Exhibit 4.2
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OAKWOOD HOMES CORPORATION,
as Issuer,
and
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of March 2, 1999
$125,000,000 7.875% SENIOR NOTES DUE 2004
$175,000,000 8.125% SENIOR NOTES DUE 2009
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FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE, dated as of March 2, 1999, between OAKWOOD
HOMES CORPORATION, a North Carolina corporation (the "Company"), having its
principal office at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and THE
FIRST NATIONAL BANK OF CHICAGO, as Trustee hereunder (the "Trustee"), having its
Corporate Trust Office at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇. Terms used herein which are defined in the Indenture (as defined below)
shall have the respective meanings assigned to them in the Indenture.
RECITALS OF THE COMPANY
The Company and the Trustee have entered into an Indenture (the
"Indenture") dated as of the date hereof, providing for the issuance of debt
securities in series.
For its lawful corporate purposes, the Company desires to create and
authorize the series of 7.875% Senior Notes Due 2004 in an aggregate principal
amount of $125,000,000 (the "2004 Notes") and the series of 8.125% Senior Notes
Due 2009 in an aggregate principal amount of $175,000,000 (the "2009 Notes" and,
together with the 2004 Notes, the "Notes") and, to provide the terms and
conditions upon which the Notes are to be executed, registered, authenticated,
issued and delivered, the Company has duly authorized the execution and delivery
of this First Supplemental Indenture.
The 2004 Notes and the 2009 Notes are each a series of Securities (as
that term is defined in the Indenture) and are being issued under the Indenture,
as supplemented by this First Supplemental Indenture, and are subject to the
terms contained therein and herein.
WHEREAS, the 2004 Notes are to be substantially in the following form:
OAKWOOD HOMES CORPORATION
7 7/8 % Senior Note
Due 2004
No.___ $125,000,000
CUSIP NO.______
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Oakwood Homes Corporation, a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of One Hundred Twenty Five Million Dollars
($125,000,000) on March 1, 2004 and to pay interest thereon from March 2, 1999
or from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on March 1 and September 1 in each year,
commencing September 1, 1999, at the rate of 7 7/8% per annum, until the
principal hereof is paid or made available for payment, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of 7 7/8%
per annum on any overdue principal and premium and on any overdue installment of
interest, provided that any principal and premium, and any such installment of
interest, which is overdue shall bear interest at the rate of 7 7/8% per annum
(to the extent permitted by applicable law), from the dates such amounts are due
until they are paid or made available for payment, and such interest shall be
payable on demand. The amount of interest payable for any period shall be
computed on the basis of twelve 30-day months and a 360-day year. The amount of
interest payable for any partial period shall be computed on the basis of a
360-day year of twelve 30-day months and the days elapsed in any partial month.
In the event that any date on which interest is payable on this Security is not
a Business Day, then a payment of the interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) with the same force and effect as if
made on the date the payment was originally payable. A "Business Day" shall
mean, when used with respect to any Place of Payment, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to close. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the February 15 or August 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated
quotation
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system on which the Securities of this series may be listed or traded, and upon
such notice as may be required by such exchange or automated quotation system,
all as more fully provided in said Indenture).
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in either Chicago, Illinois or New York, New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
OAKWOOD HOMES CORPORATION
By:________________________
Attest:
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[Reverse of Note]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 2, 1999, (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture, the First Supplemental Indenture,
dated as of March 2, 1999 (herein called the "First Supplemental Indenture",
which term shall have the meaning assigned to it in such instrument) between the
Company and the Trustee and all other indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the
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Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof.
The Securities of this series are subject, at the election of the
Company, to redemption as a whole or in part at any time upon not less than 30
nor more than 60 days' notice by mail at the greater of (i) 100% of the
principal amount of the Securities being redeemed or (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities (not including any portion
of those payments of interest accrued as of the Redemption Date) discounted to
the Redemption Date on a semi-annual basis assuming a 360 day year consisting of
twelve 30 day months at the Adjusted Treasury Rate plus 25 basis points plus, in
each case, accrued and unpaid interest on the Securities to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
For purposes of determining the amount at which the Securities may be
redeemed, the following terms shall have the meanings set forth next to each of
them below:
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at
the time of a selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest Reference Treasury
Dealer Quotation, or (ii) if the Trustee obtains fewer than three Reference
Treasury Dealer Quotations, the average of the quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
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"Reference Treasury Dealer" means (i) each of NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC, First Union Capital Markets Corp. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
and their respective successors; however, if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company will substitute another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the trustee by the Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day preceding the
redemption date.
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
If a Change in Control Triggering Event occurs, the Holder of this
Security will have the right, at the Holder's option, subject to the terms and
conditions of the Indenture, to require the Company to purchase all or any part
of this Security (so long as the principal amount is $1,000 or an integral
multiple of $1,000) on the date that is 30 Business Days after the occurrence of
the Change in Control Triggering Event (the "Purchase Date"). If a Holder
exercises this option, the Company will purchase this Security for cash equal to
101% of the principal amount of this Security plus any interest accrued and
unpaid on this Security through the Purchase Date (the "Purchase Price").
Within 15 Business Days after a Change in Control Triggering Event, the
Company is obligated to mail to the Trustee and to the Holder of this Security
at such Holder's address as shown in the Securities Register (and to beneficial
owners as required by applicable law) a notice regarding the Change in Control
Triggering Event. The notice shall state, among other things, (i) the date by
which the Holder must give the Purchase Notice (defined below); (ii) the
Purchase Price; (iii) the Purchase Date; (iv) the name and address of the
Trustee and of any other office or agency maintained for the purpose of the
surrender of this Security for purchase; (v) the procedures for withdrawing a
Purchase Notice; and (vi) the procedures that the Holder of this Security must
follow to exercise these rights. The Company will publish the notice in a daily
newspaper of national circulation.
To exercise the right to have the Company purchase this Security, the
Holder of this Security must execute and deliver an "Option to Elect Repayment"
substantially in the form set forth below (the "Purchase Notice") to the Trustee
or to any other office or agency maintained for that purpose of the Holder's
exercise of that right before the close of business on the Business Day
immediately prior to the
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Purchase Date. The Holder of this Security may withdraw any Purchase Notice by
written notice of withdrawal delivered to the Trustee or to any other office or
agency maintained for such purpose no later than the Business Day immediately
prior to the Purchase Date. The notice of withdrawal must state the principal
amount and the certificate number of this Security and the principal amount, if
any, of this Security which remains subject to the original Purchase Notice. The
Option to Elect Repayment form shall be as follows:
OPTION TO ELECT REPAYMENT
(1) Pursuant to Article Thirteen of the Indenture, the
undersigned hereby elects to have this Security repurchased by the
Company.
(2) The undersigned hereby directs the Trustee or the Company to
pay it or ___________________________ an amount in cash equal to 101% of
the principal amount to be repurchased (as set forth below), plus
interest accrued to the Repurchase Date, as provided in the Indenture.
Dated: ________________
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Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange
Act of 1934.
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Signature Guaranteed
Certificate No.__________________
Principal amount to be repurchased (must be an integral multiple of
$1,000):
$------------------
Remaining principal amount following such
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repurchase:
$------------------
NOTICE: The signature to the foregoing Election must correspond to the
Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
Payment of the Purchase Price for this Security for which a Purchase
Notice has been delivered and not withdrawn is conditioned on delivery of this
Security (together with any endorsements) to the Trustee or to any other office
or agency maintained for that purpose, at any time (whether prior to, on or
after the Purchase Date) after delivery of the Purchase Notice. Payment of the
Purchase Price for this Security will be made promptly following the later of
the Purchase Date or the time of delivery of this Security.
If the Company deposits with the Trustee, in accordance with the
Indenture, money sufficient to pay the Purchase Price of this Security on the
Purchase Date, then, on and after the Purchase Date, this Security will cease to
be outstanding and interest on this Security will cease to accrue, whether or
not this Security is delivered to the trustee or to any other office or agency
maintained for that purpose, and all other rights of the Holder will terminate
(other than the right to receive the Purchase Price on delivery of this
Security). In accordance with the Indenture, this Security may not be purchased
pursuant to a Change in Control Triggering Event if there has occurred and is
continuing an Event of Default other than a default in the payment of the
Purchase Price relating to this Security.
For purposes of determining the right of the Holder to require the
Company to purchase all or any part of this Security as set forth above, the
following terms shall have the meanings set forth next to each of them below:
"Change in Control" means, with regard to the Company, the occurrence
of:
(i) any consolidation, share exchange or merger regarding the Company in
which the Company is not the continuing or surviving corporation or
where the Company's voting stock would be converted into cash,
securities or other property, other than a merger in which the holders
of the Company's voting stock immediately prior to the merger have the
same or greater direct or indirect proportionate ownership of the
surviving corporation's voting stock immediately after the merger as
they had of the Company's voting stock immediately before the merger, or
(ii) any Person, including Affiliates of the Company (but not including
the Company, any Subsidiary, employee stock ownership plans or employee
benefit plans of the Company or any of the Subsidiaries), filing a
Schedule 13D or 14D-1 (or any successor schedule, form or report under
the Exchange
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Act) disclosing that such a Person has become the beneficial owner of
50% or more of the Company's voting stock.
"Change in Control Triggering Event" means the occurrence of both a
Change in Control and a Rating Decline.
"Investment Grade" means a rating of BBB- or higher by Standard & Poor's
Corporation ("S&P") and Baa3 or higher by ▇▇▇▇▇'▇ Investors Service ("Moody's")
or the equivalent of those ratings by either of those Rating Agencies.
"Rating Agency" means (i) S&P, (ii) Moody's, or (iii) if S&P or Moody's
or both shall not make a rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies selected by the
Company.
"Rating Category" means (i) regarding S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories), (ii)
regarding Moody's, any of the following categories: Ba, B, Caa, Ca and C (or
equivalent successor categories), and (iii) the equivalent of any such category
of S&P or Moody's used by another Rating Agency. Gradations within Rating
Categories (+ and - for S&P; 1, 2 and 3 for Moody's; or the equivalent
gradations for another Rating Agency) will be taken into account in determining
whether the rating of the Securities has decreased by one or more gradations.
For example, regarding S&P, a decline in rating from BB+ to BB will constitute a
decrease of one gradation.
"Rating Date" means the date that is 30 days prior to the earliest of
(i) a Change in Control, (ii) public notice of a Change in Control and (iii)
public notice of the intention by the Company to effect a Change in Control.
"Rating Decline" means the occurrence on or within 30 days after the
earlier of the date of public notice of the occurrence of a Change in Control or
the public announcement of the Company's intention to effect a Change in Control
(which period will be extended so long as the rating of the Securities is under
publicly announced consideration for possible downgrade by any of the Rating
Agencies) of:
(i) If the Securities are rated by either ▇▇▇▇▇'▇ or S&P on the Rating
Date as Investment Grade, the rating of the Securities by both ▇▇▇▇▇'▇
and S&P below Investment Grade, or
(ii) If the Securities are rated below Investment Grade by both ▇▇▇▇▇'▇
and S&P on the Rating Date, the rating of the Securities is decreased by
either Moody's or S&P by one or more gradations (including gradations
within Rating Categories as well as between Rating Categories).
If the Company or any Subsidiary sells, assigns, transfers, leases or
otherwise disposes of all or substantially all of its assets other than in the
ordinary course of its
8
business or any capital stock or other equity interests of any Subsidiary held
by the Company or any Subsidiary (a "Subsidiary Sale"), and the Company applies
the proceeds therefrom to the redemption of the Securities in accordance with
Section 801(b)(B)(3) of the Indenture (a "Redemption Determination") the Holder
of this Security will have the right, at the Holder's option, subject to the
terms and conditions of the Indenture, to require the Company to purchase all or
any part of this Security (so long as the principal amount is $1,000 or an
integral multiple of $1,000) on the date that is 30 Business Days after the
Company's determination to offer to redeem Securities (the "Redemption Date").
If a Holder exercises this option, the Company will purchase this Security for
cash equal to 100% of the principal amount of this Security plus any interest
accrued and unpaid on this Security through the Redemption Date (the "Redemption
Purchase Price").
Within 15 Business Days after a Redemption Determination, the Company is
obligated to mail to the Trustee and to the Holder of this Security at such
Holder's address as shown in the Securities Register (and to beneficial owners
as required by applicable law) a notice regarding the Subsidiary Sale. The
notice shall state, among other things, (i) the date by which the Holder must
give the Redemption Purchase Notice (defined below); (ii) the Redemption
Purchase Price; (iii) the Redemption Date; (iv) the name and address of the
Trustee and of any other office or agency maintained for the purpose of the
surrender of this Security for purchase; (v) the procedures for withdrawing a
Redemption Purchase Notice; and (vi) the procedures that the Holder of this
Security must follow to exercise these rights. The Company will publish the
notice in a daily newspaper of national circulation.
To exercise the right to have the Company purchase this Security, the
Holder of this Security must execute and deliver an "Option to Elect Repayment"
substantially in the form set forth below (the "Redemption Purchase Notice") to
the Trustee or to any other office or agency maintained for that purpose of the
Holder's exercise of that right before the close of business on the Business Day
immediately prior to the Redemption Date. The Holder of this Security may
withdraw any Redemption Purchase Notice by written notice of withdrawal
delivered to the Trustee or to any other office or agency maintained for such
purpose no later than the Business Day immediately prior to the Redemption Date.
The notice of withdrawal must state the principal amount and the certificate
number of this Security and the principal amount, if any, of this Security which
remains subject to the original Redemption Purchase Notice. The Option to Elect
Repayment form shall be as follows:
OPTION TO ELECT REPAYMENT
(1) Pursuant to Article Eight of the Indenture, the undersigned
hereby elects to have this Security repurchased by the Company.
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(2) The undersigned hereby directs the Trustee or the Company to
pay it or ___________________________ an amount in cash equal to 100% of
the principal amount to be repurchased (as set forth below), plus
interest accrued to the Redemption Date, as provided in the Indenture.
Dated: ________________
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Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange
Act of 1934.
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Signature Guaranteed
Certificate No.__________________
Principal amount to be repurchased (must be an integral multiple of
$1,000):
$------------------
Remaining principal amount following such repurchase:
$------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
If the aggregate principal amount of Securities surrendered for
redemption by the Holders thereof in connection with a redemption following a
Subsidiary Sale exceeds the amount of net proceeds received by the Company or
any of its Subsidiaries in connection with such Subsidiary Sale, the Trustee
shall select the Securities or portions thereof to be purchased on a pro rata
basis, based on the principal amount of the Securities tendered, with such
adjustments as may be deemed
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appropriate by the Trustee, so that only Securities (or portions thereof) in
denominations of $1,000 or integral multiples thereof shall be purchased.
Payment of the Redemption Purchase Price for this Security for which a
Redemption Purchase Notice has been delivered and not withdrawn is conditioned
on delivery of this Security (together with any endorsements) to the Trustee or
to any other office or agency maintained for that purpose, at any time (whether
prior to, on or after the Redemption Purchase Date) after delivery of the
Redemption Purchase Notice. Payment of the Redemption Purchase Price for this
Security will be made promptly following the later of the Redemption Date or the
time of delivery of this Security.
If the Company deposits with the Trustee, in accordance with the
Indenture, money sufficient to pay the Redemption Price of this Security on the
Redemption Date, then, on and after the Redemption Date, this Security will
cease to be outstanding and interest on this Security will cease to accrue,
whether or not this Security is delivered to the trustee or to any other office
or agency maintained for that purpose, and all other rights of the Holder will
terminate (other than the right to receive the Redemption Purchase Price on
delivery of this Security). In accordance with the Indenture, this Security may
not be purchased pursuant to a Subsidiary Sale if there has occurred and is
continuing an Event of Default other than a default in the payment of the
Redemption Purchase Price relating to this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for Defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security
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issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee
in its reasonable judgment, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth and set forth herein, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000.00 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
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No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture or
the First Supplemental Indenture shall have the meanings assigned to them in the
Indenture or the First Supplemental Indenture, as the case may be.
THE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE AND THIS SECURITY SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: March 2, 1999 THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By:_________________________________
Authorized Signatory
WHEREAS, the 2009 Notes are to be substantially in the following form:
OAKWOOD HOMES CORPORATION
8 1/8 % Senior Note
Due 2009
No.___ $175,000,000
CUSIP NO.______
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO ISSUER OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
13
OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
Oakwood Homes Corporation, a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of One Hundred Seventy Five Million
Dollars ($175,000,000) on March 1, 2009 and to pay interest thereon from March
2, 1999 or from the most recent Interest Payment Date to which interest has been
paid or duly provided for, semi-annually on March 1 and September 1 in each
year, commencing September 1, 1999, at the rate of 8 1/8 % per annum, until the
principal hereof is paid or made available for payment, and (to the extent that
the payment of such interest shall be legally enforceable) at the rate of 8 1/8
% per annum on any overdue principal and premium and on any overdue installment
of interest, provided that any principal and premium, and any such installment
of interest, which is overdue shall bear interest at the rate of 8 1/8 % per
annum (to the extent permitted by applicable law), from the dates such amounts
are due until they are paid or made available for payment, and such interest
shall be payable on demand. The amount of interest payable for any period shall
be computed on the basis of twelve 30-day months and a 360-day year. The amount
of interest payable for any partial period shall be computed on the basis of a
360-day year of twelve 30-day months and the days elapsed in any partial month.
In the event that any date on which interest is payable on this Security is not
a Business Day, then a payment of the interest payable on such date will be made
on the next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) with the same force and effect as if
made on the date the payment was originally payable. A "Business Day" shall
mean, when used with respect to any Place of Payment, each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order
to close. The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the February 15 or August 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such
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Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange or automated
quotation system on which the Securities of this series may be listed or traded,
and upon such notice as may be required by such exchange or automated quotation
system, all as more fully provided in said Indenture).
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in either Chicago, Illinois or New York, New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
OAKWOOD HOMES CORPORATION
By: ______________________________
Attest:
--------------------------
[Reverse of Note]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of March 2, 1999, (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture, the First Supplemental Indenture,
dated as of March 2, 1999 (herein called the "First Supplemental Indenture",
which term shall have the meaning assigned to it in such instrument) between the
Company and the Trustee and all other indentures supplemental thereto reference
is hereby made for a statement of the respective
15
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof.
The Securities of this series are subject, at the election of the
Company, to redemption as a whole or in part at any time upon not less than 30
nor more than 60 days' notice by mail at the greater of (i) 100% of the
principal amount of the Securities being redeemed or (ii) as determined by the
Quotation Agent, the sum of the present values of the remaining scheduled
payments of principal and interest on the Securities (not including any portion
of those payments of interest accrued as of the Redemption Date) discounted to
the Redemption Date on a semi-annual basis assuming a 360 day year consisting of
twelve 30 day months at the Adjusted Treasury Rate plus 25 basis points plus, in
each case, accrued and unpaid interest on the Securities to the Redemption Date,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Securities, or one or
more Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
For purposes of determining the amount at which the Securities may be
redeemed, the following terms shall have the meanings set forth next to each of
them below:
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price of the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for that redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at
the time of a selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest Reference Treasury
Dealer Quotation, or (ii) if the Trustee obtains fewer than three Reference
Treasury Dealer Quotations, the average of the quotations.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
16
"Reference Treasury Dealer" means (i) each of NationsBanc ▇▇▇▇▇▇▇▇▇▇
Securities LLC, First Union Capital Markets Corp. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
and their respective successors; however, if any of the foregoing shall
cease to be a primary U.S. Government securities dealer in New York City (a
"Primary Treasury Dealer"), the Company will substitute another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as
determined by the Company, of the bid and asked prices for the Comparable
Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the trustee by the Reference Treasury Dealer at
5:00 p.m., New York City time, on the third Business Day preceding the
redemption date.
In the event of redemption of this Security in part only, a new Security
or Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
If a Change in Control Triggering Event occurs, the Holder of this
Security will have the right, at the Holder's option, subject to the terms and
conditions of the Indenture, to require the Company to purchase all or any part
of this Security (so long as the principal amount is $1,000 or an integral
multiple of $1,000) on the date that is 30 Business Days after the occurrence of
the Change in Control Triggering Event (the "Purchase Date"). If a Holder
exercises this option, the Company will purchase this Security for cash equal to
101% of the principal amount of this Security plus any interest accrued and
unpaid on this Security through the Purchase Date (the "Purchase Price").
Within 15 Business Days after a Change in Control Triggering Event, the
Company is obligated to mail to the Trustee and to the Holder of this Security
at such Holder's address as shown in the Securities Register (and to beneficial
owners as required by applicable law) a notice regarding the Change in Control
Triggering Event. The notice shall state, among other things, (i) the date by
which the Holder must give the Purchase Notice (defined below); (ii) the
Purchase Price; (iii) the Purchase Date; (iv) the name and address of the
Trustee and of any other office or agency maintained for the purpose of the
surrender of this Security for purchase; (v) the procedures for withdrawing a
Purchase Notice; and (vi) the procedures that the Holder of this Security must
follow to exercise these rights. The Company will publish the notice in a daily
newspaper of national circulation.
To exercise the right to have the Company purchase this Security, the
Holder of this Security must execute and deliver an "Option to Elect Repayment"
substantially in the form set forth below (the "Purchase Notice") to the Trustee
or to any other office or agency maintained for that purpose of the Holder's
exercise of
17
that right before the close of business on the Business Day immediately prior to
the Purchase Date. The Holder of this Security may withdraw any Purchase Notice
by written notice of withdrawal delivered to the Trustee or to any other office
or agency maintained for such purpose no later than the Business Day immediately
prior to the Purchase Date. The notice of withdrawal must state the principal
amount and the certificate number of this Security and the principal amount, if
any, of this Security which remains subject to the original Purchase Notice. The
Option to Elect Repayment form shall be as follows:
OPTION TO ELECT REPAYMENT
(1) Pursuant to Article Thirteen of the Indenture, the
undersigned hereby elects to have this Security repurchased by the
Company.
(2) The undersigned hereby directs the Trustee or the Company to
pay it or ___________________________ an amount in cash equal to 101% of
the principal amount to be repurchased (as set forth below), plus
interest accrued to the Repurchase Date, as provided in the Indenture.
Dated: ________________
------------------------------
------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange
Act of 1934.
------------------------------
Signature Guaranteed
Certificate No.__________________
Principal amount to be repurchased (must be an integral multiple of
$1,000):
$------------------
18
Remaining principal amount following such repurchase:
$------------------
NOTICE: The signature to the foregoing Election must correspond to the
Name as written upon the face of this Security in every particular,
without alteration or any change whatsoever.
Payment of the Purchase Price for this Security for which a Purchase
Notice has been delivered and not withdrawn is conditioned on delivery of this
Security (together with any endorsements) to the Trustee or to any other office
or agency maintained for that purpose, at any time (whether prior to, on or
after the Purchase Date) after delivery of the Purchase Notice. Payment of the
Purchase Price for this Security will be made promptly following the later of
the Purchase Date or the time of delivery of this Security.
If the Company deposits with the Trustee, in accordance with the
Indenture, money sufficient to pay the Purchase Price of this Security on the
Purchase Date, then, on and after the Purchase Date, this Security will cease to
be outstanding and interest on this Security will cease to accrue, whether or
not this Security is delivered to the trustee or to any other office or agency
maintained for that purpose, and all other rights of the Holder will terminate
(other than the right to receive the Purchase Price on delivery of this
Security). In accordance with the Indenture, this Security may not be purchased
pursuant to a Change in Control Triggering Event if there has occurred and is
continuing an Event of Default other than a default in the payment of the
Purchase Price relating to this Security.
For purposes of determining the right of the Holder to require the
Company to purchase all or any part of this Security as set forth above, the
following terms shall have the meanings set forth next to each of them below:
"Change in Control" means, with regard to the Company, the occurrence
of:
(i) any consolidation, share exchange or merger regarding the Company in
which the Company is not the continuing or surviving corporation or where the
Company's voting stock would be converted into cash, securities or other
property, other than a merger in which the holders of the Company's voting stock
immediately prior to the merger have the same or greater direct or indirect
proportionate ownership of the surviving corporation's voting stock immediately
after the merger as they had of the Company's voting stock immediately before
the merger, or
(ii) any Person, including Affiliates of the Company (but not including
the Company, any Subsidiary, employee stock ownership plans or employee benefit
plans of the Company or any of the Subsidiaries), filing a Schedule 13D or 14D-1
(or any successor schedule, form or report under the Exchange Act) disclosing
that such
19
a Person has become the beneficial owner of 50% or more of the Company's voting
stock.
"Change in Control Triggering Event" means the occurrence of both a
Change in Control and a Rating Decline.
"Investment Grade" means a rating of BBB- or higher by Standard & Poor's
Corporation ("S&P") and Baa3 or higher by ▇▇▇▇▇'▇ Investors Service ("Moody's")
or the equivalent of those ratings by either of those Rating Agencies.
"Rating Agency" means (i) S&P, (ii) Moody's, or (iii) if S&P or Moody's
or both shall not make a rating of the Securities publicly available, a
nationally recognized securities rating agency or agencies selected by the
Company.
"Rating Category" means (i) regarding S&P, any of the following
categories: BB, B, CCC, CC, C and D (or equivalent successor categories), (ii)
regarding Moody's, any of the following categories: Ba, B, Caa, Ca and C (or
equivalent successor categories), and (iii) the equivalent of any such category
of S&P or Moody's used by another Rating Agency. Gradations within Rating
Categories (+ and - for S&P; 1, 2 and 3 for Moody's; or the equivalent
gradations for another Rating Agency) will be taken into account in determining
whether the rating of the Securities has decreased by one or more gradations.
For example, regarding S&P, a decline in rating from BB+ to BB will constitute a
decrease of one gradation.
"Rating Date" means the date that is 30 days prior to the earliest of
(i) a Change in Control, (ii) public notice of a Change in Control and (iii)
public notice of the intention by the Company to effect a Change in Control.
"Rating Decline" means the occurrence on or within 30 days after the
earlier of the date of public notice of the occurrence of a Change in Control or
the public announcement of the Company's intention to effect a Change in Control
(which period will be extended so long as the rating of the Securities is under
publicly announced consideration for possible downgrade by any of the Rating
Agencies) of:
(i) If the Securities are rated by either ▇▇▇▇▇'▇ or S&P on the Rating
Date as Investment Grade, the rating of the Securities by both ▇▇▇▇▇'▇ and S&P
below Investment Grade, or
(ii) If the Securities are rated below Investment Grade by both ▇▇▇▇▇'▇
and S&P on the Rating Date, the rating of the Securities is decreased by either
Moody's or S&P by one or more gradations (including gradations within Rating
Categories as well as between Rating Categories).
If the Company or any Subsidiary sells, assigns, transfers, leases or
otherwise disposes of all or substantially all of its assets other than in the
ordinary course of its
20
business or any capital stock or other equity interests of any Subsidiary held
by the Company or any Subsidiary (a "Subsidiary Sale"), and the Company applies
the proceeds therefrom to the redemption of the Securities in accordance with
Section 801(b)(B)(3) of the Indenture (a "Redemption Determination") the Holder
of this Security will have the right, at the Holder's option, subject to the
terms and conditions of the Indenture, to require the Company to purchase all or
any part of this Security (so long as the principal amount is $1,000 or an
integral multiple of $1,000) on the date that is 30 Business Days after the
Company's determination to offer to redeem Securities (the "Redemption Date").
If a Holder exercises this option, the Company will purchase this Security for
cash equal to 100% of the principal amount of this Security plus any interest
accrued and unpaid on this Security through the Redemption Date (the "Redemption
Purchase Price").
Within 15 Business Days after a Redemption Determination, the Company is
obligated to mail to the Trustee and to the Holder of this Security at such
Holder's address as shown in the Securities Register (and to beneficial owners
as required by applicable law) a notice regarding the Subsidiary Sale. The
notice shall state, among other things, (i) the date by which the Holder must
give the Redemption Purchase Notice (defined below); (ii) the Redemption
Purchase Price; (iii) the Redemption Date; (iv) the name and address of the
Trustee and of any other office or agency maintained for the purpose of the
surrender of this Security for purchase; (v) the procedures for withdrawing a
Redemption Purchase Notice; and (vi) the procedures that the Holder of this
Security must follow to exercise these rights. The Company will publish the
notice in a daily newspaper of national circulation.
To exercise the right to have the Company purchase this Security, the
Holder of this Security must execute and deliver an "Option to Elect Repayment"
substantially in the form set forth below (the "Redemption Purchase Notice") to
the Trustee or to any other office or agency maintained for that purpose of the
Holder's exercise of that right before the close of business on the Business Day
immediately prior to the Redemption Date. The Holder of this Security may
withdraw any Redemption Purchase Notice by written notice of withdrawal
delivered to the Trustee or to any other office or agency maintained for such
purpose no later than the Business Day immediately prior to the Redemption Date.
The notice of withdrawal must state the principal amount and the certificate
number of this Security and the principal amount, if any, of this Security which
remains subject to the original Redemption Purchase Notice. The Option to Elect
Repayment form shall be as follows:
OPTION TO ELECT REPAYMENT
(1) Pursuant to Article Eight of the Indenture, the undersigned
hereby elects to have this Security repurchased by the Company.
21
(2) The undersigned hereby directs the Trustee or the Company to
pay it or ___________________________ an amount in cash equal to 100% of
the principal amount to be repurchased (as set forth below), plus
interest accrued to the Redemption Date, as provided in the Indenture.
Dated: ________________
------------------------------
------------------------------
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution
with membership in an approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange
Act of 1934.
------------------------------
Signature Guaranteed
Certificate No.__________________
Principal amount to be repurchased (must be an integral multiple of
$1,000):
$------------------
Remaining principal amount following such repurchase:
$------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
If the aggregate principal amount of Securities surrendered for
redemption by the Holders thereof in connection with a redemption following a
Subsidiary Sale exceeds the amount of net proceeds received by the Company or
any of its Subsidiaries in connection with such Subsidiary Sale, the Trustee
shall select the Securities or portions thereof to be purchased on a pro rata
basis, based on the principal amount of the Securities tendered, with such
adjustments as may be deemed
22
appropriate by the Trustee, so that only Securities (or portions thereof) in
denominations of $1,000 or integral multiples thereof shall be purchased.
Payment of the Redemption Purchase Price for this Security for which a
Redemption Purchase Notice has been delivered and not withdrawn is conditioned
on delivery of this Security (together with any endorsements) to the Trustee or
to any other office or agency maintained for that purpose, at any time (whether
prior to, on or after the Redemption Purchase Date) after delivery of the
Redemption Purchase Notice. Payment of the Redemption Purchase Price for this
Security will be made promptly following the later of the Redemption Date or the
time of delivery of this Security.
If the Company deposits with the Trustee, in accordance with the
Indenture, money sufficient to pay the Redemption Price of this Security on the
Redemption Date, then, on and after the Redemption Date, this Security will
cease to be outstanding and interest on this Security will cease to accrue,
whether or not this Security is delivered to the trustee or to any other office
or agency maintained for that purpose, and all other rights of the Holder will
terminate (other than the right to receive the Redemption Purchase Price on
delivery of this Security). In accordance with the Indenture, this Security may
not be purchased pursuant to a Subsidiary Sale if there has occurred and is
continuing an Event of Default other than a default in the payment of the
Redemption Purchase Price relating to this Security.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions for Defeasance at any time of the
entire indebtedness of this Security or certain restrictive covenants and Events
of Default with respect to this Security, in each case upon compliance with
certain conditions set forth in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security
23
issued upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity satisfactory to the Trustee
in its reasonable judgment, and the Trustee shall not have received from the
Holders of a majority in principal amount of Securities of this series at the
time Outstanding a direction inconsistent with such request, and shall have
failed to institute any such proceeding, for 60 days after receipt of such
notice, request and offer of indemnity. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of principal hereof or any premium or interest hereon on or after the
respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth and set forth herein, the transfer of this Security is registerable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in any place where the principal
of and any premium and interest on this Security are payable, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000.00 and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
24
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this 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 this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are defined in the Indenture or
the First Supplemental Indenture shall have the meanings assigned to them in the
Indenture or the First Supplemental Indenture, as the case may be.
THE INDENTURE, THE FIRST SUPPLEMENTAL INDENTURE AND THIS SECURITY SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated: March 2, 1999 THE FIRST NATIONAL BANK OF CHICAGO,
As Trustee
By:__________________________________
Authorized Signatory
............................
All acts and things necessary to make the Notes of each such series,
when executed by the Company and authenticated and delivered by or on behalf of
the Trustee as provided in this Supplemental Indenture, the valid, binding and
legal obligations of the Company, and to constitute these presents a valid
indenture and agreement according to its terms, have been done and performed;
NOW, THEREFORE, in order to declare the terms and conditions upon which
the Notes of each such series are executed, registered, authenticated, issued
and delivered, and in consideration of the premises, of the purchase of such
Notes by the Holders thereof and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, it
25
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders from time to time of such Notes, as follows:
ARTICLE I
CREATION AND AUTHORIZATION OF SERIES
There is hereby created and authorized (i) the series of Notes entitled
the "7.875% Senior Notes Due 2004," which shall be a series in an aggregate
principal amount of $125,000,000, and (ii) the series of Notes entitled the
"8.125% Senior Notes Due 2009," which shall be a series in an aggregate
principal amount of $175,000,000.
ARTICLE II
SPECIAL PROVISIONS APPLICABLE TO SUCH SERIES
(a) Except as otherwise set forth herein and in the Notes, the terms of
the Notes shall be as set forth in the Indenture, including those made part of
the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S. Code
77aaa-77bbbb), as amended, as in effect on the date of the Indenture (the
"Act"). Holders are referred to the Indenture and the Act for a statement of
such terms.
(b) The 2004 Notes shall include all of the terms in the form of the
2004 Notes contained in the Recitals to this First Supplemental Indenture. The
2009 Notes shall include all of the terms in the form of the 2009 Notes
contained in the Recitals to this First Supplemental Indenture.
(c) The aggregate principal amount of the Notes may be changed from time
to time pursuant to Section 301(2) of the Indenture. All the Notes need not be
issued at the same time and this series of the Notes may be reopened at any
time, without the consent of any Holder, for issuances of additional Notes.
(d) The provisions of Section 403 of the Indenture entitled "Defeasance
and Discharge of Securities of Any Series" shall be applicable to the Notes.
(e) The provisions of Section 1008 of the Indenture entitled "Defeasance
of Certain Obligations" shall be applicable to the Notes.
(f) The provisions of Article Twelve of the Indenture entitled "Sinking
Funds" shall not be applicable to the Notes.
(g) The paying agent for the Notes issued pursuant hereto shall be The
First National Bank of Chicago at its principal corporate trust office located
at One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or at its offices located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
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[Signature page follows]
27
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental 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.
OAKWOOD HOMES CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
[CORPORATE SEAL]
Attest:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
[CORPORATE SEAL]