EXHIBIT 4.5
SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE (this "Second Supplemental Indenture"), dated
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as of February 27, 2001, between NVR, INC., a Virginia corporation (the
"Company"), having its principal office at 7601 Lewinsville Road, Suite 300,
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McLean, Virginia, 22102 and THE BANK OF NEW YORK, a New York banking corporation
(the "Trustee"), having a Corporate Trust Office at 101 Barclay Street, 21st
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Floor, New York, New York, as Trustee under the Base Indenture, the First
Supplemental Indenture, and this Second Supplemental Indenture (each as
hereinafter defined). Capitalized terms used and not otherwise defined herein
shall have the meaning set forth in the Base Indenture (as defined).
R E C I T A L S
WHEREAS, the Company and the Trustee have heretofore executed and delivered
to the Trustee an Indenture, dated as of April 14, 1998 (the "Base Indenture"),
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as amended and supplemented by the first supplemental indenture, dated as of
April 14, 1998 (the "First Supplemental Indenture" and, together with the Base
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Indenture, the "Indenture") pursuant to which the Company's 8% Senior Notes due
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2005 were issued;
WHEREAS, in accordance with Section 902 of the Base Indenture, the Company
and the Trustee are authorized and permitted to amend and supplement the
Indenture as set forth herein (the "Amendment"), with the consent of the Holders
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of not less than a majority in principal amount of all Outstanding Securities,
and (1) the Holders of a majority in principal amount of all Outstanding
Securities have consented to the Amendment and (2) all other requirements set
forth in the Base Indenture to make this Second Supplemental Indenture effective
have been satisfied; and
WHEREAS, the Company and the Trustee deem it advisable to enter into this
Second Supplemental Indenture for the purpose of amending the Indenture in order
to provide the Company with greater flexibility to continue to repurchase shares
of its outstanding common stock as part of its strategy of maximizing
shareholder value.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the foregoing and for other good and valuable
consideration, the receipt of which is hereby acknowledged, the Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
all Holders of the Notes as follows:
SECTION 1.01 AMENDMENT. Section 5.01 of the First Supplemental Indenture
is amended and restated in its entirety as follows:
"Section 5.01 Limitations on Restricted Payments. Until the Notes are
rated Investment Grade by both Rating Agencies, after which time the following
covenant no longer shall be binding on the Company or any Restricted Subsidiary:
(a) neither the Company nor any of its Restricted Subsidiaries shall,
directly or
indirectly, make any Restricted Payment, if, after giving effect thereto on a
pro forma basis:
(i) the Company could not Incur $1.00 of additional Indebtedness
pursuant to provisions described in paragraph (b) of Section 5.02 hereof;
(ii) a Default or an Event of Default would occur or be continuing;
or
(iii) the aggregate amount of all Restricted Payments, including such
proposed Restricted Payment, made by the Company and its Restricted
Subsidiaries, from and after the Issue Date and on or prior to the date of
such Restricted Payment, shall exceed the sum (the "Basket") of:
(A) 50% of Consolidated Net Income of the Company for the
period (taken as one accounting period), commencing with the
first full fiscal quarter which includes the Issue Date, to and
including the fiscal quarter ended immediately prior to the date
of each calculation for which internal financial statements are
available (or, if Consolidated Net Income for such period is
negative, then minus 100% of such deficit); plus
(B) 100% of the amount of any Indebtedness of the Company
or a Restricted Subsidiary Incurred after the Issue Date that is
converted into or exchanged for Qualified Capital Stock of the
Company after the Issue Date; plus
(C) to the extent that any Restricted Investment made after
the date of this First Supplemental Indenture is sold for cash or
otherwise reduced or liquidated or repaid for cash, in whole or
in part, the lesser of (1) the cash return of capital with
respect to such Restricted Investment (less the cost of
disposition, if any) and (2) the initial amount of such
Restricted Investment; plus
(D) unless accounted for pursuant to clause (B) above, 100%
of the aggregate net proceeds (after payment of reasonable out-
of-pocket expenses, commissions and discounts incurred in
connection therewith) received by the Company from the sale or
issuance (other than to a Subsidiary of the Company) of its
Qualified Capital Stock after the Issue Date and on or prior to
the date of such Restricted Payment; plus
(E) with respect to any Unrestricted Subsidiary that is
redesignated as a Restricted Subsidiary after the Issue Date in
accordance with the definition of Unrestricted Subsidiary (so
long as the designation of such Subsidiary as an Unrestricted
Subsidiary was treated as a Restricted Payment made after the
Issue Date and only to the extent not included in the calculation
of Consolidated Net Income), an amount equal to the lesser of (x)
the book value in accordance with GAAP of the Company's or a
Restricted Subsidiary's Investment in such Subsidiary, and (y)
the Designation Amount at the time of such Subsidiary's
designation as an Unrestricted Subsidiary; plus
(F) 100% of tax benefits, if any, for the period (taken as
one accounting period), commencing with the first full fiscal
quarter which includes the Issue Date, realized by the Company
from stock option exercises and from the issuance of the
Company's Qualified Capital Stock pursuant to equity-based
employee benefit plans that are recorded as an increase to
shareholders' equity in accordance with GAAP; plus
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(G) $50,000,000.
(b) The foregoing clause (a) does not prohibit:
(i) the payment of any dividend within 60 days after the date of its
declaration if such dividend could have been made on the date of its
declaration in compliance with the foregoing provisions;
(ii) the payment of cash dividends or other distributions to any
Equity Investor or joint venture participant of a Restricted Subsidiary
with respect to a class of Capital Stock of such Restricted Subsidiary or
joint venture owned by such Equity Investor or joint venture participant so
long as the Company or its Restricted Subsidiaries simultaneously receive a
dividend or distribution with respect to their Investment in such
Restricted Subsidiary or joint venture either in U.S. Legal Tender or the
same form as the dividend or distribution received by such Equity Investor
or joint venture participant and in proportion to their proportionate
interest in the same class of Capital Stock of such Restricted Subsidiary
(or in the case of a joint venture that is a partnership or a limited
liability company, as provided for in the documentation governing such
joint venture), as the case may be;
(iii) repurchases or redemptions of Capital Stock of the Company from
any former directors, officers and employees of the Company in the
aggregate up to $3,000,000 during any calendar year (provided, however,
that any amounts not used in any calendar year may be used in any
subsequent year);
(iv) the retirement of Capital Stock of the Company or the retirement
in Indebtedness of the Company, in exchange for or out of the proceeds of a
substantially concurrent sale (other than a sale to a Subsidiary of the
Company) of, other shares of its Qualified Capital Stock and the retirement
of Capital Stock or Indebtedness of a Restricted Subsidiary in exchange for
or out of the proceeds of a substantially concurrent sale of its Qualified
Capital Stock, provided that, in each case, the amount of any such proceeds
is excluded for purposes of clause (a)(iii)(D) above; or
(v) repurchases by the Company of Capital Stock of the Company (from
Persons other than officers or directors of the Company) in one or more
open market and/or privately negotiated transactions of up to $85,000,000
in the aggregate at any time or from time to time on or before March 31,
2002; provided that any such repurchases not made pursuant to this clause
(v) on or before March 31, 2002 may not be made at any subsequent time.
Any Restricted Payment made in accordance with clauses (i) and (iii)
of this paragraph shall reduce the Basket. In calculating the Basket, any
Restricted Payment not made in cash and any non-cash amounts received for
purposes of clause (D) shall be valued at fair market value as determined
in good faith by the Board of Directors, whose determination shall be
conclusive and whose resolution with respect thereto shall be delivered to
the Trustee promptly after the adoption thereof."
SECTION 1.02 NEW YORK LAW TO GOVERN. THIS SECOND SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED ENTIRELY WITHIN THE STATE
OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS. EACH OF THE
PARTIES HERETO AGREES TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE
OF NEW YORK IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
SECOND SUPPLEMENTAL INDENTURE.
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SECTION 1.03 EFFECTIVE DATE. This Second Supplemental Indenture shall be
effective as of the date first above written and upon the execution and delivery
hereof by each of the parties hereto.
SECTION 1.04 COUNTERPARTS. This Second Supplemental Indenture may be
executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed by their respective officers hereunto duly
authorized, all as of the date first above written.
Dated: February 27, 2001
NVR, INC.
By: _____________________________________________
Name: Dwight C. Schar
Title: Chairman of the Board, Chief
Executive Officer and President
By: _____________________________________________
Name: Paul C. Saville
Title: Senior Vice President,
Chief Financial Officer and Treasurer
Attest:
Dated: February 27, 2001
THE BANK OF NEW YORK
as Trustee
By: _____________________________________________
Name:
Title:
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