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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________________
FORM 8-A
FOR THE REGISTRATION OF CERTAIN CLASSES
OF SECURITIES PURSUANT TO SECTION 12(B) OR 12(G)
OF THE SECURITIES EXCHANGE ACT OF 1934
STANDARD PACIFIC CORP.
(Exact name of registrant as specified in its charter)
DELAWARE 33-0475989
(State of incorporation or organization) (I.R.S. Employer
Identification No.)
1565 WEST MACARTHUR BOULEVARD
COSTA MESA, CALIFORNIA 92626
(Address of principal executive offices) (zip code)
If this Form relates to the registration of a class of debt securities and is
effective upon filing pursuant to General Instruction A(c)(1), please check the
following box.[X]
If this Form relates to the registration of a class of debt securities and is to
become effective simultaneously with the effectiveness of a concurrent
registration statement under the securities Act of 1933 pursuant to General
Instruction A(c)(2), please check the following box.[_]
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
TITLE OF EACH CLASS NAME OF EACH EXCHANGE ON WHICH
TO BE SO REGISTERED EACH CLASS IS TO BE REGISTERED
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$ 100,000,000 principal amount New York Stock Exchange
of 8 1/2% Senior Notes due 2007
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE
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STANDARD PACIFIC CORP.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED
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The information required by Item 202 of Regulation S-K is set forth in
full under the caption "Description of Notes" in the Prospectus Supplement dated
June 12, 1997 and under the caption "Description of the Debt Securities" in the
Prospectus dated June 12, 1997, each of which were filed pursuant to Rule
424(b)(2) under the Securities Act of 1933, as amended, on June 13, 1997, in
connection with the Registration Statement on Form S-3, as amended, of Standard
Pacific Corp. (Registration No. 33-45271) and by this reference incorporated
herein and made a part hereof.
ITEM 2. EXHIBITS
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Exhibit
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1.1 Senior Debt Securities Indenture, dated as of April 1,
1992, by and between Standard Pacific Corp. and U.S.
Trust Company of New York, Trustee, incorporated by
reference to Exhibit 4 to Standard Pacific Corp.'s
Current Report on Form 8-K dated February 24, 1993.
1.2 Form of Officers' Certificate of Registrant.
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Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized.
STANDARD PACIFIC CORP.
Dated: June 11, 1997 By: /s/ Andrew H. Parnes
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Andrew H. Parnes
Vice President-Finance, Treasurer
and Chief Financial Officer
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EXHIBIT INDEX
EXHIBIT SEQUENTIALLY
NUMBER NUMBERED PAGE
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1.1 Senior Debt Securities Indenture, dated
as of April 1, 1992, by and between
Standard Pacific Corp. and U.S. Trust
Company of New York, Trustee, incorporated
by reference to Exhibit 4 to Standard
Pacific Corp.'s Current Report on Form 8-K
dated February 24, 1993.
1.2 Form of Officers' Certificate of Registrant.
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EXHIBIT 1.2
STANDARD PACIFIC CORP.
OFFICERS' CERTIFICATE
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Pursuant to Sections 2.01 and 2.03(a) of the Indenture, dated as of April
1, 1992 (the "Indenture"), between Standard Pacific Corp., a Delaware
corporation (the "Company"), and United States Trust Company of New York, as
Trustee (the "Trustee"), the undersigned, Stephen J. Scarborough and Andrew H.
Parnes, the President and Vice President, Treasurer and Chief Financial Officer
of the Company, respectively, hereby certify on behalf of the Company as
follows:
1. AUTHORIZATION. The establishment of 8-1/2% Senior Notes as a
series of Securities of the Company (the "Notes") has been approved and
authorized in accordance with the provisions of the Indenture. The form of
Note attached hereto as Exhibit A has been approved and authorized in
accordance with the provisions of the Indenture.
2. COMPLIANCE WITH CONDITIONS PRECEDENT. All conditions precedent
provided for in the Indenture relating to the establishment and issue of
the Notes as a series of Securities of the Company and the establishment of
a form of Note as a Security have been complied with.
3. TERMS. The terms of the series of Securities established
pursuant to this Officers' Certificate shall be as follows:
(A) TITLE. The title of the series of Securities established
hereby is the "8-1/2% Senior Notes Due 2007."
(B) AGGREGATE PRINCIPAL AMOUNT. The limit upon the aggregate
principal amount of the Notes which may be authenticated and delivered
under the Indenture (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Notes pursuant to Sections 2.08, 2.09, 2.11, 3.06 and 9.05 of the
Indenture and except for any Notes which, pursuant to Section 2.04 of
the Indenture, are deemed never to have been authorized and delivered
thereunder) is $100,000,000.
(C) BOOK-ENTRY SYSTEM. The Notes will be issued in the form of
one or more securities in global form (the "Global Security") held in
book-entry form. The Depository Trust Company ("DTC") or its nominee
will initially be the sole registered holder of the Notes
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for all purposes under the Indenture.
A Global Security may not be transferred except as a whole by DTC
to a nominee of DTC or by a nominee of DTC to DTC. A Global Security
is exchangeable for certificated Notes only if (i) DTC notifies the
Company that it is unwilling or unable to continue as a Depositary for
such Global Security or if at any time DTC ceases to be a clearing
agency registered under the Exchange Act, or (ii) the Company executes
and delivers to the Trustee a notice that such Global Security shall
be so transferable, registrable, and exchangeable. Any Global Security
that is exchangeable for certificated Notes pursuant to the preceding
sentence will be transferred to, and registered and exchanged for,
certificated Notes in authorized denominations and registered in such
names as the Depositary holding such Global Security may direct.
Subject to the foregoing, a Global Security is not exchangeable,
except for a Global Security of like denomination to be registered in
the name of the Depositary or its nominee. In the event that a Global
Security becomes exchangeable for certificated Notes, certificated
Notes will be issued only in fully registered form in denomination of
$1,000 or integral multiples thereof.
(D) PERSONS TO WHOM INTEREST PAYABLE. Interest on the Notes
shall be payable to the person in whose name a Note is registered at
the close of business (whether or not a Business Day) on the Regular
Record Date (as defined in the Indenture), for such interest payment,
except (i) that interest payable on June 15, 2007 shall be payable to
the person to whom principal is payable, and (ii) that default
interest shall be payable in the manner provided in Section 2.13 of
the Indenture.
(E) STATED MATURITY. The date on which the principal of the
Notes shall be payable, unless accelerated pursuant to the Indenture,
is June 15, 2007.
(F) RATE OF INTEREST; INTEREST PAYMENT DATES; REGULAR RECORD
DATES; OVERDUE PRINCIPAL AND INTEREST.
(I) RATE OF INTEREST. The principal amount of each of the
Notes shall bear simple interest at the rate of 8-1/2% per annum.
The date from which interest shall accrue for each of the Notes
shall be June 17, 1997. Interest shall be computed on the basis
of a 360-day year of twelve 30-day months.
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(II) INTEREST PAYMENT DATES. Interest on the Notes shall
be payable semiannually in arrears on June 15 and December 15 of
each year, commencing December 15, 1997.
If any Interest Payment Date or Maturity of the Notes falls
on a day that is not a Business Day, the payment due on such
Interest Payment Date or at Maturity will be made on the
following day that is a Business Day as if it were made on the
date such payment was due and no interest shall accrue on the
amount so payable for the period from and after such Interest
Payment Date or Maturity, as the case may be.
(III) REGULAR RECORD DATES. The Regular Record Dates for
interest payable on each June 15 and December 15 will be the
immediately preceding June 1 and December 1 (whether or not a
Business Day), respectively.
(IV) OVERDUE PRINCIPAL AND INTEREST. Overdue principal
and, to the extent payment of such interest shall be legally
enforceable, overdue installments of interest shall bear interest
at the rate of 8-1/2% per annum.
(G) PLACE OF PAYMENT; REGISTRATION OF TRANSFER AND EXCHANGE;
NOTICES TO COMPANY.
(I) PLACE OF PAYMENT. Payment of the principal of and
interest on the Notes will be made at the Corporate Trust Office
of the Trustee in the Borough of Manhattan, The City of New York,
and at any other office or agency designated by the Company for
such purpose; provided, however, that at the option of the
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Company, payment of interest due (other than at Maturity or upon
Redemption) may be made by check mailed to the address of the
person entitled thereto as such address shall appear in the
register of Securities.
(II) REGISTRATION OF EXCHANGE AND TRANSFER. Notes may be
presented for exchange and registration of transfer at the
Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York, or at the office of any transfer
agent hereafter designated by the Company for such purpose.
(III) NOTICES TO COMPANY. Notices and demands to or upon
the Company in respect to the Notes and
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the Indenture may be served at Standard Pacific Corp., 1565 West
MacArthur Boulevard, Costa Mesa,California 92636, Attention: Vice
President and Treasurer.
(H) OPTIONAL REDEMPTION. Except as set forth in the following
paragraph, the Notes will not be redeemable at the option of the
Company prior to June 15, 2002. Thereafter, the Notes will be
redeemable, at the Company's option, in whole or in part, at any time
or from time to time, upon not less than 30 nor more than 60 days'
prior notice mailed by first-class mail to each Holder's registered
address, at the following redemption prices (expressed in percentages
of principal amount), plus accrued and unpaid interest to the
redemption date (subject to the right of Holders of record on the
relevant record date to receive interest due on the relevant interest
payment date), if redeemed during the 12-month period commencing on
June 15 of the years set forth below:
Redemption
Year Price
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2002.................................... 104.250%
2003.................................... 102.833%
2004.................................... 101.417%
2005 and thereafter..................... 100.000%
If less than all of the Notes are to be redeemed, the Trustee
will select the Notes to be redeemed on a pro rata basis, by lot or by
such other method as the Trustee in its sole discretion shall deem to
be fair and appropriate.
(I) ACCELERATION. The principal amount of the Notes shall be
payable upon declaration of acceleration of the maturity thereof
pursuant to Section 6.02 of the Indenture.
(J) CHANGE OF CONTROL. Upon the occurrence of a Change of
Control, each Holder shall have the right to require that the Company
repurchase all or a portion of such Holder's Notes at a purchase price
in cash equal to 101 percent of the principal amount thereof plus
accrued and unpaid interest, if any, to the date of repurchase
(subject to the right of Holders of record on the relevant record date
to receive interest due on the relevant interest payment date), in
accordance with the provisions of the next paragraph.
Within 30 days following any Change of Control, the Company shall
mail a notice to each Holder with a
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copy to the Trustee stating:
(aa) that a Change of Control has occurred and that such Holder has
the right to require the Company to purchase such Holder's Notes
at a purchase price in cash equal to 101 percent of the principal
amount outstanding at the repurchase date plus accrued and unpaid
interest, if any, to the date of repurchase (subject to the right
of Holders of record on the relevant record date to receive
interest on the relevant interest payment date) (the "Repurchase
Price");
(bb) the circumstances and relevant facts and relevant financial
information regarding such Change of Control;
(cc) the repurchase date (which shall be no earlier than 30 days nor
later than 60 days from the date such notice is mailed) (the
"Repurchase Date");
(dd) that any Note not tendered or accepted for payment will continue
to accrue interest;
(ee) that any Note accepted for payment shall cease to accrue interest
after the Repurchase Date;
(ff) that Holders electing to have a Note purchased will be required
to surrender the Note, with the form entitled "Option of Holder
to Elect Purchase" on the reverse side of the Note completed, to
the Paying Agent at the address specified in the Notice at least
five days before the Repurchase Date;
(gg) that Holders will be entitled to withdraw their election if the
Paying Agent receives, not later than three days prior to the
Repurchase Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal amount
of the Note the Holder delivered for purchase and a statement
that such Holder is withdrawing his election to have the Note
purchased; and
(hh) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the unpurchased
portion of the Notes surrendered.
On the Repurchase Date, the Company shall (i) accept for payment
Notes or portions thereof properly tendered, (ii) deposit with the
Paying Agent money sufficient to pay the purchase price of all Notes
or
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portions thereof so accepted and (iii) deliver to the Trustee Notes so
accepted together with an Officers' Certificate stating the Notes or
portions thereof accepted for payment by the Company. The Paying Agent
shall promptly mail or deliver to Holders of Notes so accepted,
payment in an amount equal to the Repurchase Price, and the Trustee
shall promptly authenticate and mail or deliver to such Holders a new
Note equal in principal amount of any unpurchased portion of the Note
surrendered. The Company will publicly announce the results on or as
soon after as practical the Repurchase Date. For purposes of this
paragraph (j), the Trustee shall act as the Paying Agent.
(K) REGISTRAR OF SECURITIES; PAYING AGENT. The Company hereby
appoints the Trustee as the Registrar and initial Paying Agent. The
books of the Registrar of the Securities for the Notes will be
initially maintained at the Corporate Trust Office of the Trustee.
(L) COMPLIANCE WITH SECURITIES LAWS. The company shall comply, to
the extent applicable, with the requirements of Section 14(e) of the
Exchange Act and any other securities laws or regulations in
connection with the repurchase of Notes pursuant to Section 3(h),
3(j), 3(l)(i) or 3(l)(v) hereunder. To the extent that the provisions
of any securities laws or regulations conflict with said provisions
hereunder, the Company shall comply with the applicable securities
laws and regulations and shall not be deemed to have breached its
obligations under said provisions hereunder by virtue thereof.
(M) CERTAIN COVENANTS OF THE COMPANY. The Company covenants as
follows:
(I) MAINTENANCE OF CONSOLIDATED NET WORTH. The Company
shall furnish to the Trustee a certificate (signed by a Vice
President, and by its Treasurer, its Secretary or an Assistant
Secretary) within 45 days after the end of each fiscal quarter of the
Company (90 days after the end of its fiscal year) setting forth the
Consolidated Net Worth of the Company and its Restricted Subsidiaries
at the end of such fiscal quarter. If the Consolidated Net Worth of
the Company and its Restricted Subsidiaries at the end of any two
consecutive fiscal quarters is less than $200,000,000, then the
Company shall make an offer to all Holders to acquire (the "Offer") on
the last day of the fiscal quarter next following such second fiscal
quarter or, if such second fiscal quarter ends on the last day of the
Company's fiscal year, 135 days after the end of such second fiscal
quarter (the "Purchase Date"), 10% of the aggregate principal amount
of Notes originally issued (or, if less than 10% of the principal
amount of the Notes originally issued are then outstanding, then all
of the Notes outstanding at that time, such amount being referred to
as the "Offer Amount") at a purchase price equal to 100% of the
aggregate principal amount thereof together with accrued and unpaid
interest to the Purchase Date. In no event shall the failure to meet
the minimum Consolidated Net
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Worth stated above at the end of any fiscal quarter be counted
toward more than one Offer.
The Company shall provide the Trustee with notice of the
Offer at least 45 days before any such Purchase Date and at least
10 days before the notice of any Offer is mailed to Holders. The
Company shall notify the Trustee promptly after the occurrence of
any of the events specified in this paragraph (i).
Notice of an Offer shall be mailed by the Trustee not less
than 30 days nor more than 60 days before the Purchase Date to
the Holders of the Notes at their last registered address. The
Offer shall remain open from the time of mailing until 5 days
before the Purchase Date. The Notice shall be accompanied by a
copy of the information regarding the Company required to be
contained in a Quarterly Report on Form 10-Q for the second
fiscal quarter referred to above if such second fiscal quarter is
one of the Company's first three fiscal quarters. If such second
fiscal quarter is the Company's last fiscal quarter, a copy of
the information required to be contained in an Annual Report to
Shareholders pursuant to Rule 14a-3 under the Exchange Act for
the fiscal year ending with such second fiscal quarter shall
either accompany the notice or be mailed to Holders not less than
15 days before the Purchase Date. The Notice shall contain all
instructions and materials necessary to enable such Holders to
tender Notes pursuant to the Offer. The Notice, which shall
govern the terms of the Offer, shall state:
(aa) that the Offer is being made pursuant to this paragraph
(m)(i);
(bb) the Offer Amount, the purchase price and the Purchase Date;
(cc) that any Note not tendered or accepted for payment will
continue to accrue interest;
(dd) that any Note accepted for payment pursuant to the Offer
shall cease to accrue interest after the Purchase Date;
(ee) that Holders electing to have a Note purchased pursuant to
an Offer will be required to surrender the Note, with the
form entitled "Option of Holder to Elect Purchase" on the
reverse side of the Note completed, to the Paying Agent at
the address specified in the
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Notice at least five days before the Purchase Date;
(ff) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than three days prior
to the Purchase Date, a telegram, telex, facsimile
transmission or letter setting forth the name of the Holder,
the principal amount of the Note the Holder delivered for
purchase and a statement that such Holder is withdrawing his
election to have the Note purchased;
(gg) that if Notes in a principal amount in excess of the Offer
Amount are tendered pursuant to the Offer, the Company shall
purchase Notes on a pro rata basis or by lot or in such
other manner as the Trustee shall deem fair and appropriate;
and
(hh) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
On the Purchase Date, the Company shall (i) accept for
payment Notes or portions thereof properly tendered pursuant to
the Offer (on a pro rata basis, by lot or in such other manner
specified by the Trustee if required pursuant to paragraph (gg)
above), (ii) deposit with the Paying Agent money sufficient to
pay the purchase price of all Notes or portions thereof so
accepted and (iii) deliver to the Trustee Notes so accepted
together with an Officers' Certificate stating the Notes or
portions thereof accepted for payment by the Company. The Paying
Agent shall promptly mail or deliver to Holders of Notes so
accepted, payment in an amount equal to the purchase price, and
the Trustee shall promptly authenticate and mail or deliver to
such Holders a new Note equal in principal amount of any
unpurchased portion of the Note surrendered. Any Notes not so
accepted shall be promptly mailed or delivered by the Company to
the Holder thereof. The Company will publicly announce the
results of the Offer on or as soon as practicable after the
Purchase Date. For purposes of this paragraph (l)(i), the Trustee
shall act as the Paying Agent.
(II) LIMITATION ON ADDITIONAL INDEBTEDNESS. The Company
will not, and will not permit any Restricted Subsidiary to,
directly or indirectly, Incur any Indebtedness unless, after
giving effect thereto, either (i) the ratio of Indebtedness of
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the Company and the Restricted Subsidiaries (excluding, for
purposes of this calculation only, (A) purchase money mortgages
that are Non-Recourse Indebtedness, and (B) Indebtedness Incurred
under letters of credit, escrow agreements and surety bonds
obtained in the ordinary course of business) to Consolidated
Tangible Net Worth of the Company is less than 2.25 to 1; or (ii)
the Consolidated Coverage Ratio exceeds 2.0 to 1.
Notwithstanding the foregoing, the Company and its
Restricted Subsidiaries may Incur: (A) Indebtedness under one or
more Bank Credit Facilities in an amount not in excess of $275
million; (B) purchase money mortgages that are Non-Recourse
Indebtedness; (C) obligations Incurred under letters of credit,
escrow agreements and surety bonds in the ordinary course of
business; (D) Indebtedness Incurred under a Warehouse Facility,
provided that the amount of such Indebtedness (excluding funding
drafts issued thereunder) outstanding at any time pursuant to
this clause (D) may not exceed 98 percent of the value of the
Mortgages pledged to secure Indebtedness thereunder; and (E)
Indebtedness Incurred solely for the purpose of refinancing or
repaying any existing Indebtedness so long as (I) the principal
amount of such new Indebtedness does not exceed the principal
amount of the existing Indebtedness refinanced or repaid (plus
the premiums or other payments required to be paid in connection
with such refinancing or repayment and the expenses incurred in
connection therewith), (II) the maturity of such new Indebtedness
is not earlier than that of the existing Indebtedness to be
refinanced or repaid, (III) such new Indebtedness, determined as
of the date of Incurrence, has an Average Life at least equal to
the remaining Average Life of the Indebtedness to be refinanced
or repaid, (IV) the new Indebtedness is pari passu with or
subordinate to the Indebtedness being refinanced or repaid, and
(V) the existing and new Indebtedness are obligations of the same
entity.
(III) LIMITATIONS ON LIENS. The Company will not, and will
not permit any Restricted Subsidiary to, issue, assume, guarantee
or suffer to exist any Indebtedness secured by any mortgage,
pledge, lien or other encumbrance of any nature (herein
collectively referred to as a "lien" or "liens") upon any
property of the Company or any Restricted Subsidiary, or on any
shares of stock of any Restricted Subsidiary, without in any such
case effectively providing that the Notes (together
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with, if the Company shall so determine, any other Indebtedness
of the Company or such Restricted Subsidiary ranking pari passu
with the Notes) shall be secured equally and ratably with such
Indebtedness, except that the foregoing restrictions shall not
apply to: (A) liens existing on March 31, 1997; (B) pledges,
guarantees and deposits under workers' compensation laws,
unemployment insurance laws or similar legislation, good faith
deposits under bids, tenders or contracts, deposits to secure
public or statutory obligations or appeal or similar bonds, and
liens created by special assessment districts used to finance
infrastructure improvements; (C) liens existing on property or
assets of any entity on the date on which it becomes a Restricted
Subsidiary, which secured Indebtedness is not Incurred in
contemplation of such entity becoming a Restricted Subsidiary;
(D) liens on or leases of model home units; (E) liens on
property, inventory and receivables of Panel Concepts, Inc.
("Panel Concepts") to provide working capital (exclusive of cash
and cash equivalents) for Panel Concepts in the ordinary course
of business; (F) Capitalized Lease Obligations entered into in
the ordinary course of business in amounts not in excess of
$10,000,000 in the aggregate; (G) the replacement of any of the
items set forth in clauses (A) through (F) above, provided that
(i) the principal amount of the Indebtedness secured by liens
shall not be increased, (ii) such Indebtedness, determined as of
the date of Incurrence, has an Average Life at least equal to
the remaining Average Life of the Indebtedness to be refinanced,
(iii) the maturity of such Indebtedness is not earlier than that
of the Indebtedness to be refinanced, and (iv) the liens shall be
limited to the property or part thereof which secured the lien so
replaced or property substituted therefor as a result of the
destruction, condemnation or damage of such property; (H) liens
on property acquired, constructed or improved by the Company or
any Restricted Subsidiary, which liens are either existing at the
time of such acquisition or at the time of completion of
construction or improvement or created within 120 days after such
acquisition, completion or improvement, to secure Indebtedness
Incurred or assumed to finance all or part of such property,
including any increase in the principal amount of such
Indebtedness and any extension of the repayment schedule and
maturity of such Indebtedness Incurred or entered into in the
ordinary course of business; (I) liens or priorities
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incurred in the ordinary course of business, such as laborers',
employees', carriers', mechanics', vendors' and landlords' liens
or priorities; (J) liens for certain taxes and certain survey and
title exceptions; (K) liens arising out of judgments or awards
against the Company or any Restricted Subsidiary with respect to
which the Company or such Restricted Subsidiary is in good faith
prosecuting an appeal or proceeding for review and with respect
to which it has secured a stay of execution pending such appeal
or proceeding for review; (L) liens on property owned by any
Homebuilding Joint Venture; (M) liens securing a Warehouse
Facility, provided that such liens shall not extend to any assets
other than the mortgages, promissory notes and other collateral
that secures mortgage loans made by the Company or any of its
Restricted Subsidiaries; and (N) liens which would otherwise be
subject to the foregoing restrictions which, when the
Indebtedness relating to those liens is added to all other then
outstanding Indebtedness of the Company and the Restricted
Subsidiaries secured by liens and not listed in clauses (A)
through (M) above, does not exceed $50,000,000.
(IV) LIMITATION ON RESTRICTED PAYMENTS. The Company will
not, nor will it permit any Restricted Subsidiary to, directly or
indirectly, (A) declare or pay any dividend on, or make any
distribution in respect of, or purchase, redeem or otherwise
acquire or retire for value, any Capital Stock of the Company
other than through the issuance solely of the Company's own
Capital Stock (other than Disqualified Stock), or rights thereto;
(B) make any principal payment on, or redeem, repurchase, defease
or otherwise acquire or retire for value prior to scheduled
principal payments or maturity, Indebtedness of the Company or
any Restricted Subsidiary which is expressly subordinated in
right of payment to the Notes (other than Indebtedness Incurred
after the issuance of the Notes provided that such repayment,
redemption, repurchase, defeasance or other retirement is made
substantially concurrent with the receipt of proceeds from the
Incurrence of Indebtedness that by its terms is both subordinated
in right of payment to the Notes and matures, by sinking fund or
otherwise, after June 15, 2007; or (C) make any Restricted
Investment (such payments or any other actions described in (A),
(B) and (C) being referred to herein collectively as, "Restricted
Payments") unless
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(I) at the time of, and after giving effect to, the proposed
Restricted Payment, no Event of Default (and no event that, after
notice or lapse of time, or both, would become an Event of
Default) shall have occurred and be continuing, (II) the Company
is able to Incur an additional $1.00 of Indebtedness pursuant to
the first paragraph of section (m)(ii) herein, and (III) at the
time of, and after giving effect thereto, the sum of the
aggregate amount expended (or with respect to guaranties or
similar arrangements the amount then guaranteed) for all such
Restricted Payments (the amount expended for such purposes, if
other than in cash, to be determined by the Board of Directors of
the Company, whose determination shall be conclusive and
evidenced by a resolution of such Board of Directors filed with
the Trustee) subsequent to June 30, 1997 shall not exceed the sum
of (aa) 50% of the aggregate Consolidated Net Income (or, in case
such aggregate Consolidated Net Income shall be a deficit, minus
100% of such deficit) of the Company accrued on a cumulative
basis subsequent to June 30, 1997, (bb) the aggregate net
proceeds, including the fair market value of property other than
cash (as determined by the Board of Directors of the Company,
whose determination shall be conclusive and evidenced by a
resolution of such Board of Directors filed with the Trustee),
received by the Company from the issuance or sale, after the date
of issuance of the Notes, of Capital Stock (other than
Disqualified Stock) of the Company, including Capital Stock
(other than Disqualified Stock) of the Company issued subsequent
to the date of issuance of the Notes upon the conversion of
Indebtedness of the Company initially issued for cash, (cc) 100%
of dividends or distributions (the fair value of which, if other
than cash, to be determined by the Board of Directors, in good
faith) paid to the Company (or any Restricted Subsidiary) by an
Unrestricted Subsidiary, Homebuilding Joint Venture or any other
person in which the Company (or any Restricted Subsidiary),
directly or indirectly, has an ownership interest but less than a
100% ownership interest to the extent that such dividends or
distributions do not exceed the amount of loans, advances or
capital contributions made to any such entity or person
subsequent to the date of issuance of the Notes and included in
the calculation of Restricted Payments, and (dd) $40,000,000;
provided, however, that the foregoing shall not prevent (i) the
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payment of any dividend within 60 days after the date of
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declaration thereof, if at said date of declaration the making of
such payment would have complied with the provisions of this
limitation on dividends, provided, however, that such dividend
shall be included in future calculations of Restricted Payments,
(ii) the retirement of any shares of the Company's Capital Stock
by exchange for, or out of proceeds of the substantially
concurrent sale of, other shares of its Capital Stock (other than
Disqualified Stock), provided, however, that the aggregate net
proceeds from such sale shall be excluded from the calculation of
the amounts under subclause (bb) above of, (iii) the redemption,
repayment, repurchase, defeasance or other retirement of
Indebtedness with proceeds received from the substantially
concurrent sale of shares of the Company's Capital Stock (other
than Disqualified Stock); provided however, that the aggregate
net proceeds from such sale shall be excluded from the
calculation of the amounts under subclause (bb) above, or (iv)
any investment or investments in Standard Pacific Savings, F.A.
("Savings") by the Company or any of its Restricted Subsidiaries
for the purpose of causing Savings to comply with any regulatory
agreements existing on the date of issuance of the Notes or with
any applicable law, rule, regulation, official interpretation of
law, rule or regulation or official directive which governs the
capital maintenance, net worth or similar regulatory requirements
applicable to Savings.
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(V) LIMITATION ON ASSET SALES. The Company will not, and
will not permit any Restricted Subsidiary to, make an Asset
Disposition, other than for fair market value and in the ordinary
course of business, with an aggregate net book value as of the
end of the immediately preceding fiscal quarter greater than 10%
of the Company's total consolidated assets as of that date,
unless (A) the consideration received by the Company (or a
Restricted Subsidiary, as the case may be) for such disposition
consists of at least 70% cash; provided, however, that for
-------- -------
purposes of this provision (A), the amount of any liabilities
assumed by the transferee and any notes or other obligations
received by the Company or a Restricted Subsidiary which are
immediately converted into cash shall be deemed to be cash,
and (B) the Company shall within one year after the date of such
sale or sales, apply the Net Proceeds from such sale or sales in
excess of an amount equal to 10% of the Company's total
consolidated assets to (I) a purchase of or an Investment in
Additional Assets (other than cash or cash equivalents), (II)
repayment of indebtedness of the Company which is pari passu with
---- -----
the Notes, and/or (III) make an offer to acquire all or part of
the Notes at a purchase price equal to the principal amount
thereof plus accrued and unpaid interest thereon to the purchase
date.
In the event the Company elects to or shall be required to
offer to redeem Notes pursuant to the provisions of this
paragraph (m)(v), the Company shall deliver to the Trustee an
Officers' Certificate specifying the Asset Sale Offer Amount (as
defined below) and the Asset Sale Purchase Date (as defined
below). Within 15 days thereafter, the Company shall mail or
cause the Trustee to mail (in the Company's name and at its
expense) an offer to redeem (the "Asset Sale Offer") to each
Holder of Notes. The redemption price shall be 100% of the
principal amount of the Notes plus accrued interest to the
redemption date and upon surrender to the Trustee or the Paying
Agent, the Holders of such Notes shall be paid the redemption
price. The date designated for repurchase of Notes pursuant to
an Asset Sale Offer (the "Asset Sale Purchase Date") shall be a
date designated by the Company that is not less than 30 days nor
more than 60 days before notice of an Asset Sale Offer is to be
and shall be mailed by the Trustee to the Holders of the Notes at
their last registered
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address. The Asset Sale Offer shall remain open from the time of
mailing until 5 days before the Asset Sale Purchase Date. The
Notice shall contain all instructions and materials necessary to
enable such Holders to tender Notes pursuant to the Asset Sale
Offer. The Notice, which shall govern the terms of the Asset Sale
Offer, shall state:
(aa) that the Asset Sale Offer is being made pursuant to this
paragraph (m)(v);
(bb) the amount of Notes offered to be redeemed (the "Asset Sale
Offer Amount"), the purchase price and the Asset Sale
Purchase Date;
(cc) that any Note not tendered or accepted for payment will
continue to accrue interest;
(dd) that any Note accepted for payment pursuant to the Asset
Sale Offer shall cease to accrue interest after the Asset
Sale Purchase Date;
(ee) that Holders electing to have a Note purchased pursuant to
an Asset Sale Offer will be required to surrender the Note,
with the form entitled "Option of Holder to Elect Purchase"
on the reverse side of the Note completed, to the Paying
Agent at the address specified in the Notice at least five
days before the Asset Sale Purchase Date;
(ff) that Holders will be entitled to withdraw their election if
the Paying Agent receives, not later than three days prior
to the Asset Sale Purchase Date, a telegram, telex,
facsimile transmission or letter setting forth the name of
the Holder, the principal amount of the Note the Holder
delivered for purchase and a statement that such Holder is
withdrawing his election to have the Note purchased;
(gg) that if Notes in a principal amount in excess of the Asset
Sale Offer Amount are tendered pursuant to the Asset Sale
Offer, the Company shall purchase Notes on a pro rata basis
or by lot or in such other manner as the Trustee shall deem
fair and appropriate; and
(hh) that Holders whose Notes were purchased only in part will be
issued new Notes equal in principal amount to the
unpurchased portion of the Notes surrendered.
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On the Asset Sale Purchase Date, the Company shall (i)
accept for payment Notes or portions thereof properly tendered
pursuant to the Asset Sale Offer (on a pro rata basis, by lot or
in such other manner specified by the Trustee if required
pursuant to paragraph (gg) above), (ii) deposit with the Paying
Agent money sufficient to pay the purchase price of all Notes or
portions thereof so accepted and (iii) deliver to the Trustee
Notes so accepted together with an Officers' Certificate stating
the Notes or portions thereof accepted for payment by the
Company. The Paying Agent shall promptly mail or deliver to
Holders of Notes so accepted, payment in an amount equal to the
purchase price, and the Trustee shall promptly authenticate and
mail or deliver to such Holders a new Note equal in principal
amount of any unpurchased portion of the Note surrendered. Any
Notes not so accepted shall be promptly mailed or delivered by
the Company to the Holder thereof. The Company will publicly
announce the results of the Asset Sale Offer on or as soon after
as practical the Asset Sale Purchase Date. For purposes of this
paragraph (l)(v), the Trustee shall act as the Paying Agent.
(VI) TRANSACTIONS WITH AFFILIATES. (A) The Company shall
not, and shall not permit any Restricted Subsidiary to, enter
into or permit to exist any transaction or series of related
transactions (including the purchase, sale, lease or exchange of
any property, employee compensation arrangements or the rendering
of any service) with any Affiliate of the Company (an "Affiliate
Transaction") unless the terms thereof (I) are no less favorable
to the Company or such Restricted Subsidiary than those that
could be obtained at the time of such transaction in arm's-length
dealings with a person who is not such an Affiliate; and (II) if
such Affiliate Transaction (or series of related Affiliate
Transactions) involve aggregate payments in an amount in excess
of $10 million in any one year, (aa) are set forth in writing,
(bb) comply with clause (I) above and (cc) have been approved by
a majority of the disinterested members of the Board of
Directors.
(B) The provisions of the foregoing paragraph (A) shall
not prohibit (I) any Restricted Payment permitted to be paid
pursuant to the covenant described under clause (m)(iv) above;
(II) any issuance of securities, or other payments, awards or
grants in cash, securities or
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otherwise, pursuant to, or the funding of, employment
arrangements, stock options and stock ownership plans in the
ordinary course of business and approved by the Board of
Directors or a committee thereof; (III) the grant of stock
options or similar rights to employees and directors of the
Company in the ordinary course of business and pursuant to plans
approved by the Board of Directors or a committee thereof; (IV)
loans or advances to employees in the ordinary course of business
of the Company or its Restricted Subsidiaries; (V) fees,
compensation or employee benefit arrangements paid to and
indemnity provided for the benefit of directors, officers or
employees of the Company or any Subsidiary in the ordinary course
of business; or (VI) any Affiliate Transaction between the
Company and a Restricted Subsidiary or between Restricted
Subsidiaries.
(VII) LIMITATION ON PAYMENT RESTRICTIONS AFFECTING
RESTRICTED SUBSIDIARIES. The Company will not, and will not
permit any Restricted Subsidiary to, create or otherwise cause or
permit to exist or become effective, any consensual encumbrance
or consensual restriction on the ability of any Restricted
Subsidiary (I) to pay dividends or make any other distributions
on its Capital Stock to the Company or a Restricted Subsidiary or
pay any Indebtedness owed to the Company, (II) to make any loans
or advances to the Company or (III) transfer any of its property
or assets to the Company, except: (aa) any encumbrance or
restriction pursuant to an agreement in effect at or entered into
on the date of issuance of the Notes; (bb) any encumbrance or
restriction with respect to a Restricted Subsidiary pursuant to
an agreement relating to any Indebtedness Incurred by such
Restricted Subsidiary which was entered into on or prior to the
date on which such Restricted Subsidiary was acquired by the
Company (other than as consideration in, or to provide all or any
portion of the funds or credit support utilized to consummate,
the transaction or series of related transactions pursuant to
which such Restricted Subsidiary became a Restricted Subsidiary
or was acquired by the Company) and outstanding on such date;
(cc) any encumbrance or restriction pursuant to an agreement
effecting a Refinancing of Indebtedness Incurred pursuant to an
agreement referred to in clause (aa) or (bb) of this covenant (or
effecting a Refinancing of such Refinancing Indebtedness pursuant
to this clause (cc)) or contained in any amendment to an
agreement referred to in clause (aa) or (bb) of this covenant or
this clause
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<PAGE>
(cc); provided, however, that the encumbrances and restrictions
with respect to such Restricted Subsidiary contained in any such
refinancing agreement or amendment are no more restrictive in any
material respect than the encumbrances and restrictions with
respect to such Restricted Subsidiary contained in such
agreements; (dd) any such encumbrance or restriction consisting
of customary contractual non-assignment provisions to the extent
such provisions restrict the transfer of rights, duties or
obligations under such contract; (ee) in the case of clause (III)
above, restrictions contained in security agreements or mortgages
securing Indebtedness of a Restricted Subsidiary to the extent
such restrictions restrict the transfer of the property subject
to such security agreements or mortgages; (ff) any restriction
with respect to a Restricted Subsidiary imposed pursuant to an
agreement entered into for the sale or disposition of all or
substantially all the Capital Stock or assets of such Restricted
Subsidiary pending the closing of such sale or disposition; and
(gg) any restriction imposed by applicable law.
(VIII) RESTRICTED AND UNRESTRICTED SUBSIDIARIES. The
Company will not permit any Restricted Subsidiary to be
designated as an Unrestricted Subsidiary unless the Company and
its Restricted Subsidiaries would thereafter be permitted to (A)
Incur at least $1.00 of Indebtedness under the first paragraph
of (m)(ii) above and (B) make a Restricted Payment of at least
$1.00 under paragraph (m)(iv) above.
The Company will not permit any Unrestricted Subsidiary to
be designated as a Restricted Subsidiary unless such Subsidiary
has outstanding no Indebtedness except such Indebtedness as the
Company could permit it to become liable for immediately after
becoming a Restricted Subsidiary under paragraph (m)(ii) above.
Promptly after the adoption of any Board Resolution
designating a Restricted Subsidiary as an Unrestricted Subsidiary
or an Unrestricted Subsidiary as a Restricted Subsidiary, a copy
thereof shall be filed with the Trustee, together with an
Officers' Certificate stating that the provisions of this
paragraph (m)(viii) have been
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complied with in connection with such designation.
The Company will not permit Standard Pacific of Texas, Inc.
to be designated as an Unrestricted Subsidiary or permit the
assets of the Company or any Subsidiary employed in the
homebuilding operations to be transferred to an Unrestricted
Subsidiary, except in amounts permitted under paragraph (m)(iv)
above.
(IX) SUCCESSOR CORPORATION. The Company will not
consolidate with, merge into or transfer all or substantially all
of its assets to another person unless (i) such person (if other
than the Company) is a corporation organized under the laws of
the United States or any state thereof or the District of
Columbia and expressly assumes all the obligations of the Company
under the Indenture and the Notes; (ii) immediately after giving
effect to such transaction, no Default or Event of Default shall
have occurred and be continuing; (iii) the Consolidated Net Worth
of the obliger of the Notes immediately after giving effect to
such transaction (exclusive of any adjustments to Consolidated
Net Worth relating to transaction costs and accounting
adjustments resulting from such transaction) is not less than the
Consolidated Net Worth of the Company immediately prior to such
transaction; and (iv) the surviving corporation would be able to
Incur at least an additional $1.00 of Indebtedness pursuant to
the first paragraph of the covenant described under paragraph
(m)(ii).
(X) REPORTS TO HOLDERS OF THE NOTES. So long as the
Company is subject to the periodic reporting requirements of the
Exchange Act, it shall continue to furnish the information
required thereby to the SEC. Even if the Company is entitled
under the Exchange Act not to furnish such information to the SEC
or to the holders of the Notes, it will nonetheless continue to
furnish information under Section 13 or 15(d) of the Exchange Act
to the SEC and the Trustee as if it were subject to such periodic
reporting requirements.
(M) ADDITIONAL EVENTS OF DEFAULT. In addition to the Events of
Default specified in the Indenture, the following shall constitute
Events of Default under Section 6.01 of the Indenture with respect to
the Notes: (i) default under any mortgage, indenture (including the
Indenture) or instrument under which is
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<PAGE>
issued or which secures or evidences Indebtedness of the Company or
any Restricted Subsidiary (other than Non-Recourse Indebtedness) which
default constitutes a failure to pay principal of such Indebtedness in
an amount of $20,000,000 or more when due and payable (other than as a
result of acceleration) or results in Indebtedness (other than Non-
Recourse Indebtedness) in the aggregate of $20,000,000 or more
becoming or being declared due and payable before it would otherwise
become due and payable, and (ii) entry of a final judgment for the
payment of money against the Company or any Restricted Subsidiary in
an amount of $5,000,000 or more which remains undischarged or unstayed
for a period of 60 days after the date on which the right to appeal
such judgment has expired or becomes subject to an enforcement
proceeding.
(N) CERTAIN DEFINITIONS. The following terms shall have the
meanings indicated for purposes of this Officers' Certificate. All
capitalized terms used in this Officers' Certificate and not otherwise
defined herein shall have the meanings set forth in the Indenture.
"Additional Assets" means (i) any property or assets (other than
Indebtedness and Capital Stock) in a Related Business; or (ii) the
Capital Stock of a person that becomes a Restricted Subsidiary as a
result of the acquisition of such Capital Stock by the Company or
another Restricted Subsidiary; provided, however, that any such
Restricted Subsidiary is primarily engaged in a Related Business. For
purposes of this definition, "Related Business" means any business
related, ancillary or complimentary (as defined in good faith by the
Board of Directors) to the business of the Company and the Restricted
Subsidiaries on the date of issuance of the Notes.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For the purposes
of this definition, "control" when used with respect to any specified
person means the power to direct or cause the direction of the
management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, by contract or
other-wise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Asset Disposition" means any sale, lease, transfer or other
disposition (or series of related sales, leases, transfers or
dispositions) by the
20
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Company or any Restricted Subsidiary, including any disposition by
means of a merger, consolidation or similar transaction (each referred
to for the purposes of this definition as a "disposition"), of (i) any
shares of Capital Stock of a Restricted Subsidiary (other than
directors' qualifying shares and, to the extent required by local
ownership laws in foreign countries, shares owned by foreign
shareholders); (ii) all or substantially all the assets of any
division, business segment or comparable line of business of the
Company or any Restricted Subsidiary; or (iii) any other assets of the
Company or any Restricted Subsidiary having a fair market value (as
determined in good faith by the Board of Directors) in excess of
$250,000 disposed of in a single transaction or series of related
transactions outside of the ordinary course of business of the Company
or such Restricted Subsidiary (other than, in the case of (i), (ii)
and (iii) above, a disposition by a Restricted Subsidiary to the
Company or by the Company or a Restricted Subsidiary to a Wholly Owned
Subsidiary).
"Average Life" means, as of the date of determination, with
respect to any Indebtedness, the quotient obtained by dividing (i) the
sum of the products of the numbers of years from the date of
determination to the dates of each successive scheduled principal
payment (assuming the exercise by the obligor of such Indebtedness of
all unconditional (other than as to the giving of notice) extension
options of each such scheduled payment date) of such Indebtedness
multiplied by the amount of such principal payment by (ii) the sum of
all such principal payments.
"Bank Credit Facility" means the Revolving Credit Facility and
any bank credit agreement or credit facility entered into in the
future by the Company or any Restricted Subsidiary, as any of the same
may be amended, waived, modified, refinanced or replaced from time to
time.
"Capitalized Lease Obligations" means any obligations under a
lease that is required to be capitalized for financial reporting
purposes in accordance with generally accepted accounting principles.
"Capital Stock" of any person means any and all shares,
interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of
such person, including any Preferred Stock, but excluding any debt
securities convertible into such equity.
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"Change of Control" means the occurrence of any of the following
events:
(i) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Exchange Act), is or becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that for purposes of this clause such person or
group shall be deemed to have "beneficial ownership" of all shares
that any such person or group has the right to acquire, whether such
right is exercisable immediately or only after the passage of time),
directly or indirectly, of more than 50 percent of the total voting
power of the Voting Stock of the Company;
(ii) during any period of two consecutive years, individuals
who at the beginning of such period constituted the Board of Directors
(together with any new directors whose election by such Board of
Directors or whose nomination for election by the shareholders of the
Company was approved by a majority vote of the directors of the
Company then still in office who were either directors at the
beginning of such period or whose election or nomination for election
was previously so approved) cease for any reason to constitute a
majority of the Board of Directors then in office; or
(iii) the merger or consolidation of the Company with or into
another person or the merger of another person with or into the
Company, or the sale of all or substantially all the assets of the
Company to another person, other than any such sale to one or more
Restricted Subsidiaries, and in the case of any such merger or
consolidation, the securities of the Company that are outstanding
immediately prior to such transaction and which represent 100 percent
of the aggregate voting power of the Voting Stock of the Company are
changed into or exchanged for cash, securities or property, unless
pursuant to such transaction such securities are changed into or
exchanged for, in addition to any other consideration, securities of
the surviving corporation, or a parent corporation that owns all of
the Capital Stock of such surviving corporation, that represent
immediately after such transaction, at least a majority of the
aggregate voting power of the Voting Stock of the surviving
corporation or such parent corporation, as the case may be.
"Consolidated Coverage Ratio" with respect to the Company as of
any date of determination means the ratio of the Company's EBITDA to
its Consolidated Interest
22
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Incurred for the four fiscal quarters ending immediately prior to the
date of determination. Notwithstanding clause (ii) of the definition
of Consolidated Net Income, if the Indebtedness which is being
Incurred is Incurred in connection with an acquisition by the Company
or a Restricted Subsidiary, the Consolidated Coverage Ratio shall be
determined after giving effect to both the Consolidated Interest
Incurred related to the Incurrence of such Indebtedness and the EBITDA
as if the acquisition had occurred at the beginning of the four fiscal
quarter period (x) of the person becoming a Restricted Subsidiary,or
(y) in the case of an acquisition of assets that constitute
substantially all of an operating unit or business, relating to the
assets being acquired by the Company or a Restricted Subsidiary.
"Consolidated Interest Expense" of the Company means, for any
period, the aggregate amount of interest which, in accordance with
generally accepted accounting principles as in effect on the date of
the issuance of the Notes, would be included on an income statement
for the Company and its Restricted Subsidiaries on a consolidated
basis, whether expensed directly, or included as a component of cost
of goods sold, or allocated to joint ventures or otherwise (including,
but not limited to, imputed interest included on Capitalized Lease
Obligations, all commissions, discounts and other fees and charges
owed with respect to letters of credit and bankers' acceptance
financing, the net costs associated with Hedging Obligations,
amortization of other financing fees and expenses, the interest
portion of any deferred payment obligation, amortization of discount
or premium, if any, and all other non-cash interest expense),
excluding interest expense related to mortgage banking operations plus
the product of (i) cash dividends paid on any Preferred Stock of the
Company times (ii) a fraction, the numerator of which is one and the
denominator of which is one minus the then current effective aggregate
federal, state and local tax rate of the Company, expressed as a
decimal.
"Consolidated Interest Incurred" of the Company means, for any
period, (i) the aggregate amount of interest which, in accordance with
generally accepted accounting principles as in effect on the date of
the issuance of the Notes, would be included on an income statement
for the Company and its Restricted Subsidiaries on a consolidated
basis, whether expensed directly, or included as a component of cost
of goods sold, or allocated to joint ventures or otherwise (including,
but not limited to, imputed interest
23
<PAGE>
included on Capitalized Lease Obligations, all commissions, discounts
and other fees and charges owed with respect to letters of credit and
bankers' acceptance financing, the net costs associated with Hedging
Obligations, amortization of discount or premium, if any, and all
other non-cash interest expense), excluding interest expense related
to mortgage banking operations, plus or minus, without duplication;
(ii) the difference between capitalized interest for such period and
the interest component of cost of goods sold for such period; plus
(iii) the product of (A) cash dividends paid on any Preferred Stock of
the Company, times (B) a fraction, the numerator of which is one and
the denominator of which is one minus the then current effective
aggregate federal, state and local tax rate of the Company, expressed
as a decimal.
"Consolidated Net Income" for any period, means the aggregate of
the Net Income of the Company and its Restricted Subsidiaries for such
period on a consolidated basis determined in accordance with generally
accepted accounting principles as in effect on the date of the
issuance of the Notes, provided that (i) the Net Income of any person
in which the Company or any Restricted Subsidiary has, a joint
interest with a third party (other than an Unrestricted Subsidiary)
shall be included only to the extent of the lesser of (A) the amount
of dividends or distributions actually paid to the Company or a
Restricted Subsidiary or (B) the Company's direct or indirect
proportionate interest in the Net Income of such person, provided
that, so long as the Company or a Restricted Subsidiary has an
unqualified legal right to require the payment of a dividend or
distribution, Net Income shall be determined solely pursuant to clause
(B); (ii) the Net Income of any person acquired in a pooling of
interests transaction for any period prior to the date of such
acquisition shall be excluded; and (iii) the Net Income of any
Unrestricted Subsidiary shall be included only to the extent of the
amount of dividends or distributions (the fair value of which, if
other than in cash, to be determined by the Board of Directors, in
good faith) by such Subsidiary to the Company or to any of its
consolidated Restricted Subsidiaries; and (iv) the Net Income of any
Unrestricted Subsidiary, any Homebuilding Joint Venture or any other
person in which the Company or any Restricted Subsidiary has a joint
interest with a third party that is not existing on March 31, 1997
shall be included only to the extent that the aggregate amount of
dividends or distributions (the fair value of which, if other than
cash, to be determined by the Board of Directors, in good faith) by
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such Subsidiary or Homebuilding Joint Venture to the Company or to any
of its consolidated Restricted Subsidiaries exceeds the aggregate
amount of unpaid loans or advances and unreturned capital
contributions made by the Company or any Restricted Subsidiary in or
to such Subsidiary or Homebuilding Joint Venture.
"Consolidated Net Worth" of the Company means consolidated
stockholders' equity less any increase in stockholders' equity of each
of the Unrestricted Subsidiaries subsequent to June 30, 1997
attributable to the Company or any of its Restricted Subsidiaries, as
determined in accordance with generally accepted accounting principles
as in effect on the date of the issuance of the Notes.
"Consolidated Tangible Net Worth" with respect to the Company
means the consolidated stockholders' equity of the Company, as
determined in accordance with generally accepted accounting
principles, as in effect on the date of the issuance of the Notes,
less (i) that portion of any increase in each of the Unrestricted
Subsidiaries' stockholders' equity subsequent to June 30, 1997
attributable to the Company or any of its Restricted Subsidiaries, as
determined in accordance with generally accepted accounting
principles, as in effect on the date of the issuance of the Notes, and
(ii) the Intangible Assets of the Company and the Restricted
Subsidiaries. "Intangible Assets" means the amount (to the extent
reflected in determining consolidated stockholders' equity) of (A)
all write-ups (other than write-ups of tangible assets of a going
concern business made within twelve months after the acquisition of
such business) in the book value of any asset owned by the Company or
any Restricted Subsidiary, and (B) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other
like intangibles.
"Disqualified Stock" means, with respect to any person, any
Capital Stock which by its terms (or by the terms of any security into
which it is convertible or for which it is exchangeable) or upon the
happening of any event (i) matures or is mandatorily redeemable
pursuant to a sinking fund obligation or otherwise; (ii) is
convertible or exchangeable, at the option of the holder thereof, for
Indebtedness or Disqualified Stock; or (iii) is redeemable at the
option of the holder thereof, in whole or in part, in each case on or
prior to June 15, 2008. Notwithstanding the foregoing, "Disqualified
Stock" shall not include Capital Stock which is redeemable solely
pursuant to a change in control provision that does not (A) cause such
Capital
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Stock to become redeemable in circumstances which would not constitute
a Change of Control and (B) require the Company to pay the redemption
price therefor prior to the repurchase date specified under "Change of
Control" above.
"EBITDA" of the Company for any period means the sum of
Consolidated Net Income plus Consolidated Interest Expense plus,
without duplication, the following to the extent deducted in
calculating such Consolidated Net Income: (i) income tax expense,
(ii) depreciation expense, (iii) amortization expense and (iv) all
other non-cash items reducing Consolidated Net Income (other than
items that will require cash payments in the future and for which an
accrual or reserve is, or is required by generally accepted accounting
principals as in effect on the date of issuance of the Notes to be,
made), less all non-cash items increasing Consolidated Net Income, in
each case for such period. Notwithstanding the foregoing, the
provision for taxes based on the income or profits of, and the
depreciation and amortization of, a Subsidiary of the Company shall be
added to Consolidated Net Income to compute EBITDA only to the extent
(and in the same proportion) that the net income of such Subsidiary
was included in calculating Consolidated Net Income.
"Hedging Obligations" of any person means the net obligations of
such person pursuant to any Interest Rate Agreement or any foreign
exchange contract, currency swap agreement or other similar agreement
to which such person is a party or a beneficiary.
"Homebuilding Joint Venture" means (i) any Unrestricted
Subsidiary and (ii) any person in which the Company or any of its
Subsidiaries has an ownership interest but less than a 100% ownership
interest that, in each case, was formed for and is engaged in
homebuilding operations.
"Incur" means issue, assume, guarantee, incur or otherwise become
liable for; provided, however, that any Indebtedness or Capital Stock
of a person existing at the time such person becomes a Subsidiary
(whether by merger, consolidation, acquisition or otherwise) shall be
deemed to be Incurred by such Subsidiary at the time it becomes a
Subsidiary; provided further, however, that in the case of a discount
security, neither the accrual of interest nor the accretion of
original issue discount shall be considered an Incurrence of
Indebtedness. The term "Incurrence" when used as a noun shall have a
correlative meaning.
26
<PAGE>
"Indebtedness" means on any date of determination (without
duplication), (i) the principal of and premium (if any) in respect of
(A) indebtedness of such person for money borrowed and (B)
indebtedness evidenced by notes, debentures, bonds or other similar
instruments for the payment of which such person is responsible or
liable; (ii) all Capitalized Lease Obligations of such person; (iii)
all obligations of such person issued or assumed as the deferred
purchase price of property or services, all conditional sale
obligations of such person and all obligations of such person under
any title retention agreement (but excluding accounts payable and
accrued expenses arising in the ordinary course of business and which
are not more than 90 days past due and not in dispute) which would
appear as a liability on a balance sheet of a person prepared on a
consolidated basis in accordance with generally accepted accounting
principles, which purchase price or obligation is due more than six
months after the date of placing such property in service or taking
delivery and title thereto or the completion of such services
(provided that, in the case of obligations of an acquired person
assumed in connection with an acquisition of such person, such
obligations would constitute Indebtedness of such person); (iv) all
obligations of such person for the reimbursement of any obliger on any
letter of credit, banker's acceptance or similar credit transaction
(other than obligations with respect to letters of credit securing
obligations (other than obligations described in (i) through (iii)
above) entered into in the ordinary course of business of such person
to the extent such letters of credit are not drawn upon or, if and to
the extent drawn upon, such drawing is reimbursed no later than the
tenth Business Day following receipt by such person of a demand for
reimbursement following payment on the letter of credit); (v) the
amount of all obligations of such person with respect to the
redemption, repayment or other repurchase of any Disqualified Stock
or, with respect to any Subsidiary of such person, any Preferred Stock
(but excluding, in each case, any accrued dividends); (vi) all
obligations of the type referred to in clauses (i) through (v) of
other persons and all dividends of other persons for the payment of
which, in either case, such person is responsible or liable, directly
or indirectly, as obliger, guarantor or otherwise, including by means
of any guarantee; (vii) all obligations of the type referred to in
clauses (i) through (vi) of other persons secured by any lien on any
property or asset of such person (whether or not such obligation is
assumed by such person), the amount of such obligation being deemed to
be the lesser of the value of such property or assets
27
<PAGE>
or the amount of the obligation so secured; and (viii) to the extent
not otherwise included in this definition, Hedging Obligations of such
Person. The amount of Indebtedness of any person at any date shall be
the outstanding balance at such date of all unconditional obligations
as described above and the maximum liability, upon the occurrence of
the contingency, other than a contingency solely within the control of
such person, giving rise to the obligation, of any contingent
obligations as described above at such date; provided, however, that
the amount outstanding at any time of any Indebtedness issued with
original issue discount shall be deemed to be the face amount of such
Indebtedness less the remaining unamortized portion of the original
issue discount of such indebtedness at such time as determined in
conformity with generally accepted accounting principles.
"Interest Rate Agreement" means any interest rate swap agreement,
interest rate cap agreement or other financial agreement or
arrangement designed to protect the Company or any Restricted
Subsidiary against fluctuations in interest rates.
"Investment" in any person means any direct or indirect advance,
loan (other than advances to customers in the ordinary course of
business that are recorded as accounts receivable on the balance sheet
of such person) or other extensions of credit (including by way of
guarantee or similar arrangement) or capital contribution to (by means
of any transfer of cash or other property to others or any payment for
property or services for the account or use of others), or any
purchase or acquisition of Capital Stock, Indebtedness or other
similar instruments issued by such person.
"Mortgage" means a first priority mortgage or first priority deed
of trust on improved real property.
"Net Income" of any person means the net income (loss) of such
person, determined in accordance with generally accepted accounting
principles, as in effect on the date of issuance of the Notes;
excluding, however, from the determination of Net Income all gains (to
the extent that they exceed all losses) realized upon the sale or
other disposition (including, without limitation, dispositions
pursuant to sale leaseback transactions) of any real property or
equipment of such person, which is not sold or otherwise disposed of
in the ordinary course of business, or of any capital stock of such
person or its subsidiaries owned by such person.
28
<PAGE>
"Net Proceeds" means with respect to any sale, assignment,
exchange, lease, transfer or other disposition of assets, the
consideration received by the Company (or a Restricted Subsidiary, as
the case may be) for such disposition after (a) provision for all
income and other taxes resulting from such asset disposition, (b)
payment of all brokerage commissions, underwriting, legal, accounting,
appraisal and other fees and expenses related to such asset sale and
(c) deduction of appropriate amounts to be provided by the Company or
a Restricted Subsidiary as a reserve, in accordance with generally
accepted accounting principles, against any liabilities associated
with the assets sold or disposed of in such asset disposition and
retained by the Company or a Restricted Subsidiary after such asset
sale, including, without limitation, pension and other post-employment
benefit liabilities and against any indemnification obligations
associated with the assets sold or disposed of in such asset sale.
"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 Company
or any Subsidiary (other than the Subsidiary which holds title to such
property) for any deficiency.
"Person" means any individual, corporation, partnership, joint
venture, association, joint stock company, limited liability company,
limited liability partnership, trust, unincorporated organization, or
government or any agency or political subdivision thereof.
"Preferred Stock", as applied to the Capital Stock of any
corporation, means Capital Stock of any class or classes (however
designated) which is preferred as to the payment of dividends, or as
to the distribution of assets upon any voluntary or involuntary
liquidation or dissolution of such corporation, over shares of Capital
Stock of any other class of such corporation.
"Refinance" means, in respect of Indebtedness, to refinance,
extend, renew, refund, repay, prepay, redeem, defease or retire, or to
issue other Indebtedness in exchange or replacement for, such
Indebtedness.
"Refinancing" shall have a correlative meaning.
"Restricted Investment" means any loan, advance, capital
contribution or transfer (including by way of guaranty or other
similar arrangement) in or to any
29
<PAGE>
Unrestricted Subsidiary, Homebuilding Joint Venture or any person in
which the Company, directly or indirectly, has an ownership interest
but less than 100 percent ownership interest; provided, however, that
loans, advances, capital contributions or transfers (including by way
of guaranty or other similar arrangement) to a Homebuilding Joint
Venture shall be counted as a Restricted Investment only to the extent
that the aggregate at any one time outstanding of all such amounts
expended (or with respect to guaranties or similar arrangements the
amounts then guaranteed) exceed, subsequent to December 31, 1996, $20
million for any one Homebuilding Joint Venture or $60 million in the
aggregate for all Homebuilding Joint Ventures. Restricted Investment
shall include the fair market value of the net assets of any
Restricted Subsidiary that at any time is designated an Unrestricted
Subsidiary. Any property transferred to an Unrestricted Subsidiary,
and the net assets of a Restricted Subsidiary that is designated an
Unrestricted Subsidiary, shall be valued at fair market value at the
time of such transfer, in each case as determined by the Board of
Directors of the Company in good faith. The net assets of Panel
Concepts shall not be counted as a Restricted Investment if (i) a sale
of all or a portion of the Capital Stock of Panel Concepts causes
Panel Concepts to become an Unrestricted Subsidiary; (ii) at the time
of such sale, the net book value of the assets of Panel Concepts
represent less than 10 percent of the consolidated assets of the
Company and its Restricted Subsidiaries; and (iii) the net proceeds of
any such sale and any subsequent sale of the Capital Stock of Panel
Concepts to any person other than the Company or any Restricted
Subsidiary are paid or distributed to the Company or any Restricted
Subsidiary.
"Restricted Subsidiary" means any Wholly-Owned Subsidiary that
has not been designated an Unrestricted Subsidiary.
"Subsidiary" means a corporation, a majority of the capital stock
with voting power to elect directors of which is directly or
indirectly owned by the Company and its Subsidiaries, or any person in
which the Company and its Subsidiaries have at least a majority
ownership interest.
"Unrestricted Subsidiary" means (i) any Subsidiary in which the
Company, directly or indirectly, has less than a 100% ownership
interest; (ii) any Wholly Owned Subsidiary which in accordance with
paragraph (m)(viii) above has been designated in a resolution adopted
by
30
<PAGE>
the Board of Directors of the Company as an Unrestricted Subsidiary,
in each case unless and until such Subsidiary shall be designated as a
Restricted Subsidiary in accordance with paragraph (m)(viii) above;
and (iii) any Wholly-Owned Subsidiary a majority of the voting stock
of which shall at the time be owned directly or indirectly by one or
more Unrestricted Subsidiaries.
"Voting Stock", with respect to any person, means securities of
any class of Capital Stock of such person entitling the holders
thereof (whether at all times or only so long as no senior class of
stock has voting power by reason of any contingency) to vote in the
election of members of the board of directors of such person.
"Warehouse Facility" means a Bank Credit Facility to finance the
making of Mortgage loans originated by the Company or any of its
Subsidiaries.
"Wholly Owned Subsidiary" means a Subsidiary, all of the capital
stock (whether or not voting, but exclusive of directors' qualifying
shares) of which is owned by the Company or a Wholly-Owned Subsidiary.
Each of the undersigned, for himself, states that he has read and is
familiar with the provisions of Article Two of the Indenture relating to the
establishment of a series of Securities thereunder and the establishment of
forms of Securities representing a series of Securities thereunder and, in each
case, the definitions therein relating thereto; that he is generally familiar
with the other provisions of the Indenture and with the affairs of the Company
and its acts and proceedings and that the statements and opinions made by him in
this Officers' Certificate are based upon such familiarity; and that he has made
such examination or investigation as is necessary to enable him to determine
whether or not the covenants and conditions referred to above have been complied
with; and in his opinion, such covenants and conditions have been complied with.
31
<PAGE>
IN WITNESS WHEREOF, the undersigned has hereunto signed this
Certificate on behalf of the Company this 17th day of June, 1997.
STANDARD PACIFIC CORP.
By:_______________________________
Name: Stephen J. Scarborough
Title: President
By:_______________________________
Name: Andrew H. Parnes
Title: Vice President-Finance,
Treasurer and Chief
Financial Officer
32
<PAGE>
EXHIBIT A
No. R-1 STANDARD PACIFIC CORP. $100,000,000
CUSIP NO.: 85375C AB7
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR NOTES REGISTERED IN THE
NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE (OTHER
THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER
NOMINEE OF THE DEPOSITARY) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK), A NEW YORK
CORPORATION, TO THE ISSUER OR ITS AGENT FOR THE REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT IS MADE TO CEDE & CO. (OR TO SUCH
OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
Standard Pacific Corp., a Delaware corporation, promises to pay to
Cede & Co., or registered assigns, the principal sum of One Hundred Million
Dollars ($100,000,000) on June 15, 2007.
8-1/2% SENIOR NOTE DUE 2007
Interest Payment Dates: June 15 and December 15
Record Dates: June 1 and December 1
Dated: June 17, 1997
STANDARD PACIFIC CORP.
By:______________________________
Name:____________________________
Title:___________________________
[Corporate Seal]
Attest:
________________________________________
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities
referred to in the within
mentioned Indenture.
UNITED STATES TRUST COMPANY OF NEW YORK, as
Trustee
By:________________________________
Authorized Signatory
Exhibit A-1
<PAGE>
(REVERSE OF SECURITY)
STANDARD PACIFIC CORP.
8-1/2% SENIOR NOTE DUE 2007
1. Interest.
Standard Pacific Corp., a Delaware corporation (the "Company"), promises to
pay interest on the principal amount of this Note at the rate per annum shown
above. The Company will pay interest semiannually on June 15 and December 15 of
each year (the "Interest Payment Date"), commencing December 15, 1997. Interest
on the Note will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from June 17, 1997. Interest will be
computed on the basis of a 360-day year of twelve 30-day months. Overdue
principal and, to the extent payment of such interest shall be legally
enforceable, overdue installments of interest shall bear interest at the rate
per annum shown above.
2. Method of Payment.
The Company will pay interest on the Notes (except default interest, which
shall be payable in the manner provided in Section 2.13 of the Indenture) to the
persons who are registered holders of Notes at the close of business on the June
1 or December 1 next preceding the Interest Payment Date (the "Record Date").
Holders must surrender Notes to a Paying Agent to collect principal payments.
The Company will pay principal and interest in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal and interest by its check payable in such
money. It may mail an interest check to a Holder's registered address.
3. Paying Agent and Registrar.
Initially, United States Trust Company of New York (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 Notes under an Indenture dated as of April 1, 1992
(the "Indenture") between the Company and the Trustee. The terms of the Notes
include those stated in the Indenture, those made part of the Indenture by
reference to the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)77aaa-77bbbb)
(the
Exhibit A-2
<PAGE>
"Act") as in effect on the date of the Indenture and as may be amended from time
to time, and those incorporated by reference into the Indenture pursuant to an
Officers' Certificate of the Company dated June 17, 1997 (the "Officers'
Certificate") delivered pursuant to Sections 2.01 and 2.03(a) of the Indenture.
The Notes are subject to and governed by all such terms, and holders of Notes
are referred to the Indenture, the Officers' Certificate and the Act for a
statement of them. All capitalized terms used in this Note and not otherwise
defined herein shall have the meanings set forth in the Indenture and the
Officers' Certificate. The Notes are general unsecured obligations of the
Company limited to the aggregate principal amount of $100,000,000.
5. Optional Redemption.
The Notes will not be redeemable at the option of the Company prior to June
15, 2002. Thereafter, the Notes will be redeemable, at the Company's option, in
whole or in part, at any time or from time to time, upon not less than 30 nor
more than 60 days' prior notice mailed by first-class mail to each Holder's
registered address, at the following redemption prices (expressed in percentages
of principal amount), plus accrued and unpaid interest to the redemption date
(subject to the right of Holders of record on the relevant record date to
receive interest due on the relevant interest payment date), if redeemed during
the 12-month period commencing on June 15 of the years set forth below:
Redemption
Year Price
---- ----------
2002......................................... 104.250%
2003......................................... 102.833%
2004......................................... 101.417%
2005 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 Notes to be redeemed at his
registered address. Notes in denominations larger than $1,000 may be redeemed
in part. On and after the redemption date interest ceases to accrue on Notes or
portions of them called for redemption.
Exhibit A-3
<PAGE>
7. Selection.
If less than all of the Notes are to be redeemed, the Trustee will select
the Notes to be redeemed on a pro rata basis, by lot or by such other method as
the Trustee in its sole discretion shall deem to be fair and appropriate.
8. Mandatory Repurchase Obligation.
If there is a Change of Control of the Company, the Holder of this Note
shall have the right to require the Company to repurchase all or a portion of
this Note at a purchase price equal to 101% of the principal amount hereof plus
accrued and unpaid interest, if any, to the date of repurchase, as provided in,
and subject to the terms of, the Indenture. In addition, under certain
circumstances, if the Company fails to maintain a certain specified minimum
Consolidated Net Worth or engages in certain asset sales, the Company shall be
required to offer to purchase a portion of the aggregate principal amount of
Notes outstanding together with accrued interest to the date of purchase, as
provided in, and subject to the terms of, the Indenture.
9. Denominations, Transfer, Exchange.
If the Notes are issued in global form, and this Note contains a legend on
the face hereof to such effect, the provisions of this Section 9 shall be deemed
superseded by such legend and Section 3(c) of the Officers Certificate, to the
extent the provisions of this Section 9 are inconsistent with such legend or
Section 3(c).
The Notes are issuable in registered form, without coupons, in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, Notes are exchangeable for a like aggregate
principal amount of Notes of like tenor of any authorized denomination, as
requested by the Holder surrendering the same, upon surrender of the Note or
Notes to be exchanged at any office or agency where Notes may be presented for
registration of transfer.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of Notes is registrable in the register of Notes upon
surrender of a Note for registration of transfer at the Corporate Trust Office
of the Trustee in the Borough of Manhattan, The City of New York, or at the
office of any transfer agent hereafter designated by the Company for such
purpose, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Registrar duly executed by the Holder
hereof or his attorney duly authorized in writing, and thereupon one or more new
Notes of like tenor, of authorized denominations and for the same aggregate
principal amount will be issued to the designated transferee or transferees.
No service charge shall be made by the Company, the Trustee or the
Registrar for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax, assessment or other
governmental charge payable
Exhibit A-4
<PAGE>
in connection therewith (other than exchanges pursuant to Sections 2.11, 3.06 or
9.05 of the Indenture not involving any transfer).
10. Person Deemed Owner.
The registered holder of a Note may be treated as the owner of it for all
purposes.
11. Amendment, Waiver.
The Indenture permits, in certain circumstances therein specified, the
amendment thereof without the consent of the Holders of the Notes. The
Indenture also permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations under the
Indenture of the Company and the rights of Holders of the Notes at any time by
the Company and the Trustee with the consent of the Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Notes at the time Outstanding, on behalf of the Holders
of all the Notes, to waive compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holders shall be conclusive and
binding upon the Holder of this Note and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
12. Successor Corporation.
When a successor corporation assumes all the obligations of its predecessor
under the Notes and the Indenture, the predecessor corporation will be released
from those obligations.
Exhibit A-5
<PAGE>
13. Defaults and Remedies.
The following are Events of Default: (i) failure by the Company to pay
interest when due for 30 days or principal when due; (ii) failure by the Company
to perform any other covenant for 45 days after notice; (iii) default under any
mortgage, indenture (including the Indenture) or instrument under which is
issued or which secures or evidences Indebtedness of the Company or any
Restricted Subsidiary (other than Non-Recourse Indebtedness) which default
constitutes a failure to pay principal of such Indebtedness in an amount of
$20,000,000 or more when due and payable (other than as a result of
acceleration) or results in Indebtedness (other than Non-Recourse Indebtedness)
in the aggregate of $20,000,000 or more becoming or being declared due and
payable before it would otherwise become due and payable; (iv) entry of a final
judgment for the payment of money against the Company or any Restricted
Subsidiary in an amount of $5,000,000 or more which remains undischarged or
unstayed for a period of 60 days after the date on which the right to appeal
such judgment has expired or become subject to an enforcement proceeding; or (v)
certain events of bankruptcy, insolvency or reorganization.
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 at least 25% in aggregate principal amount of the Notes at the
time Outstanding, by notice in writing to the Company (and to the Trustee if
given by the Holders), may declare to be due and payable immediately that
portion of the principal amount of the Notes at the time Outstanding and accrued
interest to the date of acceleration and upon such declaration the same shall
become and be immediately due and payable. 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 Notes shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any of the Holders.
Such declaration or acceleration and its consequences may be rescinded by
Holders of a majority in principal amount of Notes at the time Outstanding if
all existing Events of Default have been cured or waived (except non-payment of
principal that has become due solely because of the acceleration) and if the
rescission would not conflict with any judgment or decree.
An existing Default (other than a default in payment of principal of or
interest on the Notes or default with respect to a provision which cannot be
modified under the terms of the Indenture without the consent of each Note
Holder affected) may be waived by the Holders of a majority in principal amount
of Notes at the time Outstanding upon the conditions provided in the Indenture.
Exhibit A-6
<PAGE>
14. Trustee Dealings with Company.
United States Trust Company of New York, the Trustee under the Indenture,
in its individual or any other capacity, may become the owner or pledgee of
Notes and may otherwise deal with the Company or its Affiliates, with the same
rights it would have if it were not Trustee.
15. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company shall
not have any liability for any obligations of the Company under the Notes or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Note by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of the Notes.
16. Authentication.
This Security shall not be valid until the Trustee signs the certificate of
authentication on the other side of this Note.
Exhibit A-7
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT.......Custodian.........
(Cust.) (Minor)
TEN ENT - as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common ............................
(State)
Additional abbreviations may also be used though not in the
above list.
________________________
ASSIGNMENT FORM
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or Employer
Identification Number of Assignee
__________________________________________
- -
__________________________________________
________________________________________________________________________________
Please Print or Typewrite Name and Address
Including Postal Zip Code of Assignee
________________________________________________________________________________
the within Security and all rights thereunder, hereby irrevocably constituting
and appointing
________________________________________________________________________________
attorney
to Transfer said Security on the books of the Company, with full power of
substitution in the premises.
Dated: _______________________ Signature ___________________________
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within note in every particular, without
alteration or enlargement or any change whatever.
Exhibit A-8
<PAGE>
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased or redeemed by the
Company pursuant to the Indenture, check the box:
[_]
If you want to elect to have only part of this Security purchased by
the Company pursuant to paragraphs 3(j), 3(l)(i) or 3(l)(v) of the Officers'
Certificate adopted pursuant to Sections 2.01 and 2.03 of the Indenture, state
the amount.
$_____________
Date:_________________ Your Signature:_______________________________________
(Sign exactly as your name appears on
the other side of this Security)
Signature Guarantee:___________________________________________________________
NOTICE: Signature(s) must be guaranteed by a member firm of a major stock
exchange or a commercial bank or Trust company.
Exhibit A-9
