
10.04. Payment in Lieu of Fractional Shares...... 41
10.05. Adjustment of Conversion Price............ 41
10.06. Notice of Certain Corporate Action........ 44
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<PAGE>
Article Section Heading Page
10.07. Guarantor To Provide Stock................ 45
10.08. Taxes on Conversions...................... 45
10.09. Covenant as to Stock...................... 46
10.10. Consolidation or Merger................... 46
10.11. Disclaimer of Responsibility for Certain
Matters.................................. 47
11 DISCHARGE OF INDENTURE
11.01. Termination of the Company's and the
Guarantor's Obligations.................. 47
11.02. Application of Trust Money................ 48
11.03. Repayment to Company...................... 48
12 AMENDMENTS, SUPPLEMENTS AND WAIVERS
12.01. Without Consent of Holders................ 49
12.02. With Consent of Holders................... 49
12.03. Compliance with Trust Indenture Act....... 50
12.04. Revocation and Effect of Consents......... 50
12.05. Notation on or Exchange of Securities..... 50
12.06. Trustee To Sign Amendments, etc........... 50
13 MISCELLANEOUS
13.01. Trust Indenture Act Controls.............. 51
13.02. Notices................................... 51
13.03. Communication by Holders with Other
Holders.................................. 52
13.04. Certificate and Opinion as to Conditions
Precedent................................ 52
13.05. Statements Required in Certificate or
Opinion.................................. 52
13.06. When Treasury Securities Disregarded...... 52
13.07. Rules by Trustee, Paying Agent, Registrar. 52
13.08. Legal Holidays............................ 53
13.09. Governing Law............................. 53
13.10. No Adverse Interpretation of Other
Agreements.............................. 53
13.11. No Recourse Against Others................ 53
13.12. Successors................................ 53
13.13. Duplicate Originals....................... 53
13.14. Counterparts.............................. 53
Signatures ............................................... 54
Exhibit A - Form of Security.............................. A-1
Exhibit B - Form of Guarantee............................. B-1
-v-
PAGE
<PAGE>
INDENTURE dated as of January 15, 1994 among TOLL
CORP., a Delaware corporation (the "Company"), TOLL BROTHERS,
INC., a Delaware corporation (the "Guarantor"), and ^Security
Trust Company, National Association (the "Trustee").
Each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the
Holders of the Company's debt securities issued under this
Indenture ("Securities"):
ARTICLE 1.
Definitions and Incorporation by Reference
Section 1.01. Definitions.
"Acceleration Notice" has the meaning provided in
Section 8.02.
"Affiliate" has the meaning provided in Rule 405
promulgated under the Securities Act of 1933, as amended and in
effect on the date hereof.
"Authorizing Resolution" means a resolution adopted
by the Board of Directors or by an Officer or committee of
Officers pursuant to Board delegation authorizing a Series of
Securities. An Authorizing Resolution shall be so adopted by
both the Company and the Guarantor.
"Bankruptcy Law" has the meaning provided in Section
8.01.
"Board of Directors" means the Board of Directors of
the Company or the Guarantor, as the case may be, or any
authorized committee of the Board.
"Board Resolution" means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the
Company or the Guarantor, as the case may be, 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 a day that is not a Legal
Holiday.
PAGE
<PAGE>
"Capital Stock" means the classes of capital stock of
a Personas they exist on the date of this Indenture or as they
may be constituted from time to time and warrants, options and
similar rights to acquire such capital stock.
"Common Stock" means the Common Stock ($.01 par
value) of the Guarantor as the same exists at the date of this
Indenture as originally executed or as such stock may be
constituted from time to time.
"Company" means the party named as such in this
Indenture until a successor replaces it and thereafter means the
successor or any other obligor on the Securities. "Company"
shall also mean the Guarantor in the event the Company fails to
perform those duties required by Sections 312 through 317 of the
TIA.
"Consolidated Net Worth" of any Person means the
consolidated stockholders' equity of such Person, as determined
in accordance with generally accepted accounting principles.
"Conversion Price" means the initial conversion price
of Securities of a Series specified in the Authorizing Resolution
establishing the terms of such Series Security, as adjusted in
accordance with the provisions of Article 10.
"Current Market Price" for any relevant date means,
(a) except for purposes of Section 10.04, the average of the last
reported sale prices of the Common Stock for the 30 consecutive
Business Days commencing 45 Business Days before the day in
question and (b) for purposes of Section 10.04 only, the last
reported sale price of the Common Stock, in either such case as
reported on the composite tape, or similar reportingsystem, for
issues listed on the New York Stock Exchange (or if the Common
Stock is not then listed on that exchange, for issues listed on
such other national securities exchange upon which the Common
Stock is listed as may be designated by the Board of Directors
for the purposes hereof) or, if there is no such reported sale on
the day or days in question, on the basis of the average of the
closing bid and asked quotations as so reported, or, if the
Common Stock is not listed on any national securities exchange,
on the basis of the average of the high bid and low asked
quotations on the day or days in question in the over-the-counter
market as reported by the National Association of Securities
Dealers' Automated Quotations System, or if not so quoted, as
reported by National Quotation Bureau, Incorporated, or any
similar organization, or if not so reported as determined in good
faith by the Board.
"Default" means any event which is, or after notice
or passage of time or both would be, an Event of Default.
"Designated Senior Debt of the Company" means any
single issue of indebtedness of the Company constituting Senior
Indebtedness of the Company which at the time of determination
has an aggregate principal amount outstanding of at least
$25,000,000 and is specifically designated in the instrument or
instruments creating, governing or evidencing such Senior
Indebtedness of the Company as "Designated Senior Debt of Toll
Corp." (it being understood that the Company's guarantee of the
Revolving Credit Agreement shall be considered a single issue of
indebtedness of the Company for purposes of this definition).
"Designated Senior Debt of the Guarantor" means any
single issue of indebtedness of the Guarantor constituting Senior
Indebtedness of the Guarantor which at the time of determination
has an aggregate principal amount outstanding of at least
$25,000,000 and is specifically designated in the instrument or
instruments creating, governing or evidencing such Senior
Indebtedness of the Guarantor as "Designated Senior Debt of Toll
Brothers, Inc." (it being understood that the Guarantor's
guarantee of the Revolving Credit Agreement shall be considered a
single issue of indebtedness of the Guarantor for purposes of
this definition).
"Exchange Act" means the Securities Exchange Act of
1934, as amended.
"Event of Default" has the meaning provided in
Section 8.01.
"Guarantee" has the meaning provided in Section 7.01.
"Guarantor" means the party named as such in this
Indenture until a successor replaces it and thereafter means the
successor.
"Holder" or "Securityholder" means the Person in
whose name a Security is registered on the Registrar's books.
"Indenture" means this Indenture as amended or
supplemented from time to time.
"Interest Payment Date," when used with respect to
any installment of interest payable on the Securities, has the
meaning provided in Section 1 of the Securities.
"Legal Holiday" has the meaning provided in Section
13.08.
"Non-Recourse Indebtedness" means indebtedness or
other obligations secured by a lien on property to the extent
that the liability for such indebtedness or other obligations is
limited to the security of the property without liability on the
part of the Guarantor or any Subsidiary (other than the
Subsidiary which holds title to such property) for any
deficiency.
"Non-Recourse Judgment" means a judgment in respect
of indebtedness or other obligations secured by a lien on
property to the extent that the liability for (i) such
indebtedness or other obligations and (ii) such judgment is
limited to such property without liability on the part of the
Guarantor or any Subsidiary (other than the Subsidiary which
holds title to such property) for any deficiency.
"Officer" means the Chairman of the Board, the
President, any Vice President, the Chief Accounting Officer, the
Controller, the Treasurer or the Secretary of the Company or the
Guarantor, as the case may be.
"Officers' Certificate" means a certificate signed by
the Chairman of the Board, the President or any Vice President,
and by the Chief Accounting Officer, the Controller, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant
Secretary of the Company or the Guarantor, as the case may be.
See Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from
legal counsel who is acceptable to the Trustee. The counsel may
be counsel to, but not an employee of, the Company ^or the
Guarantor^. See Sections 13.04 and 13.05.
"Paying Agent" has the meaning provided in Section
2.03.
"Person" means any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or other agency
or political subdivision thereof.
"principal" of a debt security means the principal of
the security plus, when appropriate, the premium, if any, on the
security.
"Record Date" for the interest payable on any
Interest Payment Date on the Securities has the meaning provided
in Section 1 of the Securities.
"Registrar" has the meaning provided in Section 2.03.
^
"Revolving Credit Agreement" means the Amended and
Restated Revolving Credit Agreement dated as of November 1, 1993,
among Toll Brothers, Inc., First Huntingdon Finance Corp., a
Delaware corporation, such other entities in which Toll Brothers,
Inc. owns capital stock that are named therein, PNC Bank, a
national banking association, as Agent, and the banks named
therein, as the same may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Securities" means the securities as amended or
supplemented from time to time that are authenticated and issued
under this Indenture.
"Senior Indebtedness of the Company," if applicable,
has the meaning provided in the Authorizing Resolution.
"Senior Indebtedness of the Guarantor," if
applicable, has the meaning provided in the Authorizing
Resolution.
"Series" means a series of Securities or the
Securities of a Series.
"Special Record Date" has the meaning provided in
Section 2.11.
"Subsidiary" means any corporation of which at least
a majority in interest of the outstanding stock having by the
terms thereof voting power under ordinary circumstances to elect
a majority of the directors of such corporation, irrespective of
whether or not at the time stock of any other class or classes of
such corporation shall have or might have voting power by reason
of the happening of any contingency, is at the time, directly or
indirectly, owned or controlled by the Guarantor.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.
Code 77aaa-77bbbb) as in effect on the date of this Indenture
and as it may be amended from time to time.
"Trustee" means the party named as such in this
Indenture until a successor replaces it and thereafter means the
successor.
"Trust Officer" when used with respect to the Trustee
means any officer within the Corporate Trust Department (or any
successor group) of the Trustee, including any Vice President,
Second Vice President, Assistant Vice President, Trust Officer or
any other officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall
be such officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge of and familiarity
with the particular subject.
Section 1.02. Incorporation by Reference of Trust
Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture have
the following meanings:
"commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder or
Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means
the Trustee.
"obligor on the indenture securities" means the
Company, the Guarantor or any other obligor on the
indenture securities.
All other TIA terms used in this Indenture that are
defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule
have the meanings assigned to them.
Section 1.03. Incorporation by Reference of
Provisions of Securities.
Whenever this Indenture refers to a provision of the
Securities, the provision is incorporated by reference in and
made a part of this Indenture.
Section 1.04. Rules of Construction. Unless the
context otherwise requires:
1. a term has the meaning assigned to it;
2. an accounting term not otherwise defined has
the meaning assigned to it in accordance with generally accepted
accounting principles at the time of the relevant computation;
3. "or" is not exclusive;
4. words in the singular include the plural, and
in the plural include the singular; and
5. provisions apply to successive events and
transactions.
ARTICLE 2.
The Securities
Section 2.01. Form and Dating. The aggregate
principal amount of Securities that may be issued under this
Indenture is unlimited. The Securities may be issued from time
to time in one or more Series. Each Series shall be created by
an Authorizing Resolution or a supplemental indenture that
establishes the terms of the Series, which may include the
following:
(1) the title of the Series;
(2) the aggregate principal amount of the Series;
(3) the interest rate or method of calculation of
the interest rate;
(4) the date from which interest will accrue;
(5) the Record Dates for interest payable on
Securities of the Series;
(6) the dates when, places where and manner in which
principal and interest are payable;
(7) the Registrar and Paying Agent;
(8) the terms of any mandatory or optional
redemption by the Company;
(9) the terms of any redemption at the option of
Holders;
(10) the denominations in which Securities are
issuable;
(11) whether Securities will be issued in registered
or bearer form and the terms of any such forms
of Securities;
(12) whether any Securities will be represented by a
global Security and the terms of any such global
Security;
(13) the currencies (including any composite
currency) in which principal or interest or both
may be paid;
(14) if payments of principal or interest may be made
in a currency other than that in which
Securities are denominated, the manner for
determining such payments;
(15) provisions for electronic issuance of Securities
or issuance of Securities in uncertificated
form;
(16) any Events of Default or covenants in addition
to or in lieu of those set forth in this
Indenture;
(17) whether and upon what terms Securities may be
defeased;
(18) the form of the Securities and the Guarantees,
which, unless the Authorizing Resolution
otherwise provides, shall be in the form of
Exhibits A and B;
(19) whether the Securities of such Series will be
convertible into Common Stock of the Guarantor
and the terms thereof (including without
limitation the Conversion Price, the conversion
period and any other provision in addition to or
in lieu of those set forth in this Indenture);
(20) whether the Securities and Guarantees of such
Series shall be subordinated to any obligations
of the Company or the Guarantor, and the
obligations to which such subordination will
apply;
(21) any terms that may be required by or advisable
under applicable law; and
(22) any other terms not inconsistent with this
Indenture.
All Securities of one Series need not be issued at
the same time and, unless otherwise provided, a Series may be
reopened for issuances of additional Securities of such Series
pursuant to an Authorizing Resolution, an Officers' Certificate
or in any indenture supplemental hereto.
The creation and issuance of a Series and the
authentication and delivery thereof are not subject to any
conditions precedent.
Section 2.02. Execution and Authentication. Two
Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on
the Securities. Two Officers of the Guarantor shall sign the
notation of the Guarantee by manual or facsimile signature.
If an Officer whose signature is on a Security no
longer holds that office at the time the Trustee authenticates
the Security, the Security shall be valid nevertheless.
A Security shall not be valid until the Trustee
manually signs the certificate of authentication on the Security.
The signature shall be conclusive evidence that the Security has
been authenticated under this Indenture.
The Trustee shall authenticate Securities for
original issue upon a written order of the Company signed by two
Officers or by an Officer and an Assistant Treasurer of the
Company. Each Security shall be dated the date of its
authentication.
Section 2.03. Registrar and Paying Agent. The
Company shallmaintain an office or agency where Securities may be
presented for registration of transfer, for exchange or, if
applicable, for conversion (in the case of conversion, as agent
for the Guarantor) ("Registrar") and an office or agency where
Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Securities and of their
transfer. The Company may have one or more co-registrars and one
or more additional paying agents. The term "Paying Agent"
includes any additional paying agent.
The Company shall enter into an appropriate agency
agreement with any Registrar, Paying Agent or co-registrar not a
party to this Indenture. The agreement shall implement the
provisions of this Indenture that relate to such agent. The
Company shall notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Registrar or
Paying Agent, the Trustee shall act as such.
The Company initially appoints the Trustee as
Registrar and Paying Agent.
Section 2.04. Paying Agent To Hold Money in Trust.
Each Paying Agent shall hold in trust for the benefit of the
Securityholders or the Trustee all money held by the Paying Agent
for the payment of principal or interest on the Securities, and
shall notify the Trustee of any default by the Company (or any
other obligor on the Securities) in making any such payment.
While any such default continues, the Trustee shall require a
Paying Agent to pay all money held by it to the Trustee. If the
Company or a Subsidiary acts as Paying Agent, it shall segregate
the money and hold it as a separate trust fund. The Company at
any time may require a Paying Agent to pay all money held by it
to the Trustee. Upon doing so the Paying Agent shall have no
further liability for the money.
Section 2.05. Securityholder Lists. The Trustee
shall preserve in as current a form as is reasonably practicable
the most recent list available to it of the names and addresses
of Securityholders. If the Trustee is not the Registrar, the
Company shall furnish to the Trustee on or before each Interest
Payment Date and at such other times as the Trustee may request
in writing a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of
Securityholders.
Section 2.06. Transfer and Exchange. Where a
Security is presented to the Registrar or a co-registrar with a
request to register a transfer, the Registrar shall register its
transfer as requested if its reasonable requirements are met.
Where Securities are presented to the Registrar or a co-registrar
with a request to exchange them for an equal principal amount of
Securities of other denominations, the Registrar shall make the
exchange as requested if the same requirements are met. To
permit transfers and exchanges, the Trustee shall authenticate
Securities at the Registrar's request. The Registrar need not
transfer or exchange any Security selected for redemption, except
the unredeemed part thereof if the Security is redeemed in part,
or transfer or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed. The Company may
charge a reasonable fee for any transfer or exchange (including
the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
such transfer or exchange and any other expenses in connection
therewith) but not for any exchange pursuant to Section 2.09,
3.06 or 12.05. This Section 2.06 is subject to Section 11 of the
Securities.
Section 2.07. Replacement Securities. If the Holder
of a Security claims that the Security has been lost, destroyed
or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Security and the Guarantor shall
endorse the Guarantee thereon if the Trustee's reasonable
requirements are met. An indemnity bond must be sufficient in
the judgment of the Company, the Guarantor and the Trustee
to protect the Company, the Guarantor, the Trustee, the Paying
Agent, the Registrar or any co-registrar from any loss which any
of them may suffer if a Security is replaced. The Company may
charge for its expenses in replacing a Security.
Every replacement Security is an additional
obligation of the Company and the Guarantor.
Section 2.08. Outstanding Securities. Securities
outstanding at any time are all Securities authenticated by the
Trustee except for those presented to it by the Company or its
designee for cancellation and those described in this Section as
not outstanding. A Security does not cease to be outstanding
because the Company, the Guarantor or one of their
Affiliates holds the Security.
If a Security is replaced pursuant to Section 2.07,
it ceases to be outstanding unless the Trustee receives proof
satisfactory to it that the replaced Security is held by a bona
fide purchaser.
If the Paying Agent holds on a redemption date or
maturity date money sufficient to pay Securities payable on that
date, then on and after that date such Securities cease to be
outstanding and interest on them ceases to accrue.
If a Security is called for redemption or if it
matures in less than six months and if the Company has ^satisfied
its obligation to pay the Security, the Company and the Trustee
need not treat the Security as outstanding in determining whether
Holders of the required principal amount of Securities have
concurred in any direction, waiver or consent.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security
shall carry the rights to interest accrued and unpaid, and to
accrue, which were carried by such other Security.
Section 2.09. Temporary Securities. Until
definitive Securities are ready for delivery, the Company may
prepare and the Trustee shall authenticate temporary Securities
and the Guarantor shall endorse the Guarantee thereon. Temporary
Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers
appropriate for temporary Securities. Without unreasonable
delay, the Company shall prepare and the Trustee shall
authenticate definitive Securities and the Guarantor shall
endorse the Guarantee thereon in exchange for temporary
Securities.
Section 2.10. Cancellation. The Company at any time
may deliver Securities to the Trustee for cancellation. The
Registrar and the Paying Agent shall forward to the Trustee any
Securities surrendered to them for transfer, exchange, conversion
or payment. The Trustee and no one else shall cancel and destroy
all Securities surrendered for transfer, exchange, conversion,
payment or cancellation. Unless the Authorizing Resolution so
provides, the Company may not issue new Securities to replace
Securities it has paid or delivered to the Trustee for
cancellation.
Section 2.11. Defaulted Interest. If the Company
defaults in a payment of interest on the Securities, it shall pay
the defaulted interest in any lawful manner. It may pay the
defaulted interest, plus any interest payable on the defaulted
interest (to the extent lawful) if an Event of Default has
occurred and is continuing, to the Persons who are
Securityholders on a subsequent special record date (the "Special
Record Date"). The Company shall fix the subsequent Special
Record Date and payment date. At least 15 days before such
Special Record Date, the Company shall give notice to the
Trustee and shall mail to each Securityholder a notice that
states the subsequent Special Record Date, the payment date, and
the amount of defaulted interest to be paid.
Section 2.12. Global Securities. Unless the
Authorizing Resolution provides otherwise, the Company may issue
some or all of the Securities of a Series in temporary or
permanent global form. A global Security shall represent that
amount of Securities of a Series as specified in the global
Security or as endorsed thereon from time to time. At the
Company's request, the Registrar shall endorse a global Security
to reflect the amount of any increase or decrease in the
Securities represented thereby.
The Company may issue a global Security only to a
depositary designated by the Company. A depositary may transfer
a global Security only as a whole to its nominee or to a
successor depositary.
The Authorizing Resolution may establish, among other
things, the manner of paying principal and interest on a global
Security and whether and upon what terms a beneficial owner of an
interest in a global Security may exchange such interest for
definitive Securities.
The Company and the Trustee shall not be responsible
for any acts or omissions of a depositary, for any depositary
records of beneficial ownership interests or for any transactions
between the depositary and beneficial owners.
ARTICLE 3.
Redemption
Section 3.01. Notices to Trustee. Securities of a
Series that are redeemable prior to maturity shall be redeemable
in accordance with their terms and, unless the Authorizing
Resolution provides otherwise, in accordance with this Article.
If the Company wants to redeem Securities pursuant to
Paragraph 5 of the Securities, it shall notify the Trustee in
writing of the redemption date and the principal amount of
Securities to be redeemed. Any such notice may be cancelled at
any time prior to notice of such redemption being mailed to
Holders. Any such cancelled notice shall be void and of no
effect.
If the Company wants to credit any Securities
previously redeemed, retired or acquired against any redemption
pursuant to Paragraph 6 of the Securities, it shall notify the
Trustee of the amount of the credit and it shall deliver any
Securities not previously delivered to the Trustee for
cancellation with such notice.
The Company shall give each notice provided for in
this Section 3.01 at least ^10 Business Days before the notice of
any such redemption is to be mailed to Holders (unless a shorter
notice shall be satisfactory to the Trustee).
Section 3.02. Selection of Securities To Be
Redeemed. If less than all the Securities of a Series are to be
redeemed, the Trustee shall select the Securities to be redeemed,
if the Securities of such Series are listed on a national
securities exchange, in accordance with the rules of such
exchange, or if the Securities of such Series are not so listed,
on either a pro rata basis or by lot or by such method as the
Trustee shall deem fair and appropriate. The Trustee shall make
the selection from Securities outstanding and not previously
called for redemption. Securities in denominations of $1,000 may
only be redeemed in whole. The Trustee may select for redemption
portions (equal to $1,000 or any integral multiple thereof) of
the principal of Securities that have denominations larger than
$1,000. Provisions of this Indenture that apply to Securities
called for redemption also apply to portions of Securities called
for redemption.
Section 3.03. Notice of Redemption. At least 30
days but not more than 60 days before a redemption date, the
Company shall mail a notice of redemption by first-class mail to
each Holder of Securities to be redeemed.
The notice shall identify the Securities to be
redeemed and shall state:
(1) the redemption date;
(2) the redemption price;
(3) the name and address of the Paying Agent;
(4) in the event that any Security is to be
redeemed in part only, the portion of the principal amount
thereof to be redeemed and that on and after the redemption date,
upon surrender of such Security, a new Security or Securities in
principal amount equal to the unredeemed portion thereof will be
issued;
(5) that Securities called for redemption must be
surrendered to the Paying Agent to collect the redemption price;
(6) that interest on Securities called for
redemption ceases to accrue on and after the redemption date;
(7) that the Securities are being redeemed pursuant
to the mandatory redemption or the optional redemption
provisions, as applicable; and
(8) if applicable, the current Conversion Price and
the date on which the right to convert the Securities into Common
Stock will expire.
At the Company's request, the Trustee shall give the
notice of redemption in the Company's name and at the Company's
expense.
Section 3.04. Effect of Notice of Redemption. Once
notice of redemption is mailed, Securities called for redemption
become due and payable on the redemption date and at the
redemption price. Upon surrender to the Paying Agent, such
Securities shall be paid at the redemption price, plus accrued
interest to the redemption date.
Section 3.05. Deposit of Redemption Price. Prior to
the redemption date, the Company or its designee shall deposit
with the Paying Agent money sufficient to pay the redemption
price of and accrued and unpaid interest on all Securities to be
redeemed on that date.
Section 3.06. Securities Redeemed in Part. Upon
surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security and the
Guarantor shall endorse the Guarantee thereon equal in principal
amount to the unredeemed portion of the Securities surrendered.
ARTICLE 4.
Covenants
Section 4.01. Payment of Securities. The Company
shall pay the principal of and interest on Securities of a Series
on the dates and in the manner provided in the Securities of the
Series. An installment of principal or interest shall be
considered paid on the date due if the Trustee or Paying Agent
holds on that date immediately available legal tender funds
designated for, available and sufficient to pay the installment.
The Company shall pay interest on overdue principal
at the rate borne by the Series; it shall pay interest on overdue
installments of interest at the same rate to the extent lawful.
Section 4.02. SEC Reports. Within 15 days after
each of the Guarantor and the Company files with the SEC copies
of its annual reports and other information, documents and
reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which they are
required to file with the SEC pursuant to Section 13 or 15(d) of
the Exchange Act, the Guarantor and the Company shall file the
same with the Trustee. If the Guarantor shall cease to be
subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Guarantor shall file with the Trustee, within
15 days after the last date on which it would have been required
to make such a filing with the SEC, financial statements,
including any notes thereto, and a "Management's Discussion and
Analysis of Financial Condition and Results of Operations," each
comparable to that which the Guarantor would have been required
to include in such annual reports, information, documents or
other reports, if the Guarantor were then subject to the
requirements of Section 13 or 15(d) of the Exchange Act. The
Company and the Guarantor also shall comply with the other
provisions of TIA 314(a).
Section 4.03. Compliance Certificate. The Company
and the Guarantor each shall deliver to the Trustee within 120
days after the end of ^their respective fiscal year ^an Officers'
Certificate satisfying the requirements of Section 3.14(a)(4) of
the TIA and stating whether or not the signers know of any
Default or Event of Default. If they do know of such a Default
or Event of Default, the certificate shall describe the
Default or Event of Default.
ARTICLE 5.
Successor Corporation
Section 5.01. When the Company and the Guarantor May
Merge, Etc. Neither the Company nor
the Guarantor shall consolidate with or merge into, or transfer
all or substantially all of its assets to, any other person
unless (i) such other Person is a corporation organized and
existing under the laws of the United States or a State thereof
or the District of Columbia and expressly assumes by supplemental
indenture all the obligations of the Company or the Guarantor
under the Indenture and either the Securities or the Guarantee,
as the case may be; (ii) immediately after giving effect to such
transaction no Default or Event of Default shall have occurred
and be continuing; and (iii) the Consolidated Net Worth of the
surviving corporation is equal to or greater than the
Consolidated Net Worth of the Company or the Guarantor, as the
case may be, immediately prior to such merger or transfer of
assets. Thereafter all such obligations of the predecessor
corporation shall terminate.
ARTICLE 6.
Subordination
Section 6.01. Agreement To Subordinate. The
provisions of this Article 6 shall apply to the Securities of a
Series to the extent specified in the Authorizing Resolution
relating to such Series. Each reference in this Article 6 to "a
Security" or "the Securities" refers to the Securities of each
such Series so designated.
The Company, for itself and its successors, and each
Holder, by accepting Securities, agrees that the payment of the
principal of, interest on or any other amounts due on the
Securities are subordinated in right of payment, to the extent
and in the manner stated in this Article 6, to the prior payment
in full of all Senior Indebtedness of the Company. Each Holder
by accepting Securities authorizes and directs the Trustee on
behalf of such Holder to take such action as may be necessary or
appropriate to effectuate, as between the holders of Senior
Indebtedness of the Company and such Holder, the subordination
provided in this Article 6 and appoints the Trustee
attorney-in-fact for such Holder for such purpose.
This Article 6 shall constitute a continuing offer to
all Persons who, in reliance upon such provisions, become holders
of, or continue to hold, Senior Indebtedness of the Company, and
such provisions are made for the benefit of the holders of Senior
Indebtedness of the Company and such holders are made obligees
hereunder and they and/or each of them may enforce such
provisions.
Section 6.02. Company Not To Make Payments with
Respect to Securities in Certain Circumstances.
a. Upon the maturity of any Senior Indebtedness of
the Company by lapse of time, acceleration (unless waived) or
otherwise, all principal thereof and interest thereon shall first
be paid in full, or such payment duly provided for in cash or in
a manner satisfactory to the holders of such Senior Indebtedness
of the Company, before any payment is made on account of the
principal of or interest on the Securities or to acquire any of
the Securities.
b. In the event that notwithstanding the
provisions of this Section 6.02 the Company shall make any
payment to the Trustee on account of the principal of or interest
on the Securities after the happening of a default in payment of
the principal of or interest on Senior Indebtedness of the
Company, then, unless and until such default shall have been
cured or waived or shall have ceased to exist, such payment
(subject to the provisions of Sections 6.06 and 6.07) shall be
held by the Trustee, in trust for the benefit of, and shall be
paid forthwith over and delivered to, the holders of Senior
Indebtedness of the Company (pro rata as to each of such holders
on the basis of the respective amounts of Senior Indebtedness of
the Company held by them) or their representative or the trustee
under the indenture or other agreement (if any) pursuant to which
Senior Indebtedness of the Company may have been issued, as their
respective interests may appear, for application to the payment
of all Senior Indebtedness of the Company remaining unpaid to the
extent necessary to pay all Senior Indebtedness of the Company in
full in accordance with its terms, after giving effect to any
concurrent payment or distribution to or for the holders of the
Senior Indebtedness of the Company.
The Company shall give prompt written notice to the
Trustee of any default in the payment of principal of or interest
on any Senior Indebtedness of the Company.
Section 6.03. Securities Subordinated to Prior
Payment of All Senior Indebtedness of the Company on Dissolution,
Liquidation or Reorganization of the Company. Upon any
distribution of assets of the Company in any dissolution, winding
up, liquidation or reorganization of the Company (whether in
bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefits of creditors or otherwise):
a. the holders of all Senior Indebtedness of the
Company shall first be entitled to receive payment in full of the
principal thereof and interest due thereon before the Holders of
the Securities are entitled to receive any payment on account of
the principal of or interest on the Securities;
b. any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee
on behalf of the Holders of the Securities would be entitled
except for the provisions of this Article 6, including any such
payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, shall be
paid by the liquidating trustee or agent or other Person making
such payment or distribution directly to the holders of the
Senior Indebtedness of the Company or their representative, or to
the trustee under any indenture under which Senior Indebtedness
of the Company may have been issued (pro rata as to each such
holder, representative or trustee on the basis of the respective
amounts of unpaid Senior Indebtedness of the Company held or
represented by each), to the extent necessary to make payment in
full of all Senior Indebtedness of the Company remaining unpaid,
after giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness of
the Company, except that Holders of the Securities would be
entitled to receive securities that are subordinated to Senior
Indebtedness of the Company to at least the same extent as the
Securities; and
c. in the event that notwithstanding the foregoing
provisions of this Section 6.03, any payment or distribution of
assets of the Company of any kind or character whether in cash,
property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being
subordinated to the payment of the Securities, shall be received
by the Trustee or the Holders of the Securities on account of
principal of or interest on the Securities before all Senior
Indebtedness of the Company is paid in full, or effective
provision made for its payment, such payment or distribution
(subject to the provisions of Sections 6.06 and 6.07) shall be
received and held in trust for and shall be paid over to the
holders of the Senior Indebtedness of the Company remaining
unpaid or unprovided for or their representative, or to the
trustee under any indenture under which such Senior Indebtedness
of the Company may have been issued (pro rata as provided in
subsection (b) above), for application to the payment of such
Senior Indebtedness of the Company until all such Senior
Indebtedness of the Company shall have been paid in full, after
giving effect to any concurrent payment or distribution
or provision therefor to the holders of such Senior Indebtedness
of the Company, except that Holders of the Securities would be
entitled to receive securities that are subordinated to Senior
Indebtedness of the Company to at least the same extent as the
Securities.
The Company shall give prompt written notice to the
Trustee of any dissolution, winding up, liquidation or
reorganization of the Company.
Section 6.04. Securityholders To Be Subrogated to
Rights of Holders of Senior Indebtedness of the Company. Subject
to the payment in full of all Senior Indebtedness of the Company,
the Holders of the Securities shall be subrogated equally and
ratably to the rights of the holders of the Senior Indebtedness
of the Company to receive payments or distributions of assets of
the Company applicable to the Senior Indebtedness of the Company
until all amounts owing on the Securities shall be paid in full,
and for the purpose of such subrogation no payments or
distributions to the holders of the Senior Indebtedness of the
Company by or on behalf of the Company or by or on behalf of the
Holders of the Securities by virtue of this Article 6 which
otherwise would have been made to the Holders of the Securities
shall, as among the Company, its creditors other than holders of
the Senior Indebtedness of the Company and the Holders of the
Securities, be deemed to be payment by the Company to or on
account of the Senior Indebtedness of the Company, it being
understood that the provisions of this Article 6 are intended
solely for the purpose of defining the relative rights of the
Holders of the Securities, on the one hand, and the holders of
the Senior Indebtedness of the Company, on the other hand.
Section 6.05. Obligation of the Company
Unconditional. Nothing contained in this Article 6 or elsewhere
in this Indenture or in any Security is intended to or shall
impair, as between the Company and the Holders of the Securities,
the obligation of the Company, which is absolute and
unconditional, to pay to the Holders of the Securities the
principal of and interest on the Securities as and when the same
shall become due and payable in accordance with their terms, or
is intended to or shall affect the relative rights of the Holders
of the Securities and creditors of the Company other than the
holders of the Senior Indebtedness of the Company, nor shall
anything herein or therein prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the
rights, if any, under this Article 6 of the holders of Senior
Indebtedness of the Company in respect of cash, property or
securities of the Company received upon the exercise of any such
remedy. Upon any distribution of assets of the Company referred
to in this Article 6, the Trustee, subject to the provisions of
Sections 9.01 and 9.02, and the Holders of the Securities shall
be entitled to rely upon any order or decree made by any court of
competent jurisdiction in which such dissolution, winding up,
liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other Person
making any distribution to the Trustee or the Holders of the
Securities, for the purpose of ascertaining the Persons entitled
to participate in such distribution, the holders of the Senior
Indebtedness of the Company and other Indebtedness of the
Company, the amount thereof or payable thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article 6.
Nothing contained in this Article 6 or elsewhere in
this Indenture or in any Security is intended to or shall affect
the obligation of the Company to make, or prevent the Company
from making, at any time except during the pendency of any
dissolution, winding up, liquidation or reorganization
proceeding, and except during the continuance of any default
specified in Section 6.02 (not cured or waived), payments at any
time of the principal of or interest on the Securities.
Section 6.06. Knowledge of Trustee. Notwithstanding
any provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee until
two business days after the Trustee shall have received written
notice thereof from the Company, any Securityholder or any Paying
Agent or the holder or representative of any class of Senior
Indebtedness of the Company.
Section 6.07. Application by Trustee of Monies
Deposited with It. If at least two business days prior to the
date on which by the terms of this Indenture any monies deposited
with the Trustee or any Paying Agent may become payable for any
purpose (including, without limitation, the payment of either the
principal of or the interest on any Security) the Trustee shall
not have received with respect to such monies the notice provided
for in Section 6.06, then the Trustee shall have full power and
authority to receive such monies and to apply the same to the
purpose for which they were received and shall not be affected by
any notice to the contrary which may be received by it on or
after such date. This Section shall be construed solely for the
benefit of the Trustee and such Paying Agent and shall not
otherwise affect the rights of holders of Senior Indebtedness of
the Company.
Section 6.08. Subordination Rights Not Impaired by
Acts or Omissions of Company or Holders of Senior Indebtedness of
the Company. No right of any present or future holders of any
Senior Indebtedness of the Company to enforce subordination as
provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such
holder, or by any noncompliance by the Company with the terms of
this Indenture, regardless of any knowledge thereof which any
such holder may have or be otherwise charged with. The holders
of Senior Indebtedness of the Company may extend, renew, modify
or amend the terms of the Senior Indebtedness of the Company or
any security therefor and release, sell or exchange such security
and otherwise deal freely with the Company, all
without affecting the liabilities and obligations of the parties
to this Indenture or the Holders. No provision in any
supplemental indenture which affects the superior position of the
holders of Senior Indebtedness of the Company shall be effective
against the holders of Senior Indebtedness of the Company who
have not consented thereto.
Section 6.09. Securityholders Authorize Trustee To
Effectuate Subordination of Securities. Each Holder of
Securities by acceptance thereof authorizes and expressly directs
the Trustee on its, his or her behalf to take such action as may
be necessary or appropriate to effectuate the subordination
provided in this Article 6 and appoints the Trustee its, his or
her attorney-in-fact for such purpose, including, in the event
of any dissolution, winding up, liquidation or reorganization of
the Company (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or
otherwise) tending towards liquidation of the business and assets
of the Company, the immediate filing of a claim for the unpaid
balance of its, his or her Securities in the form required in
said proceedings and cause said claim to be approved. If the
Trustee does not file a proper claim or proof of debt in the form
required in such proceedings prior to 30 days before the
expiration of the time to file such claim or claims, then the
holders of Senior Indebtedness of the Company have the right to
file and are hereby authorized to file an appropriate claim for
and on behalf of the Holders of said Securities.
Section 6.10. Right of Trustee To Hold Senior
Indebtedness of the Company. The Trustee shall be entitled to
all of the rights set forth in this Article 6 in respect of any
Senior Indebtedness of the Company at any time held by it to the
same extent as any other holder of Senior Indebtedness of the
Company and nothing in this Indenture shall be construed to
deprive the Trustee of any of its rights as such holder.
Section 6.11. Article Six Not To Prevent Events of
Default. The failure to make a payment on account of principal
or interest by reason of any provision in this Article 6 shall
not be construed as preventing the occurrence of an Event of
Default under Section 8.01.
ARTICLE 7.
Guarantee
Section 7.01. Guarantee. The Guarantor hereby
unconditionally guarantees (such guarantee to be referred to
herein as the "Guarantee") to each Holder of a Security
authenticated and delivered by the Trustee and to the Trustee and
its successors and assigns, irrespective of the validity and
enforceability of this Indenture, the Securit^ies or the
obligations of the Company hereunder or thereunder, (i) the due
and punctual payment of the principal of and any interest on the
Securities, whether at maturity or on an Interest Payment Date,
by acceleration or otherwise, and interest on the overdue
principal of and interest, if any, on the Securities, if lawful,
and all other obligations of the Company to the Holders or the
Trustee hereunder or under the Securities shall be promptly paid
in full, all in accordance with the terms hereof and thereof
including all amounts payable to the Trustee under Section 9.07
hereof, and (ii) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, that
the same shall be promptly paid in full when due or to be
performed in accordance with the terms of the extension or
renewal, whether at stated maturity, by acceleration or
otherwise.
If the Company fails to make any payment when due of
any amount so guaranteed for whatever reason, the Guarantor shall
be obligated to pay the same immediately. The Guarantor hereby
agrees that its obligations hereunder shall be continuing,
absolute and unconditional, irrespective of, and shall be
unaffected by, the validity, regularity or enforceability of the
Securities, this Indenture, the absence of any action to enforce
the same, any waiver or consent by any Holder of the Securities
or the Trustee with respect to any provisions hereof or thereof,
the recovery of any judgment against the Company, any action to
enforce the same or any other circumstance which might otherwise
constitute a legal or equitable discharge or defense of the
Guarantor. The Guarantor hereby waives diligence, presentment,
demand of payment, demand of performance, filing of claims with a
court in the event of insolvency or bankruptcy of the Company,
any right to require a proceeding first against the Company, the
benefit of discussion, protest, notice and all demand whatsoever
and covenants that this Guarantee shall not be discharged except
by complete performance of the obligations contained in the
Securities, in this Indenture and in this Article 7. If any
Securityholder or the Trustee is required by any court or
otherwise to return to the Company or the Guarantor, or any
custodian, trustee, liquidator or other similar official acting
in relation to the Company or the Guarantor, any amount paid by
the Company or the Guarantor to the Trustee or such Security
holder, this Article 7, to the extent theretofore discharged,
shall be reinstated in full force and effect. The Guarantor
agrees that it shall not be entitled to any right of subrogation
in relation to the Securityholders in respect of any obligations
guaranteed hereby until payment in full of all obligations
guaranteed hereby. The Guarantor further agrees that, as
between the Guarantor, on the one hand, and the Holders and the
Trustee, on the other hand, (i) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article 8 for
the purposes of the Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in
respect of the obligations guaranteed hereby, and (ii) in the
event of any declaration of acceleration of such obligations as
provided in Article 8 such obligations (whether or not due and
payable) shall forthwith become due and payable by the Guarantor
for the purpose of this Article 7. In addition, without limiting
the foregoing, upon the effectiveness of an acceleration under
Article 8, the Trustee may make a demand for payment on the
Securities under the Guarantee provided hereunder and not
discharged.
The Guarantor shall be subrogated to all rights of
the Holder of any Securities against the Company in respect of
any amounts paid to the Holder by the Guarantor pursuant to the
provisions of this Guarantee; provided that the Guarantor shall
not be entitled to enforce, or to receive any payments arising
out of or based upon, such right of subrogation until the
principal of and interest on all the Securities shall have been
paid in full.
The Guarantee set forth in this Section 7.01 shall
not be valid or become obligatory for any purpose with respect to
a Security until the certificate of authentication on such
Security shall have been signed by the Trustee or any duly
appointed agent.
Section 7.02. Agreement To Subordinate. The
provisions of this Article 7 shall apply to the Securities of a
Series to the extent specified in the Authorizing Resolution
relating to such Series. Each reference in this Article 7 to "a
Security" or "the Securities" refers to the Securities of each
such Series so designated.
The Guarantor, for itself and its successors, and
each Holder, by accepting the Securities, agrees that the payment
of the principal of, interest on and any other amounts due on the
Securities pursuant to the Guarantee are subordinated in right of
payment, to the extent and in the manner stated in this Article
7, to the prior payment in full of all Senior Indebtedness of the
Guarantor. Each Holder by accepting Securities authorizes and
directs the Trustee on behalf of such Holder to take such action
as may be necessary or appropriate to effectuate, as between the
holders of Senior Indebtedness of the Guarantor and such Holder,
the subordination provided in this Article 7 and appoints the
Trustee attorney-in-fact for such Holder for such purpose.
This Article shall constitute a continuing offer to
all Persons who, in reliance upon such provisions, become holders
of, or continue to hold, Senior Indebtedness of the Guarantor,
and such provisions are made for the benefit of the holders of
Senior Indebtedness of the Guarantor, and such holders are made
obligees hereunder and they and/or each of them may enforce such
provisions.
Section 7.03. Guarantor Not To Make Payments with
Respect to Securities in Certain Circumstances.
a. Upon the maturity of any Senior Indebtedness of
the Guarantor by lapse of time, acceleration (unless waived) or
otherwise, all principal thereof and interest thereon shall first
be paid in full, or such payment duly provided for in cash or in
a manner satisfactory to the holders of such Senior Indebtedness
of the Guarantor, before any payment, pursuant to the Guarantee,
is made on account of the principal of or interest on the
Securities or to acquire any of the Securities.
b. In the event that notwithstanding the
provisions of this Section 7.03 the Guarantor shall make any
payment to the Trustee on account of the principal of or interest
on the Securities after the happening of a default in payment of
the principal of or interest on Senior Indebtedness of the
Guarantor, then, unless and until such default shall have been
cured or waived or shall have ceased to exist, such payment
(subject to the provisions of Sections 7.07 and 7.08) shall be
held by the Trustee, in trust for the benefit of, and shall be
paid forthwith over and delivered to, the holders of Senior
Indebtedness of the Guarantor (pro rata as to each of such
holders on the basis of the respective amounts of Senior
Indebtedness of the Guarantor held by them) or their
representative or the trustee under the indenture or other
agreement (if any) pursuant to which Senior Indebtedness of the
Guarantor may have been issued, as their respective interests may
appear, for application to the payment of all Senior Indebtedness
of the Guarantor remaining unpaid to the extent necessary to pay
all Senior Indebtedness of the Guarantor in full in accordance
with its terms, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness of the
Guarantor.
The Guarantor shall give prompt written notice to the
Trustee of any default in the payment of principal of or interest
on any Senior Indebtedness of the Guarantor.
Section 7.04. Guarantee Subordinated to Prior
Payment of All Senior Indebtedness of the Guarantor on
Dissolution, Liquidation or Reorganization of the Guarantor.
Upon any distribution of assets of the Guarantor in any
dissolution, winding up, liquidation or reorganization of the
Guarantor (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors or
otherwise):
a. the holders of all Senior Indebtedness of the
Guarantor shall first be entitled to receive payment in full of
the principal thereof and interest due thereon before the Holders
of the Securities are entitled to receive any payment on account
of the principal of or interest on the Securities pursuant to the
Guarantee;
b. any payment or distribution of assets of the
Guarantor of any kind or character, whether in cash, property or
securities, to which the Holders of the Securities or the Trustee
on behalf of the Holders of the Securities would be entitled
except for the provisions of this Article 7, including any such
payment or distribution which may be payable or deliverable by
reason of the payment of any other indebtedness of the Guarantor
being subordinated to the payment of the Securities, shall be
paid by the liquidating trustee or agent or other Person making
such payment or distribution directly to the holders of the
Senior Indebtedness of the Guarantor or their representative, or
to the trustee under any indenture under which Senior
Indebtedness of the Guarantor may have been issued (pro rata as
to each such holder, representative or trustee on the basis of
the respective amounts of unpaid Senior Indebtedness of the
Guarantor held or represented by each), to the extent necessary
to make payment in full of all Senior Indebtedness of the
Guarantor remaining unpaid, after giving effect to any concurrent
payment or distribution or provision therefor to the holders of
such Senior Indebtedness of the Guarantor, except that Holders of
the Securities would be entitled to receive securities that are
subordinated to Senior Indebtedness of the Guarantor to at least
the same extent as the Securities; and
c. in the event that, notwithstanding the foregoing
provisions of this Section 7.04, any payment or distribution of
assets of the Guarantor of any kind or character, whether in
cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Guarantor being
subordinated to the payment of the Securities, shall be received
by the Trustee or the Holders of the Securities on account of
principal of or interest on the Securities before all Senior
Indebtedness of the Guarantor is paid in full, or effective
provision made for its payment, such payment or distribution
(subject to the provisions of Sections 7.07 and 7.08) shall be
received and held in trust for and shall be paid over to the
holders of the Senior Indebtedness of the Guarantor remaining
unpaid or unprovided for or their representative, or to the
trustee under any indenture under which such Senior Indebtedness
of the Guarantor may have been issued (pro rata as provided in
subsection (b) above), for application to the payment of such
Senior Indebtedness of the Guarantor until all such Senior
Indebtedness of the Guarantor shall have been paid in full, after
giving effect to any concurrent payment or distribution or
provision therefor to the holders of such Senior Indebtedness of
the Guarantor, except that Holders of the Securities would be
entitled to receive securities that are subordinated to Senior
Indebtedness of the Guarantor to at least the same extent as the
Securities.
Upon any distribution of assets of the Guarantor
referred to in this Article 7, the Trustee, subject to the
provisions of Sections 9.01 and 9.02, and the Holders of the
Securities shall be entitled to rely upon any order or decree
made by any court of competent jurisdiction in which such
dissolution, winding up, liquidation or reorganization
proceedings are pending, or a certificate of the liquidating
trustee or agent or other Person making any distribution to the
Trustee or the Holders of the Securities, for the purpose of
ascertaining the Persons entitled to participate in such
distribution, the holders of the Senior Indebtedness of
the Guarantor and other Indebtedness of the Guarantor, the amount
thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to
this Article 7.
The Guarantor shall give prompt written notice to the
Trustee of any dissolution, winding up, liquidation or
reorganization of the Guarantor.
Section 7.05. Securityholders To Be Subrogated to
Rights of Holders of Senior Indebtedness of the Guarantor.
Subject to the payment in full of all Senior Indebtedness of the
Guarantor, the Holders of the Securities shall be subrogated
equally and ratably to the rights of the holders of the Senior
Indebtedness of the Guarantor to receive payments or
distributions of assets of the Guarantor applicable to the Senior
Indebtedness of the Guarantor until all amounts owing on the
Securities shall be paid in full, and for the purpose of such
subrogation no payments or distributions to the holders of the
Senior Indebtedness of the Guarantor by or on behalf of the
Guarantor or by or on behalf of the Holders of the Securities by
virtue of this Article 7 which otherwise would have been made to
the Holders of the Securities shall, as among the Guarantor, its
creditors other than holders of Senior Indebtedness of the
Guarantor and the Holders of the Securities, be deemed
to be payment by the Guarantor to or on account of the Senior
Indebtedness of the Guarantor, it being understood that the
provisions of this Article 7 are intended solely for the purpose
of defining the relative rights of the Holders of the Securities,
on the one hand, and the holders of the Senior Indebtedness of
the Guarantor, on the other hand.
Section 7.06. Obligation of the Guarantor
Unconditional. Nothing contained in this Article 7 or elsewhere
in this Indenture or in any Security is intended to or shall
impair, as between the Guarantor and the Holders of the
Securities, the obligation of the Guarantor, which is absolute
and unconditional, to pay to the Holders of the Securities the
principal of and interest on the Securities as and when the same
shallbecome due and payable in accordance with the terms of the
Guarantee, or is intended to or shall affect the relative rights
of the Holders of the Securities and creditors of the Guarantor
other than the holders of the Senior Indebtedness of the
Guarantor, nor shall anything herein or therein prevent the
Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon Default under
this Indenture, subject to the rights, if any, under this Article
7 of the holders of Senior Indebtedness of the Guarantor in
respect of cash, property or securities of the Guarantor received
upon the exercise of any such remedy.
Nothing contained in this Article 7 or elsewhere in
this Indenture or in any Security is intended to or shall affect
the obligation of the Guarantor to make, or prevent the Guarantor
from making, at any time except during the pendency of any
dissolution, winding up, liquidation or reorganization
proceeding, and except during the continuance of any default
specified in Section 7.03 (not cured or waived), payments at any
time of the principal of or interest on the Securities pursuant
to the Guarantee.
Section 7.07. Knowledge of Trustee. Notwithstanding
any provision of this Indenture, the Trustee shall not be charged
with knowledge of the existence of any facts which would prohibit
the making of any payment of monies to or by the Trustee until
two Business Days after the Trustee shall have received written
notice thereof from the Guarantor, any Securityholder or any
Paying Agent or the holder or representative of any class of
Senior Indebtedness of the Guarantor.
Section 7.08. Application by Trustee of Monies
Deposited with It. If at least two Business Days prior to the
date on which by the terms of this Indenture any monies deposited
with the Trustee or any Paying Agent may become payable for any
purpose (including, without limitation, the payment of either the
principal of or the interest on any Security) the Trustee shall
not have received with respect to such monies the notice provided
for in Section 7.07, then the Trustee shall have full power and
authority to receive such monies and to apply the same to the
purpose for which they were received and shall not be affected by
any notice to the contrary which may be received by it on or
after such date. This Section shall be construed solely for the
benefit of the Trustee and such Paying Agent and shall not
otherwise affect the rights of holders of Senior Indebtedness of
the Guarantor.
Section 7.09. Subordination Rights Not Impaired by
Acts or Omissions of Guarantor or Holders of Senior Indebtedness
of the Guarantor. No right of any present or future holders of
any Senior Indebtedness of the Guarantor to enforce subordination
as provided herein shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the
Guarantor or by any act or failure to act, in good faith, by any
such holder, or by any noncompliance by the Guarantor with the
terms of this Indenture, regardless of any knowledge thereof
which any such holder may have or be otherwise charged with. The
holders of Senior Indebtedness of the Guarantor may extend,
renew, modify or amend the terms of the Senior Indebtedness of
the Guarantor, or any security therefor and release, sell
or exchange such security and otherwise deal freely with the
Guarantor, all without affecting the liabilities and obligations
of the parties to the Indenture or the Holders. No provision in
any supplemental indenture which affects the superior position of
the holders of Senior Indebtedness of the Guarantor shall be
effective against the holders of Senior Indebtedness of the
Guarantor who have not consented thereto.
Section 7.10. Securityholders Authorize Trustee To
Effectuate Subordination of Guarantee. Each Holder of Securities
by acceptance thereof authorizes and expressly directs the
Trustee on its, his or her behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided
in this Article 7 and appoints the Trustee its, his or her
attorney-in-fact for such purpose, including, in the event of any
dissolution, winding up, liquidation or reorganization of the
Guarantor (whether in bankruptcy, insolvency or receivership
proceedings or upon an assignment for the benefit of creditors
or otherwise) tending towards liquidation of the business and
assets of the Guarantor, the immediate filing of a claim for the
unpaid balance, pursuant to the Guarantee, of its, his or her
Securities, in the form required in said proceedings and cause
said claim to be approved. If the Trustee does not file a proper
claim or proof of debt in the form required in such proceeding
prior to 30 days before the expiration of the time to file such
claim or claims, then the holders of Senior Indebtedness of the
Guarantor have the right to file and are hereby authorized to
file an appropriate claim for and on behalf of the Holders of
said Securities.
Section 7.11. Right of Trustee To Hold Senior
Indebtedness of the Guarantor. The Trustee shall be entitled to
all of the rights set forth in this Article 7 in respect of any
Senior Indebtedness of the Guarantor at any time held by it to
the same extent as any other holder of Senior Indebtedness of the
Guarantor, and nothing in this Indenture shall be construed to
deprive the Trustee of any of its rights as such holder.
Section 7.12. Article 7 Not To Prevent Events of
Default. The failure to make a payment on account of principal
or interest by reason of any provision in this Article 7 shall
not be construed as preventing the occurrence of an Event of
Default under Section 8.01.
Section 7.13. Execution and Delivery of Guarantee.
To evidence the Guarantee set forth in this Article 7, the
Guarantor hereby agrees that a notation of the Guarantee,
substantially in the form of Exhibit B hereto, shall be endorsed
on each Security authenticated and delivered by the Trustee and
that this Indenture shall be executed on behalf of the Guarantor
by the Chairman of the Board, its President or one of its Vice
Presidents under a facsimile of its seal reproduced thereon.
The Guarantor hereby agrees that its Guarantee shall
remain in full force and effect notwithstanding any failure to
endorse on each Security a notation of the Guarantee.
If an Officer whose signature is on this Indenture or
on the Securities no longer holds that office at the time the
Trustee authenticates the Security on which a notation of the
Guarantee is endorsed, the Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after
the authentication thereof hereunder, shall constitute due
delivery of the Guarantee set forth in this Indenture on behalf
of the Guarantor.
Section 7.14. Subordination of Indebtedness Owed by
the Company to the Guarantor. Any indebtedness owed by the
Company to the Guarantor shall be subordinate to all obligations
of the Company with respect to the Securities and this Indenture
to the same extent as the Securities are subordinated to Senior
Indebtedness of the Company.
Section 7.15. Officers' Certificate. If there
occurs an event referred to in the first sentence of Section
7.04(c) or the first sentence of Section 7.04, the Guarantor
shall promptly give to the Trustee an Officers' Certificate (on
which the Trustee may conclusively rely) identifying all holders
of Senior Indebtedness of the Guarantor and the principal amount
of Senior Indebtedness of the Guarantor then outstanding held by
each such holder and stating the reasons why such Officers'
Certificate is being delivered to the Trustee.
ARTICLE 8.
Defaults and Remedies
Section 8.01. Events of Default. An "Event of
Default" on a
Series occurs if:
(1) the Company or the Guarantor defaults in the
payment of interest on any Security of the Series when the same
becomes due and payable and the default continues for a period of
30 days whether or not such payment shall be prohibited by the
provisions of Article 6 or Article 7; or
(2) the Company or the Guarantor defaults in the
payment of the principal of any Security of the Series when the
same becomes due and payable at maturity or upon redemption,
whether or not such payment shall be prohibited by the provisions
of Article 6 or Article 7; or
(3) the Company or the Guarantor fails to comply
with any of its other agreements in the Securities, the Guarantee
or this Indenture applicable to the Series and and such failure
continues for the period and after the notice specified below; or
(4) there occurs a default in the payment of
indebtedness of the Company, the Guarantor or any Subsidiary
under the terms of the instrument evidencing or securing such
indebtedness permitting the holder thereof to accelerate the
payment of in excess of an aggregate of $2,000,000 in principal
amount of such indebtedness (after the lapse of applicable grace
periods) or, in the case of non-payment defaults, there occurs an
acceleration of any such indebtedness if such acceleration is not
rescinded or annulled within 10 days after such acceleration;
provided, the term "indebtedness" as used in this Section 8.01(4)
shall not include an acceleration of or default on Non-Recourse
Indebtedness (a) if the Guarantor would be able to declare a
dividend pursuant to the terms of such Series in the amount of
the excess of the aggregate book value of all property (net of
any previous write-downs or reserves in respect of such property)
subject to the Non-Recourse Indebtedness being accelerated or in
default over such Non-Recourse Indebtedness or (b) which consists
of a purchase money obligation, provided, solely in the case of
this clause (b), for so long as the Company's 10>% Senior
Subordinated Notes due 2002 (and any related guarantee) are
outstanding, the Guarantor is diligently contesting such
acceleration or default in good faith by appropriate proceedings
(or, solely in the case of this clause (b), at such time as the
Company's 10>% Senior Subordinated Notes due 2002 (and any
related guarantee) are no longer outstanding, such purchase money
obligation does not exceed $2,000,000 in aggregate principal
amount, whether or not the Guarantor is so diligently
contesting); or
(5) a final judgment for the payment of money in an
amount in excess of $2,000,000 shall be entered against the
Company, the Guarantor or^ any ^Subsidiary, and shall remain
undischarged for a period (during which execution shall not be
effectively stayed) of 60 days after the date on which the right
to appeal has expired; provided the term "final judgment," at
such time as the Company's 10-1/2% Senior Subordinated Notes due
2002 (and any related guarantee) are no longer outstanding, shall
not include a Non-Recourse Judgment unless the book value of all
property (net of any previous write-downs or reserves in respect
of such property) subject to such Non-Recourse Judgment exceeds
the amount of such Non-Recourse Judgment by more than $5,000,000;
or
(6) the Company and the Guarantor 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; or
(7) a court of competent jurisdiction enters an
order or decree under any Bankruptcy Law that:
(A) provides for relief against the Company and the
Guarantor in an involuntary case,
(B) appoints a Custodian of the Company and the
Guarantor for all or substantially all of its property, or
(C) orders the liquidation of the Company and the
Guarantor and the order or decree remains unstayed and in effect
for 90 days; or
(8) the Guarantee shall for any reason (other than
pursuant to its terms) cease to be in full force and effect.
The term "Bankruptcy Law" means Title 11, U.S. Code
or any similar Federal or State law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
A default under clause (3) is not an Event of Default
until the Trustee or the Holders of at least 25% in principal
amount of the Securities of the Series affected notify the
Company 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."
Section 8.02. Acceleration. If an Event of Default
(other than an Event of Default under Section 8.01(6) or 8.01(7))
on a Series occurs and is continuing, the Trustee by notice to
the Company and the Person or Persons designated to receive
notices for the Agent (or other Person acting on behalf of the
banks) under the Revolving Credit Agreement, or the Holders of at
least 25% in principal amount of the outstanding Securities of
the Series by notice to the Company, the Trustee and such Person
or Persons (either such notice is referred to herein as an
"Acceleration Notice") may declare the unpaid principal of and
accrued and unpaid interest on all the Securities of the Series
to be due and payable if, with respect to such Series, (i)(a) no
Designated Senior Debt of the Company or the Guarantor is
outstanding, or (b) if the Securities of the Series are not
subordinated to other indebtedness of the Company, immediately,
or (ii) if Designated Senior Debt of the Company or the Guarantor
is outstanding and the Securities of the Series are subordinated
to other indebtedness of the Company, upon the earlier of (A) ten
days after such Acceleration Notice is received by the Company
and (B) the acceleration of any Senior Indebtedness of the
Company or the Guarantor. If an Event of Default specified in
Section 8.01(6) or 8.01(7) occurs, the unpaid principal of and
accrued and unpaid interest on the Securities then outstanding
shall ipso facto become and be immediately due and payable
without any declaration or other act on the part of the Trustee
or any Securityholder. The Holders of a majority in principal
amount of the Securities of the Series by notice to the Trustee
may rescind such declaration or acceleration and its consequences
if all existing Events of Default have been cured or waived
(except nonpayment of principal or interest that has become due
solely because of the acceleration) and if the rescission would
not conflict with any judgment or decree.
The Company and the Guarantor (i) agree, promptly
after execution of this Indenture, to notify the Trustee in
writing of the Person or Persons referred to in the first
sentence of this Section 8.02 and (ii) agree, promptly after any
change thereof, to so notify the Trustee. Any failure by the
Trustee or holders of Securities to give an Acceleration
Notice to such Person or Persons will not affect the substance or
validity of the Acceleration Notice provided that it is otherwise
given in accordance with the first paragraph of this Section
8.02.
Section 8.03. Other Remedies. If an Event of
Default on a Series occurs and is continuing, the Trustee may
pursue any available remedy by proceeding at law or in equity to
collect the payment of principal or interest on the Series or to
enforce the performance of any provisions of the Securities or
this Indenture and applicable to the Series.
The Trustee may maintain a proceeding even if it does
not possess any of the Securities or does not produce any of them
in the proceeding. A delay or omission by the Trustee or any
Securityholder in exercising any right or remedy accruing upon an
Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default.
No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
Section 8.04. Waiver of Past Defaults. Subject to
Section 12.02, the Holders of a majority in principal amount of
the Securities of a Series by notice to the Trustee may waive on
behalf of all Holders of Securities of the Series an existing
Default and its consequences. When a Default is waived, it is
cured and stops continuing, but no such waiver shall extend to
any subsequent or other Default or impair any right consequent
thereon.
Section 8.05. Control by Majority. The Holders of a
majority in principal amount of the Securities of a Series may
direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust
or power conferred on it with respect to such Series. However,
the Trustee may refuse to follow any direction that conflicts
with law or this Indenture, that is unduly prejudicial to the
rights of another Securityholder, or that would involve the
Trustee in personal liability.
Section 8.06. Limitation on Suits. A Securityholder
may not pursue any remedy with respect to this Indenture or the
Series unless:
(1) the Holder gives to the Trustee written notice
of a continuing Event of Default;
(2) the Holders of at least 25% in principal amount
of the Securities of the Series make a written request to the
Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee
indemnity satisfactory to the Trustee against any loss, liability
or expense;
(4) the Trustee does not comply with the request
within 60 days after receipt of the request and the offer of
indemnity; and
(5) during such 60-day period the Holders of a
majority in principal amount of the Securities do not give the
Trustee a direction inconsistent with such request.
A Securityholder may not use this Indenture to
prejudice the rights of another Securityholder or to obtain a
preference or priority over another Securityholder.
Section 8.07. Rights of Holders To Receive Payment.
Notwithstanding any other provisions of this Indenture, the right
of any Holder of a Security to receive payment of principal of
and interest on the Security, on or after the respective due
dates expressed in the Security, or to bring suit for the
enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of
the Holder.
Section 8.08. Collection Suit by Trustee. If an
Event of Default in payment of interest or principal specified in
Section 8.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express
trust against the Company, the Guarantor or any other obligor on
the Securities for the whole amount of principal and interest
remaining unpaid.
Section 8.09. Trustee May File Proofs of Claim. The
Trustee may file such proofs of claim and other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee and the Securityholders allowed in any
judicial proceedings relative to the Company (or any other
obligor upon the Securities, including the Guarantor), its
creditors or its property.
Section 8.10. Priorities. If the Trustee collects
any money pursuant to this Article 8, it shall pay out the money
in the following order:
First: to the Trustee for amounts due under Section
9.07;
Second: to the holders of Senior Indebtedness of the
Company as required by Article 6 and to the holders of Senior
Indebtedness of the Guarantor as required by Article 7;
Third: to Securityholders of the Series for amounts
due andunpaid on the Securities for principal and interest,
ratably, without preference or priority of any kind, according to
the amounts due and payable on the Series for principal and
interest, respectively; and
Fourth: to the Company, or its designee.
The Trustee may fix a record date and payment date
for any payment to Securityholders.
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 Trustee, a court in its discretion may require
the filing by any party litigant in the suit of an undertaking to
pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including 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 does not apply to a suit by the Trustee,
a suit by a Holder pursuant to Section 8.07, or a suit by Holders
of more than 10% in principal amount of the Securities of the
Series.
ARTICLE 9.
Trustee
Section 9.01. Duties of Trustee.
a. If an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and
powers vested in it by this Indenture and use the same degree of
care and skill in its exercise as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs.
b. Except during the continuance of an Event of
Default:
(1) The Trustee need perform only those duties that
are specifically set forth in this Indenture and no others.
(2) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming
to the requirements of this Indenture. However, the Trustee
shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
c. The Trustee may not be relieved from liability
for its own negligent action, its own negligent failure to act,
or its own willful misconduct, except that:
(1) This paragraph does not limit the effect of
paragraph (b) of this Section.
(2) The Trustee shall not be liable for any error
of judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(3) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in accordance
with a direction received by it pursuant to Section 8.05.
d. Every provision of this Indenture that in any
way relates to the Trustee is subject to paragraphs (a), (b) and
(c) of this Section.
e. The Trustee may refuse to perform any duty or
exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
f. The Trustee shall not be liable for interest on
any money received by it except as the Trustee may agree with the
Company or the Guarantor, as the case may be.
g. Money held in trust by the Trustee need not be
segregated from other funds except to the extent required by law.
Section 9.02. Rights of Trustee. Subject to Section
9.01:
a. The Trustee may rely on any document believed
by it to be genuine and to have been signed or presented by the
proper person. The Trustee need not investigate any fact or
matter stated in the document.
b. Before the Trustee acts or refrains from
acting, it may require an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it takes
or omits to take in good faith in reliance on the Certificate or
Opinion.
c. The Trustee may act through agents and shall
not be responsible for the misconduct or negligence of any agent
appointed with due care.
d. The Trustee shall not be liable for any action
it takes or omits to take in good faith which it believes to be
authorized or within its rights or powers.
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 its affiliates with the same rights it would have if
it were not Trustee. Any Paying Agent, Registrar or co-registrar
may do the same with like rights. However, the Trustee must
comply with Sections 9.10 and 9.11.
Section 9.04. Trustee Disclaimer. The Trustee makes
no representation as to the validity or adequacy of this
Indenture or the Securities, it shall not be accountable for the
Company's use of the proceeds from the Securities, and it shall
not be responsible for any statement in the Securities other than
its certificate of authentication.
Section 9.05. Notice of Defaults. If a Default on a
Series occurs and is continuing and if it is known to the
Trustee, the Trustee shall mail to each Securityholder notice of
the Default within 90 days after it occurs. Except in the case
of a default in payment of principal or interest on a Series, the
Trustee may withhold the 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 Securityholders of the Series.
Section 9.06. Reports by Trustee to Holders. Within
60 days after each May 15 beginning with the May 15 following the
date of this Indenture, the Trustee shall mail to each
Securityholder, if required by TIA 313(a), a brief report dated
as of such May 15 that complies with TIA 313(a). The Trustee
also shall comply with TIA 313(b) and 313(c).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each stock
exchange on which the Securities are listed. The Company shall
notify the Trustee when the Securities have been listed on any
securities exchange.
Section 9.07. Compensation and Indemnity. The
Company and the Guarantor shall pay to the Trustee from time to
time reasonable compensation for its services. The Trustee's
compensation hereunder shall not be limited by any law on
compensation relating to the trustee of an express trust. The
Company and the Guarantor shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel. The Company and
the Guarantor shall indemnify and hold harmless the Trustee
against any loss or liability incurred by it in the
administration of this trust or the performance of its duties
hereunder. The Trustee shall notify the Company and the
Guarantor promptly of any claim for which it may seek indemnity.
The Company and the Guarantor shall defend the claim and the
Trustee shall cooperate in the defense. In the event that
counsel to the Trustee shall advise counsel to the Company and
the Guarantor that there may be defenses reasonably available to
the Trustee different than or additional to those available to
the Company and the Guarantor, then in such event the Trustee
shall be permitted to employ counsel of its choosing at the
expense of the Company and the Guarantor. The Company and the
Guarantor need not pay for any settlement made without their
consent. The Company and the Guarantor need not reimburse any
expense or indemnify against any loss or liability incurred by
the Trustee through negligence, bad faith or with willful
misconduct.
To ^ensure the Company's and the Guarantor's payment
obligations in this Section, the Trustee shall have ^a claim
prior to the Securities on all money or property held or
collected by the Trustee, except that held in trust to pay
principal and interest on particular Securities.
When the Trustee incurs expenses or renders services
after an Event of Default specified in Section 8.01(6) or (7)
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. The Trustee
may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the
Trustee by so notifying the Trustee to be removed and may appoint
a successor Trustee with the Company's and the Guarantor's
consent. The Company or the Guarantor may remove the Trustee
if:
1. the Trustee fails to comply with Section 9.10;
2. the Trustee is adjudged a bankrupt or an
insolvent;
3. a receiver or other public officer takes charge
of the Trustee or its property; or
4. the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy
exists in the office of Trustee for any reason, the Company shall
promptly appoint a successor Trustee.
A successor Trustee shall deliver a written
acceptance of its appointment to the retiring Trustee and to the
Company. Immediately after that, the retiring Trustee shall
transfer all property held by it as Trustee to the successor
Trustee (subject to the ^prior claim provided by Section 9.07).
Any resignation or removal of the Trustee and any appointment of
a successor Trustee shall become effective upon acceptance of
appointment by the successor Trustee. The successor Trustee
shall have all the rights, powers and duties of the Trustee under
this Indenture. A successor Trustee shall mail notice of its
succession to each Securityholder.
If a successor Trustee does not take office within 60
days after the retiring Trustee resigns or is removed, the
retiring Trustee, the Company of the Holders of a majority in
principal amount of the Securities may petition any court of
competent jurisdiction for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 9.10, any
Securityholder may, subject to Section 8.11, petition any court
of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Section 9.09. Successor Trustee by Merger, etc. If
the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust assets
to, another corporation, the resulting, surviving or transferee
corporation without any further act shall be the successor
Trustee.
Section 9.10. Eligibility; Disqualification. This
Indenture shall always have a Trustee who satisfies the
requirements of TIA 310(a)(1). The Trustee shall have a
combined capital and surplus of at least $^15,000,000 as set
forth in the most recent published annual report of condition.
The Trustee shall comply with TIA 310(b)^.
Section 9.11. Preferential Collection of Claims
Against Company. The Trustee shall comply with TIA 311(a),
excluding any creditor relationship listed in TIA 311(b). A
Trustee who has resigned or been removed shall be subject to TIA
311(a) to the extent indicated.
ARTICLE 10.
Conversion of ^Securities
Section 10.01. Applicability of Article. Securities
of any Series which are convertible into Common Stock at the
option of the Holder shall be convertible in accordance with
their terms and unless the Authorizing Resolution provides
otherwise, in accordance with this Article. Each reference in
this Article 10 to "a Security" or "the Securities" refers to the
Securities of the particular Series that is convertible into
Common Stock. If more than one Series of Securities with
conversion privileges are outstanding at any time, the provisions
of this Article 10 shall be applied separately to each such
Series.
Section 10.02. Conversion Privilege. Subject to and
upon compliance with the provisions of this Article 10, the
Holder of any Security so designated shall have the right, at
its, his or her option, at any time prior to the close of
business on the date specified in the Securities of such Series
(or if such Security or portion thereof is called for redemption
prior to such date, then in respect of such Security or portion
thereof to and including but not after the close of business on
the second day (or, if such day is not a Business Day, then on
the next following Business Day) preceding the date fixed for
such redemption) to convert the principal amount of any such
Security, or any portion of such principal amount which is $1,000
or an integral multiple thereof, into that number of fully paid
and non-assessable shares of the Guarantor's Common Stock
(calculated as to each conversion to the nearest 1/100th of a
share) obtained by dividing the principal amount of the Security
or portion thereof to be converted by the Conversion Price and by
surrender of the Security so to be converted in whole or in part,
such surrender to be made in the manner provided in Section
10.03. Notwithstanding the previous sentence, if the Company
shall fail to redeem a Security which has been called for
redemption, the Holder of such Security shall retain the right to
convert such Security as provided in this Article 10.
Section 10.03. Manner of Exercise of Conversion
Privilege. In order to exercise a conversion privilege, the
Holder of any Security to be converted in whole or in part shall
surrender such Security at any of the offices or agencies to be
maintained for such purpose by the Company pursuant to Section
2.03, and shall give notice to the Company and the Guarantor in
the form provided in the Security, duly executed, at such office
or agency that the Holder elects to convert such Security or the
portion thereof specified in said notice. Such notice shall also
state the name or names, together with the address or addresses,
in which the certificate or certificates for shares of Common
Stock which shall be issuable on such conversion shall be issued.
Each Security surrendered for conversion shall, unless the shares
issuable on conversion are to be issued in the same name as the
name in which such Security is registered, be accompanied by
instruments of transfer, in form satisfactory to the Guarantor,
duly executed by the Holder or its, his or her duly authorized
attorney. Securities so surrendered during the period from the
close of business on a Record Date, or the next preceding
Business Day if such Record Date is not a Business Day, preceding
any Interest Payment Date to the opening of business on such
Interest Payment Date (excluding Securities or portions thereof
called for redemption during such period) shall also be
accompanied by payment in next-day funds or other funds
acceptable to the Guarantor of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of
such Security then being converted; provided, however, that, if
the Company shall default on the payment of said interest, said
funds shall be returnable to the payor thereof. As promptly as
practicable after the surrender of such Security, as aforesaid,
the Guarantor shall issue and shall deliver at such office or
agency to such Holder, or on its, his or her written order, a
certificate or certificates for the number of full shares of
Common Stock issuable upon the conversion of such Security or
portion thereof in accordance with the provisions of this Article
10 and any fractional interest in respect of a share of Common
Stock arising upon such conversion shall be settled as provided
in Section 10.04. In case any Security of a denomination greater
than $1,000 shall be surrendered for partial conversion, the
Company and the Guarantor shall execute and the Trustee shall
authenticate and deliver to or upon the order of the Holder of
the Securityso surrendered, at the expense of the Company, a new
Security or Securities and Guarantee or Guarantees in authorized
denominations in an aggregate principal amount equal to the
unconverted portion of the surrendered Security. Such conversion
shall be deemed to have been effected immediately prior to the
close of business on the date on which such Security shall have
been surrendered and such notice received by the Company and the
Guarantor as aforesaid, and the Person or Persons in whose name
or names any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to
have become the holder or holders of record of the shares
represented thereby at such time and such conversion shall be at
the Conversion Price in effect at such time, unless the stock
transfer books of the Guarantor shall be closed on that date, in
which event such Person or Persons shall be deemed to have become
such holder or holders of record at the close of business on the
next succeeding day on which such stock transfer books are open,
but such conversion shall be at the Conversion Price in effect on
the date upon which such Security shall have been surrendered and
such notice received by the Company and the Guarantor. Subject
to the aforesaid requirement for a payment in the event of
conversion after the close of business on a Record Date preceding
an Interest Payment Date, no payment or adjustment shall be made
on conversion for interest accrued on the Securities surrendered
for conversion or for dividends on the Common Stock delivered on
such conversion.
Section 10.04. Payment in Lieu of Fractional Shares.
No fractional shares of Common Stock shall be issued upon
conversion of the Securities. Instead of any fractional interest
in a share of Common Stock which would otherwise be deliverable
upon the conversion of any Security or Securities, the Company
and/or the Guarantor shall make an adjustment therefor to the
nearest 1/100th of a share in cash at the Current Market Price
thereof at the close of business on the Business Day next
preceding the day of conversion. If more than one Security shall
be surrendered for conversion at one time by the same Holder, the
number of full shares issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the
Securities, or specified portions thereof to be converted, so
surrendered.
Section 10.05. Adjustment of Conversion Price. The
Conversion Price shall be adjusted from time to time as follows:
a. In case the Guarantor shall hereafter (i) pay a
dividend or make a distribution on its Common Stock in shares of
Common Stock, (ii) subdivide its outstanding shares of Common
Stock into a greater number of shares, (iii) combine its
outstanding shares of Common Stock into a smaller number of
shares, or (iv) issue by reclassification of its Common Stock any
shares of Capital Stock of the Guarantor, the Conversion Price in
effect immediately prior to such action shall be adjusted so that
the Holder of any Security thereafter surrendered for conversion
shall be entitled to receive the number of shares of Common Stock
or other Capital Stock of the Guarantor which he would have owned
immediately following such action had such Security been
converted immediately prior thereto. An adjustment made pursuant
to this subsection (a) shall become effective immediately after
the record date in the case of a dividend or distribution and
shall become effective immediately after the effective date in
the case of a subdivision, combination or reclassification. If,
as a result of an adjustment made pursuant to this subsection
(a), the Holder of any Security thereafter surrendered for
conversion shall become entitled to receive shares of two or more
classes of Capital Stock or shares of Common Stock and other
Capital Stock of the Guarantor, the Board of Directors (whose
determination shall be conclusive and shall be described in a
statement filed with the Trustee and with the Registrar) shall
determine in an equitable manner the allocation of the adjusted
Conversion Price between or among shares of such classes of
Capital Stock or shares of Common Stock and other Capital Stock.
b. In case the Guarantor shall hereafter issue
rights or warrants to holders of its outstanding shares of
Common Stock generally entitling them (for a period expiring
within 45 days after the record date mentioned below) to
subscribe for or purchase shares of Common Stock at a price per
share less than the Current Market Price per share of the Common
Stock on the record date mentioned below, the Conversion Price of
the shares of Common Stock shall be adjusted so that the same
shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be
the number of shares of Common Stock outstanding on the date of
issuance of such rights or warrants plus the number of shares
which the aggregate offering price of the total number of shares
so offered would purchase at such Current Market Price, and of
which the denominator shall be the number of shares of Common
Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock
offered for subscription or purchase. Such adjustment shall
become effective immediately after the record date for the
determination of shareholders entitled to receive such rights or
warrants.
c. In case the Guarantor shall hereafter
distribute to holders of its outstanding Common Stock generally
evidences of its indebtedness or assets (excluding any cash
dividend paid from retained earnings of the Guarantor and
dividends or distributions payable in stock for which adjustment
is made pursuant to subsection (a) of this Section 10.05) or
rights or warrants to subscribe to securities of the Guarantor
(excluding those referred to in subsection (b) of this Section
10.05), then in each such case the Conversion Price of the shares
of Common Stock shall be adjusted so that the same shall equal
the price determined by multiplying the Conversion Price in
effect immediately prior to the date of such distribution by a
fraction of which the numerator shall be the Current Market Price
per share of the Common Stock on the record date mentioned below
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and shall be
described in a statement filed with the Trustee and with the
Registrar) of the portion of the evidences of indebtedness or
assets so distributed to the holder of one share of Common Stock
or of such subscription rights or warrants applicable to one
share of Common Stock, and of which the denominator shall be such
Current Market Price per share of Common Stock. Such adjustment
shall become effective immediately after the record date
for the determination of shareholders entitled to receive such
distribution.
d. In any case in which this Section 10.05 shall
require that an adjustment be made immediately following a record
date, the Guarantor may elect to defer (but only until five
Business Days following the filing by the Company with the
Trustee and the Registrar of the certificate of independent
public accountants described in subsection (f) of this Section
10.05) issuing to the Holder of any Security converted after such
record date the shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock issuable
upon such conversion on the basis of the Conversion Price prior
to adjustment.
e. No adjustment in the Conversion Price shall be
required unless such adjustment would require an increase or
decrease of at least 1% of such price; provided, however, that
any adjustments which by reason of this subsection (e) are not
required to be made shall be carried forward and taken into
account in any subsequent adjustment, and provided further that
adjustment shall be required and made in accordance with the
provisions of this Article 10 (other than this subsection (e)),
not later than such time as may be required in order to preserve
the tax-free nature of a distribution to the holders of
Securities or Common Stock. All calculations under this Section
10.05 shall be made to the nearest cent or to the nearest 1/100th
of a share, as the case may be. Anything in this Section 10.05
to the contrary notwithstanding, the Guarantor shall be entitled
to make such reductions in the Conversion Price, in addition to
those required by this Section 10.05, as it in its discretion
shall determine to be advisable in order that any stock dividend,
subdivision of shares, distribution of rights to purchase stock
or securities, or distribution of securities convertible into or
exchangeable for stock hereafter made by the Guarantor to its
shareholders shall not be taxable.
f. Whenever the Conversion Price is adjusted as
herein provided, (i) the Company and the Guarantor shall promptly
file with the Trustee and the Registrar a certificate of a firm
of independent public accountants setting forth the Conversion
Price after such adjustment and setting forth a brief statement
of the facts requiring such adjustment and the manner of
computing the same, which certificate shall be conclusive
evidence of the correctness of such adjustment and (ii) a notice
stating that the Conversion Price has been adjusted and setting
forth the adjusted Conversion Price shall forthwith be given by
the Company and the Guarantor to the Holders in the manner
provided in Section 13.02. Subject to TIA Section 315(a), (c)
and (d), the Trustee and any conversion agent shall be under no
duty or responsibility with respect to any such certificate or
the certificate provided for in Section 10.10 except to exhibit
the same from time to time to any Holder of a Security desiring
an inspection of such certificate.
g. In the event that at any time as a result of an
adjustment made pursuant to subsection (a) of this Section
10.05, the Holder of any Security thereafter surrendered for
conversion shall become entitled to receive any shares of the
Guarantor other than shares of Common Stock, thereafter the
Conversion Price of such other shares so receivable upon
conversion of any Security shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as
practicable to the provisions with respect to Common Stock
contained in this Article 10.
Section 10.06. Notice of Certain Corporate Action.
In the event:
a. the Guarantor shall take any action which would
require an adjustment in the Conversion Price pursuant to Section
10.05(c); or
b. the Guarantor shall authorize the granting to
the holders of its Common Stock (as a class) of rights or
warrants to subscribe for or purchase any shares of stock of any
class or of any other rights; or
c. there shall be any capital reorganization or
reclassification of the Common Stock (other than a
subdivision or combination of the outstanding Common Stock and
other than a change in the par value of the Common Stock), or any
consolidation or merger to which the Guarantor is a party or any
statutory exchange of securities with another corporation and for
which approval of any shareholders of the Guarantor is required,
or any sale or transfer of all or substantially all of the assets
of the Guarantor; or
d. there shall be a voluntary or involuntary
dissolution, liquidation or winding-up of the Guarantor; then the
Company and the Guarantor shall cause to be filed with the
Trustee and the Registrar, and shall cause to be given to the
Holders, in the manner provided in Section 13.02, at least 14
days prior to the applicable date hereinafter specified, a notice
stating (i) the date on which a record is to be taken for the
purpose of such distribution or rights, or, if a record is not to
be taken, the date as of which the holders of Common Stock of
record to be entitled to such distribution or rights are to be
determined, or (ii) the date on which such reorganization,
reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding-up is expected to become
effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property
deliverable upon such reorganization, reclassification, consol-
idation, merger, sale, transfer, dissolution, liquidation or
winding-up. Failure to give such notice or any defect therein
shall not affect the legality or validity of the proceedings
described in subsection (a), (b), (c) or (d) of this Section
10.06.
Section 10.07. Guarantor To Provide Stock. The
Guarantor covenants that it will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of
its authorized but unissued shares of Common Stock or its issued
shares of Common Stock held in its treasury, or both, for the
purpose of effecting conversions of Securities, the full number
of shares of Common Stock deliverable upon the conversion of all
outstanding Securities not theretofore converted. For purposes
of this Section 10.07, the number of shares of Common Stock which
shall be deliverable upon the conversion of all outstanding
Securities shall be computed as if at the time of computation all
outstanding Securities were held by a single Holder.
Before taking any action which would cause an
adjustment reducing the Conversion Price below the then par value
(if any) of the shares of Common Stock deliverable upon
conversions of the Securities, the Guarantor will take any
corporate action which may, in the opinion of its counsel, be
necessary in order that the Guarantor may validly and legally
issue fully paid and non-assessable shares of Common Stock at
such adjusted Conversion Price.
The Guarantor will endeavor to list the shares of
Common Stock required to be delivered upon conversion of
Securities prior to such delivery upon each national securities
exchange, if any, upon which the outstanding Common Stock is
listed at the time of such delivery.
Prior to the delivery of any securities which the
Guarantor shall be obligated to deliver upon conversion of the
Securities, the Guarantor will endeavor to comply with all
federal and state laws and regulations thereunder requiring the
registration of such securities with, or any approval of or
consent to the delivery thereof by, any governmental authority.
Section 10.08. Taxes on Conversions. The Company
and/or the Guarantor will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issue
or delivery of shares of Common Stock on conversions of
Securities pursuant hereto; provided, however, that neither the
Company nor the Guarantor shall be required to pay any tax which
may be payable in respect of any transfer involved in the issue
or delivery of shares of Common Stock in a name other than that
of the Holder of the Securities to be converted and no such issue
or delivery shall be made unless and until the person requesting
such issue or delivery has paid to the Company and/or the
Guarantor the amount of any such tax or has established, to the
satisfaction of the Company and the Guarantor, that such tax has
been paid.
Section 10.09. Covenant as to Stock. The Guarantor
covenants that all shares of Common Stock which may be delivered
upon conversions of Securities will upon delivery be duly and
validly issued and fully paid and non-assessable, free of all
liens and charges and not subject to any preemptive rights.
Section 10.10. Consolidation or Merger.
Notwithstanding any other provision herein to the contrary, in
case of any consolidation or merger to which the Guarantor is a
party other than a merger or consolidation in which the Guarantor
is the continuing corporation, or in case of any sale or
conveyance to another corporation of the property of the
Guarantor as an entirety or substantially as an entirety, or in
the case of any statutory exchange of securities with another
corporation (including any exchange effected in connection with a
merger of a third corporation into the Guarantor), there shall be
no adjustments under Section 10.05 but the Holder of each
Security then outstanding shall have the right thereafter to
convert such Security into the kind and amount of securities,
cash or other property which he would have owned or have been
entitled to receive immediately after such consolidation, merger,
statutory exchange, sale or conveyance had such Security been
converted immediately prior to the effective date of such
consolidation, merger, statutory exchange, sale or conveyance and
in any such case, if necessary, appropriate adjustment shall be
made in the application of the provisions set forth in this
Article 10 with respect to the rights and interests thereafter of
the Holders of the Securities, to the end that the provisions set
forth in this Article 10 shall thereafter correspondingly be made
applicable, as nearly as may reasonably be, in relation to any
shares of stock or other securities or property thereafter
deliverable on the conversion of the Securities. Any such
adjustment shall be made by and set forth in a supplemental
indenture executed by the Company, the Guarantor and the Trustee
and approved by a firm of independent public accountants,
evidenced by a certificate to that effect; and any adjustment so
approved shall for all purposes hereof conclusively be deemed to
be an appropriate adjustment.
The above provisions of this Section 10.10 shall
similarly apply to successive consolidations, mergers, statutory
exchanges, sales or conveyances.
The Company shall give notice of the execution of
such a supplemental indenture to the Holders of Securities in the
manner provided in Section 13.02 within 30 days after the
execution thereof.
The Trustee shall not be under any responsibility to
determine the correctness of any provisions contained in such
supplemental indenture relating either to the kind or amount of
shares of stock or securities or property receivable by Holders
upon the conversion of their Securities after any such
consolidation, merger, statutory exchange, sale or conveyance, or
to any adjustment to be made with respect thereto.
Section 10.11. Disclaimer of Responsibility for
Certain Matters. Neither the Trustee nor the Registrar shall at
any time be under any duty or responsibility to any Holder of
Securities to determine whether any facts exist which may require
any adjustment of the Conversion Price, or with respect to the
nature or extent of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither
the Trustee nor the Registrar shall be accountable with respect
to the listing or registration referred to in Section 10.07 or
the validity or value (or the kind or amount) of any shares of
Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Security;
and neither the Trustee nor the Registrar makes any
representation with respect thereto. Neither the Trustee nor the
Registrar shall be responsible for any failure of the Guarantor
to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property or to make any cash
payment upon the surrender of any Security for the purpose of
conversion or, subject to TIA Section 315(a), (c) and (d), to
comply with any of the covenants contained in this Article 10.
ARTICLE 11.
Discharge of Indenture
Section 11.01. Termination of the Company's and the
Guarantor's Obligations. Securities of a Series may be defeased
in accordance with their terms and, unless the Authorizing
Resolution provides otherwise, in accordance with this Article.
The Company may terminate all of its obligations
under the Securities of a Series and this Indenture, to the
extent its obligations under this Indenture relate to that
Series, and the obligations of the Guarantor shall terminate if
all Securities of a Series previously authenticated and delivered
(other than destroyed, lost or stolen Securities which have been
replaced or paid) have been delivered to the Trustee for
cancellation or if:
1. the Securities mature within one year or all of
them are to be called for redemption within one year under
arrangements satisfactory to the Trustee for giving the notice of
redemption; and
2. the Company irrevocably deposits in trust with
the Trustee money sufficient to pay principal of and interest on
the outstanding Securities to maturity or redemption, as the case
may be. The Company may make the deposit only if Article 6
permits it. Immediately after making the deposit, the Company
shall give notice of such event and proposed date of payment to
each Securityholder.
The Company's obligations and, to the extent
applicable, the Guarantor's obligations, in Sections 2.03, 2.04,
2.05, 2.06, 2.07, 4.01, 9.07, 9.08 and 11.03 and Article 10,
however, shall survive until the Securities are no longer
outstanding. Thereafter, the Company's obligations and, to the
extent applicable, the Guarantor's obligations, in Sections 9.07
and 11.03 shall survive.
After a deposit, the Trustee upon request shall
acknowledge in writing the discharge of the Company's obligations
under the Securities, the Guarantor's obligations under the
Guarantee and their obligations under the Indenture except for
those surviving obligations specified above.
Section 11.02. Application of Trust Money. The
Trustee shall hold in trust money deposited with it pursuant to
Section 11.01. It shall apply the deposited money through the
Paying Agent and in accordance with this Indenture to the payment
of principal and interest on the Securities.
Section 11.03. Repayment to Company. The Trustee
and the Paying Agent shall promptly pay to the Company upon
request any excess money held by them at any time. The Trustee
and the Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal or interest
(including interest, if any, earned on such money) that remains
unclaimed for two years; provided, however, that the Trustee
or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be
published once in a newspaper of general circulation in The City
of New York or mail to each Holder notice that such money remains
unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication or
mailing, any unclaimed balance of such money then remaining will
be repaid to the Company. After payment to the Company,
Securityholders entitled to any of such money must look to the
Company or, if applicable, the Guarantor for payment as general
creditors unless applicable abandoned property law designates
another person and all liability of the Trustee or Paying Agent
with respect to such money shall thereupon cease.
ARTICLE 12.
Amendments, Supplements and Waivers
Section 12.01. Without Consent of Holders. The
Company may amend or supplement this Indenture or the Securities
without notice to or consent of any Securityholder:
1. to cure any ambiguity, defect or inconsistency;
2. to comply with Section 5.01;
3. to provide for uncertificated Securities in
addition to or in place of certificated Securities; or
4. to make any change that does not adversely
affect the rights of any Securityholder.
Section 12.02. With Consent of Holders. The Company
may amend or supplement this Indenture or the Securities without
notice to any Securityholder but with the written consent of the
Holders of at least a majority in principal amount of the
Securities of all Series affected by the amendment voting as a
class. The Holders of a majority in principal amount of the
Securities may waive compliance by the Company with any provision
of this Indenture or the Securities without notice to any
Securityholder. However, without the consent of each
Securityholder affected, an amendment, supplement or waiver,
including a waiver pursuant to Section 8.04, may not:
1. reduce the amount of Securities whose Holders
must consent to an amendment, supplement or waiver;
2. reduce the rate of or extend the time for
payment of interest on any Security;
3. reduce the principal of or extend the fixed
maturity of any Security or alter the redemption provisions with
respect thereto;
4. waive a default in the payment of the principal
of or interest on any Security;
5. modify the provisions of Article 6
(subordination) or Article 7 (guarantee) in a manner adverse to
the Holders;
6. make any security payable in money other than
that stated in the Security;
7. if applicable, make any change that adversely
affects the right to convert or the Conversion Price for any
Security; or
8. make any change in Section 8.04 or 8.07 or this
Section 12.02.
After an amendment under this Section 12.02 becomes
effective, the Company shall mail to the Holders a notice briefly
describing the amendment.
Section 12.03. Compliance with Trust Indenture Act.
Every amendment to or supplement of this Indenture or the
Securities shall comply with the TIA as then in effect.
Section 12.04. Revocation and Effect of Consents. A
consent to an amendment, supplement or waiver by a Holder of a
Security shall bind the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent
is not made on any Security. However, any such Holder or
subsequent Holder may revoke the consent as to the Security or
portion of a Security of such Holder. The Trustee must receive
the notice of revocation before the date the amendment,
supplement or waiver becomes effective.
After an amendment, supplement or waiver becomes
effective, it shall bind every Securityholder unless it makes a
change described in clauses (1) through (8) of Section 12.02. In
that case the amendment, supplement or waiver shall bind each
Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the
same debt as the consenting Holder's Security.
Section 12.05. Notation on or Exchange of
Securities. If an amendment, supplement or waiver changes the
terms of a Security, the Trustee may require the Holder of the
Security to deliver it to the Trustee. The Trustee may place an
appropriate notation on the Security about the changed terms and
return it to the Holder. Alternatively, if the Company or the
Trustee so determine, the Company in exchange for the Security
shall issue and the Trustee shall authenticate, a new Security
that reflects the changed terms.
Section 12.06. Trustee To Sign Amendments, etc. The
Trustee shall sign any amendment, supplement or waiver authorized
pursuant to this Article if the amendment, supplement or waiver
does not adversely affect the rights or duties of the Trustee.
If it does, the Trustee may but need not sign it. In signing any
amendment, supplement or waiver, the trustee may rely on an
Opinion of Counsel which shall state that such amendment,
supplement or waiver is permitted under this Article 12.
ARTICLE 13.
Miscellaneous
Section 13.01. Trust Indenture Act Controls. If any
provision of this Indenture limits, qualifies, or conflicts with
another provision which is required to be included in this
Indenture by the TIA or the TIA as amended after the date hereof,
the required provision shall control.
Section 13.02. Notices. Any notice or communication
shall be sufficiently given if in writing and delivered in person
or mailed by first-class mail addressed as follows:
if to the Company or the Guarantor:
Toll Brothers, Inc.
3103 Philmont Avenue
Huntingdon Valley, Pennsylvania 19006
Attention: Chief Financial Officer
with a copy to:
Mark K. Kessler, Esquire
Wolf, Block, Schorr and Solis-Cohen
Twelfth Floor Packard Building
15th and Chestnut Streets
Philadelphia, PA 19102
if to the Trustee:
Security Trust Company, N.A.
2 North Charles Street
Baltimore, MD 21201
Attention: Corporate Trust Department
The Company, the Guarantor or the Trustee by notice
to the other may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a
Securityholder shall be mailed to him at his address as it
appears on the registration books of the Registrar and shall be
sufficiently given to him if so mailed within the time
prescribed. In addition, a copy of each such notice or
communication shall be mailed to the Trustee at the address
specified above.
Failure to mail a notice or communication to a
Securityholder or any defect in it shall not affect its
sufficiency with respect to other Securityholders. If a notice
or communication is mailed in the manner provided above, it is
duly given, whether or not the addressee receives it. If the
Company or the Guarantor mails a notice or communication to
Securityholders, it shall mail a copy of such notice to the
Trustee and each agent at the same time.
Section 13.03. Communication by Holders with Other
Holders. Securityholders may communicate pursuant to TIA Section
312(b) with other Securityholders with respect to their rights
under this Indenture or the Securities. The Company, the
Guarantor, the Trustee, the Registrar and anyone else shall have
the protection of TIA Section 312(c).
Section 13.04. 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 shall furnish to the Trustee:
1. an Officers' Certificate stating that, in the
opinion of the signers, all conditions precedent, if any,
provided for in this Indenture relating to the proposed action
have been complied with; and
2. an Opinion of Counsel stating that, in the
opinion of such counsel, all such conditions precedent have been
complied with.
Section 13.05. Statements Required in Certificate or
Opinion. Each certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture shall
include:
1. a statement that the person making such
certificate or opinion has read such covenant or condition;
2. a brief statement as to the nature and scope of
the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
3. a statement that, in the opinion of such
person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
4. a statement as to whether or not, in the
opinion of such person, such condition or covenant has been
complied with.
Section 13.06. When Treasury Securities Disregarded.
In determining whether the Holders of the required principal
amount of Securities of a Series have concurred in any direction,
waiver or consent, Securities of the Series owned by the Company
or the Guarantor or by any person directly or indirectly
controlling or controlled by or under direct or indirect common
control with the Company or the guarantor shall be disregarded,
except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or
consent, only Securities of the Series which the Trustee knows
are so owned shall be so disregarded.
Section 13.07. Rules by Trustee, Paying Agent,
Registrar. The Trustee may make reasonable rules for action by
or a meeting of Securityholders. The Paying Agent or Registrar
each may make reasonable rules for its functions.
Section 13.08. Legal Holidays. A "Legal Holiday" is
a Saturday, a Sunday, a legal holiday or a day on which banking
institutions are not required to be open. If a payment date is a
Legal Holiday at a place of payment, payment may be made at that
place on the next succeeding day that is not a Legal Holiday, and
no interest shall accrue for the intervening period.
Section 13.09. Governing Law. The laws of the State
of New York shall govern this Indenture, the Securities and the
Guarantee without regard to principles of conflicts of law.
Section 13.10. No Adverse Interpretation of Other
Agreements. This Indenture may not be used to interpret another
indenture, loan or debt agreement of the Company, the Guarantor
or a Subsidiary. Any such indenture, loan or debt agreement may
not be used to interpret this Indenture.
Section 13.11. No Recourse Against Others. All
liability described in paragraph 20 of the Securities of any
director, officer, employee or shareholder, as such, of the
Company or the Guarantor is waived and released.
Section 13.12. Successors. All agreements of the
Company or the Guarantor in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this
Indenture shall bind its successor.
Section 13.13. Duplicate Originals. The parties may
sign any number of copies of this Indenture. Each signed copy
shall be an original, but all of them together represent the same
agreement.
Section 13.14. Counterparts. This Indenture may be
executed in any number of counterparts, all of which shall
together constitute one and the same instrument. This Indenture
shall become binding when one or more counterparts hereof,
individually or taken together, shall bear the signatures of all
of the parties reflected hereon as the signatories.
SIGNATURES
Dated: January 15, 1994 TOLL CORP., as Issuer
By: ______________________________
Name: ^Joel H. Rassman
Title: Senior Vice President
(SEAL)
Attest: ____________________
^ Name^:
^ Title^:
Dated: January 15, 1994 TOLL BROTHERS, INC., as
Guarantor
By: _____________________________
Name: ^Joel H. Rassman
Title: Senior Vice President
(SEAL)
Attest: ____________________
^ Name^:
^ Title^:
Dated: January 15, 1994 SECURITY TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By: ____________________________
Name:
Title:
(SEAL)
Attest: ____________________
^ Name^:
^ Title^:
<PAGE>
<PAGE>
A-1
No. EXHIBIT A
TOLL CORP.
promises to pay to
or registered assigns
the principal sum of ^ Dollars ^ on January 15, 2004
4 3/4% Convertible Senior Subordinated Note due 2004
Interest Payment Dates: January 15 and July 15
Record Dates: January 1 and July 1
Authenticated: Dated:
TOLL CORP.
[Seal]
By
SECURITY TRUST COMPANY, N.A.
as Trustee, certifies that __________________________
this is one of the Securities Robert I. Toll
referred to in the Indenture. Chairman of the Board
__________________________
By: _______________________ Bruce E. Toll
Authorized Signatory President and Secretary
^
<PAGE>
<PAGE>
A-2
(REVERSE OF SECURITY)
TOLL CORP.
^ 4 3/4% Convertible Senior Subordinated Note due 2004
1. Interest.
Toll Corp. (the "Company"), a Delaware corporation,
promises to pay interest on the principal amount of this Security
at the rate per annum shown above. The Company will pay interest
semi-annually on January 15 and July 15 of each year (the
"Interest Payment Date"), commencing on July 15, 1994. Interest
on the Security will accrue from the most recent date to which
interest has been paid or, if no interest has been paid, from
January 20, 1994, provided that, if there is no existing default
in the payment of interest, and if this Security is authenticated
between a record date referred to on the face hereof (the "Record
Date") and the next succeeding Interest Payment Date, interest
shall accrue from such Interest Payment Date. Interest will be
computed on the basis of a 360-day year of twelve 30-day months.
2. Method of Payment.
The Company will pay interest on the Securities
(except defaulted interest) to the persons who are registered
holders of Securities at the close of business on the Record Date
next preceding the Interest Payment Date. Holders must surrender
Securities 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 wire transfer or by its check payable in such
money. It may mail an interest check to a holder's registered
address.
3. Paying Agent and Registrar.
Initially, ^Security Trust Company, N.A. (the
"Trustee") will act as Paying Agent and Registrar. The Company
may change any Paying Agent, Registrar or co-registrar without
notice. The Company or any of its subsidiaries may act as Paying
Agent, Registrar or co-registrar.
4. Indenture.
The Company issued the Securities under an Indenture
dated as of January 15, 1994, among the Company, Toll Brothers,
<PAGE> A-3
Inc. (the "Guarantor") and the Trustee, as supplemented by the
Authorizing Resolutions approved by the Company and the Guarantor
on January 12, 1994 (collectively, the "Indenture"). The terms
of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture
Act of 1939 (15 U.S. Code 77aaa-77bbbb) as in effect on the
date of the Indenture and as may be amended from time to time.
The Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the Act for a statement of
them. Payment of the Securities is guaranteed on a senior
subordinated basis by the Guarantor (the "Guarantee").
5. Optional Redemption.
The Company may redeem the Securities at any time on
or after January 15, 1997 in whole, or from time to time in part,
at the following redemption prices (expressed as a percentage of
principal amount), plus accrued and unpaid interest to the
redemption date:
If redeemed during the 12-month period beginning
January 15,
Year Percentage
1997 ............................... 102.969%
1998 ............................... 102.375%
1999 ............................... 101.781%
2000 ............................... 101.188%
2001 ............................... 100.594%
2002 and thereafter................. 100.000%
^
^ 6. Notice of Redemption.
Notice of redemption will be mailed at least 30 days
but not more than 60 days before the redemption date to each
holder of Securities to be redeemed at its, his or her registered
address. Securities in denominations larger than $1,000 may be
redeemed in part. On and after the redemption date interest
ceases to accrue on Securities or portions of them called for
redemption, provided that if the Company shall default in the
payment of such Security at the redemption price together with
accrued interest, interest shall continue to accrue at the
rate borne by the Securities.
^ 7. Selection.
Selection of Securities for any redemption will be
made by the Trustee, if the Securities are listed on a national
securities exchange by the rules of such exchange or if the
<PAGE>
A-4
Securities are not so listed on either a pro rata basis or by lot
or by any other method that the Trustee deems fair and
appropriate.
8. Repurchase After a Change of Control.
In the event of a Change of Control (as defined in
the Indenture), each holder of the Securities will have the
right, at such holder's option, subject to the terms and
conditions of the Indenture, to require the Company to purchase
all or any part of the Securities at a price equal to 100% of the
principal amount thereof, plus accrued and unpaid interest
thereon, in accordance with the terms set forth in the
Indenture.
^ 9. Conversion
A Holder of a Security may convert it into Common
Stock of the Guarantor at any time prior to the close of business
on January 15, 2004, or, if the Security is called for
redemption, the Holder may convert it at any time before the
close of business on the second Business Day before the date
fixed for redemption. The initial Conversion Price is $21.75 per
share of Common Stock, subject to adjustment in certain events.
The Company and/or the Guarantor will deliver a check in lieu of
any fractional share. On conversion no payment or adjustment for
interest accrued on the Securities will be made.
To convert a Security a Holder must (1) complete and
sign the conversion notice on the back of the Security, (2)
surrender the Security to the Registrar (as agent for the
Guarantor), (3) furnish appropriate endorsements and transfer
documents if required by the Registrar and (4) pay any transfer
or similar tax if required. A Holder may convert a portion of a
Security if the portion is $1,000 or a whole multiple of $1,000.
10. Subordination.^
The Securities will be subordinated in right of
payment to the prior payment in full of all Senior Indebtedness
of the Company (as defined in the Indenture). The Guarantee will
be subordinated in right of payment to the prior payment in full
of all Senior Indebtedness of the Guarantor (as defined in the
Indenture).
11. Denominations, Transfer, Exchange.
The Securities are in registered form without coupons
in denominations of $1,000 and integral multiples thereof. A
<PAGE> A-5
holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a holder, among other
things, to furnish appropriate endorsements and transfer
documents and to pay any taxes and fees required by law or
permitted by the Indenture. The Registrar need not transfer or
exchange any Securities selected for redemption. Also, it need
not transfer or exchange any Securities for a period of 15 days
before a selection of Securities to be redeemed is scheduled.
12. Person Deemed Owner.
The registered holder of a Security may be treated as
the owner of it for all purposes.
13. Unclaimed Money.
If money for the payment of principal or interest
remains unclaimed for two years, the Trustee or Paying Agent will
pay the money back to the Company as its request. After that,
holders entitled to the money must look to the Company or, if
applicable, the Guarantor for payment unless an abandoned
property law designates another person.
14. Discharge Prior to Redemption or Maturity.
The Indenture will be discharged and cancelled except
for certain Sections thereof, subject to the terms of the
Indenture, upon the payment of all the Securities or upon the
deposit with the Trustee, within not more than one year prior to
the maturity or redemption of the Securities, of funds sufficient
for such payment or redemption. In the case of such a deposit,
Securityholders must look to the deposited money for payment.
15. Amendment, Supplement, Waiver.
Subject to certain exceptions, the Indenture or the
Securities may be amended or supplemented with the consent of the
holders of at least a majority in principal amount of the
Securities of all Series affected by the amendment voting as a
class, and any past default or compliance with any provision may
be waived with the consent of the holders of a majority in
principal amount of the Securities. Without the consent of any
Securityholder, the Company may amend or supplement the Indenture
or the Securities to cure any ambiguity, defect or inconsistency;
to comply with Article 5 of the Indenture (providing for the
assumption of the obligations of the Company or the Guarantor
under the Indenture by a successor corporation); to provide for
uncertificated Securities in addition to or in place of
certificated Securities; or to make any change that does not
adversely affect the rights of any Securityholder.^
<PAGE>
A-6
^16. Successor Corporation.
When a successor corporation assumes all the
obligations of its predecessor under the Securities and the
Indenture, the predecessor corporation will be released from
those obligations.
^17. Defaults and Remedies.
An Event of Default is:
(i) failure of the Company or the Guarantor to pay
interest for 30 days or principal when due (whether or not
prohibited by the subordination provision); (ii) failure of the
Company or Guarantor to perform any other agreement for 60 days
after notice; (iii) default in the payment of Indebtedness of the
Company, the Guarantor or any Subsidiary under the terms of the
instrument evidencing or securing such Indebtedness permitting
the holder thereof to accelerate the payment of in excess of an
aggregate of $2,000,000 in principal amount of such Indebtedness
(after the lapse of applicable grace periods) or, in the case of
non-payment defaults, acceleration of any such Indebtedness if
such acceleration is not rescinded or annulled within 10 days
after such acceleration, provided that, subject to the terms of
the Indenture, the term "Indebtedness" shall not include an
acceleration of or default on certain Non-Recourse Indebtedness
(as defined in the Indenture); (iv) entry of ^ a final judgment
for the payment of money in an amount in excess of $2,000,000
shall be entered against the Company, the Guarantor or any
Subsidiary which remains undischarged or unstayed for a period of
60 days after the date on which the right to appeal has expired;
provided the term "final judgment," ^at such time as the
Company's 10 1/2% Senior Subordinated Notes due 2002 (and any
related guarantee) are no longer outstanding, shall not include a
Non-Recourse Judgment (as defined in the Indenture) unless the
book value of all property (net of any previous write-downs or
reserves in respect of such property) subject to such
Non-Recourse Judgment exceeds the amount of such Non-Recourse
Judgment by more than $5,000,000; (v) certain events of
bankruptcy, insolvency or reorganization; or (vi) the Guarantee
shall for any reason (other than pursuant to its terms) cease to
be in full force and effect.
The Indenture provides that the Trustee will, within
90 days after the occurrence of a Default, give the Holders
notice of all uncured Defaults known to it (the term "Default" to
include the events specified above, without grace or notice),
provided that, except in the case of default in the payment of
principal of or interest on any of the Securities, the Trustee
shall be protected in withholding such notice if it in good faith
<PAGE>
A-7
determines that the withholding of such notice is in the
interest of the Securityholders.
In case an Event of Default (other than arising out
of certain events of bankruptcy, insolvency or reorganization)
occurs and is continuing, the Trustee or the holders of not less
than 25% in aggregate principal amount of the Securities then
outstanding, by notice in writing to the Company (and to the
Trustee if given by the Securityholders), may declare the
Securities to be due and payable (i) if (a) no Designated
Senior Debt of the Company or the Guarantor is outstanding, or
(b) if the Securities are not subordinated to other indebtedness
of the Company, immediately, or (ii) if Designated Senior Debt of
the Company or the Guarantor is outstanding and the Securities
are subordinated to other indebtedness of the Company, upon the
earlier of (A) ten days after such Acceleration Notice is
received by the Company and (B) the acceleration of any Senior
Indebtedness of the Company or the Guarantor. In case an Event
of Default arising out of certain events of bankruptcy,
insolvency or reorganization occurs and is continuing, the
outstanding principal of and accrued interest on the Securities
shall ipso facto become and be due and payable immediately,
without declaration or any further act on the part of the Trustee
or any Securityholder.
Such declaration or acceleration and its consequences
may be rescinded by holders of a majority in principal amount of
the outstanding Securities of the affected Series if all existing
Events of Defaults have been cured and waived (except non-payment
of principal or interest that has become due solely because of
the acceleration) and if the rescission would not conflict with
any judgment or decree.
Defaults (except, unless theretofore cured, a default
in payment of principal of or interest on the Securities or a
default with respect to a provision which cannot be modified
under the terms of the Indenture without the consent of each
Securityholder affected) may be waived by the holders of a
majority in principal amount of outstanding Securities upon the
conditions provided in the Indenture.
The Indenture requires the Guarantor to file periodic
reports with the Trustee as to the absence of defaults.
^18. Trustee Dealings with Company.
Security Trust Company, N.A., the Trustee under the
Indenture, in its individual or any other capacity, may make
loans to, accept deposits from, and perform services for the
Company, the Guarantor or their affiliates, and may otherwise
<PAGE>
A-8
deal with the Company, the Guarantor or their affiliates, as if
it were not Trustee.
^19. No Recourse Against Others.
A director, officer, employee or stockholder, as
such, of the Company or the Guarantor shall not have any
liability for any obligations of the Company or the Guarantor
under the Securities, the Guarantee or the Indenture or for any
claim based on, in respect of or by reason of such obligations or
their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
^20. Authentication.
This Security shall not be valid until the Trustee
signs the certificate of authentication on the other side of this
Security.
^21. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in
common), TENENT (= 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 Securityholder upon
written request and without charge a copy of the Indenture.
Requests may be made to: Secretary, Toll Brothers, Inc., 3103
Philmont Avenue, Huntingdon Valley, Pennsylvania 19006.
<PAGE>
<PAGE>
A-9
ASSIGNMENT FORM
If you the holder want to assign this Security, fill
in the form below and have your signature guaranteed:
I or we assign and transfer this Security to
(Insert assignee's social security or tax ID number)
(Print or type assignee's name, address and zip code)
and irrevocably appoint
agent to transfer this Security on the books of the Company. The
agent may substitute another to act for him.
Date: ______________ Your Signature:
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:
NOTE: Signature(s) must be guaranteed by a member firm of a
major stock exchange or a commercial bank or trust company.
<PAGE>
A-10
CONVERSION NOTICE
If you want to convert this Security pursuant to
Article 10 of the Indenture, check the box:
____
/___/
If you want to convert only part of this Security
pursuant to Article 10 of the Indenture, state the amount:
$____________________
If you want the stock certificate made out in another
person's name, fill in the form below:
(Insert other person's Social Security or Tax. I.D. Number)
(Print or type other person's name, address and zip code)
Date: ______________ Your Signature:
(Sign exactly as your
name appears on the
other side of this
Security)
Signature Guarantee:
NOTE: Signature(s) must be guaranteed by a member firm of a
major stock exchange or a commercial bank or trust company.
<PAGE>
<PAGE>
B-1
EXHIBIT B
^
GUARANTEE
Toll Brothers, Inc. (hereinafter referred to as the
"Guarantor," which term includes any successor person under the
Indenture (the "Indenture") referred to in the Security upon
which this notation is endorsed), has unconditionally guaranteed
on a subordinated basis (i) the due and punctual payment of the
principal of and interest on the Securities, whether at maturity,
by acceleration or otherwise, the due and punctual payment of
interest on the overdue principal of and interest, if any, on the
Securities, to the extent lawful, and the due and punctual
performance of all other obligations of the Company to the
Holders or the Trustee under the Indenture and the Security all
in accordance with the terms set forth in Article Seven of the
Indenture and (ii) in case of any extension of time of payment or
renewal of any Securities or any of such other obligations, that
the same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether
at stated maturity, by acceleration or otherwise.
^ The obligations of the Guarantor to the Holders of
the Securities and to the Trustee pursuant to the Guarantee and
the Indenture are expressly set forth and are expressly
subordinated and subject in right of payment to the prior payment
in full of all Senior Indebtedness of the Guarantor, to the
extent and in the manner provided in Article Seven of the
Indenture and reference is hereby made to the Indenture for the
precise terms of the Guarantee and the subordination thereof
therein made.^
No stockholder, officer, director or incorporator, as
such, past, present or future, of the Guarantor shall have any
personal liability under the Guarantee by reason of his or its
status as such stockholder, officer, director or incorporator.
<PAGE>
<PAGE>
B-2
The Guarantee shall not be valid or obligatory for
any purpose until the certificate of authentication on the
Securities upon which this Guarantee is endorsed shall have been
executed by the Trustee under the Indenture by the manual
signature of one of its authorized officers.
Guarantor
TOLL BROTHERS, INC.
By______________________________
Robert I. Toll
Chairman of the Board
By______________________________
Bruce E. Toll
President and Secretary
(Seal)
<PAGE>
Exhibit 24.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-3 No. 33-51775) and related
Prospectus of Toll Corp. and Toll Brothers, Inc. for the
registration of $250,000,000 of Securities and to the incorporation
by reference therein of our report dated December 10, 1993, with
respect to the consolidated financial statements and schedules of
Toll Brothers, Inc. included in its Annual Report (Form 10-K) for
the year ended October 31, 1993, filed with the Securities and
Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
January 19, 1995
