EXHIBIT 4.4
92
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NVR, INC.
AND
NVR HOMES, INC.,
NVR FINANCIAL SERVICES, INC.
AND
RVN, INC.
as Joint and Several Guarantors
__________________________
$160,000,000
11% SENIOR NOTES due 2003
__________________________
__________________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of January 7, 1997
__________________________
__________________________
IBJ SCHRODER BANK & TRUST COMPANY
__________________________
as Trustee
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FIRST SUPPLEMENTAL INDENTURE dated as of January 7, 1997 (the
"Supplemental Indenture") among NVR, Inc., a Virginia corporation ("NVR" or
"Company"), and NVR Homes, Inc., a Virginia corporation ("Homes"), and NVR
Financial Services, Inc., a Pennsylvania corporation ("NVRFS"), and RVN, Inc., a
Delaware corporation ("RVN"), as joint and several guarantors, and IBJ Schroder
Bank & Trust Company, a banking corporation organized under the laws of the
State of New York, as trustee ("Trustee"), amending and supplementing the
Indenture dated as of September 30, 1993 (the "Indenture") among NVR, and Homes
and NVRFS, as joint and several guarantors, and the Trustee.
RECITALS
--------
WHEREAS, NVR and Homes and NVRFS, as joint and several guarantors, and
the Trustee have entered into the Indenture for the benefit of each other and
for the equal and ratable benefit of the Holders of the 11% Senior Notes due
2003 of NVR (the "Securities"); all capitalized terms used and not otherwise
defined herein having the meanings set forth in the Indenture; and
WHEREAS, RVN has been organized as a Subsidiary of the Company and is
the transferee of certain property or assets of the Company; and
WHEREAS, in accordance with the provisions of the Indenture, the
Company desires to designate RVN as a Restricted Subsidiary; and
WHEREAS, in accordance with the provisions of Section 11.05 of the
Indenture, RVN desires to enter into this Supplemental Indenture to provide for
the unconditional Guarantee of all of the Company's Obligations under the
Securities on the terms set forth in the Indenture; and
WHEREAS, to further evidence such Guarantee, RVN, simultaneously with
the execution of this Supplemental Indenture, has executed and delivered to the
Trustee a Subsidiary Guarantee substantially in the form included in Exhibit C
to the Indenture; and
WHEREAS, in accordance with the provisions of Section 10.01 of the
Indenture and Section 6 of the Pledge Agreement, the Company, simultaneously
with the execution of this Supplemental Indenture, has executed and delivered to
the Collateral Agent a Pledge Amendment dated January 7, 1997, providing for the
pledge of 100% of the Capital Stock of RVN, as well as the certificate
representing such shares and duly executed instruments of transfer or assignment
in blank, all in form and substance satisfactory to the Collateral Agent; and
WHEREAS, in accordance with Section 9.01(iv) of the Indenture, the
Company, the Guarantors and the Trustee are authorized and permitted to amend
and supplement the Indenture as set forth herein, without the consent of any
Securityholder, and all requirements set forth in Article 9 to make this
Supplemental Indenture effective have been satisfied; and
WHEREAS, the execution, delivery and due performance of this
Supplemental Indenture by each of the Company and the Guarantors, respectively,
have been authorized, approved and directed by all necessary and appropriate
action of the boards of directors of each of the Company and the Guarantors,
respectively; and
WHEREAS, the execution, delivery and due performance of this
Supplemental Indenture by the Trustee have been authorized, approved and
directed by all necessary and appropriate corporate action of the Trustee;
NOW, THEREFORE, for and in consideration of the mutual premises and
agreements herein contained, the Company and each of Homes and NVRFS and RVN, in
its capacity as a joint and several guarantor, and the Trustee agree as follows
for the benefit of each other and for the equal and ratable benefit of the
Holders of the Securities:
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AGREEMENT
---------
SECTION 1.01. SUBSIDIARY GUARANTEE.
Subject to the provisions of Article 11 of the Indenture, RVN, jointly
and severally, unconditionally guarantees all of the Company's Obligations under
the Securities on the terms set forth in the Indenture.
SECTION 1.02. FURTHER AGREEMENTS.
All actions necessary to constitute RVN as a Guarantor and a
Restricted Subsidiary under the terms of the Indenture have been taken, and all
references in the Indenture to a Guarantor or a Restricted Subsidiary shall on
and after the date hereof include RVN. On and after the date hereof, the
Indenture shall be deemed to include this Supplemental Indenture, and the
Indenture, as amended and supplemented by this Supplemental Indenture, shall
remain in full force and effect.
SECTION 1.03. COUNTERPART ORIGINALS.
The parties may sign any number of copies of this Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 1.04. HEADINGS.
The Headings of the Sections of this Supplemental Indenture have been
inserted for convenience of reference only, are not to be considered a part of
this Supplemental Indenture and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 1.05. GOVERNING LAW.
The internal law of the State of New York shall govern this
Supplemental Indenture.
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SIGNATURES
Dated as of January 7, 1997 NVR, Inc.
By: /s/ Paul C. Saville
--------------------
Name:Paul C. Saville
Title: Senior Vice-President
Attest:
/s/ Dennis Seremet (SEAL)
- ------------------
Dated as of January 7, 1997 NVR HOMES, INC., as Guarantor
By: /s/ Paul C. Saville
--------------------
Name: Paul C. Saville
Title: Senior Vice-President Finance
Attest:
/s/ Dennis M . Seremet (SEAL)
- ----------------------
Dated as of January 7, 1997 NVR FINANCIAL SERVICES, INC.,
as Guarantor
By: /s/ Paul C. Saville
--------------------
Name: Paul C. Saville
Title: Senior Vice-President
Attest:
/s/ Peter F. Fitzsimmons (SEAL)
- ------------------------
Dated as of January 7, 1997 RVN, INC., as Guarantor
By: /s/ Paul C. Saville
--------------------
Name: Paul C. Saville
Title: Senior Vice President
Attest:
Dennis M. Seremet (SEAL)
- -----------------
Dated as of January 7, 1997 IBJ SCHRODER BANK & TRUST
COMPANY, as Trustee
By: /s/ Barbara McCluskey
----------------------
Name: Barbara McCluskey
Title: Vice President
Attest:
/s/ Anthony Lieggi (SEAL)
- ------------------
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PLEDGE AMENDMENT
----------------
This Pledge Amendment, dated January 7, 1997, is delivered pursuant to
Section 6(h) of the Pledge Agreement referred to below. The undersigned hereby
pledges to the Collateral Agent for its benefit and the ratable benefit of the
Holders, and grants to the Collateral Agent for its benefit and the ratable
benefit of the Holders, a continuing first priority security interest in all of
its right, title and interest in the shares of stock listed below.
The undersigned hereby represents and warrants that each
representation and warranty set forth in Section 4 of the Pledge Agreement is
true and correct as of the date hereof.
The undersigned hereby agrees that this Pledge Amendment may be
attached to the Pledge Agreement, dated as of September 30, 1993, between the
undersigned and IBJ Schroder Bank & Trust Company, as Collateral Agent (the
"Pledge Agreement"); capitalized terms used herein and not otherwise defined
herein shall have the meanings given to such terms in the Pledge Agreement; and
the Collateral listed on this Pledge Amendment shall be deemed to be part of the
Collateral, and shall become part of the Collateral and shall secure all
Obligations.
NVR, INC.,
a Virginia corporation
By: /s/ Paul C.Saville
-------------------
Name: Paul C. Saville
Title:Senior Vice-President
Pledged Shares
--------------
Number of Share Certificate Percentage of
Issuer Pledged Shares Number Outstanding Shares
------ -------------- ----------------- -------------------
RVN, Inc., a Delaware 1,000 1 100%
corporation
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SUBSIDIARY GUARANTEE
The Guarantor listed below (hereinafter referred to as the
"Guarantor," which term includes any successor or assign under the Indenture
(the "Indenture")), has irrevocably and unconditionally guaranteed (i) the due
and punctual payment of the principal of, premium, if any, and interest on the
11% Senior Notes due 2003 (the "Securities") of NVR, Inc., a Virginia
corporation (the "Company"), whether at stated maturity, by acceleration or
otherwise, the due and punctual payment of interest on the overdue principal,
and premium, if any, and (to the extent permitted law) interest on any interest,
if any, on the Securities, and the due and punctual performance of all other
obligations of the Company, to the Securityholders or the Trustee all in
accordance with the terms set forth in Article 11 of the Indenture, (ii) in case
of any extension of time of payment or renewal of any Securities or any such
other obligations, that the same will be promptly paid in full when due or
performed in accordance with the terms of the extension or renewal, whether at
stated maturity, by acceleration or otherwise, and (iii) the payment of any and
all costs and expenses (including reasonable attorneys' fees) incurred by the
Trustee or any Securityholder in enforcing any rights under this Subsidiary
Guarantee.
The obligations of the Guarantor to the Securityholder and to the
Trustee pursuant to this Subsidiary Guarantee and the Indenture are expressly
set forth in Article 11 of the Indenture and reference is hereby made to such
Indenture for the precise terms of this Guarantee.
No stockholder, officer, director or incorporator, as such, past,
present or future of the Guarantor shall have any liability under this
Subsidiary Guarantee by reason of his or its status as such stockholder,
officer, director or incorporator.
This is a continuing Guarantee and shall remain in full force and
effect and shall be binding upon the Guarantor and its successors and assigns
until full and final payment of all of the Company's obligations under the
Securities and Indenture and shall inure to the benefit of the successors and
assigns of the Trustee and the Securityholders and, in the event of any transfer
or assignment of rights by any Securityholder or the Trustee, the rights and
privileges herein conferred upon that party shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof. This is a Guarantee of payment and not of collectibility.
This Subsidiary Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which this
Subsidiary Guarantee is noted shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized officers.
The obligations of the Guarantor under its Subsidiary Guarantee shall
be limited to the extent necessary to insure that it does not constitute a
fraudulent conveyance under applicable law.
THE TERMS OF ARTICLE 11 AND ARTICLE 12 OF THE INDENTURE ARE
INCORPORATED HEREIN BY REFERENCE.
Guarantor:
RVN, INC.
Dated: January 7, 1997 By: /s/ Paul C. Saville
--------------------
Name:Paul C. Saville
Title:Senior Vice President
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