<PAGE>
As filed with the U.S. Securities and Exchange Commission on January 20, 1998
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-----------
NVR, INC.
(Name of Primary Registrant as Specified in its Charter)
Virginia
(State of Incorporation )
54-1394360
(I.R.S. Employer Identification Number)
<TABLE>
<CAPTION>
State of I.R.S. Employer
Names of Additional Registrants Incorporation Identification Number
- ------------------------------- ------------- ---------------------
<S> <C> <C>
NVR Financial Services, Inc. Pennsylvania 25-1203734
NVR Homes, Inc. Virginia 25-1709930
RVN, Inc. Delaware 51-0378026
NVR Fox Ridge, Inc. Tennessee 62-1715049
7601 Lewinsville Road, Suite 300
McLean, Virginia 22102
(703) 761-2000
(Address of Principal Executive Offices)
* * * * * *
Agent for Service: With Copies to:
----------------- --------------
Mr. Dwight C. Schar J. Warren Gorrell, Jr., Esq.
Chief Executive Officer Eve N. Howard, Esq.
NVR, Inc. Hogan & Hartson L.L.P.
7601 Lewinsville Road, Suite 300 555 Thirteenth Street, N.W.
McLean, Virginia 22102 Washington, D.C. 20004-1109
(703) 761-2000 (202) 637-5600
</TABLE>
Approximate Date of Commencement of Proposed Sale to the Public: As
soon as practicable after the effective date of this Registration Statement and
from time to time as determined by market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
===========================================================================================================================
Proposed maximum
Title of each class of aggregate offering Amount of registration
securities to be registered price (1) fee
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
Debt Securities(2)........................................... $400,000,000(3) $118,000
Debt Guarantees.............................................. (4) (4)
===========================================================================================================================
</TABLE>
(1) The proposed maximum offering price per unit has been omitted pursuant to
Instruction II.D of Form S-3, and will be determined in connection with the
issuance of the securities registered hereunder from time to time.
(2) An indeterminate number of debt securities, which may be issued and sold in
one or more series from time to time, is being registered hereunder.
(3) In U.S. Dollars or the equivalent thereof in another currency based on the
exchange rate at the time of sale.
(4) The additional registrants are registering guarantees of the payment and
other obligations of the primary registrant under the Debt Securities being
registered hereby. Under Rule 457(n), no registration fee is payable with
respect to the guarantees.
<PAGE>
EXPLANATORY NOTE
This Registration Statement relates to securities that may be offered
from time to time. This Registration Statement contains a form of basic
prospectus relating to the Registrants, which will be used in connection with
one or more offerings of securities. The specific terms of the securities to be
offered will be set forth in a Prospectus Supplement relating to such
securities.
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED BEFORE THE TIME THE REGISTRATION STATEMENT BECOMES +
+EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE +
+SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL BEFORE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY+
+SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion
Preliminary Prospectus Dated January 20, 1998
PROSPECTUS
[LOGO]
$400,000,000
NVR, INC.
DEBT SECURITIES
NVR, Inc. ("NVR" or the "Company") may from time to time offer in one
or more separate series unsecured, non-convertible debt securities ("Debt
Securities") with an aggregate public offering price of up to $400,000,000 (or
its equivalent in another currency based on the exchange rate at the time of
sale) in amounts, at prices and on terms to be determined at the time of
offering. The Debt Securities may be offered, separately or together, in
amounts, at prices, with subsidiary guarantees and on other terms to be set
forth in one or more supplements to this Prospectus (each, a "Prospectus
Supplement").
The specific terms of the Debt Securities in respect of which this
Prospectus is being delivered will be set forth in the applicable Prospectus
Supplement and will include, where applicable, the specific title, aggregate
principal amount, currency, form (which may be registered or bearer, or
certificated or global), authorized denominations, maturity, rate (or manner of
calculation thereof) and time of payment of interest, terms for redemption at
the option of the Company or repayment at the option of the holder, terms for
sinking fund payments, covenants and initial public offering price.
The Debt Securities may be offered directly, through agents designated
from time to time by the Company, or to or through underwriters or dealers. If
any agents or underwriters are involved in the sale of any of the Debt
Securities, their names, and any applicable purchase price, fee, commission or
discount arrangement between or among them, will be set forth, or will be
calculable from the information set forth, in the applicable Prospectus
Supplement. See "Plan of Distribution." No Debt Securities may be sold without
delivery of the applicable Prospectus Supplement describing the method and terms
of the offering of such series of Debt Securities.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE U.S. SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
U.S. SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is [ ], 1998.
<PAGE>
WHERE TO OBTAIN ADDITIONAL INFORMATION
The Company files annual, quarterly and special reports, proxy
statements and other information with the U.S. Securities and Exchange
Commission (the "SEC" or "Commission"). You may read and copy any document the
Company has filed with the SEC at the SEC's public reference rooms in
Washington, D.C., New York, New York, and Chicago, Illinois. Please call the SEC
at 1-800-SEC-0330 for further information on its public reference rooms. The
Company's SEC filings are available to the public from the SEC's world wide web
site at http://www.sec.gov. You may obtain a copy of the Company's SEC filings
at no cost by writing or telephoning the Company's Corporate Secretary at:
Corporate Secretary
NVR, Inc.
7601 Lewinsville Road, Suite 300
McLean, Virginia 22102
(703) 761-2000
In addition, since the Company's Common Stock is listed on the American
Stock Exchange, its SEC filings may be inspected and copied at the offices of
the American Stock Exchange at 86 Trinity Place, New York, New York 10006.
The SEC allows the Company to "incorporate by reference" certain
information it files with the SEC, which means that the Company may disclose
important information in this Prospectus by referring the reader to the
documents that contain the information. The information incorporated by
reference is considered to be a part of this Prospectus, and later information
filed with the SEC will update and supersede this information. The Company
incorporates by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934 until the offering of Debt Securities covered by this Prospectus is
completed:
(1) the Company's Annual Report on Form 10-K for the year ended
December 31, 1996; and
(2) the Company's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1997, June 30, 1997, and September 30, 1997; and
(3) the portions of the Company's Proxy Statement on Schedule 14A for
the Annual Meeting of the Company's Shareholders held on May 6, 1997
that have been incorporated by reference into the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996.
The Company has filed with the SEC a Registration Statement on Form S-3
under the Securities Act of 1933 relating to the Debt Securities offered by this
Prospectus. This Prospectus is a part of the Registration Statement, but does
not contain all of the information in the Registration Statement. For further
information concerning the Company and the Debt Securities, reference is made to
the Registration Statement and the exhibits filed with it, which may be examined
at the locations listed in the first paragraph under this heading.
Readers should rely only on the information provided or incorporated by
reference in this Prospectus or in the applicable Prospectus Supplement. Readers
should not assume that the information in the Prospectus and the applicable
Prospectus Supplement is accurate as of any date other than the date on the
front cover of the document.
The Company is not making an offer to sell the Debt Securities in any
state where an offer is not permitted.
-2-
<PAGE>
THE COMPANY
The Company, formed in 1980 as NVHomes, Inc., is a holding company that
currently operates, through its subsidiaries, in two business segments: (1) the
construction and marketing of homes and (2) financial services, including a
mortgage banking operation. Unless the context otherwise requires, references to
"NVR" or the "Company" include its subsidiaries.
NVR is one of the largest homebuilders in the United States and in the
Washington, D.C. and Baltimore, Maryland metropolitan areas, where NVR derived
approximately 72% of its 1996 homebuilding revenues. NVR's homebuilding
operations construct and sell single-family detached homes, townhomes and
condominium buildings in two distinct product lines, through two divisions: Ryan
Homes and NVHomes. Ryan Homes builds moderately priced homes in 16 metropolitan
areas located in Maryland, Virginia, Pennsylvania, New York, North Carolina,
South Carolina, Ohio, New Jersey, Delaware and Tennessee, and markets its homes
primarily to first-time buyers. NVHomes builds homes largely in the Washington,
D.C. metropolitan area, and markets its homes primarily to move-up buyers.
In addition to building and selling homes, NVR provides a number of
mortgage-related services through its national mortgage banking operations,
which operate in 14 states. NVR's mortgage banking operations provide financing
to a substantial portion of NVR's homebuilding customers. NVR's mortgage banking
business sells all of the mortgage loans it closes into the secondary markets,
but it retains the servicing rights associated with a small portion of those
loans. NVR's mortgage banking business generates revenues primarily from
origination fees, gains on marketing of loans, title fees, and sales of
servicing rights.
The Company is a Virginia corporation. Its executive offices are
located at 7601 Lewinsville Road, Suite 300, McLean, Virginia 22102 and its
telephone number is (703) 761-2000.
THE GUARANTORS
The following direct or indirect wholly owned subsidiaries of the
Company are guarantors: NVR Financial Services, Inc., NVR Homes, Inc., RVN, Inc.
and NVR Fox Ridge, Inc. (the "Guarantors"). If so provided in a Prospectus
Supplement, each of the Guarantors would fully and unconditionally guarantee on
a joint and several basis the Company's obligations under the Debt Securities
being offered and sold, subject (a) to any subordination provisions described in
the Prospectus Supplement, and (b) in the case of the guarantees generally, to
such guarantee not constituting or resulting in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, in which
case, the liability of the Guarantor under its guarantee will be reduced to the
maximum amount, after giving effect to all other contingent and fixed
liabilities of such Guarantor (which generally consists of indebtedness and
other obligations of such Guarantor, including trade payables), permissible
under applicable fraudulent conveyance or similar law.
USE OF PROCEEDS
Unless otherwise indicated in the applicable Prospectus Supplement, the
Company intends to use the net proceeds from the sale of Debt Securities for
general corporate purposes.
-3-
<PAGE>
RATIOS OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges, and the ratio of
earnings to fixed charges of its homebuilding operations, was as set forth below
for each period indicated:
<TABLE>
<CAPTION>
Nine Three Nine
Months Months Months Year
Ended Year Ended Dec. 31, Ended Ended Ended
Sept. 30, ---------------------------- Dec. 31, Sept. 30, Dec. 31,
1997 1996 1995 1994 1993(1) 1993(1) 1992(1)
---- ---- ---- ---- ------- ------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Homebuilding operations
(excluding the Company's mortgage
banking subsidiaries, limited
purpose financing operations, and
reorganization items)(2).................... 4.4 3.8 2.9 2.1 (3) 2.8 1.1
Total consolidated Company(4)............... 3.7 2.0 1.6 1.6 (5) (5)(6) (5)(6)
</TABLE>
- -----------------------------
(1) Effective September 30, 1993, NVR L.P., which was a master limited
partnership, was reorganized as NVR, Inc. under a plan of reorganization.
(2) For purposes of computing the ratio of earnings to fixed charges of
the Company's homebuilding segment, the segment's earnings have been
calculated by adding its fixed charges to its pre-tax income from
continuing operations. The homebuilding segment's fixed charges consist of
its interest costs, whether expensed or capitalized, the interest component
of rental expense and the amortization of debt issuance costs. Effective
October 1, 1993, the Company discontinued the capitalization of interest
costs into inventory.
(3) Homebuilding earnings were insufficient to cover homebuilding fixed
charges for the three months ended December 31, 1993 by $5.2 million. The
ratio for the three months ended December 31, 1993 was adversely affected
by a $9 million non-cash charge related to the "step-up" of inventory for
fresh start accounting and reporting in accordance with AICPA Statement of
Position 90-7.
(4) For purposes of computing the Company's consolidated ratio of
earnings to fixed charges, consolidated earnings have been calculated by
adding fixed charges to pre-tax income from continuing operations. Fixed
charges consist of interest costs, whether expensed or capitalized, the
interest component of rental expense and amortization of debt issuance
costs. Effective October 1, 1993, the Company discontinued the
capitalization of interest costs into inventory.
(5) Consolidated earnings were insufficient to cover fixed charges for
the three months ended December 31, 1993, the nine months ended September
30, 1993 and the year ended December 31, 1992 by $9.1 million, $4.4 million
and $5.4 million, respectively.
(6) Reorganization costs related to the Company's bankruptcy
proceedings totaled approximately $25 million and $14.3 million for the
nine-month period ended September 30, 1993 and the year ended December 31,
1992, respectively.
DESCRIPTION OF DEBT SECURITIES
The following discussion describes certain general provisions of the
Debt Securities to which this Prospectus and any applicable Prospectus
Supplement may relate. The particular terms of the Debt Securities being offered
and the extent to which these general provisions may apply will be set forth in
the indenture or supplemental indenture under which the particular Debt
Securities are issued, and will be described in a Prospectus Supplement relating
to such Debt Securities. A form of the Senior Indenture (as defined herein) and
a form of the Subordinated Indenture (as defined herein) under which Debt
Securities may be issued have been filed as exhibits to the Registration
Statement of which this Prospectus is a part, and can be examined at the
locations listed above under "Where to Obtain Additional Information." All
section references appearing in this Prospectus are to sections of each
Indenture unless otherwise indicated, and capitalized terms used but not defined
below shall have the respective meanings set forth in each Indenture.
-4-
<PAGE>
General
The Debt Securities will be nonconvertible, unsecured general
obligations of the Company and may be either senior Debt Securities ("Senior
Securities") or subordinated Debt Securities ("Subordinated Securities"). The
Debt Securities will be issued under one or more indentures (the "Indentures").
Senior Securities and Subordinated Securities will be issued under separate
indentures (respectively, a "Senior Indenture" and a "Subordinated Indenture"),
in each case between the Company and a trustee (a "Trustee"). The Indentures
will be subject to and governed by the Trust Indenture Act of 1939. The
statements made under this heading relating to the Debt Securities and the
Indentures are summaries of their anticipated provisions, do not purport to be
complete and are qualified in their entirety by reference to the Indentures and
Debt Securities themselves.
The indebtedness represented by Subordinated Securities will be
subordinated in right of payment to the prior payment in full of the Senior Debt
of the Company, as described below under "-- Ranking."
A substantial portion of the Company's operations are conducted through
subsidiaries. If so provided in a Prospectus Supplement, the Debt Securities
will have the benefit of guarantees from the Guarantors, all of which are direct
or indirect subsidiaries of the Company. The Company's subsidiaries are separate
and distinct legal entities and have no obligation, contingent or otherwise, to
pay any amounts due pursuant to the Debt Securities or to make any funds
available therefor, whether by dividends, loans or other payments, other than as
expressly provided in a guarantee. The payment of dividends or the making of
loans and advances to the Company by its subsidiaries may be subject to
contractual, statutory or regulatory restrictions, which, if material, would be
disclosed in the applicable Prospectus Supplement. Moreover, such payments,
loans and advances would be contingent upon the earnings of the subsidiaries.
Any right of the Company to receive assets of any of its subsidiaries upon
liquidation or recapitalization of the subsidiaries (and the consequent right of
the holders of Debt Securities to participate in those assets) will be subject
to the claims of the subsidiaries' creditors. In the event that the Company is
recognized as a creditor of a subsidiary, the Company's claims would still be
subject to any security interest in the assets of such subsidiary and any
indebtedness of such subsidiary senior to that of the Debt Securities, and would
be dependent primarily upon the receipt of funds from its subsidiaries.
Except as set forth in the applicable Indenture or in one or more
supplemental indentures and described in an applicable Prospectus Supplement,
the Debt Securities may be issued without limit as to aggregate principal
amount, in one or more series, in each case as established from time to time in
or under authority granted by a resolution of the Board of Directors of the
Company or as established in the applicable Indenture or in one or more
supplemental indentures. All Debt Securities of one series need not be issued at
the same time and, unless otherwise provided, a series may be reopened, without
the consent of the Holders of the Debt Securities of such series, for issuances
of additional Debt Securities of such series.
It is expected that each Indenture will provide that there may be more
than one Trustee thereunder, each with respect to one or more series of Debt
Securities. Any Trustee under an Indenture may resign or be removed with respect
to one or more series of Debt Securities, and a successor Trustee may be
appointed to act with respect to such series. In the event that two or more
persons are acting as Trustee with respect to different series of Debt
Securities, each such Trustee will be a trustee of a trust under the applicable
Indenture separate and apart from the trust administered by any other Trustee,
and, except as otherwise provided in the Indenture or supplemental indenture,
any action permitted to be taken by each Trustee may be taken by each such
Trustee with respect to, and only with respect to, the one or more series of
Debt Securities for which it is Trustee under the applicable Indenture.
The Prospectus Supplement relating to any series of Debt Securities
being offered will contain the specific terms thereof, including, without
limitation, the following:
(1) The title of such Debt Securities and whether such Debt
Securities are Senior Securities or Subordinated Securities;
(2) The aggregate principal amount of such Debt Securities and any
limit on such aggregate principal amount;
-5-
<PAGE>
(3) The percentage of the principal amount at which such Debt
Securities will be issued and, if other than the principal
amount thereof, the portion of the principal amount payable
upon declaration of acceleration of the maturity thereof;
(4) The date or dates, or the method for determining such date or
dates, on which the principal of such Debt Securities will be
payable;
(5) The rate or rates (which may be fixed or variable), or the
method by which such rate or rates are to be determined, at
which such Debt Securities will bear interest, if any;
(6) The date or dates, or the method for determining such date or
dates, from which any such interest will accrue, the dates on
which any such interest will be payable, the regular record
dates for such interest payment dates, or the method by which
record dates may be determined, the persons to whom such
interest will be payable, and the basis upon which interest is
to be calculated if other than that of a 360-day year of twelve
30-day months;
(7) The place or places where the principal of (and premium, if
any) and interest, if any, on such Debt Securities will be
payable, where such Debt Securities may be surrendered for
registration of transfer or exchange and where notices or
demands to or upon the Company in respect of such Debt
Securities and the applicable Indenture may be served;
(8) The period or periods within which, the price or prices at
which and the other terms and conditions upon which such Debt
Securities may be redeemed, in whole or in part, at the option
of the Company, if the Company is to have such an option;
(9) The obligation, if any, of the Company to redeem, repay or
purchase such Debt Securities pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date and dates on
which, the price or prices at which and the other terms and
conditions upon which such Debt Securities will be redeemed,
repaid or purchased, in whole or in part, pursuant to such
obligation;
(10) If other than U.S. dollars, the currency or currencies in which
such Debt Securities are denominated and payable, which may be
a foreign currency or units of two or more foreign currencies
or a composite currency or currencies, and the terms and
conditions relating thereto;
(11) Whether the amount of payments of principal of (and premium, if
any) or interest, if any, on such Debt Securities may be
determined with reference to an index, formula or other method
(which index, formula or method may, but need not be, based on
a currency, currencies, currency unit or units or composite
currency or currencies) and the manner in which such amounts
are to be determined;
(12) Any additions to, modifications of or deletions from the terms
of such Debt Securities with respect to Events of Default or
covenants set forth in the applicable Indenture;
(13) Whether such Debt Securities will be issued in certificate or
book-entry form;
(14) Whether such Debt Securities will be in registered or bearer
form and, if in registered form, the denominations thereof if
other than $1,000 and any integral multiple thereof and, if in
bearer form, the denominations thereof and terms and conditions
relating thereto;
(15) The applicability, if any, of the defeasance and covenant
defeasance provisions of the Indenture;
-6-
<PAGE>
(16) Whether and under what circumstances the Company will pay any
additional amounts on such Debt Securities in respect of any
tax, assessment or governmental charge and, if so, whether the
Company will have the option to redeem such Debt Securities in
lieu of making such payment;
(17) Whether and the extent to which such Debt Securities are
guaranteed by the Guarantors and the form of any such
Guarantee; and
(18) Any other terms of such Debt Securities not inconsistent with
the provisions of the applicable Indenture (Section 301).
The Debt Securities may provide for less than the entire principal
amount thereof to be payable upon declaration of acceleration of the maturity
thereof ("Original Issue Discount Securities"). Special federal income tax,
accounting and other considerations applicable to Original Issue Discount
Securities will be described in the applicable Prospectus Supplement.
Except as set forth in the applicable Indenture or in one or more
supplemental indentures, the applicable Indenture will not contain any
provisions that would limit the ability of the Company to incur indebtedness or
that would afford Holders of Debt Securities protection in the event of a highly
leveraged or similar transaction involving the Company or in the event of a
change of control. Reference is made to the applicable Prospectus Supplement for
information with respect to any deletions from, modifications of or additions to
the Events of Default or covenants of the Company that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
If specified in the applicable Prospectus Supplement, the Company's
obligations under the Debt Securities will be guaranteed by four of its
subsidiaries, NVR Financial Services, Inc., NVR Homes, Inc., RVN, Inc. and NVR
Fox Ridge, Inc. (the "Guarantors"). See "-- Guarantees" below.
"Significant Subsidiary" means any Subsidiary that is a "significant
subsidiary" (within the meaning of Regulation S-X promulgated by the SEC under
the Securities Act of 1933) of the Company.
"Subsidiary" means a corporation or a partnership a majority of the
outstanding voting stock or partnership interests, as the case may be, of which
is owned or controlled, directly or indirectly, by the Company or by one or more
other Subsidiaries of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of directors, or
trustees, as the case may be, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
Denomination, Interest, Registration and Transfer
Unless otherwise described in the applicable Prospectus Supplement, the
Debt Securities will be issuable in denominations of $1,000 and integral
multiples thereof (Section 302).
Unless otherwise specified in the applicable Prospectus Supplement, the
principal of (and applicable premium, if any) and interest on any series of Debt
Securities will be payable at the corporate trust office of the Trustee, the
address of which will be stated in the applicable Prospectus Supplements. At the
option of the Company, payment of interest may be made by check mailed to the
address of the person entitled thereto as it appears in the applicable register
for such Debt Securities or by wire transfer of funds to such person at an
account maintained within the United States (Sections 301, 305, 306, 307 and
1002).
Any interest not punctually paid or duly provided for on any Interest
Payment Date with respect to a Debt Security ("Defaulted Interest") will
forthwith cease to be payable to the Holder on the applicable regular record
date and may either be paid to the person in whose name such Debt Security is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof is to be given to the Holder of such Debt Security not
less than ten days before to such Special
-7-
<PAGE>
Record Date, or may be paid at any time in any other lawful manner, all as more
completely described in the applicable Indenture or supplemental indenture
(Section 307).
Subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series will be exchangeable for
other Debt Securities of the same series and of a like aggregate principal
amount and tenor of different authorized denominations upon surrender of such
Debt Securities at the corporate trust office of the applicable Trustee. In
addition, subject to certain limitations imposed upon Debt Securities issued in
book-entry form, the Debt Securities of any series may be surrendered for
registration of transfer or exchange thereof at the corporate trust office of
the applicable Trustee. Every Debt Security surrendered for registration of
transfer or exchange must be duly endorsed or accompanied by a written
instrument of transfer. No service charge will be made for any registration of
transfer or exchange of any Debt Securities, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. If the applicable Prospectus Supplement refers to any
transfer agent (in addition to the applicable Trustee) initially designated by
the Company with respect to any series of Debt Securities, the Company may at
any time rescind the designation of such transfer agent or approve a change in
the location through which any such transfer agent acts, except that the Company
will be required to maintain a transfer agent in each place of payment for such
series. The Company may at any time designate additional transfer agents with
respect to any series of Debt Securities (Section 1002).
Neither the Company nor any Trustee will be required to (1) issue,
register the transfer of or exchange Debt Securities of any series during a
period beginning at the opening of business 15 days before any selection of Debt
Securities of that series to be redeemed and ending at the close of business on
the day of mailing of the relevant notice of redemption; (2) register the
transfer of or exchange any Debt Security, or portion thereof, called for
redemption, except the unredeemed portion of any Debt Security being redeemed in
part; or (3) issue, register the transfer of or exchange any Debt Security that
has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Debt Security not to be repaid (Section 305).
Merger, Consolidation or Sale
The Company will be permitted to consolidate with, or sell, lease or
convey all or substantially all of its assets to, or merge with or into, any
other entity provided that (1) either the Company is the continuing entity, or
the successor entity (if other than the Company) formed by or resulting from any
such consolidation or merger or which has received the transfer of such assets
expressly assumes payment of the principal of (and premium, if any) and interest
on all of the outstanding Debt Securities and the due and punctual performance
and observance of all of the covenants and conditions contained in each
Indenture; (2) immediately after giving effect to such transaction and treating
any indebtedness that becomes an obligation of the Company or any Subsidiary as
a result thereof as having been incurred by the Company or a Subsidiary at the
time of such transaction, no Event of Default under the Indentures or
supplemental indentures, and no event which, after notice or the lapse of time,
or both, would become such an Event of Default, will have occurred and be
continuing; and (3) an officer's certificate and legal opinion covering such
conditions is to be delivered to each Trustee (Sections 801 and 803).
Certain Covenants
Existence. Except as described above under "Merger, Consolidation or
Sale," the Company will be required to do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(by articles of incorporation, by-laws and statute) and franchises, but the
Company will not be required to preserve any right or franchise if it determines
that its preservation is no longer desirable in the conduct of the Company's
business and that its loss is not disadvantageous in any material respect to the
Holders of the Debt Securities.
Insurance. The Company will be required to, and will be required to
cause each of its Subsidiaries to, keep all of its insurable properties insured
against loss or damage at least equal to their then full insurable value.
Payment of Taxes and Other Claims. The Company will be required to pay
or discharge or cause to be paid or discharged, before the same become
delinquent, (i) all material taxes, assessments and governmental charges
-8-
<PAGE>
levied or imposed upon it or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (ii) all material lawful claims
for labor, materials and supplies that, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; but the Company will not be
required to pay or discharge or cause to be paid or discharged any such tax,
assessment, charge or claim whose amount, applicability or validity is being
contested in good faith in appropriate proceedings (Section 1007).
Additional Covenants and/or Modifications to the Covenants Described Above
Any additional covenants of the Company and/or modifications to the
covenants described above with respect to any series of Debt Securities,
including any covenants relating to limitations on incurrence of indebtedness or
other financial covenants, will be set forth in the applicable Indenture or
supplemental indenture and described in the Prospectus Supplement relating
thereto.
Guarantees
In order to enable the Company to obtain more favorable interest rates
and terms with respect to Debt Securities, payment of the principal of (and any
premium) and interest on offered Debt Securities may (if so specified in the
applicable Prospectus Supplement) be guaranteed jointly and severally by the
Guarantors. Each guarantee will be an unsecured obligation of the Guarantor
issuing the guarantee. The ranking of any guarantees of the Debt Securities and
the terms of the subordination, if any, will be set forth in the applicable
Prospectus Supplement.
The Indenture will provide that, in the event of any guarantee of the
Debt Securities by a Guarantor would constitute or result in a violation of any
applicable fraudulent conveyance or similar law of any relevant jurisdiction,
the liability of the Guarantor under such guarantee will be reduced to the
maximum amount, after giving effect to all other contingent and other
liabilities of such Guarantor permissible under the applicable fraudulent
conveyance or similar law.
Events of Default, Notice and Waiver
Each Indenture will provide that the following events are "Events of
Default" with respect to any series of Debt Securities issued thereunder: (1)
default for 30 days in the payment of any installment of interest on any Debt
Security of such series; (2) default in the payment of principal of (or premium,
if any, on) any Debt Security of such series at its maturity; (3) default in
making any sinking fund payment as required for any Debt Security of such
series; (4) default in the performance or breach of any other covenant or
warranty of the Company contained in the applicable Indenture (other than a
covenant added to the Indenture solely for the benefit of a series of Debt
Securities issued thereunder other than such series), continued for 60 days
after written notice as provided in the applicable Indenture; (5) default in the
payment of an aggregate principal amount exceeding $10,000,000 of any
indebtedness of the Company or any mortgage, indenture or other instrument under
which such indebtedness is issued or by which such indebtedness is secured, such
default having occurred after the expiration of any applicable grace period and
having resulted in the acceleration of the maturity of such indebtedness, but
only if such indebtedness is not discharged or such acceleration is not
rescinded or annulled; (6) certain events of bankruptcy, insolvency or
reorganization, or court appointment of a receiver, liquidator or trustee of the
Company or any Significant Subsidiary or either of their property; and (7) any
other Event of Default provided with respect to a particular series of Debt
Securities (Section 501).
If an Event of Default under any Indenture with respect to Debt
Securities of any series at the time outstanding occurs and is continuing, then
in every such case the applicable Trustee or the Holders of not less than 25% of
the principal amount of the outstanding Debt Securities of that series will have
the right to declare the principal amount (or, if the Debt Securities of that
series are Original Issue Discount Securities or indexed securities, such
portion of the principal amount as may be specified in the terms thereof) of all
the Debt Securities of that series to be due and payable immediately by written
notice thereof to the Company (and to the applicable Trustee if given by the
Holders). At any time after such a declaration of acceleration with respect to
Debt Securities of such series (or of all Debt Securities then outstanding under
any Indenture, as the case may be) has been made, but before a judgment or
decree for payment of the money due has been obtained by the applicable Trustee,
however, the Holders of
-9-
<PAGE>
not less than a majority in principal amount of the outstanding Debt Securities
of such series (or of all Debt Securities then outstanding under the applicable
Indenture, as the case may be) may rescind and annul such declaration and its
consequences if (1) the Company has deposited with the applicable Trustee all
required payments of the principal of (and premium, if any) and interest on the
Debt Securities of such series (or of all Debt Securities then outstanding under
the applicable Indenture, as the case may be), plus certain fees, expenses,
disbursements and advances of the applicable Trustee and (2) all events of
default, other than the non-payment of accelerated principal (or specified
portion thereof), with respect to Debt Securities of such series (or of all Debt
Securities then outstanding under the applicable Indenture, as the case may be)
have been cured or waived as provided in such Indenture (Section 502). Each
Indenture also will provide that the Holders of not less than a majority in
principal amount of the outstanding Debt Securities of any series (or of all
Debt Securities then outstanding under the applicable Indenture, as the case may
be) may waive any past default with respect to such series and its consequences,
except a default (1) in the payment of the principal of (or premium, if any) or
interest on any Debt Security of such series or (2) in respect of a covenant or
provision contained in the applicable Indenture that cannot be modified or
amended without the consent of the Holder of each outstanding Debt Security
affected thereby (Section 513).
Each Trustee will be required to give notice to the Holders of the
applicable Debt Securities within 90 days of a default under the applicable
Indenture unless such default has been cured or waived; but the Trustee may
withhold notice of any default (except a default in the payment of the principal
of (or premium, if any) or interest on such Debt Securities or in the payment of
any sinking fund installment in respect of such Debt Securities) if specified
responsible officers of such Trustee consider such withholding to be in the
interest of such Holders (Section 601).
Each Indenture will provide that no Holders of Debt Securities of any
series may institute any proceedings, judicial or otherwise, with respect to
such Indenture or for any remedy thereunder, except in the cases of failure of
the applicable Trustee, for 60 days, to act after it has received a written
request to institute proceedings in respect of an Event of Default from the
Holders of not less than 25% in principal amount of the outstanding Debt
Securities of such series, as well as an offer of indemnity reasonably
satisfactory to it (Section 507). This provision will not prevent any Holder of
Debt Securities from instituting suit for the enforcement of payment of the
principal of (and premium, if any) and interest on such Debt Securities at the
respective due dates thereof (Section 508).
Subject to provisions in each Indenture relating to its duties in case
of default, no Trustee will be under any obligation to exercise any of its
rights or powers under an Indenture at the request or direction of any Holders
of any series of Debt Securities then outstanding under such Indenture, unless
such Holders offer to the Trustee reasonable security or indemnity (Section
602). The Holders of not less than a majority in principal amount of the
outstanding Debt Securities of any series (or of all Debt Securities then
outstanding under an Indenture, as the case may be) will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the applicable Trustee, or of exercising any trust or power
conferred upon such Trustee. A Trustee may refuse, however, to follow any
direction that is in conflict with any law or the applicable Indenture that may
involve such Trustee in personal liability or may be unduly prejudicial to the
Holders of Debt Securities of such series not joining therein (Section 512).
Within 180 days after the close of each fiscal year, the Company will
be required to deliver to each Trustee a certificate, signed by one of several
specified officers, stating whether or not such officer has knowledge of any
default under the applicable Indenture and, if so, specifying each such default
and the nature and status thereof (Section 1008).
Modification of the Indentures
Modifications and amendments of an Indenture will be permitted to be
made only with the consent of the Holders of not less than a majority in
principal amount of all outstanding Debt Securities issued under such Indenture
that are affected by such modification or amendment; but no such modification or
amendment may, without the consent of the Holder of each such Debt Security
affected thereby, (1) change the stated maturity of the principal of, or any
installment of interest (or the premium, if any) on, any such Debt Security; (2)
reduce the principal amount of, or the rate or amount of interest on, or any
premium payable on redemption of, any such Debt Security, or re-
-10-
<PAGE>
duce the amount of principal of an Original Issue Discount Security that would
be due and payable upon declaration of acceleration of the maturity thereof or
would be provable in bankruptcy, or adversely affect any right of repayment of
the Holder of any such Debt Security; (3) change the place of payment, or the
coin or currency for payment, of principal (or premium, if any) or interest on
any such Debt Security; (4) impair the right to institute suit for the
enforcement of any payment on or with respect to any such Debt Security; (5)
reduce the percentage of outstanding Debt Securities of any series necessary to
modify or amend the applicable Indenture, to waive compliance with certain
provisions thereof or certain defaults and consequences thereunder or to reduce
the quorum or voting requirements set forth in the applicable Indenture; or (6)
modify any of the foregoing provisions or any of the provisions relating to the
waiver of certain past defaults or certain covenants, except to increase the
required percentage to effect such action or to provide that certain other
provisions may not be modified or waived without the consent of the Holder of
such Debt Security (Section 902).
The Holders of not less than a majority in principal amount of the
outstanding Debt Securities of each series affected thereby will have the right
to waive compliance by the Company with certain covenants in such Indenture
(Section 1010).
Modifications and amendments of an Indenture will be permitted to be
made by the Company and the respective Trustee thereunder without the consent of
any Holder of Debt Securities for any of the following purposes: (1) to evidence
the succession of another person to the Company as obligor under such Indenture;
(2) to add to the covenants of the Company for the benefit of the Holders of all
or any series of Debt Securities or to surrender any right or power conferred
upon the Company in the Indenture; (3) to add Events of Default for the benefit
of the Holders of all or any series of Debt Securities; (4) to add or change any
provisions of an Indenture to facilitate the issuance of, or to liberalize
certain terms of, Debt Securities in bearer form, or to permit or facilitate the
issuance of Debt Securities in uncertificated form, provided that such action
shall not adversely affect the interests of the Holders of the Debt Securities
of any series in any material respect; (5) to change or eliminate any provisions
of an Indenture, if such change or elimination becomes effective only when there
are no Debt Securities outstanding of any series created prior thereto that are
entitled to the benefit of such provision; (6) to secure the Debt Securities;
(7) to establish the form or terms of Debt Securities of any series; (8) to
provide for the acceptance of appointment by a successor Trustee or facilitate
the administration of the trusts under an Indenture by more than one Trustee;
(9) to cure any ambiguity, defect or inconsistency in an Indenture, if such
action does not adversely affect the interests of Holders of Debt Securities of
any series issued under such Indenture in any material respect; (10) to
supplement any of the provisions of an Indenture to the extent necessary to
permit or facilitate defeasance and discharge of any series of such Debt
Securities, if such action does not adversely affect the interests of the
Holders of the Debt Securities of any series in any material respect; or (11) to
make any change that does not adversely affect the legal rights under an
Indenture of any Holder of Debt Securities of any series issued thereunder
(Section 901).
Each Indenture will provide that in determining whether the Holders of
the requisite principal amount of outstanding Debt Securities of a series have
given any request, demand, authorization, direction, notice, consent or waiver
thereunder or whether a quorum is present at a meeting of Holders of Debt
Securities, (1) the principal amount of an Original Issue Discount Security that
is deemed to be outstanding will be the amount of the principal thereof that
would be due and payable as of the date of such determination upon declaration
of acceleration of the maturity thereof, (2) the principal amount of any Debt
Security denominated in a foreign currency that is deemed outstanding will be
the U.S. dollar equivalent, determined on the issue date for such Debt Security,
of the principal amount (or, in the case of Original Issue Discount Security,
the U.S. dollar equivalent on the issue date of such Debt Security of the amount
determined as provided in (1) above), (3) the principal amount of an indexed
security that is deemed outstanding will be the principal face amount of such
indexed security at original issuance, unless otherwise provided with respect to
such indexed security under the applicable Indenture, and (4) Debt Securities
owned by the Company or any other obligor upon the Debt Securities or any
affiliate of the Company or of such other obligor are to be disregarded.
Ranking
Upon any distribution to creditors of the Company in a liquidation,
dissolution or reorganization, the payment of the principal of (and premium, if
any) and interest on any Subordinated Securities will be subordinated to
-11-
<PAGE>
the extent provided in the applicable Indenture in right of payment to the prior
payment in full of all Senior Debt (Sections 1601 and 1602 of the Subordinated
Indenture), but the obligation of the Company to make payment of the principal
(and premium, if any) and interest on such Subordinated Securities will not
otherwise be affected (Section 1608 of the Subordinated Indenture). No payment
of principal (or premium, if any) or interest will be permitted to be made on
Subordinated Securities at any time if a default on Senior Debt exists that
permits the Holders of such Senior Debt to accelerate its maturity and the
default is the subject of judicial proceedings or the Company receives notice of
the default (Section 1602 of the Subordinated Indenture). After all Senior Debt
is paid in full and until the Subordinated Securities are paid in full, Holders
will be subrogated to the right of Holders of Senior Debt to the extent that
distributions otherwise payable to Holders have been applied to the payment of
Senior Debt (Section 1607 of the Subordinated Indenture). By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Company may recover more, ratably, than Holders of
Subordinated Securities.
Senior Debt will be defined in the Subordinated Indenture as the
principal of (and premium, if any) and interest on, or substantially similar
payments to be made by the Company in respect of, the following, whether
outstanding at the date of execution of the applicable Indenture or thereafter
incurred, created or assumed: (1) indebtedness of the Company for money borrowed
or represented by purchase-money obligations, (2) indebtedness of the Company
evidenced by notes, debentures, or bonds or other securities issued under the
provisions of an indenture, fiscal agency agreement or other agreement, (3)
obligations of the Company as lessee under leases of property either made as
part of a sale and leaseback transaction to which the Company is a party or
otherwise, (4) indebtedness of partnerships and joint ventures which is included
in the consolidated financial statements of the Company, (5) indebtedness,
obligations and liabilities of others in respect of which the Company is liable
contingently or otherwise to pay or advance money or property or as guarantor,
endorser or otherwise or which the Company has agreed to purchase or otherwise
acquire, and (6) any binding commitment of the Company to fund a real estate
investment or to fund an investment in an entity making a real estate
investment, in each case other than (i) any such indebtedness, obligation or
liability referred to in clauses (1) through (6) above as to which, in the
instrument creating or evidencing the same pursuant to which the same is
outstanding, it is provided that such indebtedness, obligation or liability is
not superior in right of payment to the Subordinated Securities or ranks equally
with the Subordinated Securities, (ii) any such indebtedness, obligation or
liability which is subordinated to indebtedness of the Company to substantially
the same extent as or to a greater extent than the Subordinated Securities are
subordinated, and (iii) the Subordinated Securities. As used in the preceding
sentence, the term "purchase money obligations" is defined to mean indebtedness
or obligations evidenced by a note, debenture, bond or other instrument (whether
or not secured by a lien or other security interest but excluding indebtedness
or obligations for which recourse is limited to the property purchased) issued
or assumed as all or a part of the consideration for the acquisition of
property, whether by purchase, merger, consolidation or otherwise, but does not
include any trade accounts payable. There will not be any restrictions in an
Indenture relating to Subordinated Securities upon the creation of additional
Senior Debt.
If this Prospectus Supplement is being delivered in connection with a
series of Subordinated Securities, the applicable Prospectus Supplement or the
information incorporated herein by reference will contain the approximate amount
of Senior Debt outstanding as of the end of the Company's most recent fiscal
quarter.
Discharge, Defeasance and Covenant Defeasance
The Company may be permitted under the applicable Indenture to
discharge certain obligations to Holders of any series of Debt Securities issued
thereunder that have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the applicable Trustee, in trust, funds in such
currency or currencies, currency unit or units or composite currency or
currencies in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the stated maturity or redemption
date, as the case may be.
-12-
<PAGE>
Each Indenture will provide that, if the provisions relating to
defeasance and covenant defeasance are made applicable to the Debt Securities of
or within any series, the Company may elect either (1) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for the obligation to pay additional amounts, if any, upon the
occurrence of certain events of tax, assessment or governmental charge with
respect to payments on such Debt Securities, and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") (Section 1402) or (2) to be released from its obligations with
respect to such Debt Securities under certain specified sections of Article Ten
of such Indenture as described in the applicable Prospectus Supplement and any
omission to comply with such obligations shall not constitute an Event of
Default with respect to such Debt Securities ("covenant defeasance") (Section
1403), in either case upon the irrevocable deposit by the Company with the
applicable Trustee, in trust, of an amount, in such currency or currencies,
currency unit or units or composite currency or currencies in which such Debt
Securities are payable at stated maturity, or Government Obligations (defined as
described below), or both, applicable to such Debt Securities which through the
scheduled payment of principal and interest in accordance with their terms will
provide money in an amount sufficient without reinvestment to pay the principal
of (and premium, if any) and interest on such Debt Securities, and any mandatory
sinking fund or analogous payments thereon, on the scheduled due dates therefor.
Such a trust will only be permitted to be established if, among other
things, the Company has delivered to the applicable Trustee an opinion of
counsel (as specified in the applicable Indenture) to the effect that the
Holders of such Debt Securities will not recognize income, gain or loss for
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
or covenant defeasance had not occurred, and such opinion of counsel, in the
case of defeasance, will be required to refer to and be based upon a ruling of
the Internal Revenue Service or a change in applicable U.S. federal income tax
law occurring after the date of the Indenture (Section 1404).
"Government Obligations" is defined to mean securities that are (1)
direct obligations of the United States of America or the government that issued
the foreign currency in which the Debt Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or (2)
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government that issued
the foreign currency in which the Debt Securities of such series are payable,
the timely payment of which is unconditionally guaranteed as a full faith and
credit obligation of the United States of America or such government, which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and also includes a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the Holder of a depository receipt, if (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the Holder of such depository receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation evidenced by such
depository receipt (Section 101 of each Indenture).
Unless otherwise provided in the applicable Prospectus Supplement, if
after the Company has deposited funds and/or Government Obligations to effect
defeasance or covenant defeasance with respect to Debt Securities of any series,
(1) the Holder of a Debt Security of such series is entitled to, and does, elect
pursuant to the applicable Indenture or the terms of such Debt Security to
receive payment in a currency, currency unit or composite currency other than
that in which such deposit has been made in respect of such Debt Security, or
(2) a Conversion Event (as defined below) occurs in respect of the currency,
currency unit or composite currency in which such deposit has been made, the
indebtedness represented by such Debt Security will be deemed to have been, and
will be, fully discharged and satisfied through the payment of the principal of
(and premium, if any) and interest on such Debt Security as they become due out
of the proceeds yielded by converting the amount so deposited in respect of such
Debt Security into the currency, currency unit or composite currency in which
such Debt Security becomes payable as a result of such election or such
cessation of usage based on the applicable market exchange rate. "Conversion
Event" means the cessation of use of (1) a currency, currency unit or composite
currency both by the government of the country that issued such currency and for
the settlement of transactions by a central bank or other public institu-
-13-
<PAGE>
tions of or within the international banking community, (2) the ECU both within
the European Monetary System and for the settlement of transactions by public
institutions of or within the European Communities or (3) any currency unit or
composite currency other than the ECU for the purposes for which it was
established. Unless otherwise provided in the applicable Prospectus Supplement,
all payments of principal of (and premium, if any) and interest on any Debt
Security that is payable in a foreign currency that ceases to be used by its
government of issuance shall be made in U.S. dollars.
In the event the Company effects covenant defeasance with respect to
any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of an Event of Default other than the Event of Default
described in clause (4) above in the first paragraph under the caption "Events
of Default, Notice and Waiver" with respect to certain specified sections of
Article Ten of each Indenture (which sections would no longer be applicable to
such Debt Securities as a result of such covenant defeasance) or described in
clause (7) above in the first paragraph under "Events of Default, Notice and
Waiver" with respect to any other covenant as to which there has been covenant
defeasance, the amount in such currency, currency unit or composite currency in
which such Debt Securities are payable, and Government Obligations on deposit
with the applicable Trustee, will be sufficient to pay amounts due on such Debt
Securities at the time of their stated maturity but may not be sufficient to pay
amounts due on such Debt Securities at the time of the acceleration resulting
from such Default. The Company would remain liable, however, to make payment of
such amounts due at the time of acceleration.
The applicable Prospectus Supplement may further describe the
provisions, if any, permitting such defeasance or covenant defeasance, including
any modifications to the provisions described above, with respect to the Debt
Securities of or within a particular series.
No Conversion Rights
None of the Debt Securities will be convertible into or exchangeable
for common stock or any other securities or property of the Company or any
Subsidiary.
Redemption of Securities
The Indenture provides that the Debt Securities may be redeemed at any
time at the option of the Company, in whole or in part, at the prescribed
redemption price, except as may otherwise be provided in connection with any
Debt Securities or series thereof.
From and after notice has been given as provided in the Indenture, if
funds for the redemption of any Debt Securities called for redemption have been
made available on such redemption date, such Debt Securities will cease to bear
interest on the date fixed for such redemption specified in such notice, and the
only right of the Holders of the Debt Securities will be to receive payment of
the Redemption Price.
Notice of any optional redemption by the Company of any Debt Securities
is required to be given to Holders at their addresses, as shown in the Security
Register, not more than 60 nor less than 30 days before the date fixed for
redemption. The notice of redemption will be required to specify, among other
items, the Redemption Price and the principal amount of the Debt Securities held
by such Holder to be redeemed.
If the Company elects to redeem Debt Securities, it will be required to
notify the Trustee at least 45 days before the redemption date (or such shorter
period as is satisfactory to the Trustee) of the aggregate principal amount of
Debt Securities to be redeemed and the redemption date. If fewer than all the
Debt Securities are to be redeemed, the Trustee is required to select the Debt
Securities to be redeemed pro rata, by lot or in such manner as it deems fair
and appropriate.
Global Securities
The Debt Securities of a series may be issued in whole or in part in
the form of one or more global securities (the "Global Securities") to be
deposited with, or on behalf of, a depository identified in the applicable
Prospec-
-14-
<PAGE>
tus Supplement relating to such series. Global Securities may be issued in
either registered or bearer form and in either temporary or permanent form. The
specific terms of the depository arrangement with respect to a series of Debt
Securities will be described in the applicable Prospectus Supplement relating to
such series.
PLAN OF DISTRIBUTION
The Company may sell the Debt Securities to or through underwriters,
and also may sell them directly to other purchasers or through agents.
The distribution of the Debt Securities may be effected from time to
time in one or more transactions at a fixed price or prices, which may be
changed, or at market prices prevailing at the time of sale, at prices related
to such prevailing market prices or at negotiated prices.
In connection with the sale of the Debt Securities, underwriters may
receive compensation from the Company or from purchasers of Debt Securities for
whom they may act as agents, in the form of discounts, concessions, or
commissions. Underwriters may sell the Debt Securities to or through dealers,
and such dealers may receive compensation in the form of discounts, concessions,
or commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agents. Underwriters, dealers, and agents that participate
in the distribution of the Debt Securities may be deemed to be underwriters, and
any discounts or commissions they receive from the Company, and any profit on
the resale of the Debt Securities they realize may be deemed to be underwriting
discounts and commissions, under the Securities Act. Any such underwriter or
agent will be identified, and any such compensation received from the Company
will be described, in the applicable Prospectus Supplement.
Unless otherwise specified in the applicable Prospectus Supplement,
each series of Debt Securities will be a new issue with no established trading
market. The Company may elect to list any series of Debt Securities on an
securities exchange, but is not obligated to do so. It is possible that one or
more underwriters may make a market in a series of the Debt Securities, but will
not be obligated to do so and may discontinue any market making at any time
without notice. Therefore, no assurance can be given as to the liquidity of the
trading market for the Debt Securities.
Under agreements the Company and the Guarantors may enter into,
underwriters, dealers, and agents who participate in the distribution of the
Debt Securities may be entitled to indemnification by the Company and the
Guarantors against certain liabilities, including liabilities under the
Securities Act.
Underwriters, dealers and agents may engage in transactions with, or
perform services for, or be customers of, the Company and the Guarantors in the
ordinary course of business.
If so indicated in the applicable Prospectus Supplement, the Company
will authorize underwriters or other persons acting as the Company's agents to
solicit offers by certain institutions to purchase the Debt Securities from the
Company at the public offering price set forth in such Prospectus Supplement
pursuant to delayed delivery contracts ("Contracts") providing for payment and
delivery on the date or dates stated in such Prospectus Supplement. Each
Contract will be for an amount not less than, and the aggregate principal amount
of Debt Securities sold pursuant to Contracts will be neither less nor more
than, the respective amounts stated in the applicable Prospectus Supplement.
Institutions with whom Contracts, when authorized, may be made include savings
banks, insurance companies, pension funds, investment companies, educational and
charitable institutions, and other institutions, but will in all cases be
subject to the approval of the Company. Contracts will not be subject to any
conditions except (i) the purchase by an institution of the Debt Securities
covered by its Contracts may not at the time of delivery be prohibited under the
laws of any jurisdiction in the United States to which such institution is
subject, and (ii) if the Debt Securities are being sold to underwriters, the
Company must have sold to such underwriters the total principal amount of such
Debt Securities less the principal amount thereof covered by Contracts.
-15-
<PAGE>
EXPERTS
The financial statements incorporated in this Prospectus by reference
to the 1996 Annual Report on Form 10-K of the Company have been so incorporated
in reliance on the reports of KPMG Peat Marwick LLP, independent auditors,
incorporated by reference herein, and upon the authority of said firm as experts
in auditing and accounting.
The reports of KPMG Peat Marwick LLP covering the consolidated
financial statements of NVR, Inc. and NVR Financial Services, Inc. contain an
explanatory paragraph as to the adoption, effective January 1, 1995, of the
provisions of Statement of Financial Accounting Standards No. 122, "Accounting
for Mortgage Servicing Rights."
LEGAL MATTERS
The legality of the securities covered by this Prospectus will be
passed upon by Hogan & Hartson L.L.P., Washington, D.C., counsel to the Company
and the Guarantors.
-16-
<PAGE>
================================================================================
No dealer, salesperson or other individual has been authorized to give
any information or to make any representations not contained or incorporated by
reference in this Prospectus in connection with any offering to be made by the
Prospectus. If given or made, such information or representations must not be
relied upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell, or the solicitation of an offer to buy, any
security in any jurisdiction where, or to any person to whom, it is unlawful to
make any such offer or solicitation. Neither the delivery of this Prospectus nor
any offer or sale made hereunder shall, under any circumstance, create an
implication that there has been no change in the facts set forth in this
Prospectus or in the affairs of the Company since the date hereof.
--------------
TABLE OF CONTENTS
PROSPECTUS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Where to Obtain Additional Information................................... 2
The Company.............................................................. 3
The Guarantors........................................................... 3
Use of Proceeds.......................................................... 3
Ratios of Earnings to Fixed Charges...................................... 4
Description of Debt Securities .......................................... 4
Plan of Distribution..................................................... 15
Experts.................................................................. 16
Legal Matters............................................................ 16
</TABLE>
================================================================================
================================================================================
NVR, Inc.
$400,000,000
DEBT SECURITIES
-----------------------------------
PROSPECTUS
-----------------------------------
___________ __, 1998
================================================================================
- 1 -
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses in connection with
the issuance and distribution of the Debt Securities, other than underwriting
discounts and commissions. All of the amounts shown are estimated except the
Securities and Exchange Commission registration fee.
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee..........................................$118,000
Blue Sky fees and expenses.......................................3,000
Printing and engraving expenses................................100,000
Legal fees and expenses........................................150,000
Accounting fees and expenses....................................50,000
Miscellaneous...................................................34,000
------
Total.......................................................$455,000
===== ========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Each director and officer of the Company is insured and indemnified
against liability incurred by him or her in his or her capacity as an officer
and/or director, pursuant to the following:
(a) Articles 8 and 9 of the Company's Articles of Incorporation,
entitled "Indemnification" and "Limitation of Liability of Officers
and Directors," respectively, which are set forth in Exhibit 3.1 to
this Registration Statement and are incorporated herein by
reference; and
(b) Sections 13.1-692.1, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and
13.1-704 of the Virginia Stock Corporation Act, which are set forth
in Exhibit 99.1 to this Registration Statement and are incorporated
herein by reference.
Each director and officer of NVR Financial Services, Inc. is insured
and indemnified against liability incurred by him or her in his or her capacity
as an officer and/or director, pursuant to the following:
(a) Section 3.15 of the Bylaws of NVR Financial Services, Inc.,
entitled "Indemnification of Directors, Officers and Licensees,"
which is set forth in Exhibit 3.6 to this Registration Statement and
is incorporated herein by reference; and
(b) Sections 1741 to 1749 of the of the Pennsylvania Business
Corporation Law, which are set forth in Exhibit 99.2 to this
Registration Statement and are incorporated herein by reference.
Each director and officer of NVR Homes, Inc. is insured and indemnified
against liability incurred by him or her in his or her capacity as an officer
and/or director, pursuant to the following:
(a) Articles 6 and 7 of the NVR Homes, Inc.'s Articles of
Incorporation, entitled "Indemnification" and "Limitation of
Liability of Officers and Directors," respectively, which are set
forth in Exhibit 3.3 to this Registration Statement and are
incorporated herein by reference; and
(b) Sections 13.1-692.1, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and
13.1-704 of the Virginia Stock Corporation Act, which are set forth
in Exhibit 99.1 to this Registration Statement and are incorporated
herein by reference.
II-1
<PAGE>
Each director and officer of RVN, Inc. is insured and indemnified
against liability incurred by him or her in his or her capacity as an officer
and/or director, pursuant to the following:
(a) Article Fifth of RVN Inc.'s Certificate of Incorporation, which
is set forth in Exhibit 3.7 to this Registration Statement and is
incorporated herein by reference;
(b) Article VII of RVN Inc.'s Bylaws, entitled "Indemnification and
Insurance," which is set forth in Exhibit 3.8 to this Registration
Statement and is incorporated herein by this reference; and
(c) Section 145 of the Delaware General Corporation Law, which is set
forth in Exhibit 99.3 to this Registration Statement and is
incorporated herein by reference.
Each director and officer of NVR Fox Ridge, Inc. is insured and
indemnified against liability incurred by him or her in his or her capacity as
an officer and/or director, pursuant to the following:
(a) Article Seventh of NVR Fox Ridge, Inc.'s Charter, which is set
forth in Exhibit 3.9 to this Registration Statement and is
incorporated herein by reference.
(b) Sections 48-18-501 to 48-18-509 of the Tennessee Business
Corporation Act, which are set forth in Exhibit 99.4 to this
Registration Statement and are incorporated herein by reference.
ITEM 16. EXHIBITS
The exhibits to this registration statement are listed in the Exhibits
Index, which appears immediately after the signature page and is incorporated in
this Item 16 by reference.
ITEM 17. UNDERTAKINGS
(a) The undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing,
any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which
was registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
20 percent change in the maximum aggregate offering price set forth
in the "Calculation of Registration Fee" table in the effective
registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by a registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933 (the
"Securities Act"), each filing of an annual report of a registrant
pursuant to section 13(a) or section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this registration statement
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrants pursuant to the foregoing provisions or
otherwise, the registrants have been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by a registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in the opinion
of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such
issue.
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrants pursuant to Rule 424(b)(1) or (4)
or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, on the dates indicated.
<TABLE>
<CAPTION>
REGISTRANT DATE
---------- ----
<S> <C>
NVR, INC.
By: /s/ Dwight C. Schar January 19, 1998
-------------------------------------------------
Dwight C. Schar
Chairman of the Board of Directors,
President and Chief Executive Officer
NVR FINANCIAL SERVICES, INC.
By: /s/ William J. Inman * January 19, 1998
-------------------------------------------------
William J. Inman
President
NVR HOMES, INC.
By: /s/ Dwight C. Schar January 19, 1998
-------------------------------------------------
Dwight C. Schar
Chairman of the Board,
Chief Executive Officer and President
RVN, INC.
By: /s/ William J. Inman * January 19, 1998
------------------------------------------------
William J. Inman
President
NVR FOX RIDGE, INC.
By: /s/ Dwight C. Schar January 19, 1998
-------------------------------------------------
Dwight C. Schar
Chairman of the Board
</TABLE>
* Pursuant to Power of Attorney. See Exhibit 24.1.
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
- --------- -------- ----
<S> <C> <C>
/s/ Dwight C. Schar Chairman of the Board of January 19, 1998
- ------------------------------------------------- Directors, President and
Dwight C. Schar Chief Executive Officer
of the Company;
Director of NVR
Financial Services,
Inc.; Chairman of the
Board of Directors,
Chief Executive
Officer and President
of NVR Homes, Inc.;
Chairman of the Board
and Director of NVR
Fox Ridge, Inc.
/s/ C. Scott Bartlett, Jr. * Director of the Company January 19, 1998
- -------------------------------------------------
C. Scott Bartlett, Jr.
/s/ Manuel H. Johnson * Director of the Company January 19, 1998
- -------------------------------------------------
Manuel H. Johnson
/s/ William A. Moran * Director of the Company January 19, 1998
- -------------------------------------------------
William A. Moran
/s/ Richard H. Norair, Sr. * Director of the Company January 19, 1998
- -------------------------------------------------
Richard H. Norair, Sr.
/s/ David A. Preiser * Director of the Company January 19, 1998
- -------------------------------------------------
David A. Preiser
/s/ George E. Slye * Director of the Company January 19, 1998
- -------------------------------------------------
George E. Slye
/s/ John M. Toups * Director of the Company January 19, 1998
- -------------------------------------------------
John M. Toups
/s/ Paul C. Saville Senior Vice President, January 19, 1998
Paul C. Saville Chief Financial Officer
and Treasurer of the Company;
Director of NVR Financial
Services, Inc.; Senior Vice Presi-
dent Finance, Chief Financial
Officer, Treasurer and Director
of NVR Homes, Inc.; Vice Presi-
dent (Principal Financial Officer)
and Director of RVN, Inc; Direc-
tor of NVR Fox Ridge, Inc. (and
Principal Financial and Account-
ing Officer)
</TABLE>
II-5
<PAGE>
<TABLE>
<S> <C> <C>
/s/ William J. Inman * President and Director of NVR January 19, 1998
- -------------------------------------------------
William J. Inman Financial Services, Inc.; Director
of NVR Homes, Inc.; Director of
NVR Fox Ridge, Inc.; President
of RVN, Inc.
/s/ Michael J. Cannizzo * Director of NVR January 19, 1998
- ------------------------------------------------- Financial Services, Inc.; Director
Michael J. Cannizzo of NVR Homes, Inc.
/s/ Peter J. Fitzsimmons * Treasurer of NVR January 19, 1998
- ------------------------------------------------- Financial Services, Inc.
Peter J. Fitzsimmons
/s/ Thomas Ruck * Director of RVN, Inc. January 19, 1998
- -------------------------------------------------
Thomas Ruck
/s/ Frank Stagno * Director of RVN, Inc. January 19, 1998
- -------------------------------------------------
Frank Stagno
</TABLE>
* Pursuant to Power of Attorney. See Exhibit 24.1.
II-6
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
3.1 Restated Articles of Incorporation of NVR, Inc. (Incorporated
by reference to Exhibit 3.7 in NVR, Inc.'s 1993 Registration
Statement on Form S-1 (No. 33-63190) ("1993 Registration
Statement").)
3.2 Bylaws of NVR, Inc. (Incorporated by reference to Exhibit 3.8
in NVR, Inc.'s 1993 Registration Statement.)
3.3 Restated Articles of Incorporation of NVR Homes, Inc.
(Incorporated by reference to Exhibit 3.9 in NVR, Inc.'s 1993
Registration Statement.)
3.4 Bylaws of NVR Homes, Inc. (Incorporated by reference to Exhibit
3.10 in NVR, Inc.'s 1993 Registration Statement.)
3.5 Articles of Incorporation of NVR Financial Services, Inc.
(Incorporated by reference to Exhibit 3.5 and 3.11 in NVR,
Inc.'s 1993 Registration Statement.)
3.6 Bylaws of NVR Financial Services, Inc. (Incorporated by
reference to Exhibit 3.6 in NVR, Inc.'s 1993 Registration
Statement.)
3.7 Certificate of Incorporation of RVN, Inc. (Incorporated by
reference to Exhibit 3.7 in NVR, Inc.'s Annual Report on From
10-K for the fiscal year ended December 31, 1996.)
3.8 Bylaws of RVN, Inc. (Incorporated by reference to Exhibit 3.8
in NVR, Inc.'s Annual Report on Form 10-K for the fiscal year
ended December 31, 1996.)
3.9* Charter of NVR Fox Ridge, Inc.
3.10* Bylaws of NVR Fox Ridge, Inc.
4.1* Form of Senior Indenture among the Company, the Guarantors and
the Trustee
4.2* Form of Subordinate Indenture among the Company, the Guarantors
and the Trustee
5.1* Opinion of Hogan & Hartson regarding the validity of the
securities being registered
12.1* Computation of Ratios of Earnings to Fixed Charges
23.1* Consent of KPMG Peat Marwick LLP (independent auditors)
23.2* Consent of Hogan & Hartson (Included as part of its opinion
filed as Exhibit 5.1.)
24.1* Powers of Attorney
25.1** Statement of Eligibility of Trustee on Form T-1
99.1 Sections 13.1-692.1, 13.1-697, 13.1-698, 13.1-702, 13.1-703 and
13.1-704 of the Virginia Stock Corporation Act (Incorporated by
reference to Exhibit 99.2 in the Company's June 13, 1997
Registration Statement on Form S-8 (No. 333-29241).)
99.2* Sections 1741 to 1749 of the of the Pennsylvania Business
Corporation Law
99.3* Section 145 of the Delaware General Corporation Law
99.4* Sections 48-18-501 to 48-18-509 of the Tennessee Business
Corporation Act
</TABLE>
* Filed herewith.
** To be filed by amendment.
II-7
<PAGE>
EXHIBIT 3.9
CHARTER
OF
NVR FOX RIDGE, INC.
The undersigned, an individual, does hereby act as incorporator in adopting
the following Charter for the purpose of organizing a corporation for profit,
pursuant to the provisions of the Tennessee Business Corporation Act.
FIRST: The corporate name for the corporation (hereinafter called the
-----
"Corporation") is
NVR FOX RIDGE, INC.
SECOND: The number of shares which the corporation is authorized to issue
------
is 100,000, all of which are of a par value of $0.01 dollars each and are of the
same class and are to be Common shares.
THIRD: The street address and zip code of the initial registered office
-----
of the corporation in the State of Tennessee is 500 Tallan Building, Two Union
Square, Chattanooga, County of Hamilton, Tennessee 37402-2571.
The name of the initial registered agent of the corporation at
the said registered office is Corporation Service Company.
FOURTH: The name and address and zip code of the incorporator are:
------
Victoria A. Nelson, 8300 Greensboro Drive, Suite 1080, McLean, Virginia 22102.
FIFTH: The street address and zip code of the initial principal office
-----
of the corporation are 7601 Lewinsville Road, Suite 300, McLean, Virginia 22102.
SIXTH: The corporation is for profit.
-----
SEVENTH: The corporation shall, to the fullest extent permitted by the
-------
provisions of the Tennessee Business Corporation
<PAGE>
Act, as the same may be amended and supplemented, indemnify any and all persons
whom it shall have power to indemnify under said provisions from and against any
and all of the expenses, liabilities, or other matters referred to in or covered
by said provisions, and the indemnification provided for herein shall not be
deemed exclusive of any other rights to which those indemnified may be entitled
under any Bylaw, vote of shareholders or disinterested directors, or otherwise,
both as to action in his official capacity and as to action in another capacity
while holding such office, and shall continue as to a person who has ceased to
be a director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person.
EIGHTH: The personal liability of the directors of the corporation is
------
eliminated to the fullest extent permitted by the provisions of the Tennessee
Business Corporation Act, as the same may be amended and supplemented.
NINTH: The duration of the corporation shall be perpetual.
-----
SIGNED on October 14, 1997.
- --------------------------------
Victoria A. Nelson, Incorporator
<PAGE>
Exhibit 3.10
B Y - L A W S
OF
NVR FOX RIDGE, INC.
-----------
ARTICLE I - OFFICES
SECTION 1.1 OFFICES. - The initial office of the corporation shall be
located at 7601 Lewinsville Road, Suite 300, McLean, Virginia 22102. The
corporation may have such offices and places of business within and/or without
the State of Tennessee as the Board of Directors shall determine.
ARTICLE II - STOCKHOLDERS
SECTION 2.1 PLACE OF MEETINGS. - Meetings of the stockholders may be held
at such place or places within or without the State of Tennessee as shall be
fixed by the Board of Directors and stated in the notice of the meeting.
SECTION 2.2 ANNUAL MEETINGS. - An annual meeting of stockholders for the
election of directors and the transaction of such other business as may properly
come before the meeting shall be held on such date and at such times as the
Board of Directors shall fix within thirteen (13) months of incorporation or the
most recent annual meeting, whichever applies.
SECTION 2.3 SPECIAL MEETINGS. - Special Meetings of stockholders for any
purpose(s) may be called by the Board of Directors, and must be called at the
written request, stating the purpose(s) of the meeting, of stockholders owning a
majority of the stock then outstanding and entitled to vote.
SECTION 2.4 NOTICES OF MEETINGS. - Notice stating the time and place, and
in the case of a special meeting the purpose(s) thereof and by whom called,
shall be delivered to each stockholder entitled to vote, not less than three nor
more than ninety days prior to the meeting.
<PAGE>
SECTION 2.5 QUORUM AND ACTION. - (a) At any duly held meeting of
stockholders, the presence in person or by proxy of stockholders entitled to
cast a majority of the votes thereat shall constitute a quorum, except as
otherwise provided by law or the Charter.
(b) A majority number of the votes cast at a duly held meeting of
stockholders at which a quorum is present (stockholders represented by valid
proxies shall be deemed present) shall be required to take or authorize action
upon any matter which may properly come before the meeting, unless a greater
vote, or voting by classes, is required by law or by the Charter or by these By-
Laws on any question, and except that in election of directors those receiving
the greatest number of votes shall be deemed elected even though not receiving a
majority.
SECTION 2.6 VOTING. - At each meeting of the stockholders, every holder of
stock then entitled to vote may vote in person or by proxy and, except as may be
otherwise provided by the Charter, shall have one vote for each share of stock
registered in his name. No proxy shall be valid after eleven months from the
date of its execution, unless a longer period is provided in the proxy.
SECTION 2.7 ADJOURNED MEETINGS. - Any duly called meeting of stockholders
may, by announcement thereat, be adjourned to a designated time (not more than
ninety days later) and place by vote of the holders of a majority of the shares
present and entitled to vote thereat, even though less than a quorum is so
present. An adjourned meeting may reconvene as designated, and when a quorum is
present any business may be transacted which might have been transacted at the
meeting as originally called.
SECTION 2.8 ACTION BY WRITTEN CONSENT IN LIEU OF MEETING OF STOCKHOLDERS. -
See Section 6.6 of these By-Laws.
ARTICLE III - DIRECTORS
<PAGE>
SECTION 3.1 NUMBER. - The number of directors comprising the Board of
Directors shall be no fewer than three. Said number may be changed from time to
time by action of the Board of Directors. The newly elected director(s) shall
hold office for the term of one year and until his or their successor(s) are
elected and qualified. Directors need not be stockholders.
SECTION 3.2 POWERS. - The management of all the business, property and
affairs of the corporation shall be vested in the Board of Directors. The Board
may exercise all of the powers of the corporation and do all lawful acts and
things (including the adoption of such rules and regulations for the conduct of
its business, the exercise of its powers, and the management of the corporation,
as it may deem proper), consistent with the statute, the Charter, and these By-
Laws, and not thereby conferred upon or reserved to the stockholders.
SECTION 3.3 MEETINGS. - Each annual meeting of the Board of Directors may
be held without notice immediately after the annual meeting of stockholders.
Regular meetings of the Board may be established by the Board. Special meetings
of the Board may be called by the Chairman of the Board (if any), or his
designee, and shall be called at the written request of not less than a majority
of the directors. Meetings of the Board may be held at any place within or
outside of the State of Tennessee.
SECTION 3.4 QUORUM AND ACTION. - A majority of the Board of Directors shall
constitute a quorum for the transaction of business. At any duly held meeting
at which a quorum is present, the affirmative vote of no fewer than a majority
of the directors present shall be the act of the Board of Directors on any
question.
SECTION 3.5 ACTION BY WRITTEN CONSENT IN LIEU OF MEETINGS OF DIRECTORS. -
See Section 6.6 of these By-Laws.
SECTION 3.6 VACANCIES. - Any vacancy occurring in the Board of Directors,
including a vacancy resulting from an increase in the number of directors, may
be filled by the affirmative vote
<PAGE>
of a majority of the remaining directors, though less than a quorum.
SECTION 3.7 REMOVAL. - Except where the Charter, or an amendment thereto,
contains provisions authorizing cumulative voting or the election of one or more
directors by class or their election by holders of bonds, or requires all action
by stockholders to be by a greater vote, any one or more of the directors may be
removed at any time for or without cause by vote of the stockholders holding no
less than a majority of the outstanding stock of the corporation entitled to
vote, present in person or by proxy, at a meeting the notice of which announces
the intended removal.
SECTION 3.8 COMMITTEES. - The Board of Directors, by resolution adopted by
a majority of the entire Board, may designate from its members any committee
consisting of two or more directors, with such powers and authority (to the
extent permitted by law) as may be provided in said resolution.
ARTICLE IV - OFFICERS
SECTION 4.1 EXECUTIVE OFFICERS. - The executive officers of the corporation
shall be a President, an Executive Vice President, Vice Presidents and a
Secretary, all of whom shall be elected or appointed annually by the Board, and
shall hold office during the pleasure of the Board. In addition, the Board may
elect or appoint a Chairman of the Board of Directors, Chief Executive Officer,
Chief Financial Officer, additional Vice Presidents and such assistant officers
as it shall choose. Any two or more offices may be held by one person but no
person shall execute any instrument in more than one capacity; provided,
however, if a corporation has only one stockholder such stockholder may hold and
execute all offices. All vacancies occurring among any of the officers shall
be filled by the Board. Any officer may be removed and/or replaced at any time
by the Board.
SECTION 4.2 OTHER OFFICERS. - The Board may appoint, remove and replace
such other officers and agents with such powers
<PAGE>
and duties as it shall deem necessary. The Board may by resolution authorize the
President to appoint and remove such other officers and agents.
SECTION 4.3 THE CHAIRMAN OF THE BOARD. - The Chairman of the Board of
Directors, if one be elected, shall preside at all meetings of the Board of
Directors, and of the stockholders if the directors so resolve, and he shall
have and perform such other duties as from time to time may be assigned to him
by the Board of Directors. In the absence of the Chairman, another Board member
or officer so appointed by the Board shall preside at such meetings of the Board
of Directors and/or stockholders.
SECTION 4.4 THE CHIEF EXECUTIVE OFFICER. - The Chief Executive Officer
shall have such general management and control of the business and affairs of
the corporation as determined by the Board of Directors.
SECTION 4.5 THE PRESIDENT. - The duties of the President shall be to manage
the daily operations of the corporation under the direction of the Chief
Executive Officer.
SECTION 4.6 THE VICE PRESIDENT. - The Vice President, if any, or if there
be more than one, the Executive Vice President as determined by the Board of
Directors, shall in the absence or disability of the President, exercise the
powers and perform the duties of the President, and each Vice President shall
exercise such other powers and perform such other duties as shall be prescribed
by the Board.
SECTION 4.7 THE CHIEF FINANCIAL OFFICER. - The Chief Financial Officer, if
any, shall have custody of all funds, securities and evidences of indebtedness
of the corporation; he or she shall receive and give receipts and acquittances
for moneys paid in on account of the corporation, and shall pay out of the funds
on hand all bills, payrolls and other just debts of the corporation, of whatever
nature, upon maturity; he or she shall enter regularly in books to be kept by
him for that purpose, full and accurate accounts of all moneys received and paid
out by him on account of the corporation, and he shall perform all other
<PAGE>
duties incident to the office of Chief Financial Officer and as may be
prescribed by the Board.
SECTION 4.8 THE SECRETARY. - The Secretary shall keep the minutes of all
proceedings of the Board of Directors and of the stockholders; he shall attend
to the giving and serving of all notices to the stockholders and directors or
other notice required by law, or by these By-Laws; he shall affix the seal of
the corporation to deeds, contracts and others instruments in writing requiring
a seal, when duly signed or when so ordered by the Board of Directors; he shall
have charge of the certificate books and stock books and such other books and
papers as the Board may direct, and he shall perform all other duties incident
to the office of secretary.
SECTION 4.9 SALARIES. - The salaries of all officers, if any, shall be
fixed by the Board of Directors, and the Board has the authority by majority
vote to reimburse expenses and to establish reasonable compensation of all
directors for services to the corporation as director, officers, or otherwise.
ARTICLE V - CAPITAL STOCK
SECTION 5.1 FORM AND EXECUTION OF CERTIFICATES. - The shares of the
corporation shall be represented by certificates which shall be in the form
required by the laws of Tennessee and shall be adopted by the Board of
Directors. They shall be numbered and registered in the order issued; shall be
signed by the Chief Executive Officer, President or the Executive Vice President
and by the Secretary or an Assistant Secretary, and shall be sealed with the
corporate seal or a facsimile thereof. When such a certificate is countersigned
by a transfer agent or registered by a registrar, the signatures of any such
officers may be facsimile.
SECTION 5.2 TRANSFER. - Transfer of shares shall be made only upon the
books of the corporation by the registered holder in person or by attorney, duly
authorized, and upon surrender of the certificate or certificates for such
shares properly assigned for transfer.
<PAGE>
SECTION 5.3 LOST OR DESTROYED CERTIFICATES. - The holder of any certificate
representing shares of stock of the corporation may notify the corporation of
any loss, theft or destruction thereof, and the Board of Directors may
thereupon, in its discretion, cause a new certificate for the same number of
shares to be issued to such holder upon satisfactory proof of such loss, theft
or destruction, and the deposit of indemnity by way of bond or otherwise, in
such form and amount and with such surety or sureties as the Board may require,
to indemnify the corporation against loss or liability by reason of the issuance
of such new certificate.
SECTION 5.4 RECORD DATE - (a) In order to make a determination of
stockholders for any proper purpose, the directors may close the stock transfer
books for a stated period not to exceed fifty days; and if the purpose of the
closing is to determine stockholders entitled to notice of or to vote at a
meeting of stockholders, the books shall be closed for at least ten days
immediately preceding such meetings.
(b) In lieu of closing the books, the directors may fix in advance a
record date for determination of stockholders for any proper purpose, such date
to be not more than fifty days, and in case of a meeting of stockholders, not
less than ten days, prior to the date on which the particular action, requiring
such determination of stockholders, is to be taken.
(c) In the absence of such closing or fixed record date, the date for
determination of stockholders entitled (1) to notice of or to vote at a meeting
of stockholders, or (2) to receive a dividend or any right, shall be the close
of business on the day on which (i) notice of the meeting is mailed, or thirty
days before the meeting, whichever is closer to the meeting, or (ii) the date
the Board resolved to declare such dividend or allot such right.
ARTICLE VI - MISCELLANEOUS
SECTION 6.1 DIVIDENDS. - The Board of Directors may declare dividends from
time to time on the outstanding shares of
<PAGE>
the corporation from the surplus or net profits legally available therefor.
SECTION 6.2 SEAL. - The Board shall provide a suitable corporate seal
stating the corporate name, and state and year of incorporation, which shall be
in the charge of the Secretary and/or General Counsel and shall be used as
authorized by these By-Laws.
SECTION 6.3 FISCAL YEAR. - The fiscal year of the corporation shall close
annually on December 31.
SECTION 6.4 CHECKS, NOTES, ETC. - (a) Checks, notes, drafts, bills of
exchange and orders for the payment of money shall be signed or endorsed in such
manner as shall be determined by the Board.
(b) The funds of the corporation shall be deposited in such bank or trust
company, and checks drawn against such funds shall be signed in such manner as
may be determined from time to time by the Board.
SECTION 6.5 NOTICE AND WAIVER OF NOTICE. - (a) Any notice of meetings
required to be given under these By-Laws to stockholders and/or directors may be
waived in writing signed by the person or persons entitled to such notice,
whether before or after the time stated therein.
(b) All notices required by these By-Laws shall be printed or written and
shall be delivered either personally, by telegraph or cable, or by mail, and, if
mailed, shall be deemed to be delivered when deposited in the United States
mail, postage prepaid, addressed to the stockholders or director at his address
as it appears on the records of the corporation.
SECTION 6.6 ACTION BY WRITTEN CONSENT IN LIEU OF MEETINGS. - Any action
required or permitted to be taken at a meeting of the stockholders or of the
Board of Directors or of any committee thereof may be taken without a meeting if
a consent in writing setting forth the action so taken shall be signed by all of
the stockholders entitled to notice of or to vote with respect
<PAGE>
to the subject matter thereof, or by all of the members of the Board or of such
committee, as the case may be, and such consent shall have the same force and
effect as a unanimous vote.
ARTICLE VII - BY-LAWS
SECTION 7.1 AMENDMENTS. - These By-Laws may be altered, amended or
repealed:
(a) At any duly held stockholders' meeting by vote of the owners of no
less than all of the outstanding stock, present in person or by proxy, provided
notice of the amendment is included in the notice or waiver of notice of such
meeting, and
(b) At any regular or special meeting of the Board of Directors by a
majority (unless the Articles of Incorporation require a larger vote) of the
entire Board, but any By-Laws so made by the Board may be altered or repealed by
the stockholders.
Adopted by the Board of Directors
By Unanimous Written Consent Without
A Meeting by Resolution dated
October 20, 1997.
----------------------------------
Assistant Secretary
<PAGE>
Exhibit 4.1
NVR, INC.
AS PRIMARY OBLIGOR
NVR FINANCIAL SERVICES, INC.
NVR HOMES, INC.
RVN, INC.
and
NVR FOX RIDGE, INC.
AS GUARANTORS
and
[BANK]
AS TRUSTEE
-------------------------
INDENTURE
DATED AS OF ___________ __, 1998
---------------------------------------------------------
Senior Debt Securities
---------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES.....................................................................2
RECITALS....................................................................2
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION..............................................................2
SECTION 101. Definitions................................................2
Act.................................................................3
Additional Amounts..................................................3
Affiliate...........................................................3
Authenticating Agent................................................3
Authorized Newspaper................................................3
Bankruptcy Law......................................................3
Bearer Security.....................................................3
Board of Directors..................................................3
Board Resolution....................................................3
Business Day........................................................3
Capital Stock.......................................................4
CEDEL...............................................................4
Commission..........................................................4
Company.............................................................4
Company Request.....................................................4
Conversion Event....................................................4
Corporate Trust Office..............................................4
Corporation.........................................................4
Coupon..............................................................4
Custodian...........................................................4
Debt................................................................4
Defaulted Interest..................................................5
DTC.................................................................5
Dollar or "$".......................................................5
ECU.................................................................5
Euroclear...........................................................5
European Community..................................................5
European Monetary System............................................5
European Union......................................................5
Event of Default....................................................5
Exchange Act........................................................5
Foreign Currency....................................................5
GAAP................................................................6
Government Obligations..............................................6
Guaranteed Obligations..............................................6
Guarantees..........................................................6
Guarantors..........................................................6
Holder..............................................................6
Indenture...........................................................6
Indexed Security....................................................7
Interest............................................................7
Interest Payment Date...............................................7
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Legal Holiday.......................................................7
Make-Whole Amount...................................................7
Maturity............................................................7
Officers' Certificate...............................................7
Opinion of Counsel..................................................7
Original Issue Discount Security....................................7
Outstanding.........................................................7
Paying Agent........................................................8
Person..............................................................8
Place of Payment....................................................8
Predecessor Security................................................8
Premium.............................................................9
Recourse Indebtedness...............................................9
Redemption Date.....................................................9
Redemption Price....................................................9
Registered Security.................................................9
Regular Record Date.................................................9
Repayment Date......................................................9
Repayment Price.....................................................9
Responsible Officer.................................................9
Secured Debt........................................................9
Securities Act......................................................10
Security............................................................10
Security Register and Security Registrar............................10
Significant Subsidiary..............................................10
Special Record Date.................................................10
Stated Maturity.....................................................10
Statistical Release.................................................10
Subsidiary..........................................................10
Trust Indenture Act or TIA..........................................10
Trustee.............................................................10
United States.......................................................11
United States Person................................................11
Yield to Maturity...................................................11
SECTION 102. Compliance Certificates and Opinions.......................11
SECTION 103. Form of Documents Delivered to Trustee.....................11
SECTION 104. Acts of Holders............................................12
SECTION 105. Notices, etc., to Trustee and Company......................13
SECTION 106. Notice to Holders; Waiver.................................13
SECTION 107. Effect of Headings and Table of Contents...................14
SECTION 108. Successors and Assigns.....................................14
SECTION 109. Separability Clause........................................14
SECTION 110. Benefits of Indenture......................................14
SECTION 111. No Personal Liability......................................14
SECTION 112. Governing Law..............................................15
SECTION 113. Legal Holidays.............................................15
ARTICLE TWO SECURITIES FORMS...............................................15
SECTION 201. Forms of Securities........................................15
SECTION 202. Form of Trustee's Certificate of Authentication............15
SECTION 203. Securities Issuable in Global Form.........................16
ARTICLE THREE THE SECURITIES...............................................16
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 301. Amount Unlimited, Issuable in Series.......................16
SECTION 302. Denominations..............................................19
SECTION 303. Execution, Authentication, Delivery and Dating.............19
SECTION 304. Temporary Securities.......................................21
SECTION 305. Registration, Registration of Transfer and Exchange........23
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...........26
SECTION 307. Payment of Interest; Interest Rights Preserved.............27
SECTION 308. Persons Deemed Owners......................................28
SECTION 309. Cancellation...............................................29
SECTION 310. Computation of Interest....................................29
ARTICLE FOUR SATISFACTION AND DISCHARGE....................................29
SECTION 401. Satisfaction and Discharge of Indenture....................29
SECTION 402. Application of Trust Funds.................................30
ARTICLE FIVE REMEDIES......................................................30
SECTION 501. Events of Default..........................................30
SECTION 502. Acceleration of Maturity; Rescission and Annulment.........32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.............................................................33
SECTION 504. Trustee May File Proofs of Claim...........................33
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons...............................................34
SECTION 506. Application of Money Collected.............................34
SECTION 507. Limitation on Suits........................................35
SECTION 508. Unconditional Right of Holders to Receive Principal
(Premium, if any) and Interest......................................35
SECTION 509. Restoration of Rights and Remedies.........................35
SECTION 510. Rights and Remedies Cumulative.............................35
SECTION 511. Delay or Omission Not Waiver...............................36
SECTION 512. Control by Holders of Securities...........................36
SECTION 513. Waiver of Past Defaults....................................36
SECTION 514. Waiver of Usury Stay or Extension Laws.....................36
SECTION 515. Undertaking for Costs......................................37
ARTICLE SIX THE TRUSTEE....................................................37
SECTION 601. Notice of Defaults.........................................37
SECTION 602. Certain Rights of Trustee..................................37
SECTION 603. Not Responsible for Recitals or Issuance of Securities.....38
SECTION 604. May Hold Securities........................................38
SECTION 605. Money Held in Trust........................................39
SECTION 606. Compensation and Reimbursement.............................37
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests...........................................................39
SECTION 608. Resignation and Removal; Appointment of Successor..........39
SECTION 609. Acceptance of Appointment by Successor.....................40
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business............................................................41
SECTION 611. Appointment of Authentication Agent........................42
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY.............................................................43
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 701. Disclosure of Names and Addresses of Holders...............43
SECTION 702. Reports by Trustee.........................................43
SECTION 703. Reports by Company.........................................43
SECTION 704. The Company to Furnish Trustee Names and Addresses of
Holders.............................................................44
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE..........................................................44
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions.............44
SECTION 802. Rights and Duties of Successor Entity......................45
SECTION 803. Officers' Certificate and Opinion of Counsel...............45
ARTICLE NINE SUPPLEMENTAL INDENTURES.......................................45
SECTION 901. Supplemental Indentures Without Consent of Holders.........45
SECTION 902. Supplemental Indentures with Consent of Holders............46
SECTION 903. Execution of Supplemental Indentures.......................47
SECTION 904. Effect of Supplemental Indentures..........................47
SECTION 905. Conformity with Trust Indenture Act........................48
SECTION 906. Reference in Securities to Supplemental Indentures.........48
SECTION 906. Notice of Supplemental Indentures..........................48
ARTICLE TEN COVENANTS......................................................48
SECTION 1001. Payment of Principal (and Premium, if any) and Interest...48
SECTION 1002. Maintenance of Office or Agency...........................48
SECTION 1003. Money for Securities Payments to Be Held in Trust.........50
SECTION 1004. Existence.................................................51
SECTION 1005. Maintenance of Properties.................................51
SECTION 1006. Insurance.................................................50
SECTION 1007. Payments of Taxes and Other Claims........................50
SECTION 1008. Statement as to Compliance................................50
SECTION 1009. Additional Amounts........................................50
SECTION 1010. Waiver of Certain Covenants...............................51
ARTICLE ELEVEN REDEMPTION OF SECURITIES....................................52
SECTION 1101. Applicability of Article..................................52
SECTION 1102. Election to Redeem; Notice to Trustee.....................53
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.........53
SECTION 1104. Notice of Redemption......................................53
SECTION 1105. Deposit of Redemption Price...............................54
SECTION 1106. Securities Payable on Redemption Date.....................54
SECTION 1107. Securities Redeemed in Part...............................55
ARTICLE TWELVE GUARANTEES..................................................55
SECTION 1201. Guarantee..................................................55
SECTION 1202. Obligations Unconditional..................................57
SECTION 1203. Execution of Guarantee.....................................57
SECTION 1204. Withholding................................................57
SECTION 1205. Limitation of Guarantee....................................58
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 1206. Release of Guarantee......................................58
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS........................59
SECTION 1301. Applicability of Article..................................59
SECTION 1302. Repayment of Securities...................................59
SECTION 1303. Exercise of Option........................................59
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable.............................................................60
SECTION 1305. Securities Repaid in Part.................................61
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE........................61
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance...................................61
SECTION 1402. Defeasance and Discharge..................................61
SECTION 1403. Covenant Defeasance.......................................61
SECTION 1404. Conditions to Defeasance or Covenant Defeasance...........62
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions............................63
</TABLE>
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA"
or "Trust Indenture Act") and this Indenture, dated as of ___________ __, 1998.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C> <C>
(S) 310 (a)(1).................................607
(a)(2).................................607
(b)....................................607, 608
(S) 312 (c)....................................701
(S) 313 (a)....................................702
(c)....................................702
(S) 314 (a)....................................703
(a)(4).................................1006
(c)(1).................................102
(c)(2).................................102
(e)....................................102
(S) 315 (b)....................................601
(S) 316 (a) (last sentence)....................101 ("Outstanding")
(a)(1)(A)..............................502, 512
(a)(1)(B)..............................513
(b)....................................508
(S) 317 (a)(1).................................503
(a)(2).................................504
(S) 318 (a)....................................111
(c)....................................111
</TABLE>
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to and
including 317 of the Trust Indenture Act are a part of and govern every
qualified indenture, whether or not physically contained therein.
-1-
<PAGE>
Indenture (this "Indenture"), dated as of _________ __, 1998, by and
between NVR, Inc., a Virginia corporation, as primary obligor (the "Company");
-------
NVR Financial Services, Inc., a Pennsylvania corporation, NVR Homes, Inc., a
Virginia corporation, RVN, Inc., a Delaware corporation, and NVR Fox Ridge,
Inc., a Tennessee corporation, as guarantors (each, a "Guarantor"); , and
---------
[BANK], a national bank organized under the laws of the United States of
America, as Trustee hereunder (the "Trustee"), having its Corporate Trust
-------
Office (as defined below) at __________________________________________________.
RECITALS
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (the "Securities") evidencing its
unsecured senior indebtedness, and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions as shall be
fixed for such Securities as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
-----------
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as used
in TIA Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
-2-
<PAGE>
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles. In addition, the
following terms have the respective meanings indicated.
"Act," when used with respect to any Holder, has the meaning specified
---
in Section 104.
"Additional Amounts" means any additional amounts which are required
------------------
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes,
assessments or other governmental charges imposed on certain Holders and which
are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
--------------------
act on behalf of the Trustee to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, printed in the English
--------------------
language or in an official language of the place of publication, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any day that is a Business Day in the place of publication.
"Bankruptcy Law" has the meaning specified in Section 501.
--------------
"Bearer Security" means any Security established pursuant to Section
---------------
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or
------------------
any committee of that board duly authorized to act hereunder, as the case may
be.
"Board Resolution" means a copy of a resolution of the Company,
----------------
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
------------
other location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, any day, other than a Saturday, Sunday or other day on which banking
institutions in that Place of Payment or location are authorized or required by
law, regulation or executive order to close.
"Capital Stock" means with respect to any Person, any and all shares,
-------------
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether now outstanding or
issued after the Closing Date, including, without limitation, all common stock
and preferred stock.
-3-
<PAGE>
"CEDEL" means Central de Livraison de Valeurs Mobilieres, S.A., or its
-----
successor.
"Commission" means the U.S. Securities and Exchange Commission, as
----------
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
-------
paragraph of this Indenture until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written
--------------- -------------
request or order signed in the name of and on behalf of the Company by its
Chairman of the Board, the President or a Vice President, and by its Treasurer
or an Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
----------------
Currency both by the government of the country or confederation that issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit (or composite currency) other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate trust office
----------------------
of the Trustee at which, at any particular time, its corporate trust business
shall be administered principally, which office at the date hereof is located at
___________________________, except that for purposes of Section 1002, such
term shall mean the office or agency of the Trustee in the
___________________________, which office at the date hereof is located at
__________________ ________________________________.
"corporation" includes corporations, limited liability companies,
-----------
partnerships, associations, companies and business and real estate investment
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"Custodian" has the meaning specified in Section 501.
---------
"Debt" of the Company or any Subsidiary means any indebtedness of the
----
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Company or any Subsidiary,
(iii) letters of credit or amounts representing the balance deferred and unpaid
of the purchase price of any property except any such balance that constitutes
an accrued expense or trade payable or (iv) any lease of property by the Company
or any Subsidiary as lessee which is reflected on the Company's Consolidated
Balance Sheet as a capitalized lease in accordance with GAAP, in the case of
items of indebtedness under (i) through (iii) above to the extent that any such
items (other than letters of credit) would appear as a liability on the
Company's consolidated balance sheet in accordance with GAAP, and also
includes, to the extent not otherwise included, any obligation by the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary) (it
being understood that "Debt" shall be deemed to be incurred by the Company and
its Subsidiaries on a consolidated basis whenever the Company and its
Subsidiaries on a consolidated basis shall create, assume, guarantee or
otherwise become liable in respect thereof; Debt of a Subsidiary of the Company
existing prior to the time it became a Subsidi-
-4-
<PAGE>
ary of the Company shall be deemed to be incurred upon such Subsidiary's
becoming a Subsidiary of the Company; and Debt of a Person existing prior to a
merger or consolidation of such Person with the Company or any Subsidiary of the
Company in which such Person is the successor of the Company or such Subsidiary
shall be deemed to be incurred upon the consummation of such merger or
consolidation; provided, however, that the term "Debt" shall not include any
-------- -------
indebtedness that has been the subject of an "in substance" defeasance in
accordance with GAAP.
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"DTC" means The Depository Trust Company for so long as it shall be a
---
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
------ -
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means European Currency Units as defined and revised from time
---
to time by the Council of the European Community.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
Office, or its successor as operator of the Euroclear System.
"European Community" means the European Economic Community.
------------------
"European Monetary System" means the European Monetary System
------------------------
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"European Union" means the European Community, the European Coal and
--------------
Steel Community, and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Five.
----------------
"Exchange Act" means the Securities Exchange Act of 1934 and any
------------
successor statute thereto, in each case as amended from time to time, and the
rules and regulations of the Commission thereunder.
"Foreign Currency" means any currency, currency unit or composite
----------------
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
----
from time to time, as used in the United States applied on a consistent basis;
provided that, solely for purposes of any calculation required by the financial
- --------
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
----------------------
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable,
for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either
-5-
<PAGE>
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided
--------
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Guaranteed Obligations" has the meaning specified in Section 1201.
----------------------
"Guarantees" means the guarantee of each of the Guarantors, as set
----------
forth in Article Twelve, in one or more supplemental indentures hereto, or in
any additional guarantee of the Securities executed under the terms of this
Indenture.
"Guarantors" means, collectively, NVR Financial Services, Inc., NVR
----------
Homes, Inc., RVN, Inc., NVR Fox Ridge, Inc., or any Person that executes a
Guarantee.
"Holder" means, in the case of a Registered Security, the Person in
------
whose name such Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
---------
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 30l; provided, however, that, if at any time more than
-------- -------
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
---------
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the particular series of Securities for which such Person is Trustee
established as contemplated by Section 331, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide that
----------------
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount
--------
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Security, means
---------------------
the Stated Maturity of an installment of interest on such Security.
"Legal Holiday" means a day that is not a Business Day.
-------------
"Make-Whole Amount" means the amount, if any, in addition to principal
-----------------
which is required under the terms and conditions specified in a Security or as
otherwise specified as contem-
-6-
<PAGE>
plated by Section 301, to be paid by the Company to the Holder thereof in
connection with any optional redemption or accelerated payment of such
Security.
"Maturity," when used with respect to any Security, means the date on
--------
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or repurchase, notice of
option to elect repayment or otherwise, and includes the Redemption Date.
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board of Directors, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Company or an employee of the Company and who shall be
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
--------------------------------
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
-----------
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore canceled by the Trustee or the
Security Registrar or delivered to the Trustee or Security Registrar for
cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto, provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -------- -------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination or calculation, upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined pursuant
-7-
<PAGE>
to Section 301 as of the date such Security is originally issued by the Company,
of the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Security, (iii) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such determination
or calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, partnership, limited
------
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, real estate investment trust or government or any
agency or political subdivision thereof.
"Place of Payment" when used with respect to any Security, means the
----------------
place or places where the principal of (and premium, if any) and interest on
such Securities are payable as specified as contemplated by Sections 301 and
1002.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Premium" when used with respect to a Security which by its terms
-------
provides for the payment of a Make-Whole Amount, includes such Make-Whole
Amount.
"Recourse Indebtedness" means Debt other than Secured Debt as to which
---------------------
the liability of the obligor thereon is limited to its interest in the
collateral securing such Secured Debt; provided that no Debt shall constitute
--------
Recourse Indebtedness solely by reason of provisions therein for imposition of
full recourse liability on the obligor for certain wrongful acts, environmental
liabilities, or other customary exclusions from the scope of so-called "non-
recourse" provisions.
"Redemption Date," when used with respect to any Security to be
---------------
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
"Registered Security" means any Security which is registered in the
-------------------
Security Register.
-8-
<PAGE>
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date," when used with respect to any Security to be repaid
--------------
at the option of the Holder, means the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price," when used with respect to any Security to be repaid
---------------
at the option of the Holder, means the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means the
-------------------
chairman or vice-chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"Secured Debt" means, without duplication, Debt that is secured by a
------------
mortgage, trust deed, deed of trust, deed to secure Debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a security
interest in real property or other tangible assets.
"Securities Act" means the Securities Act of 1933 and any successor
--------------
statute thereto, in each case as amended from time to time, and the rules and
regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
--------
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
------------------
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings specified in Section 305.
"Significant Subsidiary" means any Subsidiary which is a "significant
----------------------
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
-------------------
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Statistical Release" means the statistical release designated
-------------------
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes
-9-
<PAGE>
yields on actively traded United States government securities adjusted to
constant maturities, or, if such statistical release is not published at the
time of any determination under the Indenture, then such other reasonably
comparable index which shall be designated by the Company.
"Subsidiary" means a corporation or a partnership a majority of the
----------
outstanding voting stock or partnership interests, as the case may be, of which
is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
------------------- ---
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
- -----------------
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
-------------
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation or other entity created or
organized in or under the laws of the United States, or an estate or trust the
income of which is subject to United States federal income taxation regardless
of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
-----------------
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
-10-
<PAGE>
(3) a statement that, in the opinion of each such individual, he or
she has made such examination or investigation as is necessary to enable the
individual to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders. (a) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 602) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient. Subject to
Article Six, the execution of any instrument by a Holder or his agent may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
-11-
<PAGE>
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on
- --------
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than eleven months after
the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
-------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing to or
with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first class postage prepaid, to the Company addressed to it
at the address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the
Trustee by the Company.
-12-
<PAGE>
SECTION 106. Notice to Holders; Waiver. Where this Indenture
--------------------------
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any particular Holder of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of such
notice with respect to other Holders of Bearer Securities or the sufficiency of
any notice to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
----------------------
this Indenture by the Company shall be binding on their successors and assigns,
whether so expressed or not.
-13-
<PAGE>
SECTION 109. Separability Clause. In case any provision in this
-------------------
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture, in
---------------------
the Securities or coupons, express or implied, shall give to any Person, other
than the Parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability. No recourse under or upon any
---------------------
obligation, covenant or agreement contained in this Indenture, in any Security
or coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future shareholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 112. Governing Law. This Indenture and the Securities and
-------------
coupons hall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 113. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity, provided that no interest shall accrue on
--------
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any,
-------------------
of each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with this Indenture, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
-14-
<PAGE>
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
-----------------------------------------------
to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[BANK], as Trustee
By:
-------------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global form in the manner and upon instructions given by the Person
or Persons specified therein or in the applicable Company Order. If a Company
Order pursuant to Section 303 or 304 has been, or simultaneously is, delivered,
any instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent
global Security in bearer form, Euroclear or CEDEL.
-15-
<PAGE>
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
------------------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration
of transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates
will be determined, on which the principal of the Securities of the series
shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest Payment
Dates on which such interest will be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest Payment
Date, or the method by which such date shall be determined, and the basis upon
which interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, the City of New York, where any principal of (and
premium) and interest payable in respect of Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, exchange or conversion and notices or demands to or
upon the Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or prices
(including, if any) at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other terms and conditions
upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any provision or at the option of
a Holder thereof, and the period or periods within which or the date of dates on
which, the price or prices at which, the currency or currencies, currency unit
or units or composite currency or currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased (including without limitation whether, and the extent to which, the
premium shall be payable in connection therewith), in whole or in part, pursuant
to such obligation.
-16-
<PAGE>
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered Securities of the
series shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series shall
be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or,
if applicable, the portion of the principal amount of Securities of the series
that is convertible in accordance with the provisions of this Indenture, or the
method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest on the
Securities of the series shall be payable or in which the Securities of the
series shall be denominated;
(12) whether the amount of payments of principal of (and premium
or Make-Whole Amount, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity indices
or other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any) or interest on
the Securities of the series are to be payable, at the election of the Company,
or a Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency or currencies, currency unit
or units or composite currency or currencies in which such Securities are
denominated or stated to be payable and the currency or currencies, currency
unit or units or composite currency or currencies in which such Securities are
to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants are consistent with
the Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 305, and,
if Registered Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series;
-17-
<PAGE>
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, the manner in which, or
the Person to whom, any interest on any Bearer Security of the series shall be
payable, if otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to which, or the
manner in which, any interest payable on a temporary global Security on an
Interest Payment Date will be paid if other than in the manner provided in
Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in addition
to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other
documents or satisfaction of other conditions, then the form and/or terms of
such certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1009 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of
any such option);
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company on behalf of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall be
-------------
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities
-18-
<PAGE>
issued in global form (which may be of any denomination), shall be issuable in a
denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons appertaining thereto shall be executed by the
Company's Chairman of the Board, its President or one of its Senior Vice
Presidents, and its Chief Financial Officer. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
-------- -------
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
----------------
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such Security or upon exchange of a
portion of a temporary global Security shall be deemed to be delivery in
connection with its original issuance of such beneficial owner's interest in
such permanent global Security. Except as permitted by Section 306, the Trustee
shall not authenticate and deliver any Bearer Security unless all appurtenant
coupons for interest then matured have been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have
been established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
-19-
<PAGE>
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other similar laws of
general applicability relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions
precedent provided for in this Indenture relating to the issuance of the
Securities have been complied with and that, to the best of the knowledge of the
signers of such certificate, that no Event of Default with respect to any of the
Securities shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future
issuances, shall be delivered at or before the time of issuance of the first
Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
--------------------
definitive Securities of any series, the Company may execute, and upon Company
Order, the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
-20-
<PAGE>
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
-----------------
delivered in exchange for a temporary Registered Security; and provided further
----------------
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form other than through the facilities of The
Depository Trust Company. If any such temporary Security is issued in global
form, then such temporary global Security shall, unless otherwise provided
therein, be delivered to the London office of a depositary or common depositary
(the "Common Depositary"), for the benefit of Euroclear and CEDEL, for credit to
the respective accounts of the beneficial owners of such Securities (or to such
other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; provided,
---------
however, that, unless otherwise specified in such temporary global Security,
- -------
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held
for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further that definitive
----------------
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no ear-
-21-
<PAGE>
lier than 15 days prior to the Exchange Date, copies of which certificate shall
be available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive Securities must bear
the cost of insurance, postage, transportation and the like unless such Person
takes delivery of such definitive Securities in person at the offices of
Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in
exchange for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to he respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners
of the temporary global Security with respect to which such certification was
made will be exchanged for definitive Securities of the same series and of like
tenor on the Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this paragraph, no payments of principal or
interest owing with respect to a beneficial interest in a temporary global
Security will be made unless and until such interest in such temporary global
Security shall have been exchanged for an interest in a definitive Security.
Any interest so received by Euroclear and CEDEL and not paid as herein provided
shall be returned to the Trustee prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
---------------------------------------------------
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the
-22-
<PAGE>
same series, of any authorized denominations and of a like aggregate principal
amount, bearing a number not contemporaneously outstanding, and containing
identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
-----------------
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is "DTC," then, unless the terms of such global Security expressly
permit such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Company or to a nominee of such
successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act if so required by applicable law or regulation, the Company
shall appoint a successor depositary with
-23-
<PAGE>
respect to such global Security or Securities. If (x) a successor depositary for
such global Security or Securities is not appointed by the Company within 90
days after the Company receives such notice or becomes aware of such
unwillingness, inability or ineligibility, (y) an Event of Default has occurred
and is continuing and the beneficial owners representing a majority in principal
amount of the applicable series of Securities represented by such global
Security or Securities advise DTC to cease acting as depositary for such global
Security or Securities or (z) the Company, in its sole discretion, determines
at any time that all Outstanding Securities (but not less than all) of any
series issued or issuable in the form of one or more global Securities shall no
longer be represented by such global Security or Securities, then the Company
shall execute, and the Trustee shall authenticate and deliver definitive
Securities of like series, rank, tenor and terms in definitive form in an
aggregate principal amount equal to the principal amount of such global Security
or Securities. If any beneficial owner of an interest in a permanent global
Security is otherwise entitled to exchange such interest for Securities of such
series and of like tenor and principal amount of another authorized form and
denomination, as specified as contemplated by Section 301 and provided that any
applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
execute, and the Trustee shall authenticate and deliver definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security. On or after the earliest
date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depositary as
shall be specified in the Company Order with respect thereto to the Trustee, as
the Company's agent for such purpose; provided, however, that no such exchanges
-----------------
may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption
Date if the Security for which exchange is requested may be among those selected
for redemption; and provided further that no Bearer Security delivered in
----------------
exchange for a portion of a permanent global Security shall be mailed or
otherwise delivered to any location in the United States. If a Registered
Security is issued in exchange for any portion of a permanent global Security
after the close of business at the office or agency where such exchange occurs
on (i) any Regular Record Date and before the opening of business at such office
or agency on the relevant Interest Payment Date, or (ii) any Special Record Date
and the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, interest or Defaulted Interest, as the
case may be, will not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
will be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the provisions
of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
-24-
<PAGE>
The Company, or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
--------
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
------------------------------------------------
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of the principal of (and premium, if
-----------------
any) and interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 301, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
-25-
<PAGE>
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except
----------------------------------------------
as otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
-----------------
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 308, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case
of a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
special Record Date for the payment of such De-
-26-
<PAGE>
faulted Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit with
the Trustee an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements satisfactory to
the Trustee for such deposit on or prior to the date of the proposed payment,
such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed, first-
class postage prepaid, to each Holder of Registered Securities of such series at
his address as it appears in the Security Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company, cause a similar notice to be published at least
once in an Authorized Newspaper in each place of payment, but such publications
shall not be a condition precedent to the establishment of such Special Record
Date. Notice of the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the close
of business on such Special Record Date and shall no longer be payable pursuant
to the following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of business at
such office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such proposed date of payment and Defaulted Interest will not be
payable on such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any),
and (subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
-27-
<PAGE>
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company, or the Trustee, from giving effect to any written certification or
other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered
------------
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by the Company Order, the
Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 301 with respect to Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1007), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when,
-28-
<PAGE>
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or
has been waived as provided in Section 305, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (iii) coupons appertaining to Securities called
for redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions
--------------------------
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and any interest for
whose payment such money has deposited with
-29-
<PAGE>
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used
-----------------
herein with respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers' Certificate establishing the terms of such series
pursuant to this Indenture:
(1) default in the payment of any interest on any Security of that
series or of any coupon appertaining thereto, when such interest or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or Make-
Whole Amount, if any, on) any Security of that series when it becomes due and
payable at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail to the Company, by the Trustee or to the Company,
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(4) a default under any evidence of Recourse Indebtedness of the
Company or any Guarantor, or under any mortgage, indenture or other instrument
of the Company or any Guarantor (including a default with respect to Securities
of any series other than that series) under which there may be issued or by
which there may be secured any Recourse Indebtedness of the Company or any
Guarantor (or by any Subsidiary of the Company or a Guarantor, the repayment of
which the Company or the Guarantor has guaranteed or for which the Company or
the Guarantor is directly responsible or liable as obligor or guarantor),
whether such Recourse Indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay an aggregate principal amount
exceeding $5,000,000 of Recourse Indebtedness of any or all such Persons when
due and payable after the expiration of any applicable grace period with respect
thereto and shall have resulted in such Recourse Indebtedness in an aggregate
principal amount exceeding $5,000,000 becoming or being declared due and
payable before the date on which it would otherwise have become due and payable,
without such Recourse Indebtedness having been discharged; or
(5) the Company, a Guarantor or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in
an involuntary case,
-30-
<PAGE>
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company, a Guarantor or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company, a Guarantor or any
Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Company, a Guarantor or any
Significant Subsidiary, and the order or decree remains
unstayed and in effect for 90 days; or
(7) the guarantee of any security by a Guarantor ceases to be, or is
asserted in writing by the Company or any Guarantor not to be, in full force and
effect or enforceable in accordance with its terms, or
(8) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal as may be specified in the terms thereof) and premium (if any) of all
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company, (and to the Trustee if given by the Holders), and upon
any such declaration such principal and premium (if any) or specified portion
thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on all Outstanding
Securities of that series and any related coupons,
-31-
<PAGE>
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne by
or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates borne by or
provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or interest
on Securities of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- -------
(1) default is made in the payment of any installment of interest on
any Security of any series and any related coupon when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium ,
if any, on) any Security of any series at its Maturity, then the Company will,
upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Securities of such series and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium, if any) and
interest, with interest upon any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any
overdue installments of interest, at the rate or rates borne by or provided for
in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
--------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
-32-
<PAGE>
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of principal
(and premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder of Securities of such series and coupons to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor Trustee, their
agents and counsel, and any other amounts due the Trustee or any predecessor
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons. All rights of action and claims under this Indenture or
- ---------------------
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or coupons or the production
thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust,
and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, before the ratable benefit of the Holders of the
Securities and coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by
------------------------------
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and interest
payable, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for principal
(and premium, if any) and interest, respectively; and
-33-
<PAGE>
THIRD: To the payment of the remainder, if any, to the Person
or Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of any
-------------------
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal
---------------------------------------------------
(Premium, if any) and Interest. Notwithstanding any other provision in this
- ------------------------------
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest on such Security or
payment of such coupon on the respective due dates expressed in such Security or
coupon (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in eq-
-34-
<PAGE>
uity or otherwise. The assertion or employment of any right or remedy hereunder,
or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not
--------------------------------
less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series,
provided that
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
-----------------------
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture,
-35-
<PAGE>
or in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of any undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than 10% in principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the principal of
(or premium or Make-Whole Amount, if any) or interest on any Security on or
after the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence
------------------
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
-------- -------
case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the character
- ----------------
specified in Section 501(3) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
TIA Section 315(a) through 315(d):
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
-36-
<PAGE>
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any coupons shall be taken as the
statements of the Company and neither the Trustee nor any Authenticating Agent
assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
-------------------
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
------------------------------
-37-
<PAGE>
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its own part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium, if any) or interest
on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests. There shall at all times be a Trustee hereunder which shall be
- ---------
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and the
Company.
-38-
<PAGE>
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any Holder of
a Security who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by or
pursuant to a Board Resolution may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee with
respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
or such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of
--------------------------------------
the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee
-39-
<PAGE>
all property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company, or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
SECTION 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
- --------
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities of coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when
-----------------------------------
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to
-40-
<PAGE>
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption or repayment thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
-41-
<PAGE>
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
[BANK], as Trustee
By:
---------------------------------,
as Authenticating Agent
By:
---------------------------------,
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
--------------------------------------------
Holder of Securities or coupons, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after October 1 of
------------------
each year commencing with the first October 1 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such October 1 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
------------------
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or the
Company is not required to file information, documents or reports pursuant to
either of such Sections, then it will file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents and
reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
-42-
<PAGE>
SECTION 704. The Company to Furnish Trustee Names and Addresses of
-----------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
- -------
(a) semi-annually, not later than 15 days after the Regular
Record Date for interest for each series of Securities, a list, in such form as
the Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in Writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished, provided, however, that, so long as the Trustee is the
-------- -------
Security Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
-------------------------------------------------------
and Conveyances Permitted Subject to Certain Conditions. The Company or any
- -------------------------------------------------------
Guarantor may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other entity, provided that in
any such case, (1) either the Company or the Guarantor, as the case may be, will
be the continuing entity, or the successor entity will be an entity organized
and existing under the laws of the United States or a State thereof and such
successor entity expressly assumes the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company or the Guarantor, as the case may be, by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such entity and (ii) immediately after
giving effect to such transaction and treating any indebtedness which becomes
an obligation of the Company, a Guarantor or any Subsidiary as a result thereof
as having been incurred by the Company, the Guarantor or such Subsidiary at the
time or such transaction, no Event of Default, and no event which, after notice
or the lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 802. Rights and Duties of Successor Entity. In case of any
-------------------------------------
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to and
be substituted for the Company or the Guarantor, as the case may be, with the
same effect as if it had been named herein as the Company or the Guarantor, as
applicable, and the predecessor entity, except in the event of a lease, shall
be relieved of any further obligation under this Indenture and the Securities.
Any such successor entity of the Company thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor entity, instead of the Company, and subject to all the terms,
conditions and limitations in this Indenture prescribed, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities so issued shall in all respects have the same legal rank and benefit
under this Indenture as the Securities theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
-43-
<PAGE>
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
--------------------------------------------
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor entity, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such additional Events
-------- -------
of Default such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default or may limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit
or facilitate the issuance of Securities in uncertificated form, provided that
any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions or this
Indenture, provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
-44-
<PAGE>
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such provisions do not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
- --------
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect; or
(11) to make any change that does not adversely affect the legal
rights under this Indenture of any Holder of Debt Securities of any series; or
(12) to add a Guarantor.
SECTION 902. Supplemental Indentures with Consent of Holders. With
-----------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, the Guarantors and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided,
--------
however, that no such supplemental indenture shall, without the consent of the
- -------
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium,
if any, on) or any installment of principal of or interest on, any Security; or
reduce the principal amount thereof or the rate or amount of interest thereon,
or any premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 1007 (except as
contemplated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with
-45-
<PAGE>
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section or Section 513,
except to increase the required percentage to effect such action or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected thereby,
or
(4) release the Guarantors from their Guarantees.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution
---------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures. Promptly after the
---------------------------------
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 902, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such supplemental
indenture.
-46-
<PAGE>
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal (and Premium, if any) and
----------------------------------------------
Interest. The Company covenants and agrees for the benefit of the Holders of
- --------
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities of that series in
accordance with the terms of such series of Securities, any coupons appertaining
thereto and this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on and
any Additional Amounts payable in respect of Bearer Securities on or before
Maturity, other than Additional Amounts, if any, payable as provided in Section
1007 in respect of principal of (or premium, if any, on) such a Security, shall
be payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
Unless otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be paid
by check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
-------------------------------
series are issuable only as Registered Securities, the Company shall maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where
Securities of that series and related coupons may be presented and surrendered
for payment (including payment of any Additional Amounts payable on Securities
of that series pursuant to Section 1007) or conversion; provided, however, that
-------- -------
if the Securities of that series are listed on the Luxembourg Stock Exchange or
any other stock exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying Agent for the
Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of that
series are listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series located outside the
United States an office or agency where any Registered Securities of that series
may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange and where notices and demands to or upon the
Company in respect of the Securities of that series and this Indenture may be
served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Bearer Securities of
that series pursuant to Section 1007) or conversion at the offices specified in
the Security, in London, England, and the Company hereby appoint the same as its
agent to receive such respective presentations, surrenders, notices and demands,
and the Company hereby appoint the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
-47-
<PAGE>
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
-------- -------
the Securities of a series are payable in Dollars, payment of principal of and
any premium and interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1007) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-------- -------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
-------------------------------------------------
the Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on, any of the
Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any) or interest on, any Securities of
that series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the
preceding paragraph) sufficient to pay the principal (and premium, if any) or
interest, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
-48-
<PAGE>
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon
the written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) and interest has become due and
payable shall be paid to the Company upon Company Request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (and premium, if any) or interest on
any Security, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
-------- -------
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company will
---------
do or cause to be done all things necessary to preserve and keep in full force
and effect the existence, rights and franchises of itself and of each Guarantor;
provided, however, that the Company shall not be required to preserve any right
- -------- -------
or franchise if the Board of Directors determines that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
Guarantors taken as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders; and provided further that any Guarantor may
-------- -------
consolidate with, merge into, or sell convey, transfer, lease or otherwise
dispose of all or part of its property and assets to the Company or any other
Guarantor.
SECTION 1005. Maintenance of Properties. The Company will cause all
-------------------------
of the properties of itself and of each Subsidiary used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
--------
however, the Company and its Subsidiaries shall not be prevented from
- -------
discontinuing the operation and maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and not disadvantageous in any material respect to the Holders.
-49-
<PAGE>
SECTION 1006. Insurance. The Company will, and will cause each of
---------
its Subsidiaries to, keep all of its insurable properties insured against loss
or damage at least equal to their then full insurable value.
SECTION 1007. Payment of Taxes and other Claims. The Company will
---------------------------------
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all material taxes, assessments and governmental charges
levied or imposed upon it or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all material lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
-------- -------
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. Statement as to Compliance. The Company will deliver
--------------------------
to the Trustee, within 180 days after the end of each fiscal year, a brief
certificate from its principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's and
each Guarantor's compliance with all conditions and covenants under this
Indenture and, in the event of any noncompliance, specifying such noncompliance
and the nature and status thereof. For purposes of this Section 1006, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1009. Additional Amounts. If any Securities of a series
------------------
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish
the Trustee and the Company's principal Paying Agent or Paying Agents, if other
than the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal of and any
premium or interest on the Securities of that series shall be made to Holders of
Securities of that series or any related coupons who are not United States
persons without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of the series. If any such
withholding shall be required, then such Officers' Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such
Holders of Securities of that series or related coupons and the Company will pay
to the Trustee or such Paying Agent the Additional Amounts required by the terms
of such Securities. If the Trustee or any Paying Agent, as the case may be,
shall not so receive the above-mentioned certificate, then the Trustee or such
Paying Agent shall be entitled (i) to assume that no such withholding or
deduction is required with respect to any payment of principal or interest with
respect to any Securities of a series or related coupons until it shall have
received a certificate advising otherwise and (ii) to make all payments of
principal and interest with respect to
-50-
<PAGE>
the Securities of a series or related coupons without withholding or deductions
until otherwise advised. The Company covenants to indemnify the Trustee and any
Paying Agent for, and to hold them harmless against, any loss, liability or
expense reasonably incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by any of them or
in reliance on any Officers' Certificate furnished pursuant to this Section or
in reliance on the Company's not furnishing such an Officers' Certificate.
SECTION 1010. Waiver of Certain Covenants. The Company may omit in
---------------------------
any particular instance to comply with any term, provision or condition set
forth in Sections 1004 and 1005, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of
-------------------------------------
the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any redemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least 45
days prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
-------------------------------------------------
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date with the same
terms not previously called for redemption, by such method as the Trustee shall
deem fair and appropriate and which may provide for the selection for redemption
of portions (equal to the minimum authorized denomination for Securities of
that series or any integral multiple thereof) of the principal amount of
Securities of such series of a denomination larger than the minimum authorized
denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
-51-
<PAGE>
SECTION 1104. Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided in Section 106, not less than 30 days nor more than
60 days prior to the Redemption Date, unless a shorter period is specified by
the terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any,
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall cease to accrue on
and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion,
(7) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for redemption
or the amount of any such missing coupon or coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company and
the Trustee for such series and any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on this Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(9) the CUSIP number of such Security, if any, and
(10) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion contained
in such Securities, the then existing conversion price or rate, and the date
and time when the option to convert shall expire.
-52-
<PAGE>
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one Business Day
---------------------------
prior to any Redemption Date, the Company shall deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
-------- -------
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
----------------
that, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided,
--------
however, that interest represented by coupons shall be payable only at an office
- -------
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at
the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
---------------------------
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the
-53-
<PAGE>
Trustee shall authenticate and deliver to the Holder of such Security without
service charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE TWELVE
GUARANTEES
SECTION 1201. Guarantee. Subject to the provisions of this Article
---------
Twelve, each Guarantor hereby jointly and severally, fully, unconditionally and
irrevocably guarantees to each Holder and to the Trustee on behalf of the
Holders: (i) the due and punctual payment of the principal of, premium, if any,
and accrued interest on each Security, when and as the same shall become due and
payable, whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on the
Securities, to the extent lawful, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms of such Security and this Indenture and (ii) in the
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at Stated
Maturity, by acceleration or otherwise (the obligations in subsections (i) and
(ii) hereof being the "Guaranteed Obligations"). Each Guarantor hereby waives
----------------------
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, the benefit of discussion, protest or notice with
respect to any such Security or the debt evidenced thereby and all demands
whatsoever, and covenants that its Guarantee will not be discharged as to any
such Security except by payment in full of the principal thereof and interest
thereon and as provided in Section 4.01, Section 14.02 and Section 14.03. The
maturity of the Securities may be accelerated as provided in Article Five for
the purposes of this Article Twelve. In the event of any declaration of
acceleration of such obligations as provided in Article Five, the Securities
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor jointly and severally, for the purpose of this Article Eleven. In
addition, without limiting the foregoing provisions, upon the effectiveness of
an acceleration under Article Five, the Trustee shall promptly make a demand for
payment on the Securities under each Guarantee provided for in this Article
Twelve.
If the Trustee or the Holder of any Security is required by any court
or otherwise to return to the Company or any Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official acting in
relation to the Company or such Guarantor, any amount paid to the Trustee or
such Holder in respect of a Security, this Guarantee, to the extent theretofore
discharged, shall be reinstated in full force and effect. Each Guarantor
further agrees, to the fullest extent that it may lawfully do so, that, as
between it, on the one hand, and the Holders and the Trustee, on the other hand,
the maturity of the obligations guaranteed hereby may be accelerated as provided
in Article Five hereof for the purposes of its Guarantee, notwithstanding any
stay, injunction or other prohibition extant under any applicable bankruptcy law
preventing such acceleration in respect of the obligations guaranteed hereby.
Each Guarantor hereby further agrees that its obligations under this
Indenture and the Securities shall be unconditional, regardless of the validity,
regularity or enforceability of this Indenture or the Securities, the absence of
any action to enforce this Indenture or the Securities, any waiver or consent by
any Holder with respect to any provisions of this Indenture or the Securities,
any modification or amendment of, or supplement to, this Indenture or the
Securities, the recovery of any judgment against the Company or any action to
enforce any such judgment, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
-54-
<PAGE>
Each Guarantor that makes or is required to make any payment in
respect of its Guarantee shall be entitled to seek contribution from the other
Guarantors to the extent permitted by applicable law; provided that each
--------
Guarantor agrees that any such claim for contribution that such Guarantor may
have against any other Guarantor shall be subrogated to the prior payment in
full, in cash, of all obligations owed to Holders under or in respect of the
Securities.
Each Guarantor hereby irrevocably waives any claim or other rights
that it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of its obligations under its
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral that any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and the principal of (and
premium, if any) and interest on the Securities shall not have been paid in
full, such amount shall be deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited
and applied upon the principal of (and premium, if any) and interest on the
Securities. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the issuance of the Securities pursuant to this Indenture
and that the waivers set forth in this Section 12.01 are knowingly made in
contemplation of such benefits.
Each Guarantee set forth in this Section 12.01 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 1202. Obligations Unconditional. Subject to Section 12.05,
-------------------------
nothing contained in this Article Twelve or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among each Guarantor and the
Holders, the obligation of each Guarantor, which is absolute and unconditional,
upon failure by the Company, to pay to the Holders the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of each Guarantor,
nor shall anything herein or therein prevent any Holder or the Trustee on its
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture.
Without limiting the foregoing, nothing contained in this Article
Twelve will restrict the right of the Trustee or the Holders to take any action
to declare the Guarantee to be due and payable prior to the Stated Maturity of
the Securities pursuant to Section 5.02 or to pursue any rights or remedies
hereunder.
SECTION 1203. Execution of Guarantee. To evidence its obligations
----------------------
under this Article Twelve, each Guarantor hereby agrees to execute a guarantee
in a form set forth in the supplemental indenture for each series of Securities
guaranteed by the Guarantor, to be endorsed on each Security authenticated and
delivered by the Trustee. The signature of any officer of a Guarantor on the
Securities may be manual or facsimile. Each Guarantor hereby agrees that its
Guarantee set forth in this Article Twelve shall remain in full force and effect
notwithstanding any failure to endorse such Guarantee on any series of
Securities.
SECTION 1204. Withholding. All payments made by a Guarantor with
-----------
respect to the Guarantees will be made without withholding or deduction for, or
on account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by
-55-
<PAGE>
or on behalf of any country (other than the United States) or any political
subdivision thereof or any authority therein or thereof having power to tax,
unless the withholding or deduction of such taxes, duties, assessments or
governmental charges is then required by law. In the event that any country
(other than the United States) or any political subdivision thereof, or any
authority therein or thereof, imposes any such withholding or deduction on (a)
any payments made by a Guarantor with respect to the Guarantees or (b) any net
proceeds on the sale to or exchange with any Guarantor of the Securities, such
Guarantor will pay such additional amounts as may be necessary in order that the
net amounts received in respect to such payments or sale or exchange by the
Holders or the Trustee, as the case may be, after such withholding or deduction
shall equal the respective amounts that would have been received in respect of
such payments or sale or exchange in the absence of such withholding or
deduction; except that no such additional amounts shall be payable with respect
to any series of Securities held by or on behalf of a Holder who is liable for
such taxes, duties, assessments or governmental charges in respect of such
Security by reason of his being a citizen or resident of, or carrying on a
business in, the country of residence of any Guarantor. Notwithstanding the
foregoing, a Guarantor making a payment on the Securities pursuant to the
Guarantee shall not be required to pay any additional amounts if (x) the
beneficial holder of a Security received by certified mail (evidenced by a
return receipt signed by such beneficial holder) (i) written notice from such
Guarantor no less than 60 days in advance of making such payment and (ii) the
appropriate forms or instructions necessary to enable such beneficial holder to
certify or document the availability of an exemption from, or reduction of, the
withholding or deduction of such taxes under applicable law, which such
instructions shall clearly specify that additional amounts under this Section
1204 may not be paid if such forms are not completed by such beneficial holder,
and (y) the Guarantor that would otherwise have to pay such additional amounts
establishes to the satisfaction of the Trustee that the obligation to pay such
additional amounts would not have risen but for the failure of such beneficial
holder to (i) duly complete such forms as were actually received by such
beneficial holder or respond to such instructions and (ii) provide to such
Guarantor such duly completed forms or responses to instructions. Without
prejudice to the survival of any of the agreements of the Guarantors hereunder,
the agreements and obligations of the Guarantors contained in this Section 1204
shall survive the payment in full of Securities and all other amounts payable
under this Guarantee.
SECTION 1205. Limitation of Guarantee. The Company and each Holder
-----------------------
by his or her acceptance thereof, hereby confirm that it is the intention of all
such parties that any Guarantee of the Securities executed by a Guarantor under
this Indenture and the terms of a supplemental indenture for any series of
Securities not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Law, the Uniform Fraudulent Conveyance Act or any similar federal
or state law. To effectuate the foregoing intention, in the event that any such
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the liability
of the Guarantor under such Guarantee shall be reduced to the maximum amount,
after giving effect to all other contingent and fixed liabilities of such
Guarantor, permissible under the applicable fraudulent conveyance or similar
law.
SECTION 1206. Release of Guarantee. (a) Concurrently with the
--------------------
payment in full of all of the Securities, the Guarantors shall be released from
and relieved of their obligations under this Article Twelve. Upon the delivery
by the Company to the Trustee of an Officers' Certificate and, if requested by
the Trustee, an Opinion of Counsel to the effect that the transaction giving
rise to the release of such obligations was made by the Company in accordance
with the provisions of this Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of the Guarantors from
their obligations. If any of the Guaranteed Obligations are revived and
reinstated after the termination of this Guarantee, then all of the obligations
of the Guarantors under this Guarantee shall be revived and reinstated as if
this Guarantee had not been terminated until such time as the Guaranteed
Obligations are again terminated, and the Guarantors shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
-56-
<PAGE>
(b) Upon the sale or disposition of all the Capital Stock of a
Guarantor (by merger or otherwise) to a Person other than the Company or any
other Guarantor and which sale or disposition is otherwise in compliance with
the terms of this Indenture, such Guarantor shall be deemed released from all
obligations under this Article Twelve; provided, however, that any such
-----------------
termination upon such sale or disposition shall occur if and only to the extent
that all obligations of such Guarantor under all of its guarantees of, and under
all of its pledges of assets or other security interests which secure
indebtedness of the Company or any other Guarantor shall also terminate upon
such sale or disposition. Upon the delivery by the Company to the Trustee of an
Officers' Certificate and, if requested by the Trustee, an Opinion of Counsel
to the effect that the transaction giving rise to the release of such
obligations was made in accordance with the provisions of this Indenture, the
Trustee shall execute any documents reasonably required in order to evidence the
release of such Guarantor from its obligations. Any Guarantor not so released
remains liable for the full amount of principal of (and premium, if any) and
interest on the Securities as provided in this Article Twelve.
(c) Nothing contained in this Indenture or in the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent the transfer of all or substantially all of
the assets of a Guarantor to the Company or another Guarantor. Upon any such
consolidation, merger, transfer or sale, the Guarantee of such Guarantor shall
no longer have any force or effect.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of
------------------------
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
-----------------------
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that at least one Business Day prior to
the Repayment Date it will deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies,
currency unit or units or composite currency or currencies in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series) sufficient to pay the principal
(or, if so provided by the terms of the Securities of any series, a percentage
of the principal) of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject
------------------
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at
the Place of Payment there for specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a
-57-
<PAGE>
telegram, telex, facsimile transmission or a letter from a member of a national
securities exchange, or the National Association of Securities Dealers, Inc.
("NASD"), or a commercial bank or trust company in the United States setting
forth the name of the Holder of the Security, the principal amount of the
Security, the principal amount of the Security to be repaid, the CUSIP number,
if any, or a description of the tenor and terms of the Security, a statement
that the option to elect repayment is being exercised thereby and a guarantee
that the Security to be repaid, together with the duly completed form entitled
"Option to Elect Repayment" on the reverse of the Security, will be received by
the Trustee not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, however, that such
-------- -------
telegram, telex, facsimile transmission or letter shall only be effective if
such Security and form duly completed are received by the Trustee by such fifth
Business Day. If less than the entire principal amount of such Security is to be
repaid in accordance with the terms of such Security, the principal amount of
such Security to be repaid, in increments of the minimum denomination for
Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series provide repayment at the option of the
- -------
Holders thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portion thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid paid by the Company, together with accrued
interest, if any, Repayment Date; provided, however, that coupons whose Stated
-------- -------
Maturity is on or prior to the Repayment Date shall be payable at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and provided further that, in
-------- -------
the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but with
interest thereon, unless the Company shall default in the payment thereof) to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to it such security or indemnity
as they may require to save it and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
-------- -------
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section
-58-
<PAGE>
1002) and, unless otherwise specified as contemplated by Section 301, only
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
- ---------------------------------
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise
------------------------
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company and the Guarantors shall be deemed to have been
discharged from their obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) below, and to have satisfied
all of its other obligations under such Securities and any coupons appertaining
thereto and this Indenture insofar as such Securities and any coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect
of the principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due, (B)
the Company's obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1007, (C) the rights, powers,
trusts, duties and immunities of the Trustee hereunder and (D) this Article.
Subject to compliance with this Article Fourteen, the Company may exercise its
option under this Section notwithstanding
-59-
<PAGE>
the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
-------------------
the above option applicable to this Section with respect to any Securities of or
within a series, the Company and the Guarantors shall be released from their
obligations under Sections 1004 and 1005, inclusive and, if specified pursuant
to Section 301, their obligations under any other covenant, with respect to such
Outstanding Securities and coupons appertaining thereto on and after the date
the conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1004 and 1005, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining thereto, the Company
and the Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any Section or such other covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a default
or an Event of Default under Section 501(3) or 501(7) otherwise, as the case may
be, but, except as specified above, remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, a dedicated solely to,
the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with the terms will provide, not later than one day before the due
date of any payment of principal of (and premium or Make-Whole Amount, if any)
and interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof, any case, in an amount,
sufficient, without consideration of any reinvestment of such principal and
interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered the Trustee,
to pay and discharge, and which shall be applied by the Trustee (or other
qualifying trustee) to pay and discharge, the principal of (and premium or
Make-Whole Amount, if any) and interest, if any, on such Outstanding Securities
and any coupons, appertaining thereto on the Stated Maturity of such principal
or installment of principal or interest or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
-60-
<PAGE>
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any
time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such de-
feasance had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Company with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
- ----------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest, but such money need
not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit
-61-
<PAGE>
pursuant to Section 1404(a) has been made in respect of such Security, or (b) a
Conversion Event occurs in respect of the currency or currency unit in which
the deposit pursuant to Section 1404(a) has been made, the indebtedness
represented by such Security and any coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium or Make-Whole Amount, if any), and
interest, if any, on such Security as the same becomes due out of the proceeds
yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such
Security into the currency or currency unit in which such Security becomes
payable as a result of such election or Conversion Event based on the
applicable market exchange rate for such currency or currency unit in effect on
the second Business Day prior to each payment date, except, with respect to a
Conversion Event, for such currency or currency unit in effect (as nearly as
feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon the Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
************
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
-62-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NVR, INC.
By:
----------------------------------
Name:
Title:
[BANK], as Trustee
By:
----------------------------------
Name:
Title: Vice President
The Guarantors
--------------
NVR FINANCIAL SERVICES, INC. RVN, INC.
By: By:
-------------------------- ----------------------------------
Name: Name:
Title: Title:
NVR HOMES, INC. NVR FOX RIDGE, INC.
By: By:
-------------------------- ----------------------------------
Name: Name:
Title: Title:
-63-
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR, Inc., one of the parties described in and which
executed the foregoing instrument; and that he/she signed his/her name thereto
by authority of said corporation.
[Notarial Seal]
------------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR Financial Services, Inc., one of the parties
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of said corporation.
[Notarial Seal]
------------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR Homes, Inc., one of the parties described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by authority of said corporation.
[Notarial Seal]
------------------------------------------
Notary Public
COMMISSION EXPIRES
-64-
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of RVN, Inc., one of the parties described in and which
executed the foregoing instrument; and that he/she signed his/her name thereto
by authority of said corporation.
[Notarial Seal]
------------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR Fox Ridge, Inc., one of the parties described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by authority of said corporation.
[Notarial Seal]
------------------------------------------
Notary Public
COMMISSION EXPIRES
-65-
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _________ day of _________, 199__, before me personally came
to me known, _____________________, who, being by me duly sworn, did depose and
say that she/he resides at ___________________________, that she/he is a
__________________ of [Bank], one of the parties described in and which
executed the foregoing instrument; and that he/she signed his/her name thereto
by authority of said corporation.
[Notarial Seal]
---------------------------------------
Notary Public
COMMISSION EXPIRES:
-66-
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic companies, or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source ("United States
person(s)"), (ii) are owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
NVR, Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the above-
captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absent of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S. $]________ of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
<PAGE>
Dated:________________, 19__
[To be dated no earlier than the 15th day prior to (i)
the Exchange Date or (ii) the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
-----------------------------------------
(Authorized Signatory)
Name:
Title:
-2-
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S. $]_____
____________________amount of the above-captioned Securities (i) is owned by
person(s) that are not citizens or residents of the United States, domestic
companies, domestic corporations or any estate or trust the income of which is
subject to United States Federal income taxation regardless of its source
("United States person(s)"), (ii) is owned by United States person(s) that are
(a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise NVR, Inc. or
its agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:___________ 19__
<PAGE>
[To be dated no earlier than the Exchange Date or the
relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System [Cedel S.A.]
By:
-----------------------------------------
-2-
<PAGE>
Exhibit 4.2
NVR, INC.
AS PRIMARY OBLIGOR
NVR FINANCIAL SERVICES, INC.
NVR HOMES, INC.
RVN, INC.
and
NVR FOX RIDGE, INC.
AS GUARANTORS
and
[BANK]
AS TRUSTEE
-------------------------
INDENTURE
DATED AS OF ___________ __, 1998
- --------------------------------------------------------------------------------
Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
PARTIES.....................................................................2
RECITALS....................................................................2
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION.............................................................2
SECTION 101. Definitions...............................................2
Act...............................................................3
Additional Amounts................................................3
Affiliate.........................................................3
Authenticating Agent..............................................3
Authorized Newspaper..............................................3
Bankruptcy Law....................................................3
Bearer Security...................................................3
Board of Directors................................................3
Board Resolution..................................................3
Business Day......................................................3
Capital Stock.....................................................4
CEDEL.............................................................4
Commission........................................................4
Company...........................................................4
Company Request...................................................4
Conversion Event..................................................4
Corporate Trust Office............................................4
corporation.......................................................4
coupon............................................................4
Custodian.........................................................4
Debt..............................................................4
Defaulted Interest................................................5
DTC...............................................................5
Dollar or "$".....................................................5
ECU...............................................................5
Euroclear.........................................................5
European Community................................................5
European Monetary System..........................................5
European Union....................................................5
Event of Default..................................................5
Exchange Act......................................................5
Foreign Currency..................................................5
GAAP..............................................................6
Government Obligations............................................6
Guaranteed Obligations............................................6
Guarantees........................................................6
Guarantors........................................................6
Holder............................................................6
Indenture.........................................................6
Indexed Security..................................................7
interest..........................................................7
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Interest Payment Date.............................................7
Legal Holiday.....................................................7
Make-Whole Amount.................................................7
Maturity..........................................................7
Officers' Certificate.............................................7
Opinion of Counsel................................................7
Original Issue Discount Security..................................7
Outstanding.......................................................7
Paying Agent......................................................8
Person............................................................8
Place of Payment..................................................8
Predecessor Security..............................................8
premium...........................................................9
Recourse Indebtedness.............................................9
Redemption Date...................................................9
Redemption Price..................................................9
Registered Security...............................................9
Regular Record Date...............................................9
Repayment Date....................................................9
Repayment Price...................................................9
Responsible Officer...............................................9
Secured Debt......................................................9
Securities Act...................................................10
Security.........................................................10
Security Register and Security Registrar.........................10
Senior Debt......................................................10
Significant Subsidiary...........................................10
Special Record Date..............................................10
Stated Maturity..................................................10
Statistical Release..............................................11
Subsidiary.......................................................11
Trust Indenture Act or TIA.......................................11
Trustee..........................................................11
United States....................................................11
United States Person.............................................11
Yield to Maturity................................................11
SECTION 102. Compliance Certificates and Opinions.....................11
SECTION 103. Form of Documents Delivered to Trustee...................12
SECTION 104. Acts of Holders..........................................12
SECTION 105. Notices, etc., to Trustee and Company....................13
SECTION 106. Notice to Holders; Waiver...............................14
SECTION 107. Effect of Headings and Table of Contents.................15
SECTION 108. Successors and Assigns...................................15
SECTION 109. Separability Clause......................................15
SECTION 110. Benefits of Indenture....................................15
SECTION 111. No Personal Liability....................................15
SECTION 112. Governing Law............................................15
SECTION 113. Legal Holidays...........................................15
ARTICLE TWO SECURITIES FORMS..............................................15
SECTION 201. Forms of Securities......................................15
SECTION 202. Form of Trustee's Certificate of Authentication..........16
SECTION 203. Securities Issuable in Global Form.......................16
</TABLE>
<PAGE>
<TABLE>
<S> <C>
ARTICLE THREE THE SECURITIES..............................................17
SECTION 301. Amount Unlimited, Issuable in Series.....................17
SECTION 302. Denominations............................................20
SECTION 303. Execution, Authentication, Delivery and Dating...........20
SECTION 304. Temporary Securities.....................................22
SECTION 305. Registration, Registration of Transfer and Exchange......24
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.........26
SECTION 307. Payment of Interest; Interest Rights Preserved...........27
SECTION 308. Persons Deemed Owners....................................29
SECTION 309. Cancellation.............................................29
SECTION 310. Computation of Interest..................................30
ARTICLE FOUR SATISFACTION AND DISCHARGE...................................30
SECTION 401. Satisfaction and Discharge of Indenture..................30
SECTION 402. Application of Trust Funds...............................31
ARTICLE FIVE REMEDIES.....................................................31
SECTION 501. Events of Default........................................31
SECTION 502. Acceleration of Maturity; Rescission and Annulment.......32
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee..........................................................33
SECTION 504. Trustee May File Proofs of Claim.........................34
SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons............................................34
SECTION 506. Application of Money Collected...........................35
SECTION 507. Limitation on Suits......................................35
SECTION 508. Unconditional Right of Holders to Receive Principal
(Premium, if any) and Interest...................................36
SECTION 509. Restoration of Rights and Remedies.......................36
SECTION 510. Rights and Remedies Cumulative...........................36
SECTION 511. Delay or Omission Not Waiver.............................36
SECTION 512. Control by Holders of Securities.........................36
SECTION 513. Waiver of Past Defaults..................................36
SECTION 514. Waiver of Usury Stay or Extension Laws...................37
SECTION 515. Undertaking for Costs....................................37
ARTICLE SIX THE TRUSTEE...................................................37
SECTION 601. Notice of Defaults.......................................37
SECTION 602. Certain Rights of Trustee................................38
SECTION 603. Not Responsible for Recitals or Issuance of Securities...39
SECTION 604. May Hold Securities......................................39
SECTION 605. Money Held in Trust......................................39
SECTION 606. Compensation and Reimbursement...........................39
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests........................................................40
SECTION 608. Resignation and Removal; Appointment of Successor........40
SECTION 609. Acceptance of Appointment by Successor...................41
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business.........................................................42
SECTION 611. Appointment of Authentication Agent......................42
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY................................................................43
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 701. Disclosure of Names and Addresses of Holders.............43
SECTION 702. Reports by Trustee.......................................44
SECTION 703. Reports by Company.......................................44
SECTION 704. The Company to Furnish Trustee Names and Addresses of
Holders..........................................................44
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE............45
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
and Conveyances Permitted Subject to Certain Conditions..........45
SECTION 802. Rights and Duties of Successor Entity....................45
SECTION 803. Officers' Certificate and Opinion of Counsel.............45
ARTICLE NINE SUPPLEMENTAL INDENTURES......................................46
SECTION 901. Supplemental Indentures Without Consent of Holders.......46
SECTION 902. Supplemental Indentures with Consent of Holders..........47
SECTION 903. Execution of Supplemental Indentures.....................48
SECTION 904. Effect of Supplemental Indentures........................48
SECTION 905. Conformity with Trust Indenture Act......................48
SECTION 906. Reference in Securities to Supplemental Indentures.......48
SECTION 906. Notice of Supplemental Indentures........................48
ARTICLE TEN COVENANTS.....................................................48
SECTION 1001. Payment of Principal (and Premium, if any) and Interest.48
SECTION 1002. Maintenance of Office or Agency.........................49
SECTION 1003. Money for Securities Payments to Be Held in Trust.......50
SECTION 1004. Existence...............................................51
SECTION 1005. Maintenance of Properties...............................51
SECTION 1006. Insurance...............................................52
SECTION 1007. Payments of Taxes and Other Claims......................52
SECTION 1008. Statement as to Compliance..............................52
SECTION 1009. Additional Amounts......................................52
SECTION 1010. Waiver of Certain Covenants.............................53
ARTICLE ELEVEN REDEMPTION OF SECURITIES...................................53
SECTION 1101. Applicability of Article................................53
SECTION 1102. Election to Redeem; Notice to Trustee...................53
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.......53
SECTION 1104. Notice of Redemption....................................54
SECTION 1105. Deposit of Redemption Price.............................55
SECTION 1106. Securities Payable on Redemption Date...................55
SECTION 1107. Securities Redeemed in Part.............................56
ARTICLE TWELVE GUARANTEES.................................................56
SECTION 1201. Guarantee................................................56
SECTION 1202. Obligations Unconditional................................57
SECTION 1203. Execution of Guarantee...................................57
SECTION 1204. Withholding..............................................58
SECTION 1205. Limitation of Guarantee..................................58
</TABLE>
<PAGE>
<TABLE>
<S> <C>
SECTION 1206. Release of Guarantee.....................................58
ARTICLE THIRTEEN REPAYMENT AT THE OPTION OF HOLDERS.......................59
SECTION 1301. Applicability of Article................................59
SECTION 1302. Repayment of Securities.................................59
SECTION 1303. Exercise of Option......................................60
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable..........................................................60
SECTION 1305. Securities Repaid in Part...............................61
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE.......................61
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance................................61
SECTION 1402. Defeasance and Discharge................................61
SECTION 1403. Covenant Defeasance.....................................62
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.........62
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions............................64
ARTICLE FIFTEEN INTENTIONALLY OMITTED.....................................64
ARTICLE SIXTEEN SUBORDINATION.............................................65
SECTION 1601. Agreement to Subordinate................................65
SECTION 1602. Liquidation; Dissolution; Bankruptcy....................65
SECTION 1603. Default on Senior Debt..................................65
SECTION 1604. Acceleration of Securities..............................66
SECTION 1605. When Distribution Must Be Paid Over.....................66
SECTION 1605. Notice by Company.......................................66
SECTION 1607. Subrogation.............................................66
SECTION 1608. Relative Rights.........................................66
SECTION 1609. Subordination May Not Be Impaired By Company............66
SECTION 1610. Distribution or Notice to Representative................66
SECTION 1611. Rights of Trustee and Paying Agent......................66
</TABLE>
<PAGE>
Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA"
or "Trust Indenture Act") and this Indenture, dated as of ___________ __, 1998.
<TABLE>
<CAPTION>
Trust Indenture Act Section Indenture Section
<S> <C> <C>
(S) 310 (a)(1).................................................. 607
(a)(2).................................................. 607
(b)..................................................... 607, 608
(S) 312 (c)..................................................... 701
(S) 313 (a)..................................................... 702
(c)..................................................... 702
(S) 314 (a)..................................................... 703
(a)(4).................................................. 1006
(c)(1).................................................. 102
(c)(2).................................................. 102
(e)..................................................... 102
(S) 315 (b)..................................................... 601
(S) 316 (a) (last sentence)..................................... 101 ("Outstanding")
(a)(1)(A)............................................... 502, 512
(a)(1)(B)............................................... 513
(b)..................................................... 508
(S) 317 (a)(1).................................................. 503
(a)(2).................................................. 504
(S) 318 (a)..................................................... 111
(c)..................................................... 111
</TABLE>
- ----------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to
be a part of this Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act, which provides that the provisions of Sections 310 to and
including 317 of the Trust Indenture Act are a part of and govern every
qualified indenture, whether or not physically contained therein.
- 1 -
<PAGE>
Indenture (this "Indenture"), dated as of _________ __, 1998, by and
between NVR, Inc., a Virginia corporation, as primary obligor (the "Company");
-------
NVR Financial Services, Inc., a Pennsylvania corporation, NVR Homes, Inc., a
Virginia corporation, RVN, Inc., a Delaware corporation, and NVR Fox Ridge,
Inc., a Tennessee corporation, as guarantors (each, a "Guarantor"); and
---------
[BANK], a national bank organized under the laws of the United States of
America, as Trustee hereunder (the "Trustee"), having its Corporate Trust
-------
Office (as defined below) at _________________________________________________.
RECITALS
The Company deems it necessary to issue from time to time for its
lawful purposes subordinated debt securities (the "Securities") evidencing its
unsecured subordinated indebtedness, and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear interest at the rates or
formulas, to mature at such times and to have such other provisions as shall be
fixed for such Securities as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, that are deemed to be incorporated into this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company and the Guarantors, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this Indenture, except
-----------
as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the TIA,
either directly or by reference therein, have the meanings assigned to them
therein, and the terms "cash transaction" and "self-liquidating paper," as used
in TIA Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
-2-
<PAGE>
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles. In addition, the
following terms have the respective meanings indicated.
"Act," when used with respect to any Holder, has the meaning specified
---
in Section 104.
"Additional Amounts" means any additional amounts which are required
------------------
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes,
assessments or other governmental charges imposed on certain Holders and which
are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
---------
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person authorized by the Trustee to
--------------------
act on behalf of the Trustee to authenticate Securities of one or more series.
"Authorized Newspaper" means a newspaper, printed in the English
--------------------
language or in an official language of the place of publication, customarily
published on each day that is a Business Day in the place of publication,
whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with which
the term is used or in the financial community of each such place. Whenever
successive publications are required to be made in Authorized Newspapers, the
successive publications may be made in the same or in different Authorized
Newspapers in the same city meeting the foregoing requirements and in each case
on any day that is a Business Day in the place of publication.
"Bankruptcy Law" has the meaning specified in Section 501.
--------------
"Bearer Security" means any Security established pursuant to Section
---------------
201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or
------------------
any committee of that board duly authorized to act hereunder, as the case may
be.
"Board Resolution" means a copy of a resolution of the Company,
----------------
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
"Business Day," when used with respect to any Place of Payment or any
------------
other location referred to in this Indenture or in the Securities, means,
unless otherwise specified with respect to any Securities pursuant to Section
301, any day, other than a Saturday, Sunday or other day on which banking
institutions in that Place of Payment or location are authorized or required by
law, regulation or executive order to close.
"Capital Stock" means with respect to any Person, any and all shares,
-------------
interests, participations or other equivalents (however designated, whether
voting or non-voting) in equity of such Person, whether now outstanding or
issued after the Closing Date, including, without limitation, all common stock
and preferred stock.
-3-
<PAGE>
"CEDEL" means Central de Livraison de Valeurs Mobilieres, S.A., or its
-----
successor.
"Commission" means the U.S. Securities and Exchange Commission, as
----------
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
"Company" means the Person named as the "Company" in the first
-------
paragraph of this Indenture until a successor Company shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Company.
"Company Request" and "Company Order" mean, respectively, a written
--------------- -------------
request or order signed in the name of and on behalf of the Company by its
Chairman of the Board, the President or a Vice President, and by its Treasurer
or an Assistant Treasurer, the Secretary or an Assistant Secretary of the
Company, and delivered to the Trustee.
"Conversion Event" means the cessation of use of (i) a Foreign
----------------
Currency both by the government of the country or confederation that issued such
currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit (or composite currency) other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate trust office
----------------------
of the Trustee at which, at any particular time, its corporate trust business
shall be administered principally, which office at the date hereof is located at
___________________________, except that for purposes of Section 1002, such
term shall mean the office or agency of the Trustee in the
___________________________, which office at the date hereof is located at
___________________________________________________.
"corporation" includes corporations, limited liability companies,
-----------
partnerships, associations, companies and business and real estate investment
trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
------
"Custodian" has the meaning specified in Section 501.
---------
"Debt" of the Company or any Subsidiary means any indebtedness of the
----
Company or any Subsidiary, whether or not contingent, in respect of (i) borrowed
money or evidenced by bonds, notes, debentures or similar instruments, (ii)
indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any
security interest existing on property owned by the Company or any Subsidiary,
(iii) letters of credit or amounts representing the balance deferred and unpaid
of the purchase price of any property except any such balance that constitutes
an accrued expense or trade payable or (iv) any lease of property by the Company
or any Subsidiary as lessee which is reflected on the Company's Consolidated
Balance Sheet as a capitalized lease in accordance with GAAP, in the case of
items of indebtedness under (i) through (iii) above to the extent that any such
items (other than letters of credit) would appear as a liability on the
Company's consolidated balance sheet in accordance with GAAP, and also
includes, to the extent not otherwise included, any obligation by the Company or
any Subsidiary to be liable for, or to pay, as obligor, guarantor or otherwise
(other than for purposes of collection in the ordinary course of business),
indebtedness of another person (other than the Company or any Subsidiary) (it
being understood that "Debt" shall be deemed to be incurred by the Company and
its Subsidiaries on a consolidated basis whenever the Company and its
Subsidiaries on a consolidated basis shall create, assume, guarantee or
otherwise become liable in respect thereof; Debt of a Subsidiary of the Company
existing prior to the time it became a Subsidi-
-4-
<PAGE>
ary of the Company shall be deemed to be incurred upon such Subsidiary's
becoming a Subsidiary of the Company; and Debt of a Person existing prior to a
merger or consolidation of such Person with the Company or any Subsidiary of the
Company in which such Person is the successor of the Company or such Subsidiary
shall be deemed to be incurred upon the consummation of such merger or
consolidation; provided, however, that the term "Debt" shall not include any
-------- -------
indebtedness that has been the subject of an "insubstance" defeasance in
accordance with GAAP.
"Defaulted Interest" has the meaning specified in Section 307.
------------------
"DTC" means The Depository Trust Company for so long as it shall be a
---
clearing agency registered under the Exchange Act, or such successor as the
Company shall designate from time to time in an Officer's Certificate delivered
to the Trustee.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
------ -
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means European Currency Units as defined and revised from time
---
to time by the Council of the European Community.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
---------
Office, or its successor as operator of the Euroclear System.
"European Community" means the European Economic Community.
------------------
"European Monetary System" means the European Monetary System
------------------------
established by the Resolution of December 5, 1978 of the Council of the European
Community.
"European Union" means the European Community, the European Coal and
--------------
Steel Community, and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Article Five.
----------------
"Exchange Act" means the Securities Exchange Act of 1934 and any
------------
successor statute thereto, in each case as amended from time to time, and the
rules and regulations of the Commission thereunder.
"Foreign Currency" means any currency, currency unit or composite
----------------
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means generally accepted accounting principles, as in effect
----
from time to time, as used in the United States applied on a consistent basis;
provided that, solely for purposes of any calculation required by the financial
- --------
covenants contained herein, "GAAP" shall mean generally accepted accounting
principles as used in the United States on the date hereof, applied on a
consistent basis.
"Government Obligations" means securities which are (i) direct
----------------------
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable,
for the payment of which its full faith and credit is pledged or (ii)
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America or such government which issued
the foreign currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government, which, in
either
-5-
<PAGE>
case, are not callable or redeemable at the option of the issuer thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such
custodian for the account of the holder of a depository receipt, provided that
--------
(except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt from
any amount received by the custodian in respect of the Government Obligation or
the specific payment of interest on or principal of the Government Obligation
evidenced by such depository receipt.
"Guaranteed Obligations" has the meaning specified in Section 1201.
----------------------
"Guarantees" means the guarantee of each of the Guarantors, as set
----------
forth in Article Twelve, in one or more supplemental indentures hereto, or in
any additional guarantee of the Securities executed under the terms of this
Indenture.
"Guarantors" means, collectively, NVR Financial Services, Inc., NVR
----------
Homes, Inc., RVN, Inc., NVR Fox Ridge, Inc., or any Person that executes a
Guarantee.
"Holder" means, in the case of a Registered Security, the Person in
------
whose name such Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
---------
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 30l; provided, however, that, if at any time more than
-----------------
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
---------
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto
entered into pursuant to the applicable provisions hereof and shall include the
terms of the particular series of Securities for which such Person is Trustee
established as contemplated by Section 331, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
"Indexed Security" means a Security the terms of which provide that
----------------
the principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"interest" when used with respect to an Original Issue Discount
--------
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1007,
includes such Additional Amounts.
"Interest Payment Date" when used with respect to any Security, means
---------------------
the Stated Maturity of an installment of interest on such Security.
"Legal Holiday" means a day that is not a Business Day.
-------------
"Make-Whole Amount" means the amount, if any, in addition to principal
-----------------
which is required under the terms and conditions specified in a Security or as
otherwise specified as contem-
-6-
<PAGE>
plated by Section 301, to be paid by the Company to the Holder thereof in
connection with any optional redemption or accelerated payment of such Security.
"Maturity," when used with respect to any Security, means the date on
--------
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption or repurchase, notice of
option to elect repayment or otherwise, and includes the Redemption Date.
"Officers' Certificate" means a certificate signed by the Chairman of
---------------------
the Board of Directors, the President or a Vice President and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
------------------
counsel for the Company or an employee of the Company and who shall be
reasonably satisfactory to the Trustee.
"Original Issue Discount Security" means any Security which provides
--------------------------------
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding," when used with respect to Securities, means, as of the
-----------
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
------
(i) Securities theretofore canceled by the Trustee or the Security
Registrar or delivered to the Trustee or Security Registrar for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by the
Company (if the Company shall act as its own Paying Agent) for the Holders of
such Securities and any coupons appertaining thereto, provided that, if such
--------
Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee
has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect
of which there shall have been presented to the Trustee proof satisfactory to it
that such Securities are held by a bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
- -----------------
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, and for the
purpose of making the calculations required by TIA Section 313, (i) the
principal amount of an Original Issue Discount Security that may be counted in
making such determination or calculation and that shall be deemed to be
Outstanding for such purpose shall be equal to the amount of principal thereof
that would be (or shall have been declared to be) due and payable, at the time
of such determination or calculation, upon a declaration of acceleration of the
maturity thereof pursuant to Section 502, (ii) the principal amount of any
Security denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined pursuant
-7-
<PAGE>
to Section 301 as of the date such Security is originally issued by the Company,
of the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above) of such Security, (iii) the
principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such determination
or calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows to
be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
------------
principal of (and premium, if any) or interest on any Securities or coupons on
behalf of the Company.
"Person" means any individual, corporation, partnership, limited
------
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, real estate investment trust or government or any
agency or political subdivision thereof.
"Place of Payment," when used with respect to any Security, means the
----------------
place or places where the principal of (and premium, if any) and interest on
such Securities are payable as specified as contemplated by Sections 301 and
1002.
"Predecessor Security" of any particular Security means every previous
--------------------
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"premium," when used with respect to a Security which by its terms
-------
provides for the payment of a Make-Whole Amount, includes such Make-Whole
Amount.
"Recourse Indebtedness" means Debt other than Secured Debt as to which
---------------------
the liability of the obligor thereon is limited to its interest in the
collateral securing such Secured Debt; provided that no Debt shall constitute
--------
Recourse Indebtedness solely by reason of provisions therein for imposition of
full recourse liability on the obligor for certain wrongful acts, environmental
liabilities, or other customary exclusions from the scope of so-called "non-
recourse" provisions.
"Redemption Date," when used with respect to any Security to be
---------------
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture or such Security.
"Redemption Price," when used with respect to any Security to be
----------------
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture or such Security.
"Registered Security" means any Security which is registered in the
-------------------
Security Register.
-8-
<PAGE>
"Regular Record Date" for the interest payable on any Interest Payment
-------------------
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date," when used with respect to any Security to be repaid
--------------
at the option of the Holder, means the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price," when used with respect to any Security to be repaid
---------------
at the option of the Holder, means the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer" when used with respect to the Trustee, means the
--------------------
chairman or vice-chairman of the board of directors, the chairman or vice-
chairman of the executive committee of the board of directors, the president,
any vice president (whether or not designated by a number or a word or words
added before or after the title "vice president"), the secretary, any assistant
secretary, the treasurer, any assistant treasurer, the cashier, any assistant
cashier, any trust officer or assistant trust officer, the controller or any
other officer of the Trustee customarily performing functions similar to those
performed by any of the above designated officers and also means, with respect
to a particular corporate trust matter, any other officer to whom such matter is
referred because of such officer's knowledge and familiarity with the particular
subject.
"Secured Debt" means, without duplication, Debt that is secured by a
------------
mortgage, trust deed, deed of trust, deed to secure Debt, security agreement,
pledge, conditional sale or other title retention agreement, capitalized lease,
or other like agreement granting or conveying security title to or a security
interest in real property or other tangible assets.
"Securities Act" means the Securities Act of 1933 and any successor
--------------
statute thereto, in each case as amended from time to time, and the rules and
regulations of the Commission thereunder.
"Security" has the meaning stated in the first recital of this
--------
Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time
------------------
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
----------------- ------------------
meanings specified in Section 305.
"Senior Debt" means the principal of (and premium, if any) and
-----------
interest on, or substantially similar payments to be made by the Company in
respect of, the following, whether outstanding at the date of execution of this
Indenture or thereafter incurred, created or assumed: (a) indebtedness of the
Company for money borrowed or represented by purchase-money obligations, (b)
indebtedness of the Company evidenced by notes, debentures, or bonds, or other
securities issued under the provisions of an indenture, fiscal agency agreement
or other instrument, (c) obligations of the Company as lessee under leases of
property either made as part of a sale and leaseback transaction to which the
Company is a party or otherwise, (d) indebtedness of partnerships and joint
ventures which is included in the Company's consolidated financial statements,
(e) indebtedness, obligations and liabilities of others in respect of which the
Company is liable contingently or otherwise to pay or advance money or property
or as guarantor, endorser or otherwise or which the Company has agreed to
purchase or otherwise acquire, and (f) any binding commitment of the Company to
fund a real estate investment or to fund an investment in an entity making a
real estate investment; but excluding, however, (1) any such indebtedness,
obligation or liability referred to in clauses (a)
-9-
<PAGE>
through (f) above as to which, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such
indebtedness, obligation or liability is not superior in right of payment to
the Securities, or ranks pari passu with the Securities, (2) any such in-
debtedness, obligation or liability which is subordinated to indebtedness of
the Company to substantially the same extent as or to a greater extent than the
Securities are subordinated and (3) the Securities. As used in the preceding
sentence, the term "purchase-money obligations" shall mean indebtedness or
obligations evidenced by a note, debenture, bond or other instrument (whether or
not secured by a lien or other security interest but excluding indebtedness or
obligations for which recourse is limited to the property purchased) issued or
assumed as all or a part of the consideration for the acquisition of property,
whether by purchase, merger, consolidation or otherwise, but shall not include
any trade accounts payable. A distribution may consist of cash, securities or
other property.
"Significant Subsidiary" means any Subsidiary which is a "significant
----------------------
subsidiary" (as defined in Article I, Rule 1-02 of Regulation S-X, promulgated
under the Securities Act) of the Company.
"Special Record Date" for the payment of any Defaulted Interest on the
-------------------
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
"Stated Maturity," when used with respect to any Security or any
---------------
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable.
"Statistical Release" means the statistical release designated
-------------------
"H.15(519)" or any successor publication which is published weekly by the
Federal Reserve System and which establishes yields on actively traded United
States government securities adjusted to constant maturities, or, if such
statistical release is not published at the time of any determination under the
Indenture, then such other reasonably comparable index which shall be designated
by the Company.
"Subsidiary" means a corporation or a partnership a majority of the
----------
outstanding voting stock or partnership interests, as the case may be, of which
is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries of the Company. For the purposes of this definition, "voting
stock" means stock having voting power for the election of directors, whether at
all times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939,
------------------- ---
as amended and as in force at the date as of which this Indenture was executed,
except as provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
-------
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person,
- -----------------
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
-------------
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States person" means, unless otherwise specified with respect
--------------------
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corpo-
-10-
<PAGE>
ration or other entity created or organized in or under the laws of the United
States, or an estate or trust the income of which is subject to United States
federal income taxation regardless of its source.
"Yield to Maturity" means the yield to maturity, computed at the time
-----------------
of issuance of a Security (or, if applicable, at the most recent redetermination
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions. Upon any
------------------------------------
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (including certificates
delivered pursuant to Section 1011) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein relating
thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
or she has made such examination or investigation as is necessary to enable the
individual to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee. In any case
--------------------------------------
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his or her certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows that the certificate or
opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
-11-
<PAGE>
SECTION 104. Acts of Holders. (a) Any request, demand,
---------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. Except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 602) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other reasonable manner which the Trustee deems sufficient. Subject to
Article Six, the execution of any instrument by a Holder or his agent may be
proved in accordance with such reasonable rules and regulations as may be
prescribed by the Trustee or in such manner as shall be satisfactory to the
Trustee.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner which the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such re-
-12-
<PAGE>
quest, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the Outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
--------
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than eleven
months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, etc., to Trustee and Company. Any request,
-------------------------------------
demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the first
paragraph of this Indenture or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver. Where this Indenture
--------------------------
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any no-
-13-
<PAGE>
tice to Holders of Bearer Securities as provided above, then such notification
to Holders of Bearer Securities as shall be given with the approval of the
Trustee shall constitute sufficient notice to such Holders for every purpose
hereunder. Neither the failure to give notice by publication to any particular
Holder of Bearer Securities as provided above, nor any defect in any notice so
published, shall affect the sufficiency of such notice with respect to other
Holders of Bearer Securities or the sufficiency of any notice to Holders of
Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents. The Article
----------------------------------------
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108. Successors and Assigns. All covenants and agreements in
----------------------
this Indenture by the Company shall be binding on their successors and assigns,
whether so expressed or not.
SECTION 109. Separability Clause. In case any provision in this
-------------------
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of Indenture. Nothing in this Indenture, in
---------------------
the Securities or coupons, express or implied, shall give to any Person, other
than the Parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. No Personal Liability. No recourse under or upon any
---------------------
obligation, covenant or agreement contained in this Indenture, in any Security
or coupon appertaining thereto, or because of any indebtedness evidenced
thereby, shall be had against any promoter, as such, or against any past,
present or future shareholder, officer or director, as such, of the Company or
of any successor, either directly or through the Company or any successor, under
any rule of law, statute or constitutional provision or by the enforcement of
any assessment or by any legal or equitable proceeding or otherwise, all such
liability being expressly waived and released by the acceptance of the
Securities by the Holders thereof and as part of the consideration for the issue
of the Securities.
SECTION 112. Governing Law. This Indenture and the Securities and
-------------
coupons hall be governed by and construed in accordance with the law of the
State of New York. This Indenture is subject to the provisions of the TIA that
are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions.
SECTION 113. Legal Holidays. In any case where any Interest Payment
--------------
Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu hereof), payment of
interest or principal (and premium, if any) need not be made at such Place of
Payment on such date, but may be
-14-
<PAGE>
made on the next succeeding Business Day at such Place of Payment with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Repayment Date or sinking fund payment date, or at the Stated Maturity or
Maturity, provided that no interest shall accrue on the amount so payable for
--------
the period from and after such Interest Payment Date, Redemption Date, Re
payment Date, sinking fund payment date, Stated Maturity or Maturity, as the
case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. The Registered Securities, if any,
-------------------
of each series and the Bearer Securities, if any, of each series and related
coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with this Indenture, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any stock
exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed
or engraved or produced by any combination of these methods on a steel engraved
border or steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced by
their execution of such Securities or coupons.
SECTION 202. Form of Trustee's Certificate of Authentication. Subject
-----------------------------------------------
to Section 611, the Trustee's certificate of authentication shall be in
substantially the following form:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
[BANK], as Trustee
By:
-------------------------------------
Authorized Signatory
SECTION 203. Securities Issuable in Global Form. If Securities of or
----------------------------------
within a series are issuable in global form, as specified as contemplated by
Section 301, then, notwithstanding clause (8) of Section 301 and the provisions
of Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that it
shall represent the aggregate amount of Outstanding Securities of such series
from time to time endorsed thereon and that the aggregate amount of Outstanding
Securities of such series represented thereby may from time to time be increased
or decreased to reflect exchanges. Any endorsement of a Security in global
form to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304. Subject to the provisions of Section 303 and,
if applicable, Section 304, the Trustee shall deliver and redeliver any Security
in permanent global
-15-
<PAGE>
form in the manner and upon instructions given by the Person or Persons
specified therein or in the applicable Company Order. If a Company Order
pursuant to Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement or delivery or
redelivery of a Security in global form shall be in writing but need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to any
Security represented by a Security in global form if such Security was never
issued and sold by the Company and the Company delivers to the Trustee the
Security in global form together with written instructions (which need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel)
with regard to the reduction in the principal amount of Securities represented
thereby, together with the written statement contemplated by the last sentence
of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided
in the preceding paragraph, the Company, the Trustee and any agent of the
Company and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. The aggregate
------ -----------------------------
principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) below), if
so provided, may be determined from time to time by the Company with respect to
unissued Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the Securities of
the series that may be authenticated and delivered under this Indenture (except
for Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities of the series pursuant to
Section 304, 305, 306, 906, 1107 or 1305);
(3) the date or dates, or the method by which such date or dates will
be determined, on which the principal of the Securities of the series shall be
payable;
(4) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined,
the date or dates from which such interest shall accrue or the method by which
such date or dates shall be determined, the Inter-
-16-
<PAGE>
est Payment Dates on which such interest will be payable and the Regular Record
Date, if any, for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be determined, and
the basis upon which interest shall be calculated if other than that of a 360-
day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, the City of New York, where any principal of (and
premium) and interest payable in respect of Securities of the series shall be
payable, any Registered Securities of the series may be surrendered for
registration of transfer, exchange or conversion and notices or demands to or
upon the Company in respect of the Securities of the series and this Indenture
may be served;
(6) the period or periods within which, the price or prices
(including, if any) at which, the currency or currencies, currency unit or units
or composite currency or currencies in which, and other terms and conditions
upon which Securities of the series may be redeemed, in whole or in part, at the
option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any provision or at the option of
a Holder thereof, and the period or periods within which or the date of dates on
which, the price or prices at which, the currency or currencies, currency unit
or units or composite currency or currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid or
purchased (including without limitation whether, and the extent to which, the
premium shall be payable in connection therewith), in whole or in part, pursuant
to such obligation.
(8) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which any Registered Securities of the series
shall be issuable and, if other than the denomination of $5,000, the
denomination or denominations in which any Bearer Securities of the series shall
be issuable;
(9) if other than the Trustee, the identity of each Security Registrar
and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or,
if applicable, the portion of the principal amount of Securities of the series
that is convertible in accordance with the provisions of this Indenture, or the
method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium, if any) or interest on the
Securities of the series shall be payable or in which the Securities of the
series shall be denominated;
(12) whether the amount of payments of principal of (and premium or
Make-Whole Amount, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
currencies, currency units, composite currencies, commodities, equity indices
or other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium, if any) or interest on the
Securities of the series are to be payable, at the election of the Company, or a
Holder thereof, in a currency or currencies, currency unit or units or
composite currency or currencies other than that in which such Securities are
denominated or stated to be payable, the period or periods within which, and the
terms and conditions upon which, such election may be made, and the time and
manner of, and identity of the exchange rate agent with responsibility for,
determining the exchange rate between the currency
-17-
<PAGE>
or currencies, currency unit or units or composite currency or currencies in
which such Securities are denominated or stated to be payable and the currency
or currencies, currency unit or units or composite currency or currencies in
which such Securities are to be so payable;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events
of Default or covenants of the Company with respect to Securities of the series,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(16) whether Securities of the series are to be issuable as Registered
Securities, Bearer Securities (with or without coupons) or both, any
restrictions applicable to the offer, sale or delivery of Bearer Securities and
the terms upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and vice versa (if permitted by applicable
laws and regulations), whether any Securities of the series are to be issuable
initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form with or without coupons and, if so,
whether beneficial owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like tenor of any
authorized form and denomination and the circumstances under which any such
exchanges may occur, if other than in the manner provided in Section 305, and,
if Registered Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series;
(17) the date as of which any Bearer Securities of the series and any
temporary global Security representing Outstanding Securities of the series
shall be dated if other than the date of original issuance of the first Security
of the series to be issued;
(18) the Person to whom any interest on any Registered Security of the
series shall be payable, if other than the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons appertaining
thereto as they severally mature, and the extent to which, or the manner in
which, any interest payable on a temporary global Security on an Interest
Payment Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to the
Securities of the series and any provisions in modification of, in addition to
or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security of
such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) if the Securities of the series are to be issued upon the
exercise of warrants, the time, manner and place for such Securities to be
authenticated and delivered;
(22) whether and under what circumstances the Company will pay
Additional Amounts as contemplated by Section 1009 on the Securities of the
series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms of
any such option);
-18-
<PAGE>
(23) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company on behalf of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting forth
the terms of the Securities of such series.
SECTION 302. Denominations. The Securities of each series shall be
-------------
issuable in such denominations as shall be specified as contemplated by Section
301. With respect to Securities of any series denominated in Dollars, in the
absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination), shall be issuable in
denominations of $1,000 and any integral multiple thereof and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. Execution, Authentication, Delivery and Dating. The
----------------------------------------------
Securities and any coupons appertaining thereto shall be executed by the
Company's Chairman of the Board, its President or one of its Senior Vice
Presidents, and its Chief Financial Officer. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures of
the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series, together with
any coupon appertaining thereto, executed by the Company to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however, that,
-----------------
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
----------------
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate to Euroclear or CEDEL, as the case
may be, in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to any series of Securities
pursuant to Section 301, dated no earlier than 15 days prior to the earlier of
the date on which such Bearer Security is delivered and the date on which any
temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture. If any
Security shall be represented by a permanent global Bearer Security, then, for
purposes of this Section and Section 304, the notation of a beneficial owner's
interest therein upon original issuance of such
-19-
<PAGE>
Security or upon exchange of a portion of a temporary global Security shall be
deemed to be delivery in connection with its original issuance of such
beneficial owner's interest in such permanent global Security. Except as
permitted by Section 306, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have
been detached and canceled.
If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate or formula, maturity
date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be
fully protected in relying upon,
(i) an Opinion of Counsel stating that
(a) the form or forms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed by appropriate insertions and executed and delivered by
the Company to the Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in accordance with this
Indenture and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other similar laws of
general applicability relating to or affecting the enforcement of creditors'
rights generally and to general equitable principles; and
(ii) an Officers' Certificate stating that all conditions precedent
provided for in this Indenture relating to the issuance of the Securities have
been complied with and that, to the best of the knowledge of the signers of such
certificate, that no Event of Default with respect to any of the Securities
shall have occurred and be continuing.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or a Company Order, or an Opinion of Counsel or an
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future
issuances, shall be delivered at or before the time of issuance of the first
Security of such series.
Each Registered Security shall be dated the date of its authentication
and each Bearer Security shall be dated as of the date specified as contemplated
by Section 301.
-20-
<PAGE>
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the preparation of
--------------------
definitive Securities of any series, the Company may execute, and upon Company
Order, the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in
any authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, in registered form, or, if
authorized, in bearer form with one or more coupons or without coupons, and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as conclusively evidenced
by their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall
be exchanged in accordance with Section 304(b) or as otherwise provided in or
pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, however, that no definitive Bearer Security shall be
-----------------
delivered in exchange for a temporary Registered Security; and provided further
----------------
that a definitive Bearer Security shall be delivered in exchange for a
temporary Bearer Security only in compliance with the conditions set forth in
Section 303. Until so exchanged, the temporary Securities of any series shall
in all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution,
this Section 304(b) shall govern the exchange of temporary Securities issued in
global form other than through the facilities of The Depository Trust Company.
If any such temporary Security is issued in global form, then such temporary
global Security shall, unless otherwise provided therein, be delivered to the
London office of a depositary or common depositary (the "Common Depositary"),
for the benefit of Euroclear and CEDEL, for credit to the respective accounts of
the beneficial owners of such Securities (or to such other accounts as they may
direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the
-21-
<PAGE>
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities without charge,
and the Trustee shall authenticate and deliver, in exchange for each portion of
such temporary global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of like
tenor as the portion of such temporary global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such temporary global
Security shall be in bearer form, registered form, permanent global bearer form
or permanent global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, however, that, unless
-----------------
otherwise specified in such temporary global Security, upon such presentation by
the Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euro-
clear as to the portion of such temporary global Security held for its account
then to be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by CEDEL as to the portion of such temporary global Security
held for its account then to be exchanged, each in the form set forth in Exhibit
A-2 to this Indenture or in such other form as may be established pursuant to
Section 301; and provided further that definitive Bearer Securities shall be
----------------
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to
the Exchange Date, copies of which certificate shall be available from the
offices of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed
for such series of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security, except that
a Person receiving definitive Securities must bear the cost of insurance,
postage, transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or CEDEL.
Definitive Securities in bearer form to be delivered in exchange for any
portion of a temporary global Security shall be delivered only outside the
United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners
of the temporary global Security with respect to which such certification was
made will be exchanged for definitive Securities of the same series and of like
tenor on the Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such beneficial owners.
Except as otherwise provided in this
-22-
<PAGE>
paragraph, no payments of principal or interest owing with respect to a
beneficial interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have been exchanged
for an interest in a definitive Security. Any interest so received by Euroclear
and CEDEL and not paid as herein provided shall be returned to the Trustee prior
to the expiration of two years after such Interest Payment Date in order to be
repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange. The
---------------------------------------------------
Company shall cause to be kept at the Corporate Trust Office of the Trustee or
in any office or agency of the Company in a Place of Payment a register for each
series of Securities (the registers maintained in such office or in any such
office or agency of the Company in a Place of Payment being herein sometimes
referred to collectively as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of
being converted into written form within a reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed "Security Registrar" for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the
Trustee shall cease to be Security Registrar, it shall have the right to examine
the Security Register at all reasonable times.
Subject to the provisions of this Section 305, upon surrender for
registration of transfer of any Registered Security of any series at any office
or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of
the designated transferee or transferees, one or more new Registered Securities
of the same series, of any authorized denominations and of a like aggregate
principal amount, bearing a number not contemporaneously outstanding, and
containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the
Holder, Registered Securities of any series may be exchanged for other
Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or agency. Whenever any such Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate, or
in any indenture supplemental hereto, delivered as contemplated by Section 301,
at the option of the Holder, Bearer Securities of any series may be exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder
of a Bearer Security is unable to produce any such unmatured coupon or coupons
or matured coupon or coupons in default, any such permitted exchange may be
effected if the Bearer Securities are accompanied by payment in funds acceptable
to the Company in an amount equal to the face amount of such missing coupon or
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Security shall surrender to any
Paying Agent any such missing coupon in respect of which such a payment shall
have been made, such Holder shall be entitled to receive the amount of such
payment; provided, however, that, except as otherwise provided in Section 1002,
-----------------
interest represented by coupons shall be payable only upon presentation and
surrender of those coupons at an office or agency located outside the United
States. Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange
-23-
<PAGE>
for a Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date or proposed date for payment, as the case may be,
and interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in
respect of the Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in accordance
with the provisions of this Indenture. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the exchange is
entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If the depositary for any permanent global
Security is "DTC," then, unless the terms of such global Security expressly
permit such global Security to be exchanged in whole or in part for definitive
Securities, a global Security may be transferred, in whole but not in part, only
to a nominee of DTC, or by a nominee of DTC to DTC, or to a successor to DTC for
such global Security selected or approved by the Company or to a nominee of such
successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depositary for the applicable global Security or
Securities or if at any time DTC ceases to be a clearing agency registered under
the Exchange Act if so required by applicable law or regulation, the Company
shall appoint a successor depositary with respect to such global Security or
Securities. If (x) a successor depositary for such global Security or Securities
is not appointed by the Company within 90 days after the Company receives such
notice or becomes aware of such unwillingness, inability or ineligibility, (y)
an Event of Default has occurred and is continuing and the beneficial owners
representing a majority in principal amount of the applicable series of
Securities represented by such global Security or Securities advise DTC to cease
act ing as depositary for such global Security or Securities or (z) the Company,
in its sole discretion, determines at any time that all Outstanding Securities
(but not less than all) of any series issued or issuable in the form of one or
more global Securities shall no longer be represented by such global Security or
Securities, then the Company shall execute, and the Trustee shall authenticate
and deliver definitive Securities of like series, rank, tenor and terms in
definitive form in an aggregate principal amount equal to the principal amount
of such global Security or Securities. If any beneficial owner of an interest
in a permanent global Security is otherwise entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall execute, and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal amount of such
beneficial owner's interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered for exchange by DTC or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose; provided, however, that no
-----------------
such exchanges may occur during a period beginning at the opening of business 15
days before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested may be
among those selected for redemption; and provided further that no Bearer
----------------
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States. If
a Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
exchange occurs on (i) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (ii)
any Special Record Date and the opening of business at such office or agency on
the related proposed date for payment of Defaulted Interest, interest or
Defaulted
-24-
<PAGE>
Interest, as the case may be, will not be payable on such Interest Payment Date
or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date
for payment, as the case may be, only to the Person to whom interest in respect
of such portion of such permanent global Security is payable in accordance with
the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
The Company, or the Trustee, as applicable, shall not be required (i)
to issue, register the transfer of or exchange any Security if such Security may
be among those selected for redemption during a period beginning at the opening
of business 15 days before selection of the Securities to be redeemed under
Section 1103 and ending at the close of business on (A) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (B) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(ii) to register the transfer of or exchange any Registered Security so
selected for redemption in whole or in part, except, in the case of any
Registered Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except that such a Bearer Security may be exchanged for a Registered Security of
that series and like tenor, provided that such Registered Security shall be
--------
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be
so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. If
------------------------------------------------
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
-25-
<PAGE>
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case
any such mutilated, destroyed, lost or stolen Security or coupon has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, with coupons corresponding to the coupons, if any,
appertaining to such destroyed, lost or stolen Security or to the Security to
which such destroyed, lost or stolen coupon appertains, pay such Security or
coupon; provided, however, that payment of the principal of (and premium, if
-----------------
any) and interest on Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United
States and, unless otherwise specified as contemplated by Section 301, any
interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved. Except
----------------------------------------------
as otherwise specified with respect to a series of Securities in accordance with
the provisions of Section 301, interest on any Registered Security that is
payable, and is punctually paid or duly provided for, on any Interest Payment
Date shall be paid to the Person in whose name that Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose pursuant to Section 1002; provided, however, that each
-----------------
installment of interest on any Registered Security may at the Company's option
be paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 308, to the address of
such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect
to the Securities of any series, payment of interest may be made, in the case
of a Bearer Security, by transfer to an account maintained by the payee with a
bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to DTC, Euroclear and/or CEDEL, as the case
may be, with respect to that portion of such permanent global Security held for
its account by Cede & Co. or the Common Depositary, as the case may be, for the
-26-
<PAGE>
purpose of permitting such party to credit the interest received by it in
respect of such permanent global Security to the accounts of the beneficial
owners thereof.
In case a Bearer Security of any series is surrendered in exchange for
a Registered Security of such series after the close of business (at an office
or agency in a Place of Payment for such series) on any Regular Record Date and
before the opening of business (at such office or agency) on the next succeeding
Interest Payment Date, such Bearer Security shall be surrendered without the
coupon relating to such Interest Payment Date and interest will not be payable
on such Interest Payment Date in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the Holder of
such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest
to the Persons in whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of business on a
special Record Date for the payment of such Defaulted Interest, which shall be
fixed in the following manner. The Company shall notify the Trustee in writing
of the amount of Defaulted Interest proposed to be paid on each Registered
Security of such series and the date of the proposed payment (which shall not be
less than 20 days after such notice is received by the Trustee), and at the same
time the Company shall deposit with the Trustee an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Registered
Securities of such series at his address as it appears in the Security Register
not less than 10 days prior to such Special Record Date. The Trustee may, in its
discretion, in the name and at the expense of the Company, cause a similar
notice to be published at least once in an Authorized Newspaper in each place of
payment, but such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (2). In case a
Bearer Security of any series is surrendered at the office or agency in a Place
of Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment and
Defaulted Interest will not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such
-27-
<PAGE>
Bearer Security, but will be payable only to the Holder of such coupon when due
in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Persons Deemed Owners. Prior to due presentment of a
---------------------
Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium or Make-Whole Amount, if any),
and (subject to Sections 305 and 307) interest on, such Registered Security and
for all other purposes whatsoever, whether or not such Registered Security be
overdue, and none of the Company, the Trustee or any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the Holder of any Bearer Security and the Holder of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and none of the
Company, the Trustee or any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company, or the Trustee, from giving effect to any written certification or
other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 309. Cancellation. All Securities and coupons surrendered
------------
for payment, redemption, repayment at the option of the Holder, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee,
and any such Securities and coupons and Securities and coupons surrendered
directly to the Trustee for any such purpose shall be promptly canceled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any Securities
previously authenticated hereunder which the Company has not issued and sold,
and all Securities so delivered shall be promptly canceled by the Trustee. If
the Company shall so acquire any of the Securities, however, such acquisition
shall not operate as a redemption or satisfaction of the indebtedness
represented by such Securities unless and until the same are surrendered to the
Trustee for
-28-
<PAGE>
cancellation. No Securities shall be authenticated in lieu of or in
exchange for any Securities canceled as provided in this Section, except as
expressly permitted by this Indenture. Canceled Securities and coupons held by
the Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by the Company Order, the
Company directs their return to it.
SECTION 310. Computation of Interest. Except as otherwise specified
-----------------------
as contemplated by Section 301 with respect to Securities of any series,
interest on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. This Indenture
---------------------------------------
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series herein expressly provided for and any right to receive Additional
Amounts, as provided in Section 1007), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when,
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all coupons, if any, appertaining thereto (other than (i) coupons
appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or
has been waived as provided in Section 305, (ii) Securities and coupons of such
series which have been destroyed, lost or stolen and which have been replaced or
paid as provided in Section 306, (iii) coupons appertaining to Securities called
for redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 1106, and (iv) Securities and coupons of
such series for whose payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter repaid to the Company
or discharged from such trust, as provided in Section 1003) have been delivered
to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and
at the expense of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in trust
for the purpose an amount in the currency or currencies, currency unit or units
or composite currency or currencies in which the Securities of such series are
payable, sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and in-
-29-
<PAGE>
terest to the date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as the case may
be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with and held by the Trustee
pursuant to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions
--------------------------
of the last paragraph of Section 1003, all money deposited with the Trustee
pursuant to Section 401 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal (and premium, if any), and any interest for
whose payment such money has deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by
law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. "Event of Default," wherever used
-----------------
herein with respect to any particular series of Securities, means any one of
the following events (whatever the reason for such Event of Default and whether
or not it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body) unless such event is
specifically deleted or modified in or pursuant to the supplemental indenture,
Board Resolution or Officers' Certificate establishing the terms of such series
pursuant to this Indenture:
(1) default in the payment of any interest on any Security of that
series or of any coupon appertaining thereto, when such interest or coupon
becomes due and payable, and continuance of such default for a period of 30
days; or
(2) default in the payment of the principal of (or premium or Make-
Whole Amount, if any, on) any Security of that series when it becomes due and
payable at its Maturity; or
(3) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to any Security of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and continuance of
such default or breach for a period of 60 days after there has been given, by
registered or certified mail to the Company, by the Trustee or to the Company,
and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
-30-
<PAGE>
(4) a default under any evidence of Recourse Indebtedness of the
Company or any Guarantor, or under any mortgage, indenture or other instrument
of the Company or any Guarantor (including a default with respect to Securities
of any series other than that series) under which there may be issued or by
which there may be secured any Recourse Indebtedness of the Company or any
Guarantor (or by any Subsidiary of the Company or a Guarantor, the repayment of
which the Company or the Guarantor has guaranteed or for which the Company or
the Guarantor is directly responsible or liable as obligor or guarantor),
whether such Recourse Indebtedness now exists or shall hereafter be created,
which default shall constitute a failure to pay an aggregate principal amount
exceeding $5,000,000 of Recourse Indebtedness of any or all such Persons when
due and payable after the expiration of any applicable grace period with respect
thereto and shall have resulted in such Recourse Indebtedness in an aggregate
principal amount exceeding $5,000,000 becoming or being declared due and
payable before the date on which it would otherwise have become due and payable,
without such Recourse Indebtedness having been discharged; or
(5) the Company, a Guarantor or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an
involuntary case,
(C) consents to the appointment of a Custodian of it or for all
or substantially all of its property, or
(D) makes a general assignment for the benefit of its creditors;
or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company, a Guarantor or any
Significant Subsidiary in an involuntary case,
(B) appoints a Custodian of the Company, a Guarantor or any
Significant Subsidiary or for all or substantially all of
either of its property, or
(C) orders the liquidation of the Company, a Guarantor or any
Significant Subsidiary,
and the order or decree remains unstayed and in effect for 90 days; or
(7) the guarantee of any security by a Guarantor ceases to be, or is
asserted in writing by the Company or any Guarantor not to be, in full force and
effect or enforceable in accordance with its terms, or
(8) any other Event of Default provided with respect to Securities of
that series.
As used in this Section 501, the term "Bankruptcy Law" means Title 11,
U.S. Code, or any similar Federal or State law for the relief of debtors and the
term "Custodian" means any receiver, trustee, assignee, liquidator or other
similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment. If
--------------------------------------------------
an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee or
the Holders of not less than 25% in principal amount of
-31-
<PAGE>
the Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) and premium
(if any) of all the Securities of that series to be due and payable immediately,
by a notice in writing to the Company, (and to the Trustee if given by the
Holders), and upon any such declaration such principal and premium (if any) or
specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in
this Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the currency, currency unit or composite currency in which
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on all Outstanding
Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) any Outstanding
Securities of that series which have become due otherwise than by such
declaration of acceleration and interest thereon at the rate or rates borne by
or provided for in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates borne by or
provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(2) all Events of Default with respect to Securities of that series,
other than the nonpayment of the principal of (or premium, if any) or interest
on Securities of that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee. The Company covenants that if:
- -------
(1) default is made in the payment of any installment of interest on
any Security of any series and any related coupon when such interest becomes due
and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium ,
if any, on) any Security of any series at its Maturity, then the Company will,
upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders
of such Securities of such series and coupons, the whole amount then due and
payable on such Securities and coupons for principal (and premium, if any) and
interest, with interest upon any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any
overdue installments of interest, at the rate or rates borne by or provided for
in such Securities, and, in addition thereto, such further
-32-
<PAGE>
amount as shall be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, and may
prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, or any other obligor upon such Securities of such series
and collect the moneys adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any related coupons by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In case of the
--------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal, premium or Make-Whole Amount,
if any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of principal
(and premium, if any) and interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder of Securities of such series and coupons to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor Trustee, their
agents and counsel, and any other amounts due the Trustee or any predecessor
Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or the rights of any Holder thereof, or to
authorize the Trustee to vote in respect of the claim of any Holder of a
Security or coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of
------------------------------------------------
Securities or Coupons. All rights of action and claims under this Indenture or
- ---------------------
any of the Securities or coupons may be prosecuted and enforced by the Trustee
without the possession of any of the Securities or
-33-
<PAGE>
coupons or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected. Any money collected by
------------------------------
the Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal (or premium, if any) or interest, upon
presentation of the Securities or coupons, or both, as the case may be, and the
notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest
payable, in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
aggregate amounts due and payable on such Securities and coupons for principal
(and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the Person or
Persons entitled thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of any
-------------------
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series; it being
understood and intended that no one or more of such Holders shall have any right
in any manner whatever by virtue of, or by availing of, any provision of this
Indenture to affect, disturb or prejudice the rights of any other of such
Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal
---------------------------------------------------
(Premium, if any) and Interest. Notwithstanding any other provision in this
- ------------------------------
Indenture, the Holder of any Secu-
-34-
<PAGE>
rity or coupon shall have the right which is absolute and unconditional to
receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest on such Security or payment of such coupon on the
respective due dates expressed in such Security or coupon (or, in the case of
redemption, on the Redemption Date) and to institute suit for the enforcement of
any such payment, and such rights shall not be impaired without the consent of
such Holder.
SECTION 509. Restoration of Rights and Remedies. If the Trustee or
----------------------------------
any Holder of a Security or coupon has instituted any proceeding to enforce any
right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or
to such Holder, then and in every such case, the Company, the Trustee and the
Holders of Securities and coupons shall, subject to any determination in such
proceeding, be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise
------------------------------
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 306, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or coupons is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of
----------------------------
the Trustee or of any Holder of any Security or coupon to exercise any right or
remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders of Securities or coupons, as the
case may be.
SECTION 512. Control by Holders of Securities. The Holders of not
--------------------------------
less than a majority in principal amount of the Outstanding Securities of any
series shall have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee with respect to the Securities of such series,
provided that
- --------
(1) such direction shall not be in conflict with any rule of law or
with this Indenture,
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unduly prejudicial to the Holders of Securities of
such series not joining therein.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a
-----------------------
majority in principal amount of the Outstanding Securities of any series may on
behalf of the Holders of all the Securities of such series and any related
coupons waive any past default hereunder with respect to such series and its
consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series or any related coupons, or
-35-
<PAGE>
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of each
Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Usury, Stay or Extension Laws. The Company
---------------------------------------
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any usury, stay or extension law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
SECTION 515. Undertaking for Costs. All parties to this Indenture
---------------------
agree, and each Holder of any Security by his acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Indenture, or in any suit
against the Trustee for any action taken or omitted by it as Trustee, the filing
by any party litigant in such suit of any undertaking to pay the costs of such
suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees, against any party litigant in such suit
having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Trustee, to any suit instituted by any Holder, or group
of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the
enforcement of the payment of the principal of (or premium or Make-Whole Amount,
if any) or interest on any Security on or after the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on or after the
Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. Within 90 days after the occurrence
------------------
of any default hereunder with respect to the Securities of any series, the
Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such
default shall have been cured or waived; provided, however, that, except in the
-----------------
case of a default in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or in the payment of any sinking fund
installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as Responsible Officers of
the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any default or breach of the character
- ----------------
specified in Section 501(3) with respect to the Securities and coupons of such
series, no such notice to Holders shall be given until at least 60 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would become,
an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee. Subject to the provisions of
-------------------------
TIA Section 315(a) through 315(d):
-36-
<PAGE>
(1) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than
delivery of any Security, together with any coupons appertaining thereto, to the
Trustee for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution;
(3) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
rely upon an Officers' Certificate;
(4) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder
in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the Holders of Securities of any series or any related coupons pursuant
to this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction;
(6) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may
see fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of the Company personally or by agent or attorney;
(7) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder; and
(8) the Trustee shall not be liable for any action taken, suffered or
omitted by it in good faith and reasonably believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Indenture.
The Trustee shall not be required to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers, if it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee
undertakes to perform only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee.
SECTION 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the Trustee's
certificate of authentication, and in any
-37-
<PAGE>
coupons shall be taken as the statements of the Company and neither the Trustee
nor any Authenticating Agent assumes any responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons, except that the Trustee represents
that it is duly authorized to execute and deliver this Indenture, authenticate
the Securities and perform its obligations hereunder. Neither the Trustee nor
any Authenticating Agent shall be accountable for the use or application by the
Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities. The Trustee, any Paying Agent,
-------------------
Security Registrar, Authenticating Agent or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of
Securities and coupons and, subject to TIA Sections 310(b) and 311, may
otherwise deal with the Company with the same rights it would have if it were
not the Trustee, Paying Agent, Security Registrar, Authenticating Agent or such
other agent.
SECTION 605. Money Held in Trust. Money held by the Trustee in trust
-------------------
hereunder need not be segregated from other funds except to the extent required
by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement. The Company agrees:
------------------------------
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a trustee of an
express trust);
(2) except as otherwise expressly provided herein, to reimburse each
of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify each of the Trustee and any predecessor Trustee for,
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on its own part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of its powers or duties
hereunder.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium, if any) or interest
on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this
Indenture.
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
----------------------------------------------------
Interests. There shall at all times be a Trustee hereunder which shall be
- ---------
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes
-38-
<PAGE>
of this Section, the combined capital and surplus of such corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 608. Resignation and Removal; Appointment of Successor. (a)
-------------------------------------------------
No resignation or removal of the Trustee and no appointment of a successor
Trustee pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to
the Trustee within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any Holder of
a Security who has been a bona fide Holder of a Security for at least six
months, or
(2) the Trustee shall cease to be eligible under Section 607 and
shall fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then, in any such case, (i) the Company by or
pursuant to a Board Resolution may remove the Trustee and appoint a successor
Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder of a Security who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee
with respect to all Securities and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
or such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided,
-39-
<PAGE>
any Holder of a Security who has been a bonafide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor. (a) In case of
--------------------------------------
the appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company and the retiring Trustee an instrument accepting such appointment, and
thereupon the resignation or removal of the retiring Trustee shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges, execute and
deliver an instrument transferring to such successor Trustee all the rights,
powers and trusts of the retiring Trustee, and shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder, subject nevertheless to its claim, if any, provided for in
Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto,
pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company, or any successor Trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
-40-
<PAGE>
SECTION 610. Merger, Conversion, Consolidation or Succession to
--------------------------------------------------
Business. Any corporation into which the Trustee may be merged or converted or
- --------
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities of coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent. At any time when
-----------------------------------
any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption or repayment thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Any such
appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United
States of America or of any State or the District of Columbia, authorized under
such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by
Federal or State authorities. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or the requirements of the
aforesaid supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time
resign by giving written notice of resignation to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time
terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and the Company. Upon receiving such a
notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall
-41-
<PAGE>
give notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation including reimbursement of its reasonable expenses
for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[BANK], as Trustee
By: ,
-------------------------------
as Authenticating Agent
By: ,
-------------------------------
Authorized Signatory
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. Every
--------------------------------------------
Holder of Securities or coupons, by receiving and holding the same, agrees with
the Company and the Trustee that neither the Company nor the Trustee nor any
Authenticating Agent nor any Paying Agent nor any Security Registrar shall be
held accountable by reason of the disclosure of any information as to the names
and addresses of the Holders of Securities in accordance with TIA Section 312,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee. Within 60 days after October 1 of
------------------
each year commencing with the first October 1 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to all
Holders of Securities as provided in TIA Section 313(c) a brief report dated as
of such October 1 if required by TIA Section 313(a).
SECTION 703. Reports by Company. The Company will:
------------------
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; or the
Company is not required to file information, documents or reports pursuant to
either of such Sections, then it will file with the Trustee and the Commission,
in accordance with rules and regulations prescribed from time to time by
-42-
<PAGE>
the Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Exchange Act in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents
and reports required to be filed by the Company pursuant to paragraphs (1) and
(2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
SECTION 704. The Company to Furnish Trustee Names and Addresses of
-----------------------------------------------------
Holders. The Company will furnish or cause to be furnished to the Trustee:
- -------
(a) semi-annually, not later than 15 days after the Regular Record
Date for interest for each series of Securities, a list, in such form as the
Trustee may reasonably require, of the names and addresses of the Holders of
Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities, semi-
annually, upon such dates as are set forth in the Board Resolution or indenture
supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in Writing, within
30 days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished, provided, however, that, so long as the Trustee is the Security
-----------------
Registrar, no such list shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases
-------------------------------------------------------
and Conveyances Permitted Subject to Certain Conditions. The Company or any
- -------------------------------------------------------
Guarantor may consolidate with, or sell, lease or convey all or substantially
all of its assets to, or merge with or into any other entity, provided that in
any such case, (1) either the Company or the Guarantor, as the case may be, will
be the continuing entity, or the successor entity will be an entity organized
and existing under the laws of the United States or a State thereof and such
successor entity expressly assumes the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be
performed by the Company or the Guarantor, as the case may be, by supplemental
indenture, complying with Article Nine hereof, satisfactory to the Trustee,
executed and delivered to the Trustee by such entity and (ii) immediately after
giving effect to such transaction and treating any indebtedness which becomes
an obligation of the Company, a Guarantor or any Subsidiary as a result thereof
as having been incurred by the Company, the Guarantor or such Subsidiary at the
time or such transaction, no Event of Default, and no event which, after notice
or the lapse of time, or both, would become an Event of Default, shall have
occurred and be continuing.
SECTION 802. Rights and Duties of Successor Entity. In case of any
-------------------------------------
such consolidation, merger, sale, lease or conveyance and upon any such
assumption by the successor entity, such successor entity shall succeed to and
be substituted for the Company or the Guarantor, as the
-43-
<PAGE>
case may be, with the same effect as if it had been named herein as the Company
or the Guarantor, as applicable, and the predecessor entity, except in the
event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Any such successor entity of the Company thereupon
may cause to be signed, and may issue either in its own name or in the name of
the Company any or all of the Securities issuable hereunder which theretofore
shall not have been signed by the Company and delivered to the Trustee; and,
upon the order of such successor entity, instead of the Company, and subject to
all the terms, conditions and limitations in this Indenture prescribed, the
Trustee shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Company to the
Trustee for authentication, and any Securities which such successor entity
thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Securities so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or conveyance,
such changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel. Any
--------------------------------------------
consolidation, merger, sale, lease or conveyance permitted under Section 801 is
also subject to the condition that the Trustee receive an Officers' Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger,
sale, lease or conveyance, and the assumption by any successor entity, complies
with the provisions of this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the Company, when
authorized by or pursuant to a Board Resolution, and the Trustee, at any time
and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that such
Events of Default are expressly being included solely for the benefit of such
series); provided, however, that in respect of any such additional Events of
-----------------
Default such supplemental indenture may provide for a particular period of
grace after default (which period may be shorter or longer than that allowed in
the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default or may limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to which such additional
Events of Default apply to waive such default; or
-44-
<PAGE>
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit
or facilitate the issuance of Securities in uncertificated form, provided that
any such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions or this Indenture,
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and
any related coupons as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision herein,
or to make any other provisions with respect to matters or questions arising
under this Indenture which shall not be inconsistent with the provisions of this
Indenture, provided such provisions do not adversely affect the interests of the
Holders of Securities of any series or any related coupons in any material
respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
- --------
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect; or
(11) to make any change that does not adversely affect the legal
rights under this Indenture of any Holder of Debt Securities of any series; or
(12) to add a Guarantor.
SECTION 902. Supplemental Indentures with Consent of Holders. With
-----------------------------------------------
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when
authorized by or pursuant to a Board Resolution, the Guarantors and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; provided,
---------
however, that no such supplemental indenture shall, without the consent of the
- -------
Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest on, any Security; or
reduce the principal amount thereof or the rate or amount of interest thereon,
or any premium payable upon the redemption thereof, or change any obligation of
the Company to pay Additional Amounts pursuant to Section 1007 (except as con-
-45-
<PAGE>
templated by Section 801(1) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502 or the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the currency or
currencies, currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof, (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment Date, as
the case may be), or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for any
waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or
(3) modify any of the provisions of this Section or Section 513,
except to increase the required percentage to effect such action or to provide
that certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected thereby,
or
(4) release the Guarantors from their Guarantees.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for
the benefit of one or more particular series of Securities, or which modifies
the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures. In executing, or
------------------------------------
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures. Upon the execution
---------------------------------
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder and of any
coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall conform to the requirements
of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall, if required by
the Trustee, bear a notation in form approved by the
-46-
<PAGE>
Trustee as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities of any series so modified as to
conform, in the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated and
delivered by the Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures. Promptly after the
---------------------------------
execution by the Company and the Trustee of any supplemental indenture pursuant
to the provisions of Section 902, the Company shall give notice thereof to the
Holders of each Outstanding Security affected, in the manner provided for in
Section 106, setting forth in general terms the substance of such supplemental
indenture.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal (and Premium, if any) and
----------------------------------------------
Interest. The Company covenants and agrees for the benefit of the Holders of
- --------
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities of that series in
accordance with the terms of such series of Securities, any coupons appertaining
thereto and this Indenture. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on and
any Additional Amounts payable in respect of Bearer Securities on or before
Maturity, other than Additional Amounts, if any, payable as provided in Section
1007 in respect of principal of (or premium, if any, on) such a Security, shall
be payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature.
Unless otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be paid
by check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency. If Securities of a
-------------------------------
series are issuable only as Registered Securities, the Company shall maintain
in each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment or
conversion, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain: (A) in the Borough of Manhattan, The City of New York, an office or
agency where any Registered Securities of that series may be presented or
surrendered for payment or conversion, where any Registered Securities of that
series may be surrendered for registration of transfer, where Securities of that
series may be surrendered for exchange, where notices and demands to or upon the
Company in respect of the Securities of that series and this In denture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment or conversion in the circumstances
described in the following paragraph (and not otherwise); (B) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment
(including payment of any Additional Amounts payable on Securities of that
series pursuant to Section 1007) or conversion; provided, however, that if the
-------- -------
Securities of that series are listed on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States and such stock exchange
shall so require, the Company will maintain a Paying Agent for the Securities of
that series in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series are listed
on such exchange; and (C) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United States an
office or agency where any Registered Securities of that series may be
surrendered for registration of
-47-
<PAGE>
transfer, where Securities of that series may be surrendered for exchange and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1007) or conversion at the
offices specified in the Security, in London, England, and the Company hereby
appoint the same as its agent to receive such respective presentations,
surrenders, notices and demands, and the Company hereby appoint the Trustee its
agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, no payment of principal, premium or interest on Bearer Securities
shall be made at any office or agency of the Company in the United States or by
check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, that, if
-----------------
the Securities of a series are payable in Dollars, payment of principal of and
any premium and interest on any Bearer Security (including any Additional
Amounts payable on Securities of such series pursuant to Section 1007) shall be
made at the office of the Company's Paying Agent in the Borough of Manhattan,
The City of New York, if (but only if) payment in Dollars of the full amount of
such principal, premium or interest, as the case may be, at all offices or
agencies outside the United States maintained for the purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may from time to time designate one or more other offices
or agencies where the Securities of one or more series may be presented or
surrendered for any or all of such purposes, and may from time to time rescind
such designations; provided, however, that no such designation or rescission
-----------------
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to
the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency. Unless otherwise specified with
respect to any Securities pursuant to Section 301 with respect to a series of
Securities, the Company hereby designates as a Place of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of the Indenture, then the Company
will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust. If
-------------------------------------------------
the Company shall at any time act as its own Paying Agent with respect to any
series of any Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any), or interest on, any of the
Securities of that series, segregate and hold in trust for the benefit of the
Per sons entitled thereto a sum in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) sufficient to pay the principal (and premium, if
any) or interest so becoming due until such sums shall be paid to such Persons
or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
-48-
<PAGE>
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (and premium, if any) or interest on, any Securities of
that series, deposit with a Paying Agent a sum (in the currency or currencies,
currency unit or units or composite currency or currencies described in the pre-
ceding paragraph) sufficient to pay the principal (and premium, if any) or
interest, so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal (and premium, if any) or interest and (unless
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) hold all sums held by it for the payment of principal of (and
premium or Make-Whole Amount, if any) or interest on Securities in trust for the
benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities) in the making of any such payment of
principal (and premium, if any) or interest; and
(3) at any time during the continuance of any such default upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held
in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (and premium, if any) or
interest on any Security of any series and remaining unclaimed for two years
after such principal (and premium, if any) and interest has become due and
payable shall be paid to the Company upon Company Request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal of (and premium, if any) or interest on
any Security, without interest thereon, and all liability of the Trustee or such
Paying Agent with respect to such trust money, and all liability of the Company
as trustee thereof, shall thereupon cease; provided, however, that the Trustee
-----------------
or such Paying Agent, before being required to make any such repayment, may at
the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Company.
SECTION 1004. Existence. Subject to Article Eight, the Company will
---------
do or cause to be done all things necessary to preserve and keep in full force
and effect the existence, rights and franchises of itself and of each Guarantor;
provided, however, that the Company shall not be required to preserve any right
- -----------------
or franchise if the Board of Directors determines that the preservation thereof
is no longer desirable in the conduct of the business of the Company and the
Guarantors taken as a whole and that the loss thereof is not disadvantageous in
any material respect to the Holders; and provided further that any Guarantor may
-------- -------
consolidate with, merge into, or sell convey,
-49-
<PAGE>
transfer, lease or otherwise dispose of all or part of its property and assets
to the Company or any other Guarantor.
SECTION 1005. Maintenance of Properties. The Company will cause all
-------------------------
of the properties of itself and of each Subsidiary used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
---------
however, the Company and its Subsidiaries shall not be prevented from
- -------
discontinuing the operation and maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business and not disadvantageous in any material respect to the Holders..
SECTION 1006. Insurance. The Company will, and will cause each of
---------
its Subsidiaries to, keep all of its insurable properties insured against loss
or damage at least equal to their then full insurable value.
SECTION 1007. Payment of Taxes and other Claims. The Company will
---------------------------------
pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all material taxes, assessments and governmental charges
levied or imposed upon it or any Subsidiary or upon the income, profits or
property of the Company or any Subsidiary, and (2) all material lawful claims
for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary; provided, however, that the
-----------------
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability
or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. Statement as to Compliance. The Company will deliver
--------------------------
to the Trustee, within 180 days after the end of each fiscal year, a brief
certificate from its principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's and
each Guarantor's compliance with all conditions and covenants under this
Indenture and, in the event of any noncompliance, specifying such noncompliance
and the nature and status thereof. For purposes of this Section 1006, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1009. Additional Amounts. If any Securities of a series
------------------
provide for the payment of Additional Amounts, the Company will pay to the
Holder of any Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever
in this Indenture there is mentioned, in any context except in the case of
Section 502(1), the payment of the principal of or any premium or interest on,
or in respect of, any Security of any series or payment of any related coupon or
the net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established pursuant to Section 301
to the extent that, in such context, Additional Amounts are, were or would be
payable in respect thereof pursuant to such terms and express mention of the
payment of Additional Amounts (if applicable) in any provisions hereof shall not
be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to that series of
Securities (or if the Securities of that series will not bear interest prior to
Maturity, the first day on which a payment of principal and any premium is
made), and at least 10 days prior to each date of payment of principal and any
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certifi-
-50-
<PAGE>
cate, the Company will furnish the Trustee and the Company's principal Paying
Agent or Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal of and any premium or interest on the Securities of that
series shall be made to Holders of Securities of that series or any related
coupons who are not United States persons without withholding for or on account
of any tax, assessment or other governmental charge described in the Securities
of the series. If any such withholding shall be required, then such Officers'
Certificate shall specify by country the amount, if any, required to be withheld
on such payments to such Holders of Securities of that series or related coupons
and the Company will pay to the Trustee or such Paying Agent the Additional
Amounts required by the terms of such Securities. If the Trustee or any Paying
Agent, as the case may be, shall not so receive the above-mentioned certificate,
then the Trustee or such Paying Agent shall be entitled (i) to assume that no
such withholding or deduction is required with respect to any payment of
principal or interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising otherwise and (ii)
to make all payments of principal and interest with respect to the Securities of
a series or related coupons without withholding or deductions until otherwise
advised. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any them or in reliance on
any Officers' Certificate furnished pursuant to this Section or in reliance on
the Company's not furnishing such an Officers' Certificate.
SECTION 1010. Waiver of Certain Covenants. The Company may omit in
---------------------------
any particular instance to comply with any term, provision or condition set
forth in Sections 1004 and 1005, inclusive, if before or after the time for such
compliance the Holders of at least a majority in principal amount of all
outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series
------------------------
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of
-------------------------------------
the Company to redeem any Securities shall be evidenced by or pursuant to a
Board Resolution. In case of any reedemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least 45
days prior to the giving of the notice of redemption in Section 1104 (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration
of any restriction on such redemption provided in the terms of such Securities
or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If
-------------------------------------------------
less than all the Securities of any series issued on the same day with the same
terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities of such series issued on such date with the
-51-
<PAGE>
same terms not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for
redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be
--------------------
given in the manner provided in Section 106, not less than 30 days nor more than
60 days prior to the Redemption Date, unless a shorter period is specified by
the terms of such series established pursuant to Section 301, to each Holder of
Securities to be redeemed, but failure to give such notice in the manner herein
provided to the Holder of any Security designated for redemption as a whole or
in part, or any defect in the notice to any such Holder, shall not affect the
validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, accrued interest to the Redemption Date
payable as provided in Section 1106, if any, and Additional Amounts, if any,
(3) if less than all Outstanding Securities of any series are to be
redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the holder will receive, without a
charge, a new Security or Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest to the Redemption Date payable as provided in Section 1106, if any,
will become due and payable upon each such Security, or the portion thereof, to
be redeemed and, if applicable, that interest thereon shall cease to accrue on
and after said date,
(6) the Place or Places of Payment where such Securities, together in
the case of Bearer Securities with all coupons appertaining thereto, if any,
maturing after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any, or for conversion,
-52-
<PAGE>
(7) that, unless otherwise specified in such notice, Bearer Securities
of any series, if any, surrendered for redemption must be accompanied by all
coupons maturing subsequent to the date fixed for redemption or the amount of
any such missing coupon or coupons will be deducted from the Redemption Price,
unless security or indemnity satisfactory to the Company and the Trustee for
such series and any Paying Agent is furnished,
(8) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on this Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(9) the CUSIP number of such Security, if any, and
(10) if applicable, that a Holder of Securities who desires to convert
Securities for redemption must satisfy the requirements for conversion contained
in such Securities, the then existing conversion price or rate, and the date
and time when the option to convert shall expire.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. Deposit of Redemption Price. At least one Business Day
---------------------------
prior to any Redemption Date, the Company shall deposit with the Trustee or with
a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money in the
currency or currencies, currency unit or units or composite currency or
currencies in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of
-------------------------------------
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the currency or currencies, currency unit or units or
composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest) such Securities
shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed,
except to the extent provided below, shall be void. Upon surrender of any such
Security for redemption in accordance with said notice, together with all
coupons, if any, appertaining thereto maturing after the Redemption Date, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest, if any, to the Redemption Date; provided, however, that
-----------------
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and provided further
----------------
that, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if
-53-
<PAGE>
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted ; provided, however, that interest represented by coupons shall be
-----------------
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium or Make-Whole
Amount, if any) shall, until paid, bear interest from the Redemption Date at
the rate borne by the Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security
---------------------------
which is to be redeemed only in part (pursuant to the provisions of this
Article) shall be surrendered at a Place of Payment therefor (with, if the
Company or the Trustee so requires, due endorsement by, or a written instrument
of transfer in form satisfactory to the Company and the Trustee duly executed
by, the Holder thereof or his attorney duly authorized in writing) and the
Company shall execute and the Trustee shall authenticate and deliver to the
Holder of such Security without service charge a new Security or Securities of
the same series, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion
of the principal of the Security so surrendered.
ARTICLE TWELVE
GUARANTEES
SECTION 1201. Guarantee. Subject to the provisions of this Article
---------
Twelve, each Guarantor hereby jointly and severally, fully, unconditionally and
irrevocably guarantees to each Holder and to the Trustee on behalf of the
Holders: (i) the due and punctual payment of the principal of, premium, if any,
and accrued interest on each Security, when and as the same shall become due and
payable, whether at maturity, by acceleration or otherwise, the due and punctual
payment of interest on the overdue principal of and interest, if any, on the
Securities, to the extent lawful, and the due and punctual performance of all
other obligations of the Company to the Holders or the Trustee, all in
accordance with the terms of such Security and this Indenture and (ii) in the
case of any extension of time of payment or renewal of any Securities or any of
such other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, at Stated
Maturity, by acceleration or otherwise (the obligations in subsections (i) and
(ii) hereof being the "Guaranteed Obligations"). Each Guarantor hereby waives
----------------------
diligence, presentment, demand of payment, filing of claims with a court in the
event of merger or bankruptcy of the Company, any right to require a proceeding
first against the Company, the benefit of discussion, protest or notice with
respect to any such Security or the debt evidenced thereby and all demands
whatsoever, and covenants that its Guarantee will not be discharged as to any
such Security except by payment in full of the principal thereof and interest
thereon and as provided in Section 4.01, Section 14.02 and Section 14.03. The
maturity of the Securities may be accelerated as provided in Article Five for
the purposes of this Article Twelve. In the event of any declaration of
acceleration of such obligations as provided in Article Five, the Securities
(whether or not due and payable) shall forthwith become due and payable by each
Guarantor jointly and severally, for the purpose of this Article Eleven. In
addition, without limiting the foregoing provisions, upon the effectiveness of
an acceleration under Article Five, the Trustee shall promptly make a demand for
payment on the Securities under each Guarantee provided for in this Article
Twelve.
If the Trustee or the Holder of any Security is required by any court
or otherwise to return to the Company or any Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator
-54-
<PAGE>
or other similar official acting in relation to the Company or such Guarantor,
any amount paid to the Trustee or such Holder in respect of a Security, this
Guarantee, to the extent theretofore discharged, shall be reinstated in full
force and effect. Each Guarantor further agrees, to the fullest extent that it
may lawfully do so, that, as between it, on the one hand, and the Holders and
the Trustee, on the other hand, the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Five hereof for the purposes
of its Guarantee, notwithstanding any stay, injunction or other prohibition
extant under any applicable bankruptcy law preventing such acceleration in
respect of the obligations guaranteed hereby.
Each Guarantor hereby further agrees that its obligations under this
Indenture and the Securities shall be unconditional, regardless of the validity,
regularity or enforceability of this Indenture or the Securities, the absence of
any action to enforce this Indenture or the Securities, any waiver or consent by
any Holder with respect to any provisions of this Indenture or the Securities,
any modification or amendment of, or supplement to, this Indenture or the
Securities, the recovery of any judgment against the Company or any action to
enforce any such judgment, or any other circumstance that might otherwise
constitute a legal or equitable discharge or defense of a Guarantor.
Each Guarantor that makes or is required to make any payment in
respect of its Guarantee shall be entitled to seek contribution from the other
Guarantors to the extent permitted by applicable law; provided that each
--------
Guarantor agrees that any such claim for contribution that such Guarantor may
have against any other Guarantor shall be subrogated to the prior payment in
full, in cash, of all obligations owed to Holders under or in respect of the
Securities.
Each Guarantor hereby irrevocably waives any claim or other rights
that it may now or hereafter acquire against the Company that arise from the
existence, payment, performance or enforcement of its obligations under its
Guarantee and this Indenture, including, without limitation, any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Holders against the Company
or any collateral that any such Holder or the Trustee on behalf of such Holder
hereafter acquires, whether or not such claim, remedy or right arises in equity,
or under contract, statute or common law, including, without limitation, the
right to take or receive from the Company, directly or indirectly, in cash or
other property or by set-off or in any other manner, payment or security on
account of such claim or other rights. If any amount shall be paid to any
Guarantor in violation of the preceding sentence and the principal of (and
premium, if any) and interest on the Securities shall not have been paid in
full, such amount shall be deemed to have been paid to such Guarantor for the
benefit of, and held in trust for the benefit of, the Holders, and shall
forthwith be paid to the Trustee for the benefit of the Holders to be credited
and applied upon the principal of (and premium, if any) and interest on the
Securities. Each Guarantor acknowledges that it will receive direct and
indirect benefits from the issuance of the Securities pursuant to this Indenture
and that the waivers set forth in this Section 12.01 are knowingly made in
contemplation of such benefits.
Each Guarantee set forth in this Section 12.01 shall not be valid or
become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 1202. Obligations Unconditional. Subject to Section 12.05,
-------------------------
nothing contained in this Article Twelve or elsewhere in this Indenture or in
the Securities is intended to or shall impair, as among each Guarantor and the
Holders, the obligation of each Guarantor, which is absolute and unconditional,
upon failure by the Company, to pay to the Holders the principal of (and
premium, if any) and interest on the Securities as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the Holders and creditors of each Guarantor,
nor shall anything herein or therein prevent any Holder or the Trustee on its
behalf from exercising all remedies otherwise permitted by applicable law upon
default under this Indenture.
-55-
<PAGE>
Without limiting the foregoing, nothing contained in this Article
Twelve will restrict the right of the Trustee or the Holders to take any action
to declare the Guarantee to be due and payable prior to the Stated Maturity of
the Securities pursuant to Section 5.02 or to pursue any rights or remedies
hereunder.
SECTION 1203. Execution of Guarantee. To evidence its obligations
----------------------
under this Article Twelve, each Guarantor hereby agrees to execute a guarantee
in a form set forth in the supplemental indenture for each series of Securities
guaranteed by the Guarantor, to be endorsed on each Security authenticated and
delivered by the Trustee. The signature of any officer of a Guarantor on the
Securities may be manual or facsimile. Each Guarantor hereby agrees that its
Guarantee set forth in this Article Twelve shall remain in full force and effect
notwithstanding any failure to endorse such Guarantee on any series of
Securities.
SECTION 1204. Withholding. All payments made by a Guarantor with
-----------
respect to the Guarantees will be made without withholding or deduction for, or
on account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature imposed or levied by or on behalf of any country
(other than the United States) or any political subdivision thereof or any
authority therein or thereof having power to tax, unless the withholding or
deduction of such taxes, duties, assessments or governmental charges is then
required by law. In the event that any country (other than the United States)
or any political subdivision thereof, or any authority therein or thereof,
imposes any such withholding or deduction on (a) any payments made by a
Guarantor with respect to the Guarantees or (b) any net proceeds on the sale to
or exchange with any Guarantor of the Securities, such Guarantor will pay such
additional amounts as may be necessary in order that the net amounts received in
respect to such payments or sale or exchange by the Holders or the Trustee, as
the case may be, after such withholding or deduction shall equal the respective
amounts that would have been received in respect of such payments or sale or
exchange in the absence of such withholding or deduction; except that no such
additional amounts shall be payable with respect to any series of Securities
held by or on behalf of a Holder who is liable for such taxes, duties,
assessments or governmental charges in respect of such Security by reason of his
being a citizen or resident of, or carrying on a business in, the country of
residence of any Guarantor. Notwithstanding the foregoing, a Guarantor making a
payment on the Securities pursuant to the Guarantee shall not be required to pay
any additional amounts if (x) the beneficial holder of a Security received by
certified mail (evidenced by a return receipt signed by such beneficial holder)
(i) written notice from such Guarantor no less than 60 days in advance of making
such payment and (ii) the appropriate forms or instructions necessary to enable
such beneficial holder to certify or document the availability of an exemption
from, or reduction of, the withholding or deduction of such taxes under
applicable law, which such instructions shall clearly specify that additional
amounts under this Section 1204 may not be paid if such forms are not completed
by such beneficial holder, and (y) the Guarantor that would otherwise have to
pay such additional amounts establishes to the satisfaction of the Trustee that
the obligation to pay such additional amounts would not have risen but for the
failure of such beneficial holder to (i) duly complete such forms as were
actually received by such beneficial holder or respond to such instructions and
(ii) provide to such Guarantor such duly completed forms or responses to
instructions. Without prejudice to the survival of any of the agreements of the
Guarantors hereunder, the agreements and obligations of the Guarantors
contained in this Section 1204 shall survive the payment in full of Securities
and all other amounts payable under this Guarantee.
SECTION 1205. Limitation of Guarantee. The Company and each Holder
-----------------------
by his or her acceptance thereof, hereby confirm that it is the intention of all
such parties that any Guarantee of the Securities executed by a Guarantor under
this Indenture and the terms of a supplemental indenture for any series of
Securities not constitute a fraudulent transfer or conveyance for purposes of
the Bankruptcy Law, the Uniform Fraudulent Conveyance Act or any similar federal
or state law. To effectuate the foregoing intention, in the event that any such
Guarantee would constitute or result in a violation of any applicable
fraudulent conveyance or similar law of any relevant jurisdiction, the liability
of the Guarantor under such Guarantee shall be reduced to the maximum amount,
after
-56-
<PAGE>
giving effect to all other contingent and fixed liabilities of such Guarantor,
permissible under the applicable fraudulent conveyance or similar law.
SECTION 1206. Release of Guarantee. (a) Concurrently with the
--------------------
payment in full of all of the Securities, the Guarantors shall be released from
and relieved of their obligations under this Article Twelve. Upon the delivery
by the Company to the Trustee of an Officers' Certificate and, if requested by
the Trustee, an Opinion of Counsel to the effect that the transaction giving
rise to the release of such obligations was made by the Company in accordance
with the provisions of this Indenture, the Trustee shall execute any documents
reasonably required in order to evidence the release of the Guarantors from
their obligations. If any of the Guaranteed Obligations are revived and
reinstated after the termination of this Guarantee, then all of the obligations
of the Guarantors under this Guarantee shall be revived and reinstated as if
this Guarantee had not been terminated until such time as the Guaranteed
Obligations are again terminated, and the Guarantors shall enter into an
amendment to this Guarantee, reasonably satisfactory to the Trustee, evidencing
such revival and reinstatement.
(b) Upon the sale or disposition of all the Capital Stock of a
Guarantor (by merger or otherwise) to a Person other than the Company or any
other Guarantor and which sale or disposition is otherwise in compliance with
the terms of this Indenture, such Guarantor shall be deemed released from all
obligations under this Article Twelve; provided, however, that any such
-----------------
termination upon such sale or disposition shall occur if and only to the extent
that all obligations of such Guarantor under all of its guarantees of, and under
all of its pledges of assets or other security interests which secure,
indebtedness of the Company or any other Guarantor shall also terminate upon
such sale or disposition. Upon the delivery by the Company to the Trustee of an
Officers' Certificate and, if requested by the Trustee, an Opinion of Counsel
to the effect that the transaction giving rise to the release of such
obligations was made in accordance with the provisions of this Indenture, the
Trustee shall execute any documents reasonably required in order to evidence the
release of such Guarantor from its obligations. Any Guarantor not so released
remains liable for the full amount of principal of (and premium, if any) and
interest on the Securities as provided in this Article Twelve.
(c) Nothing contained in this Indenture or in the Securities shall
prevent any consolidation or merger of a Guarantor with or into the Company or
another Guarantor, or shall prevent the transfer of all or substantially all of
the assets of a Guarantor to the Company or another Guarantor. Upon any such
consolidation, merger, transfer or sale, the Guarantee of such Guarantor shall
no longer have any force of effect.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of
------------------------
any series before their Stated Maturity at the option of Holders thereof shall
be made in accordance with the terms of such Securities, if any, and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series
-----------------------
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at a
price equal to the principal amount thereof, together with interest, if any,
thereon accrued to the Repayment Date specified in or pursuant to the terms of
such Securities. The Company covenants that at least one Business Day prior to
the Repayment Date it
-57-
<PAGE>
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the currency or currencies, currency unit or
units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of,
and (except if the Repayment Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof, as the case may be, to be
repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject
------------------
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. In order for any
Security to be repaid at the option of the Holder, the Trustee must receive at
the Place of Payment there for specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 60 days nor later than 30 days
prior to the Repayment Date (1) the Security so providing for such repayment
together with the "Option to Elect Repayment" form on the reverse thereof duly
completed by the Holder (or by the Holder's attorney duly authorized in writing)
or (2) a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange, or the National Association of Securities Dealers,
Inc. ("NASD"), or a commercial bank or trust company in the United States
setting forth the name of the Holder of the Security, the principal amount of
the Security, the principal amount of the Security to be repaid, the CUSIP
number, if any, or a description of the tenor and terms of the Security, a
statement that the option to elect repayment is being exercised thereby and a
guarantee that the Security to be repaid, together with the duly completed form
entitled "Option to Elect Repayment" on the reverse of the Security, will be
received by the Trustee not later than the fifth Business Day after the date of
such telegram, telex, facsimile transmission or letter; provided, however, that
-----------------
such telegram, telex, facsimile transmission or letter shall only be effective
if such Security and form duly completed are received by the Trustee by such
fifth Business Day. If less than the entire principal amount of such Security
is to be repaid in accordance with the terms of such Security, the principal
amount of such Security to be repaid, in increments of the minimum denomination
for Securities of such series, and the denomination or denominations of the
Security or Securities to be issued to the Holder for the portion of the
principal amount of such Security surrendered that is not to be repaid, must be
specified. The principal amount of any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable. If Securities of any series provide repayment at the option of the
- -------
Holders thereof shall have been surrendered as provided in this Article and as
provided by or pursuant to the terms of such Securities, such Securities or the
portion thereof, as the case may be, to be repaid shall become due and payable
and shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon surrender of any such Security for
repayment in accordance with such provisions, together with coupons, if any,
appertaining thereto maturing after the Repayment Date, the principal amount of
such Security so to be repaid paid by the Company, together with accrued
interest, if any, Repayment Date; provided, however, that coupons whose Stated
-----------------
Maturity is on or prior to the Repayment Date shall be payable at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and provided further
-------- -------
-58-
<PAGE>
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable (but
with interest thereon, unless the Company shall default in the payment thereof)
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business relevant Record Dates according to
their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to it such security or indemnity
as they may require to save it and any Paying Agent harmless. If thereafter the
Holder of such Security shall surrender to the Trustee or any Paying Agent any
such missing coupon in respect of which a deduction shall have been made as
provided in the preceding sentence, such Holder shall be entitled to receive the
amount so deducted; provided, however, that interest represented by coupons
-----------------
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only presentation and surrender of those
coupons.
If the principal amount of any Security surrendered for repayment
shall not be so repaid upon surrender thereof, such principal amount (together
with interest, if any, thereon accrued to such Repayment Date) shall, until
paid, bear interest from the Repayment Date at the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) set forth in such
Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any
-------------------------
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal to
and in exchange for the portion of the principal of such Security so surrendered
which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance. If, pursuant to Section 301, provision is
- ---------------------------------
made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company may at its option by Board
Resolution, at any time, with respect to such Securities and any coupons
appertaining thereto, elect to have Section 1402 (if applicable) or Section 1403
(if applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in this
Article.
SECTION 1402. Defeasance and Discharge. Upon the Company's exercise
------------------------
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company and the Guarantors shall be deemed to have been
discharged from their obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defea-
-59-
<PAGE>
sance means that the Company shall be deemed to have paid and discharged the
entire indebtedness represented by such Outstanding Securities and any coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of Section 1405 and the other Sections of this Indenture
referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under such Securities and any coupons appertaining thereto and this
Indenture insofar as such Securities and any coupons appertaining thereto are
concerned (and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of
Holders of such Outstanding Securities and any coupons appertaining thereto to
receive, solely from the trust fund described in Section 1404 and as more fully
set forth in such Section, payments in respect of the principal of (and
premium, if any) and interest, if any, on such Securities and any coupons
appertaining thereto when such payments are due, (B) the Company's obligations
with respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1007, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article. Subject to compliance
with this Article Fourteen, the Company may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 1403 with
respect to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance. Upon the Company's exercise of
-------------------
the above option applicable to this Section with respect to any Securities of or
within a series, the Company and the Guarantors shall be released from their
obligations under Sections 1004 and 1005, inclusive and, if specified pursuant
to Section 301, their obligations under any other covenant, with respect to such
Outstanding Securities and coupons appertaining thereto on and after the date
the conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1004 and 1005, inclusive, or such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining thereto, the Company
and the Guarantors may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any Section or such other covenant to any other provision herein or
in any other document and such omission to comply shall not constitute a default
or an Event of Default under Section 501(3) or 501(7) otherwise, as the case may
be, but, except as specified above, remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The
-----------------------------------------------
following shall be the conditions to application of Section 1402 or Section 1403
to any Outstanding Securities of or within a series and any coupons appertaining
thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, a dedicated solely to,
the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount in such currency, currencies or currency unit in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity, or (2) Government Obligations applicable to such
Securities and coupons appertaining thereto (determined on the basis of the
currency, currencies or currency unit in which such Securities and coupons
appertaining thereto are then specified as payable at Stated Maturity) which
through the scheduled payment of principal and interest in respect thereof in
accordance with the terms will provide, not later than one day before the due
date of any
-60-
<PAGE>
payment of principal of (and premium or Make-Whole Amount, if any) and interest,
if any, on such Securities and any coupons appertaining thereto, money in an
amount, or (3) a combination thereof, any case, in an amount, sufficient,
without consideration of any reinvestment of such principal and interest, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered the Trustee, to pay and
discharge, and which shall be applied by the Trustee (or other qualifying
trustee) to pay and discharge, the principal of (and premium or Make-Whole
Amount, if any) and interest, if any, on such Outstanding Securities and any
coupons, appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to such Securities and any
coupons appertaining thereto shall have occurred and be continuing on the date
of such deposit or, insofar as Sections 501(6) and 501(7) are concerned, at any
time during the period ending on the 91st day after the date of such deposit
(it being understood that this condition shall not be deemed satisfied until the
expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such covenant defeasance and will be subject to Federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Company with
respect to the trust funds representing such deposit or by the Trustee for such
trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
-61-
<PAGE>
SECTION 1405. Deposited Money and Government Obligations to Be Held
-----------------------------------------------------
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
- ----------------------------------------
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other qualifying trustee, collectively
for purposes of this Section 1405, the "Trustee") pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons
appertaining thereto shall be held in trust and applied by the Trustee, in
accordance with the provisions of such Securities and any coupons appertaining
thereto and this Indenture, to the payment, either directly or through any
Paying Agent as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest, but such money need
not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 1404(a) has been made,
(a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a currency or currency unit other than that in
which the deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs in respect of the currency or
currency unit in which the deposit pursuant to Section 1404(a) has been made,
the indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium or Make-Whole
Amount, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in
respect of such Security into the currency or currency unit in which such
Security becomes payable as a result of such election or Conversion Event based
on the applicable market exchange rate for such currency or currency unit in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such currency or currency unit in effect (as
nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to
Section 606, the Trustee shall deliver or pay to the Company from time to time
upon the Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in
the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
INTENTIONALLY OMITTED
-62-
<PAGE>
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate. The Company agrees, and
-------------------------
each Holder by accepting a Security agrees, that the indebtedness evidenced by
the Securities is subordinated in right of payment, to the extent and in the
manner provided in this Article, to the prior payment in full of all Senior Debt
and that the subordination is for the benefit of the holders of Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy. Upon any
-------------------------------------
distribution to creditors of the Company in a liquidation or dissolution of the
Company or in a bankruptcy, reorganization, insolvency, receivership or similar
proceeding relating to the Company or its property:
(1) Holders of Senior Debt shall be entitled to receive payment in
full in cash of the principal of (and premium or Make-Whole Amount, if
any) and interest (including interest accruing after the commencement
of any such proceeding) to the date of payment on the Senior Debt
before Holders shall be entitled to receive any payment of principal
of or interest on Securities;
(2) Until the Senior Debt is paid in full in cash, any
distribution to which Holders would be entitled but for this Article
shall be made to holders of Senior Debt as their interests may appear,
except that Holders may receive securities that are subordinated to
Senior Debt to at least the same extent as the Securities; and
(3) the Trustee is entitled to rely upon an order or decree of a
court of competent jurisdiction or a certificate of a bankruptcy
trustee or other similar official for the purpose of ascertaining the
persons entitled to participate in such distribution, the holders of
Senior Debt and other Company debt, the amount thereof or payable
thereon and all other pertinent facts relating to the Trustee's
obligations under this Article Sixteen.
SECTION 1603. Default on Senior Debt. The Company may not pay
-----------------------
principal of or interest on the Securities and may not acquire any Securities
for cash or property other than capital stock of the Company if:
(1) a default on Senior Debt occurs and is continuing that permits
Holders of such Senior Debt to accelerate its maturity, and
(2) the default is the subject of judicial proceedings or the
Company receives a notice of the default from a person who may give
it pursuant to Section 1611. If the Company receives any such notice,
a similar notice received within nine months thereafter relating to
the same default on the same issue of Senior Debt shall not be
effective for purposes of this Section.
The Company may resume payments on the Securities and may acquire them
when:
(a) the default is cured or waived, or
(b) 120 days pass after the notice is given if the default is not the
subject of judicial proceedings.
if this Article otherwise permits the payment or acquisition at that time.
-63-
<PAGE>
SECTION 1604. Acceleration of Securities. If payment of the
--------------------------
Securities is accelerated because of an Event of Default, the Company shall
promptly notify Holders of Senior Debt of the acceleration. The Company may pay
the Securities when 120 days pass after the acceleration occurs if this Article
permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over. If a
------------------------------------
distribution is made to Holders that because of this Article should not have
been made to them, the Holders who receive the distribution shall hold it in
trust for Holders of Senior Debt and pay it over to them as their interests may
appear.
SECTION 1606. Notice by Company. The Company shall promptly notify
------------------
the Trustee and any Paying Agent of any facts known to them that would cause a
payment of principal of or interest on Securities to violate this Article.
SECTION 1607. Subrogation. After all Senior Debt is paid in full
------------
and until the Securities are paid in full, Holders shall be subrogated to the
rights of Holders of Senior Debt to receive distributions applicable to Senior
Debt to the extent that distributions otherwise payable to the Holders have been
applied to the payment of Senior Debt. A distribution made under this Article
to Holders of Senior Debt which otherwise would have been made to Holders is
not, as between the Company and Holders, a payment by the Company on Senior
Debt.
SECTION 1608. Relative Rights. This Article defines the relative
----------------
rights of Holders and Holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of
the Company, which is absolute and unconditional, to pay principal of
and interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the
Company other than Holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its
available remedies upon an Event of Default, subject to the rights of
Holders of Senior Debt to receive distributions otherwise payable to
Holders.
If the Company fails because of this Article to pay principal of or
interest on a Security on the due date, the failure is still a default.
SECTION 1609. Subordination May Not Be Impaired By Company. No
---------------------------------------------
right of any Holder of Senior Debt to enforce the subordination of the
indebtedness evidenced by the Securities shall be impaired by any act or failure
to act by the Company or by its failure to comply with this Indenture.
SECTION 1610. Distribution or Notice to Representative. Whenever a
----------------------------------------
distribution is to be made or a notice given to Holders of Senior Debt, the
distribution may be made and the notice given to their Representative.
SECTION 1611. Rights of Trustee and Paying Agent. The Trustee or
----------------------------------
any Paying Agent may continue to make payments on the Securities until it
receives written notice of facts that would cause a payment of principal of or
interest on the Securities to violate the Article. Only the Company, a
Representative or a Holder of an issue of Senior Debt that has no Representative
may give the written notice.
-64-
<PAGE>
The Trustee has no fiduciary duty to the Holders of Senior Debt other
than as created under this Indenture. The Trustee in its individual or any
other capacity may hold Senior Debt with the same rights it would have if it
were not Trustee.
The Company's obligation to pay, and the Company's payment of, the
Trustee's fees pursuant to Section 606 are excluded from the operation of this
Article Sixteen.
************
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
-65-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
NVR, INC.
By:
------------------------------------
Name:
Title:
[BANK], as Trustee
By:
------------------------------------
Name:
Title: Vice President
The Guarantors
--------------
NVR FINANCIAL SERVICES, INC. RVN, INC.
By: By:
----------------------------- -------------------------------
Name: Name:
Title: Title:
NVR HOMES, INC. NVR FOX RIDGE, INC.
By: By:
----------------------------- -------------------------------
Name: Name:
Title: Title:
-66-
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR, Inc., one of the parties described in and which
executed the foregoing instrument; and that he/she signed his/her name thereto
by authority of said corporation.
[Notarial Seal]
-------------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR Financial Services, Inc., one of the parties
described in and which executed the foregoing instrument; and that he/she signed
his/her name thereto by authority of said corporation.
[Notarial Seal]
-------------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR Homes, Inc., one of the parties described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by authority of said corporation.
[Notarial Seal]
-------------------------------------------
Notary Public
COMMISSION EXPIRES
-67-
<PAGE>
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of RVN, Inc., one of the parties described in and which
executed the foregoing instrument; and that he/she signed his/her name thereto
by authority of said corporation.
[Notarial Seal]
-------------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF )
) ss:
COUNTY OF )
On the __th day of __________, 199__, before me personally came to me
known, _____________ who, being by me duly sworn, did depose and say that he/she
resides in _________________________________, that he/she is the
___________________ of NVR Fox Ridge, Inc., one of the parties described in and
which executed the foregoing instrument; and that he/she signed his/her name
thereto by authority of said corporation.
[Notarial Seal]
-------------------------------------------
Notary Public
COMMISSION EXPIRES
-68-
<PAGE>
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the _________ day of _________, 199__, before me personally came
to me known, _____________________, who, being by me duly sworn, did depose and
say that she/he resides at ___________________________, that she/he is a
__________________ of [Bank], one of the parties described in and which
executed the foregoing instrument; and that he/she signed his/her name thereto
by authority of said corporation.
[Notarial Seal]
-------------------------------------------
Notary Public
COMMISSION EXPIRES:
-69-
<PAGE>
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic companies, or any estate or trust the income of which is subject to
United States federal income taxation regardless of its source ("United States
person(s)"), (ii) are owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in United States Treasury Regulations Section 2.165-12(c)(1)(v) are
herein referred to as "financial institutions") purchasing for their own account
or for resale, or (b) United States person(s) who acquired the Securities
through foreign branches of United States financial institutions and who hold
the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such United States financial
institution hereby agrees, on its own behalf or through its agent, that you may
NVR, Inc. or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal
Revenue Code of 1986, as amended, and the regulations thereunder), or (iii) are
owned by United States or foreign financial institution(s) for purposes of
resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a
United States or foreign financial institution described in clause (iii) above
(whether or not also described in clause (i) or (ii)), this is to further
certify that such financial institution has not acquired the Securities for
purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and "possessions" include
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the above-
captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absent of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S. $] of
such interest in the above-captioned Securities in respect of which we are not
able to certify and as to which we understand an exchange for an interest in a
Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until we
do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
<PAGE>
Dated: _________________, 19__
[To be dated no earlier than the 15th day prior to (i)
the Exchange Date or (ii) the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Name of Person Making Certification]
-----------------------------------
(Authorized Signatory)
Name:
Title:
-2-
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE
OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion
of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S. $]
_____________________principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic companies, domestic corporations or any estate or trust the income of
which is subject to United States Federal income taxation regardless of its
source ("United States person(s)"), (ii) is owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)
are herein referred to as "financial institutions") purchasing for their own
account or for resale, or (b) United States person(s) who acquired the
Securities through foreign branches of United States financial institutions and
who hold the Securities through such United States financial institutions on the
date hereof (and in either case (a) or (b), each such financial institution has
agreed, on its own behalf or through its agent, that we may advise NVR, Inc. or
its agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section 1.163-
5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: 19
------------ --
<PAGE>
[To be dated no earlier than the Exchange Date or the
relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Morgan Guaranty Trust
Company of New York, Brussels Office,] as
Operator of the Euroclear System [Cedel S.A.]
By:
-------------------------------------------
-2-
<PAGE>
Exhibit 5.1
HOGAN & HARTSON L.L.P
Columbia Square
555 THIRTEENTH STREET, N.W.
WASHINGTON, D.C. 20004-1109
(202) 637-5600
(202) 637-5910
January 20, 1998
The Respective Boards of Directors of
NVR, Inc.
NVR Financial Services, Inc.
NVR Homes, Inc.
RVN, Inc.
NVR Fox Ridge, Inc.
7601 Lewinsville Road, Suite 300
McLean, Virginia 22102
Ladies and Gentlemen:
We are acting as special counsel to NVR, Inc., a Virginia corporation
(the "Company"), and to NVR Financial Services, Inc., a Pennsylvania corporation
("NVR Financial"), NVR Homes, Inc., a Virginia corporation ("NVR Homes"), RVN,
Inc., a Delaware corporation ("RVN"), and NVR Fox Ridge, Inc., a Tennessee
corporation ("Fox Ridge" and, together with NVR Financial, NVR Homes and RVN,
the "Guarantors") in connection with the filing of the registration statement of
the Company and the Guarantors on Form S-3 (the "Registration Statement") with
the U.S. Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "1933 Act"), relating to the proposed public offering and sale,
from time to time on a delayed or continuous basis pursuant to Rule 415 under
the 1933 Act, of up to $400,000,000 in aggregate principal amount of the
Company's unsecured, nonconvertible debt securities (the "Debt Securities"),
which may be guaranteed by one or more of the Guarantors.
This opinion letter is furnished to you at your request to enable you
to fulfill the requirements of Item 601(b)(5) of Regulation S-K, 17 C.F.R. (S)
229.601(b)(5), in connection with the Registration Statement.
For purposes of this opinion letter, we have examined copies of the
following documents:
1. An executed copy of the Registration Statement.
<PAGE>
January 20, 1998
Page 2
2. The Restated Articles of Incorporation of the Company, as certified by the
State Corporation Commission of the Commonwealth of Virginia on January 16,
1998 and by the Assistant Secretary of the Company on the date hereof as
being complete, accurate and in effect.
3. The Bylaws of the Company, as certified by the Assistant Secretary of the
Company on the date hereof as being complete, accurate and in effect.
4. The Articles of Incorporation of NVR Financial, as certified by the
Department of State of the Commonwealth of Pennsylvania on January 16, 1998
and by the Assistant Secretary of NVR Financial on the date hereof as being
complete, accurate and in effect.
5. The Bylaws of NVR Financial, as certified by the Assistant Secretary of NVR
Financial on the date hereof as being complete, accurate and in effect.
6. The Restated Articles of Incorporation of NVR Homes, as certified by the
Assistant Secretary of NVR Homes on the date hereof as being complete,
accurate and in effect.
7. The Bylaws of NVR Homes, as certified by the Assistant Secretary of NVR
Homes on the date hereof as being complete, accurate and in effect.
8. The Certificate of Incorporation of RVN, as certified by the Secretary of
State of the State of Delaware on January 15, 1998 and by the Assistant
Secretary of RVN on the date hereof as being complete, accurate and in
effect.
9. The Bylaws of RVN, as certified by the Assistant Secretary of RVN on the
date hereof as being complete, accurate and in effect.
10. The Charter of Fox Ridge, as certified by the Secretary of State of the
State of Tennessee on January 20, 1998 and by the Assistant Secretary of
Fox Ridge on the date hereof as being complete, accurate and in effect.
11. The Bylaws of Fox Ridge, as certified by the Assistant Secretary of Fox
Ridge on the date hereof as being complete, accurate and in effect.
<PAGE>
January 20, 1998
Page 3
12. The proposed form of indenture for senior Debt Securities to be filed as an
exhibit to the Registration Statement.
13. The proposed form of indenture for subordinated Debt Securities to be filed
as an exhibit to the Registration Statement.
14. Resolutions of the Board of Directors of the Company adopted by unanimous
written consent on January 13, 1998, as certified by the Assistant
Secretary of the Company on the date hereof as being complete, accurate and
in effect, relating to the filing of the Registration Statement and
arrangements in connection therewith.
15. Resolutions of the Board of Directors of NVR Financial adopted by unanimous
written consent on January 13, 1998, as certified by the Assistant
Secretary of NVR Financial on the date hereof as being complete, accurate
and in effect, relating to the filing of the Registration Statement and
arrangements in connection therewith.
16. Resolutions of the Board of Directors of NVR Homes adopted by unanimous
written consent on January 13, 1998, as certified by the Assistant
Secretary of NVR Homes on the date hereof as being complete, accurate and
in effect, relating to the filing of the Registration Statement and
arrangements in connection therewith.
17. Resolutions of the Board of Directors of RVN adopted by unanimous written
consent on January 13, 1998, as certified by the Assistant Secretary of RVN
on the date hereof as being complete, accurate and in effect, relating to
the filing of the Registration Statement and arrangements in connection
therewith.
18. Resolutions of the Board of Directors of Fox Ridge adopted by unanimous
written consent on January 13, 1998, as certified by the Assistant
Secretary of Fox Ridge on the date hereof as being complete, accurate and
in effect, relating to the filing of the Registration Statement and
arrangements in connection therewith.
In our examination of these documents, we have assumed the genuineness
of all signatures, the legal capacity of natural persons, the authenticity,
accuracy and completeness of all documents submitted to us, and the conformity
with original documents of all documents submitted to us as copies (including
telecopies). This opinion letter is delivered, and all statements herein are
made, in the context of the foregoing.
<PAGE>
January 20, 1998
Page 4
This opinion letter is based as to matters of law solely on applicable
provisions of (i) the Virginia Stock Corporation Act, (ii) the Pennsylvania
Business Corporation Law, (iii) the Delaware General Corporation Law, (iv) the
Tennessee Business Corporation Act, and (v) New York contract law (but not
including any statutes, ordinances, administrative decisions, rules or
regulations of any political subdivision of the State of New York). We express
no opinion herein as to any other laws, statutes, regulations or ordinances.
Furthermore, the Debt Securities may be issued from time to time on a delayed or
continuous basis, and any opinion expressed in this letter is limited to laws as
in effect on the date hereof.
To the extent that the obligations of the Company and the Guarantors
under an indenture covering the Debt Securities may be dependent upon such
matters, we assume for purposes of this opinion that the trustee under the
indenture will be duly organized, validly existing and in good standing under
the laws of its jurisdiction of organization; that the trustee will be duly
qualified to engage in the activities contemplated by the indenture; that the
indenture will have been duly authorized, executed and delivered by the trustee
and will constitute the valid and binding obligation of the trustee enforceable
in accordance with its terms; and that the trustee will be in compliance with
all applicable laws and regulations relating to its acting as a trustee under
the indenture.
Based upon, subject to and limited by the foregoing, we are of the
opinion that, following (i) effectiveness of the Registration Statement, (ii)
final action by the Board of Directors of the Company, or by a duly authorized
committee of the Board of Directors or officer of the Company in accordance with
the Virginia Stock Corporation Act and the Company's Articles of Incorporation
and Bylaws, fixing and approving the rank and terms of the Debt Securities,
including the form or forms of note to evidence the Debt Securities, in a manner
that does not violate any applicable law, governmental or court-imposed order or
restriction or agreement or instrument then binding on the Company, or otherwise
impair the legal and binding nature of the obligations represented by the Debt
Securities, (iii) final action by the Board of Directors of each Guarantor that
is to provide a guarantee with respect to the Debt Securities, or by a duly
authorized committee of such board or officer of such Guarantor, fixing and
approving the terms and conditions of its guarantee of the Debt Securities, in a
manner that does not violate any applicable law, governmental or court-imposed
order or restriction or agreement or instrument then binding on the Guarantor,
or otherwise impair the legal and binding nature of the obligations of the
Guarantor with respect to the Debt Securities, (iv) qualification of the
indenture or indentures under which the Debt Securities are to be issued under
the Trust Indenture Act of 1939, as amended, and due execution and delivery
thereof by duly authorized officers of the Company, each Guarantor that is to
provide a guarantee with respect to the Debt Securities, and the trustee in the
form or forms filed as exhibits to the Registration Statement, with items shown
in such exhibits as subject to completion
<PAGE>
January 20, 1998
Page 5
completed in a satisfactory manner, (v) due execution and authentication of the
Debt Securities in accordance with the terms of such indenture or indentures,
(vi) delivery to the purchasers of the Debt Securities upon payment of the
consideration fixed therefor by the Board of Directors of the Company, or by a
duly authorized committee of the Board or officer of the Company in accordance
with the Virginia Stock Corporation Act and the Company's Articles of
Incorporation and Bylaws, and in accordance with the terms and conditions of any
applicable underwriting agreement and of any applicable resolution of the Board
of Directors of any Guarantor that provides a guarantee with respect to the Debt
Securities, or of a duly authorized committee of such board or officer of such
Guarantor, all as contemplated in the Registration Statement and in any
applicable prospectus and prospectus supplement filed as part of the
Registration Statement, the Debt Securities will constitute valid and binding
obligations of the Company, and the guarantee of any Guarantor that provides a
guarantee with respect to the Debt Securities will constitute a valid and
binding obligation of such Guarantor, enforceable in accordance with their
terms, except as may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights (including, without
limitation, the effect of statutory and other law regarding fraudulent
conveyances, fraudulent transfers and preferential transfers) and as may be
limited by the exercise of judicial discretion and the application of principles
of equity including, without limitation, requirements of good faith, fair
dealing, conscionability and materiality (regardless of whether the Debt
Securities or any such guarantee is considered in a proceeding in equity or at
law).
The opinions expressed in the preceding paragraph shall be understood
to mean only that if there is a default in performance of an obligation, (i) if
a failure to pay or other damage can be shown and (ii) if the defaulting party
can be brought into a court that will hear the case and apply the governing law,
then, subject to the availability of defenses and to the exceptions set forth in
such opinion, the court will provide a money damage (or perhaps injunctive or
specific performance) remedy.
We assume no obligation to advise you of any changes in the foregoing
after the delivery of this opinion letter. This opinion letter has been
prepared solely for your use in connection with the filing of the Registration
Statement on the date hereof and should not be quoted in whole or in part or
otherwise be referred to, or filed with or furnished to any governmental agency
or other person or entity, without the prior written consent of this firm.
We hereby consent to the filing of this opinion letter as Exhibit 5.1 to the
Registration Statement and to the reference to this firm under the caption
"Legal
<PAGE>
January 20, 1998
Page 6
Matters" in the prospectus constituting a part of the Registration Statement.
In giving this consent, we do not thereby admit that we are an "expert" within
the meaning of the 1933 Act.
Very truly yours,
/s/ Hogan & Hartson L.L.P.
HOGAN & HARTSON L.L.P.
<PAGE>
NVR, Inc. Exhibit 12.1
Fixed Charge Coverage Ratios
Consolidated
<TABLE>
<CAPTION>
Nine Three Nine
Months Ended Year Year Year Months Ended Months Ended
September 30, Ended Ended Ended December 31, September 30,
1997 1996 1995 1994 1993 1993 1992
------------ -------- --------- -------- ----------- ------------ ---------
Consolidated
Fixed Charges
- ---------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Expense - Homebuilding $12,257 $16,611 $17,166 $20,208 $ 5,281 $ 5,573 $20,608
Interest Expense - Mortgage Banker 2,333 2,249 2,090 2,364 1,557 2,296 3,874
Interest Expense - LPFS 1,787 6,398 8,124 14,319 4,785 18,787 40,296
Capitalized interest amortized to COS 0 0 0 0 8,438 14,100
Change in capitalized interest 0 0 0 0 0 (4,700) (4,300)
------------ -------- --------- -------- ----------- ------------ ---------
$16,377 $25,258 $27,380 $36,891 $11,623 $30,394 $74,578
============ ======== ========= ======== =========== ============ =========
Pre-tax income from continuing operations $44,751 $25,781 $16,400 $22,161 ($9,089) ($9,130) ($9,674)
Add : Net decrease (increase) in
Capitalized interest 0 0 0 0 0 4,700 4,300
Add: Fixed charges 16,377 25,258 27,380 36,891 11,623 30,394 74,578
------------ -------- --------- -------- ----------- ------------ ---------
Earnings before fixed charges $61,128 $51,039 $43,780 $59,052 $ 2,534 $25,964 $69,204
============ ======== ========= ======== =========== ============ =========
Ratio 3.7 2.0 1.6 1.6 Deficient Deficient Deficient
============ ======== ========= ======== =========== ============ =========
Deficiency in dollars $ 9,089 $ 4,430 $ 5,374
=========== ============ =========
</TABLE>
<PAGE>
NVR, Inc. Exhibit 12.1
Fixed Charge Coverage Ratios
Homebuilding Operations
<TABLE>
<CAPTION>
Nine Three Nine
Months Ended Year Year Year Months Ended Months Ended
September 30, Ended Ended Ended December 31, September 30,
1997 1996 1995 1994 1993 1993 1992
Excluding Financial Sevices ---------- ---------- --------- --------- ------------ ------------ ---------
and reorganization items
Fixed Charges
- --------------------------------------
<S> <C> <C> <C> <C> <C> <C> <C>
Interest Expense - Homebuilding $12,257 $16,611 $17,166 $20,208 $5,281 $5,573 $20,608
Capitalized interest amortized to COS 0 0 0 0 0 8,438 14,100
Change in capitalized interest 0 0 0 0 0 (4,700) (4,300)
---------- ---------- --------- --------- ----------- ---------- ----------
$12,257 $16,611 $17,166 $20,208 $5,281 $9,311 $30,408
========== ========== ========= ========= =========== ========== ==========
Pre-tax income from continuing operations $41,640 $46,114 $32,247 $22,253 ($5,227) $11,645 ($1,073)
Add: Net decrease (increase) in
Capitalized interest 0 0 0 0 0 4,700 4,300
Add: Fixed charges 12,257 16,611 17,166 20,208 5,281 9,311 30,408
---------- ---------- --------- --------- ----------- ---------- ----------
Earnings before fixed charges $53,897 $62,725 $49,413 $42,461 $54 $25,656 $33,635
========== ========== ========= ========= =========== ========== ==========
Ratio 4.4 3.8 2.9 2.1 Deficient 2.8 1.1
========== ========== ========= ========= =========== ========== ==========
Deficiency in dollars $5,227
===========
</TABLE>
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
-------------------------------
The Board of Directors
NVR, Inc.:
We consent to the use of our reports incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
Each of our reports for NVR, Inc. and NVR Financial Services, Inc. incorporated
herein by reference contains an explanatory paragraph as to the adoption,
effective January 1, 1995, of the provisions of Statement of Financial
Accounting Standards No. 122, "Accounting for Mortgage Servicing Rights."
----------------------------------------
KPMG Peat Marwick LLP
Pittsburgh, Pennsylvania
January 19, 1998
<PAGE>
Exhibit 24.1
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors of
NVR, Inc., a Virginia corporation (the "Corporation"), constitutes and appoints
Dwight C. Schar and Paul C. Saville, and each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign the
Registration Statement on Form S-3 of the Corporation covering the offer and
sale, from time to time on a delayed or continuous basis, of debt securities in
the aggregate principal amount of approximately $400,000,000, and any and all
amendments thereto (including post-effective amendments) and subsequent
registration statements filed by the Corporation under Rule 462(b) of the U.S.
Securities and Exchange Commission ("SEC"), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them or their
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ C. Scott Bartlett, Jr. Director January 13, 1998
- -----------------------------
C. Scott Bartlett, Jr.
/s/ Manuel H. Johnson Director January 13, 1998
- -----------------------------
Manuel H. Johnson
/s/ William A. Moran Director January 13, 1998
- -----------------------------
William A. Moran
/s/ Richard H. Norair, Sr. Director January 13, 1998
- -----------------------------
Richard H. Norair, Sr.
/s/ David A. Preiser Director January 13, 1998
- -----------------------------
David A. Preiser
/s/ George E. Slye Director January 13, 1998
- -----------------------------
George E. Slye
/s/ John M. Toups Director January 13, 1998
- -----------------------------
John M. Toups
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and/or officers of NVR Financial Services, Inc., a Pennsylvania corporation (the
"Corporation"), constitutes and appoints Dwight C. Schar and Paul C. Saville,
and each of them, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign the Registration Statement on Form S-3
of NVR, Inc., as primary obligor, and of the Corporation, NVR Homes, Inc., RVN,
Inc. and NVR Fox Ridge, Inc., as guarantors, covering the offer and sale, from
time to time on a delayed or continuous basis, of debt securities in the
aggregate principal amount of approximately $400,000,000, and any and all
amendments thereto (including post-effective amendments) and subsequent
registration statements filed by the registrants under Rule 462(b) of the U.S.
Securities and Exchange Commission ("SEC"), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them or their
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ William J. Inman President and Director January 13, 1998
- ---------------------
William J. Inman
/s/ Michael J. Cannizzo Director January 13, 1998
- --------------------------
Michael J. Cannizzo
/s/ Peter J. Fitzsimmons Treasurer January 13, 1998
- ---------------------------
Peter J. Fitzsimmons
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors of
NVR Homes, Inc., a Virginia corporation (the "Corporation"), constitutes and
appoints Dwight C. Schar and Paul C. Saville, and each of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-3 of NVR, Inc., as
primary obligor, and of the Corporation, NVR Financial Services, Inc., RVN, Inc.
and NVR Fox Ridge, Inc., as guarantors, covering the offer and sale, from time
to time on a delayed or continuous basis, of debt securities in the aggregate
principal amount of approximately $400,000,000, and any and all amendments
thereto (including post-effective amendments) and subsequent registration
statements filed by the registrants under Rule 462(b) of the U.S. Securities and
Exchange Commission ("SEC"), and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the SEC, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or their substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ William J. Inman Director January 13, 1998
- -----------------------
William J. Inman
/s/ Michael J. Cannizzo Director January 13, 1998
- --------------------------
Michael J. Cannizzo
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned directors
and/or officers of RVN, Inc., a Delaware corporation (the "Corporation"),
constitutes and appoints Dwight C. Schar and Paul C. Saville, and each of them,
his true and lawful attorney-in-fact and agent, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-3 of NVR, Inc., as
primary obligor, and of the Corporation, NVR Financial Services, Inc., NVR
Homes, Inc. and NVR Fox Ridge, Inc., as guarantors, covering the offer and sale,
from time to time on a delayed or continuous basis, of debt securities in the
aggregate principal amount of approximately $400,000,000, and any and all
amendments thereto (including post-effective amendments) and subsequent
registration statements filed by the registrants under Rule 462(b) of the U.S.
Securities and Exchange Commission ("SEC"), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said attorneys-in-fact and agents, and each of them, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as the undersigned might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them or their
substitutes, may lawfully do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ William J. Inman President January 13, 1998
- ---------------------
William J. Inman
/s/ Thomas Ruck Director January 13, 1998
- ---------------------
Thomas Ruck
/s/ Frank Stagno Treasurer January 13, 1998
- ---------------------
Frank Stagno
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director of NVR Fox
Ridge, Inc., a Tennessee corporation (the "Corporation"), constitutes and
appoints Dwight C. Schar and Paul C. Saville, and each of them, his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-3 of NVR, Inc., as
primary obligor, and of the Corporation, NVR Financial Services, Inc., NVR
Homes, Inc. and RVN, Inc., as guarantors, covering the offer and sale, from time
to time on a delayed or continuous basis, of debt securities in the aggregate
principal amount of approximately $400,000,000, and any and all amendments
thereto (including post-effective amendments) and subsequent registration
statements filed by the registrants under Rule 462(b) of the U.S. Securities and
Exchange Commission ("SEC"), and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the SEC, granting unto said
attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or any of them or their substitutes, may lawfully
do or cause to be done by virtue hereof.
SIGNATURE TITLE DATE
- --------- ----- ----
/s/ William J. Inman Director January 13, 1998
- ----------------------------
William J. Inman
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of NVR, Inc., a Virginia corporation (the "Corporation"); NVR Financial
Services, Inc., a Pennsylvania corporation; NVR Homes, Inc., a Virginia
corporation; and NVR Fox Ridge, Inc., a Tennessee corporation, constitutes and
appoints Paul C. Saville his true and lawful attorney-in-fact and agent, with
full power of substitution and resubstitution, for him and in his name, place
and stead, in any and all capacities, to sign the Registration Statement on Form
S-3 of the Corporation, as primary obligor, and of NVR Financial Services, Inc.,
NVR Homes, Inc., RVN, Inc., a Delaware corporation, and NVR Fox Ridge, Inc., as
guarantors, covering the offer and sale, from time to time on a delayed or
continuous basis, of debt securities in the aggregate principal amount of
approximately $400,000,000, and any and all amendments thereto (including post-
effective amendments) and subsequent registration statements filed by the
registrants under Rule 462(b) of the U.S. Securities and Exchange Commission
("SEC"), and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the SEC, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as the undersigned might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agent, or any of his
substitutes, may lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Dwight C. Schar Chairman of the Board of January 13, 1998
- ------------------------------ Directors, President and
Dwight C. Schar Chief Executive Officer
of the Corporation;
Director of NVR Financial
Services, Inc.; Chairman
of the Board of Directors,
Chief Executive Officer
and President of NVR Homes,
Inc.; Chairman of the
Board and Director of NVR
Fox Ridge, Inc.
</TABLE>
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned officer and/or
director of NVR, Inc., a Virginia corporation (the "Corporation"); NVR Financial
Services, Inc., a Pennsylvania corporation; NVR Homes, Inc., a Virginia
corporation; RVN, Inc., a Delaware corporation; and NVR Fox Ridge, Inc., a
Tennessee corporation, constitutes and appoints Dwight C. Schar his true and
lawful attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign the Registration Statement on Form S-3 of the Corporation,
as primary obligor, and of NVR Financial Services, Inc., NVR Homes, Inc., RVN,
Inc., and NVR Fox Ridge, Inc., as guarantors, covering the offer and sale, from
time to time on a delayed or continuous basis, of debt securities in the
aggregate principal amount of approximately $400,000,000, and any and all
amendments thereto (including post-effective amendments) and subsequent
registration statements filed by the registrants under Rule 462(b) of the U.S.
Securities and Exchange Commission ("SEC"), and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the SEC,
granting unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in and
about the premises, as fully to all intents and purposes as the undersigned
might or could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or any of his substitutes, may lawfully do or cause
to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ Paul C. Saville Senior Vice President, January 13, 1998
- ---------------------- Chief Financial Officer
Paul C. Saville and Treasurer of the
Corporation; Director
of NVR Financial
Services, Inc.; Senior
Vice President Finance,
Chief Financial Officer,
Treasurer and Director
of NVR Homes, Inc.; Vice
President (Principal
Financial Officer) and
Director of RVN, Inc;
Director of NVR Fox Ridge,
Inc. (and Principal
Financial and Accounting
Officer)
</TABLE>
<PAGE>
Exhibit 99.2
------------
PURDON'S PENNSYLVANIA CONSOLIDATED STATUTES ANNOTATED
TITLE 15. CORPORATIONS AND UNINCORPORATED ASSOCIATIONS
PART II. CORPORATIONS
SUBPART B. BUSINESS CORPORATIONS
ARTICLE B. DOMESTIC BUSINESS CORPORATIONS GENERALLY
CHAPTER 17. OFFICERS, DIRECTORS AND SHAREHOLDERS
SUBCHAPTER D. INDEMNIFICATION
(S) 1741. Third-party actions
Unless otherwise restricted in its bylaws, a business corporation
shall have power to indemnify any person who was or is a party or is threatened
to be made a party to any threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), by reason of the fact that he is or was
a representative of the corporation, or is or was serving at the request of the
corporation as a representative of another domestic or foreign corporation for
profit or not-for-profit, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with the
action or proceeding if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the corporation and,
with respect to any criminal proceeding, had no reasonable cause to believe his
conduct was unlawful. The termination of any action or proceeding by judgment,
order, settlement or conviction or upon a plea of nolo contendere or its
equivalent shall not of itself create a presumption that the person did not act
in good faith and in a manner that he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal proceeding, had reasonable cause to believe that his conduct was
unlawful.
(S) 1742. Derivative and corporate actions
Unless otherwise restricted in its bylaws, a business corporation
shall have power to indemnify any person who was or is a party, or is threatened
to be made a party, to any threatened, pending or completed action by or in the
right of the corporation to procure a judgment in its favor by reason of the
fact that he is or was a representative of the corporation or is or was serving
at the request of the corporation as a representative of another domestic or
foreign corporation for profit or not-for-profit, partnership, joint venture,
trust or other enterprise, against expenses (including attorneys' fees) actually
and reasonably incurred by him in connection with the defense or settlement of
the action if he acted in good faith and in a manner he reasonably believed to
be in, or not opposed to, the best interests of the corporation. Indemnification
shall not be made under this section in respect of any claim, issue or matter as
to which the person has been adjudged to be liable to the corporation unless and
only to the extent that the court of common pleas of the judicial district
embracing the county in which the registered office of the corporation is
located or the court in which the action was brought determines upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnity for the
expenses that the court of common pleas or other court deems proper.
(S) 1743. Mandatory indemnification
To the extent that a representative of a business corporation has been
successful on the merits or otherwise in defense of any action or proceeding
referred to in section 1741 (relating to third-party actions) or 1742 (relating
to derivative and corporate actions) or in defense of any claim, issue or matter
therein, he shall be indemnified against expenses (including attorney fees)
actually and reasonably incurred by him in connection therewith.
<PAGE>
(S) 1744. Procedure for effecting indemnification
Unless ordered by a court, any indemnification under section 1741
(relating to third-party actions) or 1742 (relating to derivative and corporate
actions) shall be made by the business corporation only as authorized in the
specific case upon a determination that indemnification of the representative is
proper in the circumstances because he has met the applicable standard of
conduct set forth in those sections. The determination shall be made:
(1) by the board of directors by a majority vote of a quorum
consisting of directors who were not parties to the action or proceeding;
(2) if such a quorum is not obtainable or if obtainable and a majority
vote of a quorum of disinterested directors so directs, by independent legal
counsel in a written opinion; or
(3) by the shareholders.
(S) 1745. Advancing expenses
Expenses (including attorneys' fees) incurred in defending any action
or proceeding referred to in this subchapter may be paid by a business
corporation in advance of the final disposition of the action or proceeding upon
receipt of an undertaking by or on behalf of the representative to repay the
amount if it is ultimately determined that he is not entitled to be indemnified
by the corporation as authorized in this subchapter or otherwise.
(S) 1746. Supplementary coverage
(a) General rule.--The indemnification and advancement of expenses
provided by, or granted pursuant to, the other sections of this subchapter shall
not be deemed exclusive of any other rights to which a person seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding that office. Section 1728 (relating to interested directors or officers;
quorum) and, in the case of a registered corporation, section 2538 (relating to
approval of transactions with interested shareholders) shall be applicable to
any bylaw, contract or transaction authorized by the directors under this
section. A corporation may create a fund of any nature, which may, but need not
be, under the control of a trustee, or otherwise secure or insure in any manner
its indemnification obligations, whether arising under or pursuant to this
section or otherwise.
(b) When indemnification is not to be made.--Indemnification pursuant
to subsection (a) shall not be made in any case where the act or failure to act
giving rise to the claim for indemnification is determined by a court to have
constituted willful misconduct or recklessness. The articles may not provide for
indemnification in the case of willful misconduct or recklessness.
(c) Grounds.--Indemnification pursuant to subsection (a) under any
bylaw, agreement, vote of shareholders or directors or otherwise may be granted
for any action taken and may be made whether or not the corporation would have
the power to indemnify the person under any other provision of law except as
provided in this section and whether or not the indemnified liability arises or
arose from any threatened, pending or completed action by or in the right of the
corporation. Such indemnification is declared to be consistent with the public
policy of this Commonwealth.
(S) 1747. Power to purchase insurance
Unless otherwise restricted in its bylaws, a business corporation
shall have power to purchase and maintain insurance on behalf of any person who
is or was a representative of the corporation or is or was serving at the
request of the corporation as a representative of another domestic or foreign
corporation for profit or not-for-profit, partnership, joint venture, trust or
other enterprise against any liability asserted against him and incurred by him
in any such capacity, or arising out of his status as such, whether or not the
corporation would have the power to indemnify him against that liability under
the provisions of this subchapter. Such insurance is declared to be consistent
with the public policy of this Commonwealth.
<PAGE>
(S) 1748. Application to surviving or new corporations
For the purposes of this subchapter, references to "the corporation"
include all constituent corporations absorbed in a consolidation, merger or
division, as well as the surviving or new corporations surviving or resulting
therefrom, so that any person who is or was a representative of the constituent,
surviving or new corporation, or is or was serving at the request of the
constituent, surviving or new corporation as a representative of another
domestic or foreign corporation for profit or not-for-profit, partnership, joint
venture, trust or other enterprise, shall stand in the same position under the
provisions of this subchapter with respect to the surviving or new corporation
as he would if he had served the surviving or new corporation in the same
capacity.
(S) 1749. Application to employee benefit plans
For purposes of this subchapter:
(1) References to "other enterprises" shall include employee benefit
plans and references to "serving at the request of the corporation" shall
include any service as a representative of the business corporation that imposes
duties on, or involves services by, the representative with respect to an
employee benefit plan, its participants or beneficiaries.
(2) Excise taxes assessed on a person with respect to an employee
benefit plan pursuant to applicable law shall be deemed "fines."
(3) Action with respect to an employee benefit plan taken or omitted
in good faith by a representative of the corporation in a manner he reasonably
believed to be in the interest of the participants and beneficiaries of the plan
shall be deemed to be action in a manner that is not opposed to the best
interests of the corporation.
(S) 1750. Duration and extent of coverage
The indemnification and advancement of expenses provided by, or
granted pursuant to, this subchapter shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
representative of the corporation and shall inure to the benefit of the heirs
and personal representative of that person.
<PAGE>
Exhibit 99.3
------------
MICHIE'S DELAWARE CORPORATION LAWS ANNOTATED
TITLE 8. CORPORATIONS
CHAPTER 1. GENERAL CORPORATION LAW
(S) 145. Indemnification of officers, directors, employees and agents;
insurance.
(a) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that the person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by the person in connection with such action, suit or proceeding if the
person acted in good faith and in a manner the person reasonably believed to be
in or not opposed to the best interests of the corporation, and, with respect to
any criminal action or proceeding, had no reasonable cause to believe the
person's conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction, or upon a plea of nolo
contendere or its equivalent, shall not, of itself, create a presumption that
the person did not act in good faith and in a manner which the person reasonably
believed to be in or not opposed to the best interests of the corporation, and,
with respect to any criminal action or proceeding, had reasonable cause to
believe that the person's conduct was unlawful.
(b) A corporation shall have power to indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against expenses (including attorneys' fees) actually and reasonably incurred by
the person in connection with the defense or settlement of such action or suit
if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the corporation and except that
no indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the Court of Chancery or the
<PAGE>
court in which such action or suit was brought shall determine upon application
that, despite the adjudication of liability but in view of all the circumstances
of the case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
(c) To the extent that a present or former director or officer of a
corporation has been successful on the merits or otherwise in defense of any
action, suit or proceeding referred to in subsections (a) and (b) of this
section, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection therewith.
(d) Any indemnification under subsections (a) and (b) of this section
(unless ordered by a court) shall be made by the corporation only as authorized
in the specific case upon a determination that indemnification of the present or
former director, officer, employee or agent is proper in the circumstances
because the person has met the applicable standard of conduct set forth in
subsections (a) and (b) of this section. Such determination shall be made, with
respect to a person who is a director or officer at the time of such
determination, (1) by a majority vote of the directors who are not parties to
such action, suit or proceeding, even though less than a quorum, or (2) by a
committee of such directors designated by majority vote of such directors, even
though less than a quorum, or (3) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (4)
by the stockholders.
(e) Expenses (including attorneys' fees) incurred by an officer or director
in defending any civil, criminal, administrative or investigative action, suit
or proceeding may be paid by the corporation in advance of the final disposition
of such action, suit or proceeding upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if it shall ultimately
be determined that such person is not entitled to be indemnified by the
corporation as authorized in this section. Such expenses (including attorneys'
fees) incurred by former directors and officers or other employees and agents
may be so paid upon such terms and conditions, if any, as the corporation deems
appropriate.
(f) The indemnification and advancement of expenses provided by, or granted
pursuant to, the other subsections of this section shall not be deemed exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any bylaw, agreement, vote of stockholders or
disinterested directors or otherwise, both as to action in such person's
official capacity and as to action in another capacity while holding such
office.
(g) A corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of the
<PAGE>
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against such
person and incurred by such person in any such capacity, or arising out of such
person's status as such, whether or not the corporation would have the power to
indemnify such person against such liability under this section.
(h) For purposes of this section, references to "the corporation" shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, and employees or agents, so that
any person who is or was a director, officer, employee or agent of such
constituent corporation, or is or was serving at the request of such constituent
corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, shall stand in the same
position under this section with respect to the resulting or surviving
corporation as such person would have with respect to such constituent
corporation if its separate existence had continued.
(i) For purposes of this section, references to "other enterprises" shall
include employee benefit plans; references to "fines" shall include any excise
taxes assessed on a person with respect to any employee benefit plan; and
references to "serving at the request of the corporation" shall include any
service as a director, officer, employee or agent of the corporation which
imposes duties on, or involves services by, such director, officer, employee or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the corporation" as referred to in this
section.
(j) The indemnification and advancement of expenses provided by, or granted
pursuant to, this section shall, unless otherwise provided when authorized or
ratified, continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
(k) The Court of Chancery is hereby vested with exclusive jurisdiction to
hear and determine all actions for advancement of expenses or indemnification
brought under this section or under any bylaw, agreement, vote of stockholders
or disinterested directors, or otherwise. The Court of Chancery may summarily
determine a corporation's obligation to advance expenses (including attorneys'
fees).
<PAGE>
Exhibit 99.4
------------
TENNESSEE CODE ANNOTATED
TITLE 48 CORPORATIONS AND ASSOCIATIONS
FOR-PROFIT BUSINESS CORPORATIONS
CHAPTER 18 DIRECTORS AND OFFICERS
Part 5-- Indemnification
48-18-501 Definitions.
In this part:
(1) "Corporation" includes any domestic or foreign predecessor entity of a
corporation in a merger or other transaction in which the predecessor's
existence ceased upon consummation of the transaction;
(2) "Director" means an individual who is or was a director of a corporation,
including individuals acting pursuant to (S) 48-18-101, or an individual who,
while a director of a corporation, is or was serving at the corporation's
request as a director, officer, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise. A director is considered to be serving an
employee benefit plan at the corporation's request if the director's duties to
the corporation also impose duties on or otherwise involve services by the
director to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate or
personal representative of a director;
(3) "Expenses" includes counsel fees;
(4) "Liability" means the obligation to pay a judgment, settlement, penalty,
fine (including an excise tax assessed with respect to an employee benefit
plan), or reasonable expenses incurred with respect to a proceeding;
(5) "Official capacity" means:
(A) When used with respect to a director, the office of director in a
corporation; and
(B) When used with respect to an individual other than a director, as
contemplated in (S) 48-18-507,
the office in a corporation held by the officer or the employment or agency
relationship undertaken by the employee or agent on behalf of the corporation.
"Official capacity" does not include service for any other foreign or domestic
corporation or any partnership, joint venture, trust, employee benefit plan, or
other enterprise;
(6) "Party" includes an individual who was, is, or is threatened to be made a
named defendant or respondent in a proceeding; and
(7) "Proceeding" means any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative and
whether formal or informal.
48-18-502 Authority to indemnify.
(a) Except as provided in subsection (d), a corporation may indemnify an
individual made a party to a proceeding because the individual is or was a
director against liability incurred in the proceeding if:
(1) The individual's conduct was in good faith; and
<PAGE>
(2) The individual reasonably believed:
(A) In the case of conduct in the individual's official capacity with the
corporation, that the individual's conduct was in its best interest; and
(B) In all other cases, that the individual's conduct was at least not
opposed to its best interests; and
(3) In the case of any criminal proceeding, the individual had no reasonable
cause to believe the individual's conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose the director reasonably believed to be in the interests of the
participants in and beneficiaries of the plan is conduct that satisfies the
requirement of subdivision (a)(2)(B).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not, of
itself, determinative that the director did not meet the standard of conduct
described in this section.
(d) A corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of the corporation in
which the director was adjudged liable to the corporation; or
(2) In connection with any other proceeding charging improper personal benefit
to the director, whether or not involving action in the director's official
capacity, in which the director was adjudged liable on the basis that personal
benefit was improperly received by the director.
48-18-503 Mandatory indemnification.
Unless limited by its charter, a corporation shall indemnify a director who
was wholly successful, on the merits or otherwise, in the defense of any
proceeding to which the director was a party because the director is or was a
director of the corporation against reasonable expenses incurred by the director
in connection with the proceeding.
48-18-504 Advance for expenses.
(a) A corporation may pay for or reimburse the reasonable expenses incurred
by a director who is a party to a proceeding in advance of final disposition of
the proceeding if:
(1) The director furnishes the corporation a written affirmation of the
director's good faith belief that the director has met the standard of conduct
described in (S) 48-18-502;
(2) The director furnishes the corporation a written undertaking, executed
personally or on the director's behalf, to repay the advance if it is ultimately
determined that the director is not entitled to indemnification; and
(3) A determination is made that the facts then known to those making the
determination would not preclude indemnification under this part.
(b) The undertaking required by subdivision (a)(2) must be an unlimited general
obligation of the director but need not be secured and may be accepted without
reference to financial ability to make repayment.
(c) Determinations and authorizations of payments under this section shall be
made in the manner specified in (S) 48-18-506.
<PAGE>
48-18-505 Court ordered indemnification.
Unless a corporation's charter provides otherwise, a director of the
corporation who is a party to a proceeding may apply for indemnification to the
court conducting the proceeding or to another court of competent jurisdiction.
On receipt of an application, the court, after giving any notice the court
considers necessary, may order indemnification if it determines the director is:
(1) Entitled to mandatory indemnification under (S) 48-18-503, in which case
the court shall also order the corporation to pay the director's reasonable
expenses incurred to obtain court-ordered indemnification; or
(2) Fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not the director met the standard of conduct
set forth in (S) 48-18-502 or was adjudged liable as described in (S) 48-18-
502(d), but if the director was adjudged so liable the director's
indemnification is limited to reasonable expenses incurred.
48-18-506 Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under (S) 48-18-502 unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because the
director has met the standard of conduct set forth in (S) 48-18-502.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum consisting of
directors not at the time parties to the proceeding;
(2) If a quorum cannot be obtained under subdivision (b)(1), by majority vote
of a committee duly designated by the board of directors (in which designation
directors who are parties may participate), consisting solely of two (2) or more
directors not at the time parties to the proceeding;
(3) By independent special legal counsel:
(A) Selected by the board of directors or its committee in the manner
prescribed in subdivision (1) or (2); or
(B) If a quorum of the board of directors cannot be obtained under subdivision
(b)(1) and a committee cannot be designated under subdivision (b)(2), selected
by majority vote of the full board of directors (in which selection directors
who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the control of
directors who are at the time parties to the proceeding may not be voted on the
determination.
(c) Authorization of indemnification and evaluation as to reasonableness of
expenses shall be made in the same manner as the determination that
indemnification is permissible, except that if the determination is made by
special legal counsel, authorization of indemnification and evaluation as to
reasonableness of expenses shall be made by those entitled under subdivision
(b)(3) to select counsel.
[48-18-507 Indemnification of officers, employees, and agents.
Unless a corporation's charter provides otherwise:
(1) An officer of the corporation who is not a director is entitled to
mandatory indemnification under (S) 48-18-503, and is entitled to apply for
court-ordered indemnification under (S) 48-18-505, in each case to the same
extent as a director;
<PAGE>
(2) The corporation may indemnify and advance expenses under this part to an
officer, employee, or agent of the corporation who is not a director to the same
extent as to a director; and
(3) A corporation may also indemnify and advance expenses to an officer,
employee, or agent who is not a director to the extent, consistent with public
policy, that may be provided by its charter, bylaws, general or specific action
of its board of directors, or contract.
48-18-508 Insurance.
A corporation may purchase and maintain insurance on behalf of an individual
who is or was a director, officer, employee, or agent of the corporation, or
who, while a director, officer, employee, or agent of the corporation, is or was
serving at the request of the corporation as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit plan, or other enterprise,
against liability asserted against or incurred by the individual in that
capacity or arising from the individual's status as a director, officer,
employee, or agent, whether or not the corporation would have power to indemnify
the individual against the same liability under (S) 48-18-502 or (S) 48- 18-503.
48-18-509 Application of part.
(a) The indemnification and advancement of expenses granted pursuant to, or
provided by, chapters 11-27 of this title shall not be deemed exclusive of any
other rights to which a director seeking indemnification or advancement of
expenses may be entitled, whether contained in chapters 11-27 of this title, the
charter, or the bylaws or, when authorized by such charter or bylaws, in a
resolution of shareholders, a resolution of directors, or an agreement providing
for such indemnification; provided, that no indemnification may be made to or on
behalf of any director if a judgment or other final adjudication adverse to the
director establishes the director's liability:
(1) For any breach of the duty of loyalty to the corporation or its
shareholders;
(2) For acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law; or
(3) Under (S) 48-18-304.
Nothing contained in chapters 11-27 of this title shall affect any rights to
indemnification to which corporate personnel, other than directors, may be
entitled by contract or otherwise under law. If the charter limits
indemnification or advance for expenses, indemnification and advance for
expenses are valid only to the extent consistent with the charter.
(b) This part does not limit a corporation's power to pay or reimburse
expenses incurred by a director in connection with the director's appearance as
a witness in a proceeding at a time when the director has not been made a named
defendant or respondent to the proceeding.
