Exhibit 4.2
D.R. HORTON, INC. AND THE GUARANTORS PARTY HERETO
9.75% Senior Notes due 2010
Twenty-Ninth Supplemental Indenture
Dated as of June 20, 2008
AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC,
Trustee
TABLE
OF CONTENTS
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| ARTICLE ONE Scope of
Supplemental Indenture; General |
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| ARTICLE TWO Certain
Definitions |
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| ARTICLE THREE
Covenants |
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| Section 3.01. |
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Repurchase of
Notes upon Change of Control
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| Section 3.02. |
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Limitations on
Liens
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| Section 3.03. |
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Limitations on
Restrictions Affecting Restricted Subsidiaries
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| Section 3.04. |
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Limitations on
Mergers, Consolidations and Sales of Assets
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| Section 3.05. |
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Reports to Holders
of Notes
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| ARTICLE FOUR
Miscellaneous |
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| Section 4.01. |
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Governing
Law
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| Section 4.02. |
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No Adverse
Interpretation of Other Agreements
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| Section 4.03. |
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No Recourse
Against Others
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| Section 4.04. |
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Successors and
Assigns
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| Section 4.05. |
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Duplicate
Originals
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| Section 4.06. |
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Severability
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-i-
TWENTY-NINTH
SUPPLEMENTAL INDENTURE dated as of June 20, 2008 (“
Supplemental Indenture ”), to the Indenture dated as
of June 9, 1997 (as amended, modified or supplemented from
time to time in accordance therewith, the “ Indenture
”), by and among D.R. HORTON, INC., a Delaware corporation
(the “ Company ”), each of the GUARANTORS (as
defined herein) and AMERICAN STOCK TRANSFER & TRUST COMPANY,
LLC, formerly known as American Stock Transfer & Trust Company,
as trustee (the “ Trustee ”).
Each
party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the holders of Notes (as defined
herein):
WHEREAS,
the Company, the Guarantors and the Trustee have duly authorized
the execution and delivery of the Indenture to provide for the
issuance from time to time of senior debt securities (the “
Securities ”) to be issued in one or more series as in
the Indenture provided;
WHEREAS,
the Company and the Guarantors desire and have requested the
Trustee to join them in the execution and delivery of this
Supplemental Indenture in order to establish and provide for the
issuance by the Company of a series of Securities designated as its
9.75% Senior Notes due 2010, substantially in the form attached
hereto as Exhibit A (the “ Notes ”),
guaranteed by the Guarantors, on the terms set forth herein;
WHEREAS,
Section 2.01 of the Indenture provides that a supplemental
indenture may be entered into by the Company, the Guarantors and
the Trustee for such purpose provided certain conditions are
met;
WHEREAS,
the conditions set forth in the Indenture for the execution and
delivery of this Supplemental Indenture have been complied with;
and
WHEREAS,
all things necessary to make this Supplemental Indenture a valid
agreement of the Company, the Guarantors and the Trustee, in
accordance with its terms, and a valid amendment of, and supplement
to, the Indenture have been done;
NOW,
THEREFORE:
In
consideration of the premises and the purchase and acceptance of
the Notes by the holders thereof the Company and the Guarantors
mutually covenant and agree with the Trustee, for the equal and
ratable benefit of the holders, that the Indenture is supplemented
and amended, to the extent expressed herein, as follows:
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ARTICLE ONE
Scope of Supplemental Indenture; General
The
changes, modifications and supplements to the Indenture effected by
this Supplemental Indenture shall be applicable only with respect
to, and govern the terms of, the Notes, which shall be limited in
aggregate principal amount to $113.5 million in one or more
series, and shall not apply to any other Securities that may be
issued under the Indenture unless a supplemental indenture with
respect to such other Securities specifically incorporates such
changes, modifications and supplements. Pursuant to this
Supplemental Indenture, there is hereby created and designated a
series of Securities under the Indenture entitled “9.75 %
Senior Notes due 2010.” The Notes shall be in the form of
Exhibit A hereto. The Notes shall be guaranteed by the
Guarantors as provided in such form and the Indenture. If required,
the Notes may bear an appropriate legend regarding original issue
discount for federal income tax purposes. The covenants provided in
Article Three of this Supplemental Indenture are applicable
(unless waived or amended as provided in the Indenture) so long as
the Notes are outstanding or until defeasance pursuant to the
Indenture.
ARTICLE TWO
Certain Definitions
The
following terms have the meanings set forth below in this
Supplemental Indenture. Capitalized terms used but not defined
herein have the meanings ascribed to such terms in the Indenture.
To the extent terms defined herein differ from the Indenture the
terms defined herein will govern.
“
Acquired Indebtedness ” means (i) with respect to
any Person that becomes a Restricted Subsidiary (or is merged into
the Company or any Restricted Subsidiary) after the Issue Date,
Indebtedness of such Person or any of its Subsidiaries existing at
the time such Person becomes a Restricted Subsidiary (or is merged
into the Company or any Restricted Subsidiary) that was not
incurred in connection with, or in contemplation of, such Person
becoming a Restricted Subsidiary (or being merged into the Company
or any Restricted Subsidiary) and (ii) with respect to the
Company or any Restricted Subsidiary, any Indebtedness expressly
assumed by the Company or any Restricted Subsidiary in connection
with the acquisition of any assets from another Person (other than
the Company or any Restricted Subsidiary), which Indebtedness was
not incurred by such other Person in connection with or in
contemplation of such acquisition. Indebtedness incurred in
connection with or in contemplation of any transaction described in
clause (i) or (ii) of the preceding sentence shall not be
deemed Acquired Indebtedness.
-3-
“
Affiliate ” means, when used with reference to a
specified Person, any Person directly or indirectly controlling or
controlled by or under direct or indirect common control with the
Person specified.
“
Attributable Debt ” means, with respect to any
Capitalized Lease Obligations, the capitalized amount thereof
determined in accordance with GAAP.
“
Bankruptcy Law ” means title 11 of the United States
Code, as amended, or any similar federal or state law for the
relief of debtors.
“
Business Day ” means each Monday, Tuesday, Wednesday,
Thursday and Friday which is not a day on which banking
institutions in New York, New York are authorized or obligated by
law or executive order to close.
“
Capital Stock ” means, with respect to any Person, any
and all shares, interests, participations or other equivalents
(however designated) of or in such Person’s capital stock or
other equity interests, and options, rights or warrants to purchase
such capital stock or other equity interests, whether now
outstanding or issued after the Issue Date, including, without
limitation, all Disqualified Stock and Preferred Stock.
“
Capitalized Lease Obligations ” of any Person means
the obligations of such Person to pay rent or other amounts under a
lease that is required to be capitalized for financial reporting
purposes in accordance with GAAP, and the amount of such
obligations will be the capitalized amount thereof determined in
accordance with GAAP.
“
Change of Control ” means (i) any sale, lease or
other transfer (in one transaction or a series of transactions) of
all or substantially all of the consolidated assets of the Company
and its Restricted Subsidiaries to any Person (other than a
Restricted Subsidiary); provided , however , that a
transaction where the holders of all classes of Common Equity of
the Company immediately prior to such transaction own, directly or
indirectly, more than 50% of all classes of Common Equity of such
Person immediately after such transaction shall not be a Change of
Control; (ii) a “person” or “group”
(within the meaning of Section 13(d) of the Exchange Act (other
than (x) the Company or (y) Donald R. Horton, Terrill J.
Horton, or their respective wives, children, grandchildren and
other descendants, or any trust or other entity formed or
controlled by any of such individuals)) becomes the
“beneficial owner” (as defined in Rule 13d-3 under
the Exchange Act) of Common Equity of the Company representing more
than 50% of the voting power of the Common Equity of the Company;
(iii) Continuing Directors cease to constitute at least a
majority of the Board of Directors of the Company; or (iv) the
stockholders of the Company approve any plan or proposal for the
liquidation or dissolution of the Company; provided ,
however , that a liquidation or dissolution of the Company
which is part of a transaction that does not constitute a Change of
Control under the proviso contained in clause (i) above shall
not constitute a Change of Control.
-4-
“
Common Equity ” of any Person means Capital Stock of
such Person that is generally entitled to (i) vote in the
election of directors of such Person or (ii) if such Person is
not a corporation, vote or otherwise participate in the selection
of the governing body, partners, managers or others that will
control the management or policies of such Person.
“
Consolidated Adjusted Tangible Assets ” of the Company
as of any date means the Consolidated Tangible Assets of the
Company and the Restricted Subsidiaries at the end of the fiscal
quarter immediately preceding the date less any assets securing any
Non-Recourse Indebtedness, as determined in accordance with
GAAP.
“
Consolidated Net Worth ” of any Person as of any date
means the stockholders’ equity (including any Preferred Stock
that is classified as equity under GAAP, other than Disqualified
Stock) of such Person and its Restricted Subsidiaries on a
consolidated basis at the end of the fiscal quarter immediately
preceding such date, as determined in accordance with GAAP, less
any amount attributable to Unrestricted Subsidiaries.
“
Consolidated Tangible Assets ” of the Company as of
any date means the total amount of assets of the Company and its
Restricted Subsidiaries (less applicable reserves) on a
consolidated basis at the end of the fiscal quarter immediately
preceding such date, as determined in accordance with GAAP, less:
(i) Intangible Assets and (ii) appropriate adjustments on
account of minority interests of other Persons holding equity
investments in Restricted Subsidiaries.
“
Continuing Director ” means a director who either was
a member of the Board of Directors of the Company on the Issue Date
or who became a director of the Company subsequent to such date and
whose election, or nomination for election by the Company’s
stockholders, was duly approved by a majority of the Continuing
Directors on the Board of Directors of the Company at the time of
such approval, either by a specific vote or by approval of the
proxy statement issued by the Company on behalf of the entire Board
of Directors of the Company in which such individual is named as
nominee for director.
“
control ”, when used with respect to any 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.
“
Currency Agreement ” of any Person means any foreign
exchange contract, currency swap agreement or other similar
agreement or arrangement designed to protect such Person or any of
its Subsidiaries against fluctuations in currency values.
“
Custodian ” means any receiver, trustee, assignee,
liquidator or similar official under any Bankruptcy Law.
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“
Default ” means any event, act or condition that is,
or after notice or the passage of time or both would be, an Event
of Default.
“
Disqualified Stock ” means any Capital Stock that, by
its terms (or by the terms of any security into which it is
convertible or for which it is exchangeable), or upon the happening
of any event, (i) matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise, or is
redeemable at the option of the holder thereof, in whole or in
part, on or prior to the final maturity date of the Notes or
(ii) is convertible into or exchangeable or exercisable for
(whether at the option of the issuer or the holder thereof)
(a) debt securities or (b) any Capital Stock referred to
in (i) above, in each case, at any time prior to the final
maturity date of the Notes provided , however , that
any Capital Stock that would not constitute Disqualified Stock but
for provisions thereof giving holders thereof (or the holders of
any security into or for which such Capital Stock is convertible,
exchangeable or exercisable) the right to require the Company to
repurchase or redeem such Capital Stock upon the occurrence of a
change in control occurring prior to the final maturity date of the
Notes shall not constitute Disqualified Stock if the change in
control provisions applicable to such Capital Stock are no more
favorable to such holders than Section 3.01 hereof and such
Capital Stock specifically provides that the Company will not
repurchase or redeem any such Capital Stock pursuant to such
provisions prior to the Company’s repurchase of the Notes as
are required pursuant to Section 3.01 hereof.
“
Dollars ” and “ $ ” mean United
States Dollars.
“
Event of Default ” means:
(1) the failure by the Company to pay
interest on any Note when the same becomes due and payable and the
continuance of any such failure for a period of 30 days;
(2) the failure by the Company to pay
the principal or premium of any Note when the same becomes due and
payable at maturity, upon acceleration or otherwise;
(3) the failure by the Company or any
Restricted Subsidiary to comply with any of its agreements or
covenants in, or provisions of, the Notes, the Guarantees or the
Indenture and such failure continues for the period and after the
notice specified below (except in the case of a default under
Section 3.01 or 3.04, which will constitute Events of Default
with notice but without passage of time);
(4) the acceleration of any
Indebtedness (other than Non-Recourse Indebtedness) of the Company
or any Restricted Subsidiary that has an outstanding principal
amount of $25 million or more, individually or in the
aggregate, and such
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acceleration
does not cease to exist, or such Indebtedness is not satisfied, in
either case within 30 days after such acceleration;
(5) the failure by the Company or any
Restricted Subsidiary to make any principal or interest payment in
an amount of $25 million or more, individually or in the
aggregate, in respect of Indebtedness (other than Non-Recourse
Indebtedness) of the Company or any Restricted Subsidiary within
30 days of such principal or interest becoming due and payable
(after giving effect to any applicable grace period set forth in
the documents governing such Indebtedness);
(6) a final judgment or judgments
that exceed $25 million or more, individually or in the
aggregate, for the payment of money having been entered by a court
or courts of competent jurisdiction against the Company or any of
its Restricted Subsidiaries and such judgment or judgments is not
satisfied, stayed, annulled or rescinded within 60 days of
being entered;
(7) the Company or any Restricted
Subsidiary that is a 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;
(8) a court of competent jurisdiction
enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company
or any Restricted Subsidiary that is a Significant Subsidiary as
debtor in an involuntary case,
(B) appoints a Custodian of the
Company or any Restricted Subsidiary that is a Significant
Subsidiary or a Custodian for all or substantially all of the
property of the Company or any Restricted Subsidiary that is a
Significant Subsidiary, or
(C) orders the liquidation of the
Company or any Restricted Subsidiary that is a Significant
Subsidiary,
and the order
or decree remains unstayed and in effect for 60 days; or
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(9) any Guarantee of a Guarantor
which is a Significant Subsidiary ceases to be in full force and
effect (other than in accordance with the terms of such Guarantee
and the Indenture) or is declared null and void and unenforceable
or found to be invalid or any Guarantor denies its liability under
its Guarantee (other than by reason of release of a Guarantor from
its Guarantee in accordance with the terms of the Indenture and the
Guarantee).
“
GAAP ” means generally accepted accounting principles
set forth in the opinions and pronouncements of the Accounting
Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the
accounting profession of the United States, as in effect from time
to time.
“
Guarantors ” means (i) initially, each of:
C. Richard
Dobson Builders, Inc., a Virginia corporation;
CH Investments of Texas, Inc., a Delaware corporation;
CHI Construction Company, an Arizona corporation;
CHTEX of Texas, Inc., a Delaware corporation;
Continental Homes, Inc., a Delaware corporation;
Continental Homes of Texas, L.P., a Texas limited partnership;
Continental Residential, Inc., a California corporation;
D.R. Horton-Emerald, Ltd., a Texas limited partnership;
D.R. Horton, Inc.-Birmingham, an Alabama corporation;
D.R. Horton, Inc.-Chicago, a Delaware corporation;
D.R. Horton, Inc.-Denver, a Delaware corporation;
D.R. Horton, Inc.-Dietz-Crane, a Delaware corporation;
D.R. Horton, Inc.-Fresno, a Delaware corporation;
D.R. Horton, Inc.-Greensboro, a Delaware corporation;
D.R. Horton, Inc.-Gulf Coast, a Delaware corporation;
D.R. Horton, Inc.-Jacksonville, a Delaware corporation;
D.R. Horton, Inc.-Louisville, a Delaware corporation;
D.R. Horton, Inc.-Minnesota, a Delaware corporation;
D.R. Horton, Inc.-New Jersey, a Delaware corporation;
D.R. Horton, Inc.-Portland, a Delaware corporation;
D.R. Horton, Inc.-Sacramento, a California corporation;
D.R. Horton, Inc.-Torrey, a Delaware corporation;
D.R. Horton LA North, Inc., a Delaware corporation (formerly DRH
Regrem X, Inc.);
D.R. Horton Los Angeles Holding Company, Inc., a California
corporation;
D.R. Horton Management Company, Ltd., a Texas limited
partnership;
-8-
D.R. Horton
Materials, Inc., a Delaware corporation;
D.R. Horton OCI, Inc., a Delaware corporation (formerly D.R. Horton
Orange County, Inc.);
D.R. Horton VEN, Inc., a California corporation (formerly D.R.
Horton San Diego Holding Company, Inc.);
D.R. Horton-Schuler Homes, LLC, a Delaware limited liability
company;
D.R. Horton-Texas, Ltd., a Texas limited partnership;
DRH Cambridge Homes, Inc., a California corporation;
DRH Cambridge Homes, LLC, a Delaware limited liability company;
DRH Construction, Inc., a Delaware corporation;
DRH Regrem VII, LP, a Texas limited partnership;
DRH Regrem VIII, LLC, a Delaware limited liability company;
DRH Regrem XI, Inc., a Delaware corporation;
DRH Regrem XII, LP, a Texas limited partnership;
DRH Regrem XIII, Inc., a Delaware corporation;
DRH Regrem XIV, Inc., a Delaware corporation;
DRH Regrem XV, Inc., a Delaware corporation;
DRH Regrem XVI, Inc., a Delaware corporation;
DRH Regrem XVII, Inc., a Delaware corporation;
DRH Regrem XVIII, Inc., a Delaware corporation;
DRH Regrem XIX, Inc., a Delaware corporation;
DRH Regrem XX, Inc., a Delaware corporation;
DRH Regrem XXI, Inc., a Delaware corporation;
DRH Regrem XXII, Inc., a Delaware corporation;
DRH Regrem XXIII, Inc., a Delaware corporation;
DRH Regrem XXIV, Inc., a Delaware corporation;
DRH Regrem XXV, Inc., a Delaware corporation (formerly D.R. Horton,
Inc.-Los Angeles);
DRH Southwest Construction, Inc., a California corporation;
DRH Tucson Construction, Inc., a Delaware corporation;
DRHI, Inc., a Delaware corporation;
HPH Homebuilders 2000 L.P., a California limited partnership;
KDB Homes, Inc., a Delaware corporation;
Meadows I, Ltd., a Delaware corporation;
Meadows II, Ltd., a Delaware corporation;
Meadows VIII, Ltd., a Delaware corporation;
Meadows IX, Inc., a New Jersey corporation;
Meadows X, Inc., a New Jersey corporation;
Melmort Co., a Colorado corporation;
Melody Homes, Inc., a Delaware corporation;
Schuler Homes of Arizona LLC, a Delaware limited liability
company;
Schuler Homes of California, Inc., a California corporation;
-9-
Schuler Homes
of Oregon, Inc., an Oregon corporation;
Schuler Homes of Washington, Inc., a Washington corporation;
Schuler Mortgage, Inc., a Delaware corporation;
Schuler Realty Hawaii, Inc., a Hawaii corporation;
SGS Communities at Grande Quay, LLC, a New Jersey limited liability
company;
SHA Construction LLC, a Delaware limited liability company;
SHLR of California, Inc., a California corporation;
SHLR of Colorado, Inc., a Colorado corporation;
SHLR of Nevada, Inc., a Nevada corporation;
SHLR of Utah, Inc., a Utah corporation;
SHLR of Washington, Inc., a Washington corporation;
SRHI LLC, a Delaware limited liability company;
SSHI LLC, a Delaware limited liability company;
Vertical Construction Corporation, a Delaware corporation;
Western Pacific Funding, Inc., a California corporation;
Western Pacific Housing Co., a California Limited Partnership, a
California limited partnership;
Western Pacific Housing, Inc., a Delaware corporation;
Western Pacific Housing Management, Inc., a California
corporation;
Western Pacific Housing-Antigua, LLC, a Delaware limited liability
company;
Western Pacific Housing-Aviara, L.P., a California limited
partnership;
Western Pacific Housing-Boardwalk, LLC, a Delaware limited
liability company;
Western Pacific Housing-Broadway, LLC, a Delaware limited liability
company;
Western Pacific Housing-Canyon Park, LLC, a Delaware limited
liability company;
Western Pacific Housing-Carmel, LLC, a Delaware limited liability
company;
Western Pacific Housing-Carrillo, LLC, a Delaware limited liability
company;
Western Pacific Housing-Communications Hill, LLC, a Delaware
limited liability company;
Western Pacific Housing-Copper Canyon, LLC, a Delaware limited
liability company;
Western Pacific Housing-Creekside, LLC, a Delaware limited
liability company;
Western Pacific Housing-Culver City, L.P. , a California limited
partnership;
Western Pacific Housing-Del Valle, LLC, a Delaware limited
liability company;
Western Pacific Housing-Lomas Verdes, LLC, a Delaware limited
liability company;
Western Pacific Housing-Lost Hills Park, LLC, a Delaware limited
liability company;
-10-
Western Pacific
Housing-McGonigle Canyon, LLC, a Delaware limited liability
company;
Western Pacific Housing-Mountaingate, L.P., a California limited
partnership;
Western Pacific Housing-Norco Estates, LLC, a Delaware limited
liability company;
Western Pacific Housing-Oso, L.P., a California limited
partnership;
Western Pacific Housing-Pacific Park II, LLC, a Delaware limited
liability company;
Western Pacific Housing-Park Avenue East, LLC, a Delaware limited
liability company;
Western Pacific Housing-Park Avenue West, LLC, a Delaware limited
liability company;
Western Pacific Housing-Playa Vista, LLC, a Delaware limited
liability company;
Western Pacific Housing-Poinsettia, L.P., a California limited
partnership;
Western Pacific Housing-River Ridge, LLC, a Delaware limited
liability company;
Western Pacific Housing-Robinhood Ridge, LLC, a Delaware limited
liability company;
Western Pacific Housing-Santa Fe, LLC, a Delaware limited liability
company;
Western Pacific Housing-Scripps, L.P., a California limited
partnership;
Western Pacific Housing-Scripps II, LLC, a Delaware limited
liability company;
Western Pacific Housing-Seacove, L.P., a California limited
partnership;
Western Pacific Housing-Studio 528, LLC, a Delaware limited
liability company;
Western Pacific Housing-Terra Bay Duets, LLC, a Delaware limited
liability company;
Western Pacific Housing-Torrance, LLC, a Delaware limited liability
company;
Western Pacific Housing-Torrey Commercial, LLC, a Delaware limited
liability company;
Western Pacific Housing-Torrey Meadows, LLC, a Delaware limited
liability company;
Western Pacific Housing-Torrey Multi-Family, LLC, a Delaware
limited liability company;
Western Pacific Housing-Torrey Village Center, LLC, a Delaware
limited liability company;
Western Pacific Housing-Vineyard Terrace, LLC, a Delaware limited
liability company;
Western Pacific Housing-Windemere, LLC, a Delaware limited
liability company;
Western Pacific Housing-Windflower, L.P., a California limited
partnership;
-11-
WPH-Camino
Ruiz, LLC, a Delaware limited liability company;
and
(ii) each of the Company’s Subsidiaries which becomes a
guarantor of the Notes pursuant to the provisions of the Indenture.
An Unrestricted Subsidiary may become a Guarantor if it (x) is
so designated by resolution of the Board of Directors of the
Company and (y) executes a supplemental indenture satisfactory
to the Trustee.
“
Holder ” means the Person in whose name a Note is
registered in the books of the Registrar for the Notes.
“
Indebtedness ” of any Person means, without
duplication, (i) any liability of such Person (a) for
borrowed money or under any reimbursement obligation relating to a
letter of credit or other similar instruments (other than standby
letters of credit or similar instrument issued for the benefit of
or surety, performance, completion or payment bonds, earnest money
notes or similar purpose undertakings or indemnifications issued
by, such Person in the ordinary course of business),
(b) evidenced by a bond, note, debenture or similar instrument
(including a purchase money obligation) given in connection with
the acquisition of any businesses, properties or assets of any kind
or with services incurred in connection with capital expenditures
(other than any obligation to pay a contingent purchase price
which, as of the date of incurrence thereof is not required to be
recorded as a liability in accordance with GAAP), or (c) in
respect of Capitalized Lease Obligations (to the extent of the
Attributable Debt in respect thereof), (ii) any Indebtedness
of others that such Person has guaranteed to the extent of the
guarantee, (iii) to the extent not otherwise included, the
obligations of such Person under Currency Agreements or Interest
Protection Agreements to the extent recorded as liabilities not
constituting Interest Incurred, net of amounts recorded as assets
in respect of such agreements, in accordance with GAAP, and
(iv) all Indebtedness of others secured by a Lien on any asset
of such Person, whether or not such Indebtedness is assumed by such
Person; provided , that Indebtedness shall not include
accounts payable, liabilities to trade creditors of such Person or
other accrued expenses arising in the ordinary course of business.
The amount of Indebtedness of any Person at any date shall be
(a) the outstanding balance at such date of all unconditional
obligations as described above, net of any unamortized discount to
be accounted for as Interest Expense, in accordance with GAAP, (b)
the maximum liability of such Person for any contingent obligations
under clause (ii) above at such date, net of, any unamortized
discount to be accounted for as Interest Expense in accordance with
GAAP and (c) in the case of clause (iv) above, the lesser
of (1) the fair market value of any asset subject to a Lien
securing the Indebtedness of others on the date that the Lien
attaches and (2) the amount of the Indebtedness secured.
“
Indenture ” has the meaning provided in the
Recitals.
“
Intangible Assets ” of the Company means all
unamortized debt discount and expense, unamortized deferred
charges, goodwill, patents, trademarks, service marks, trade
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names,
copyrights, write-ups of assets over their prior carrying value
(other than write-ups which occurred prior to the Issue Date and
other than, in connection with the acquisition of an asset, the
write-up of the value of such asset (within one year of its
acquisition) to its fair market value in accordance with GAAP) and
all other items which would be treated as intangibles on the
consolidated balance sheet of the Company and the Restricted
Subsidiaries prepared in accordance with GAAP.
“
Interest Expense ” of any Person for any period means,
without duplication, the aggregate amount of (i) interest
which, in conformity with GAAP, would be set opposite the caption
“interest expense” or any like caption on an income
statement for such Person (including, without limitation, imputed
interest included in Capitalized Lease Obligations, all
commissions, discounts and other fees and charges owed with respect
to letters of credit and bankers’ acceptance financing, the
net costs (but reduced by net gains) associated with Currency
Agreements and Interest Protection Agreements, amortization of
other financing fees and expenses, the interest portion of any
deferred payment obligation, amortization of discount or premium,
if any, and all other noncash interest expense other than interest
and other charges amortized to cost of sales), and (ii) all
interest actually paid by the Company or a Restricted Subsidiary
under any guarantee of Indebtedness (including, without limitation,
a guarantee of principal, interest or any combination thereof) of
any Person other than the Company or any Restricted Subsidiary
during such period; provided , that Interest Expense shall
exclude any expense associated with the complete write-off of
financing fees and expenses in connection with the repayment of any
Indebtedness.
“
Interest Incurred ” of any Person for any period
means, without duplication, the aggregate amount of
(i) Interest Expense and (ii) all capitalized interest
and amortized debt issuance costs.
“
Interest Protection Agreement ” of any Person means
any interest rate swap agreement, interest rate collar agreement,
option or futures contract or other similar agreement or
arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates with respect to
Indebtedness.
“
Issue Date ” means the date on which the Notes are
originally issued under this Supplemental Indenture.
“
Lien ” means, with respect to any Property, any
mortgage, lien, pledge, charge, security interest or encumbrance of
any kind in respect of such Property. For purposes of this
definition, a Person shall be deemed to own, subject to a Lien, any
Property which it has acquired or holds subject to the interest of
a vendor or lessor under any conditional sale agreement, capital
lease or other title retention agreement relating to such
Property.
-13-
“
Non-Recourse Indebtedness ” with respect to any Person
means Indebtedness of such Person for which (i) the sole legal
recourse for collection of principal and interest on such
Indebtedness is against the specific property identified in the
instruments evidencing or securing such Indebtedness and such
property was acquired with the proceeds of such Indebtedness or
such Indebtedness was incurred within 90 days after the
acquisition of such property and (ii) no other assets of such
Person may be realized upon in collection of principal or interest
on such Ind
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