EXHIBIT 4.12
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REGISTRATION RIGHTS AGREEMENT
Dated as of June 28, 2001
By and Among
▇▇▇▇▇▇▇ HOMES, INC.
as Issuer,
the GUARANTORS named herein
and
UBS WARBURG LLC
BANC OF AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
as Initial Purchasers
9 3/8% Senior Notes due 2009
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TABLE OF CONTENTS
Page
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1. Definitions...............................................................1
2. Exchange Offer............................................................4
3. Shelf Registration Statement..............................................7
4. Liquidated Damages........................................................9
5. Registration Procedures..................................................10
6. Registration Expenses....................................................18
7. Indemnification..........................................................19
8. Rules 144 and 144A.......................................................22
9. Underwritten Registrations...............................................23
10. Miscellaneous............................................................23
(a) No Inconsistent Agreements..........................................23
(b) Adjustments Affecting Registrable Notes.............................23
(c) Amendments and Waivers..............................................23
(d) Notices ............................................................24
(e) Guarantors .........................................................25
(f) Successors and Assigns..............................................25
(g) Counterparts .......................................................25
(h) Headings ...........................................................25
(i) Governing Law ......................................................26
(j) Severability .......................................................26
(k) Securities Held by the Company or Its Affiliates....................26
(l) Third-Party Beneficiaries...........................................26
(m) Attorneys' Fees.....................................................26
(n) Entire Agreement....................................................26
SIGNATURES...................................................................S-1
i
SCHEDULE A
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is dated as of
June 28, 2001, by and among ▇▇▇▇▇▇▇ Homes, Inc., a Delaware corporation (the
"COMPANY"), and each of the Guarantors (as defined herein) (the Company and the
Guarantors are referred to collectively herein as the "ISSUERS"), on the one
hand, and UBS Warburg LLC, Banc of America Securities LLC, Fleet Securities,
Inc., and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (the "INITIAL PURCHASERS") on the other
hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of June 21, 2001, by and among the Issuers and the Initial
Purchasers (the "PURCHASE AGREEMENT"), relating to the offering of $400,000,000
aggregate principal amount of the Company's notes consisting of $250,000,000
aggregate principal amount of 9 3/8% Senior Notes due 2009 (including the
guarantees thereof by the Guarantors, the "NOTES") and $150,000,000 aggregate
principal amount of 10 1/2% Senior Subordinated Notes due 2011. The execution
and delivery of this Agreement is a condition to the Initial Purchasers'
obligation to purchase the Notes under the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following terms shall have the
following meanings:
"ACTION" shall have the meaning set forth in Section 7(c) hereof.
"ADVICE" shall have the meaning set forth in Section 5 hereof.
"AGREEMENT" shall have the meaning set forth in the first
introductory paragraph hereto.
"APPLICABLE PERIOD" shall have the meaning set forth in Section 2(b)
hereof.
"BOARD OF DIRECTORS" shall have the meaning set forth in Section 5
hereof.
"BUSINESS DAY" shall mean a day that is not a Legal Holiday.
"COMPANY" shall have the meaning set forth in the introductory
paragraph hereto and shall also include the Company's permitted successors and
assigns.
"COMMISSION" shall mean the Securities and Exchange Commission.
"DAY" shall mean a calendar day.
"DELAY PERIOD" shall have the meaning set forth in Section 5 hereof.
"EFFECTIVENESS PERIOD" shall have the meaning set forth in the
second paragraph of Section 3(a) hereof.
"EVENT DATE" shall have the meaning set forth in Section 4(b)
hereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE NOTES" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER" shall have the meaning set forth in Section 2(a)
hereof.
"EXCHANGE OFFER REGISTRATION STATEMENT" shall have the meaning set
forth in Section 2(a) hereof.
"GUARANTORS" means each of the Persons executing this Agreement (as
set forth on SCHEDULE A) on the date hereof and each Person who executes and
delivers a counterpart of this Agreement hereafter pursuant to Section 10(e)
hereof.
"HOLDER" shall mean any holder of a Registrable Note or Registrable
Notes.
"INDENTURE" shall mean the Indenture, to be dated as of June 28,
2001, by and among the Issuers and U.S. Bank Trust National Association., as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms hereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the first
introductory paragraph hereof.
"INITIAL SHELF REGISTRATION STATEMENT" shall have the meaning set
forth in Section 3(a) hereof.
"INSPECTORS" shall have the meaning set forth in Section 5(n)
hereof.
"ISSUE DATE" shall mean June 28, 2001, the date of original issuance
of the Notes.
"ISSUERS" shall have the meaning set forth in the introductory
paragraph hereto.
"LEGAL HOLIDAY" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed.
"LIQUIDATED DAMAGES" shall have the meaning set forth in Section
4(a) hereof.
"LOSSES" shall have the meaning set forth in Section 7(a) hereof.
"NASD" shall have the meaning set forth in Section 5(s) hereof.
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"NOTES" shall have the meaning set forth in the second introductory
paragraph hereto.
"PARTICIPANT" shall have the meaning set forth in Section 7(a)
hereof.
"PARTICIPATING BROKER-DEALER" shall have the meaning set forth in
Section 2(b) hereof.
"PERSON" shall mean an individual, corporation, partnership, joint
venture association, joint stock company, trust, unincorporated limited
liability company, government or any agency or political subdivision thereof or
any other entity.
"PRIVATE EXCHANGE" shall have the meaning set forth in Section 2(b)
hereof.
"PRIVATE EXCHANGE NOTES" shall have the meaning set forth in Section
2(b) hereof.
"PROSPECTUS" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"PURCHASE AGREEMENT" shall have the meaning set forth in the second
introductory paragraph hereof.
"RECORDS" shall have the meaning set forth in Section 5(n) hereof.
"REGISTRABLE NOTES" shall mean each Note upon its original issuance
and at all times subsequent thereto, each Exchange Note as to which Section
2(c)(iv) hereof is applicable upon original issuance and at all times subsequent
thereto and each Private Exchange Note upon original issuance thereof and at all
times subsequent thereto, in each case until (i) a Registration Statement (other
than, with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note,
Exchange Note or Private Exchange Note has been declared effective by the
Commission and such Note, Exchange Note or such Private Exchange Note, as the
case may be, has been disposed of in accordance with such effective Registration
Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for
an Exchange Note or Exchange Notes that may be resold without restriction under
state and federal securities laws, (iii) such Note, Exchange Note or Private
Exchange Note, as the case may be, ceases to be outstanding for purposes of the
Indenture or (iv) such Note, Exchange Note or Private Exchange Note has been
sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).
"REGISTRATION DEFAULT" shall have the meaning set forth in Section
4(a) hereof.
"REGISTRATION STATEMENT" shall mean any appropriate registration
statement of the Issuers covering any of the Registrable Notes filed with the
Commission under the Securities Act, and
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all amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"REQUESTING PARTICIPATING BROKER-DEALER" shall have the meaning set
forth in Section 2(b) hereof.
"RULE 144" shall mean Rule 144 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule (other than
Rule 144A) or regulation hereafter adopted by the Commission providing for
offers and sales of securities made in compliance therewith resulting in offers
and sales by subsequent holders that are not affiliates of an issuer of such
securities being free of the registration and prospectus delivery requirements
of the Securities Act.
"RULE 144A" shall mean Rule 144A promulgated under the Securities
Act, as such Rule may be amended from time to time, or any similar rule (other
than Rule 144) or regulation hereafter adopted by the Commission.
"RULE 415" shall mean Rule 415 promulgated under the Securities Act,
as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"SHELF FILING EVENT" shall have the meaning set forth in Section
2(c) hereof.
"SHELF REGISTRATION STATEMENT" shall have the meaning set forth in
Section 3(b) hereof.
"SUBSEQUENT SHELF REGISTRATION STATEMENT" shall have the meaning set
forth in Section 3(b) hereof.
"TIA" shall mean the Trust Indenture Act of 1939, as amended.
"TRUSTEE" shall mean the trustee under the Indenture and the trustee
(if any) under any indenture governing the Exchange Notes and Private Exchange
Notes.
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING" shall mean a
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
SECTION 2. EXCHANGE OFFER
(a) The Issuers shall (i) file a Registration Statement (the
"EXCHANGE OFFER REGISTRATION STATEMENT") within 90 days after the Issue Date
with the Commission on an appropriate registration form with respect to a
registered offer (the "EXCHANGE OFFER") to exchange any and all of the
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Registrable Notes for a like aggregate principal amount of notes (including the
guarantees with respect thereto, the "EXCHANGE NOTES") that are identical in all
material respects to the Notes (except that the Exchange Notes shall not contain
terms with respect to transfer restrictions or Liquidated Damages upon a
Registration Default), (ii) use their respective reasonable best efforts to
cause the Exchange Offer Registration Statement to be declared effective under
the Securities Act within 150 days after the Issue Date and (iii) use their
respective reasonable best efforts to consummate the Exchange Offer within 180
days after the Issue Date. Upon the Exchange Offer Registration Statement being
declared effective by the Commission, the Company will offer the Exchange Notes
in exchange for surrender of the Notes. The Company shall keep the Exchange
Offer open for not less than 20 Business Days (or longer if required by
applicable law or otherwise extended by the Company at the Company's option)
after the date notice of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required
to represent to the Company in writing that (i) any Exchange Notes to be
received by it will be acquired in the ordinary course of its business, (ii) it
has no arrangement or understanding with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) it is not an affiliate
(as defined in Rule 405 under the Securities Act) of any Issuer or, if it is an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable, (iv) if such Holder
is not a broker-dealer, it is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that
will receive Exchange Notes for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, it will
deliver a prospectus in connection with any resale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any broker-dealer that
elects to exchange Notes that were acquired by such broker-dealer for its own
account as a result of market-making or other trading activities for Exchange
Notes in the Exchange Offer (a "PARTICIPATING BROKER-DEALER") may be deemed to
be an "underwriter" within the meaning of the Securities Act and must deliver a
prospectus meeting the requirements of the Securities Act in connection with any
resale of such Exchange Notes (other than a resale of an unsold allotment
resulting from the original offering of the Notes).
The Company and the Initial Purchasers also acknowledge that the
staff of the Commission has taken the position that if the Prospectus contained
in the Exchange Offer Registration Statement includes a plan of distribution
containing a statement to the above effect and the means by which Participating
Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such
Prospectus may be delivered by Participating Broker-Dealers to satisfy their
prospectus delivery obligations under the Securities Act in connection with
resales of Exchange Notes for their own accounts, so long as the Prospectus
otherwise meets the requirements of the Securities Act.
In light of the foregoing, if requested by a Participating
Broker-Dealer (a "REQUESTING PARTICIPATING BROKER-DEALER"), the Issuers agree to
use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective for a period of up to 180 days after the
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date on which the Exchange Offer Registration Statement is declared effective,
or such longer period if extended pursuant to the last paragraph of Section 5
hereof (such period, the "APPLICABLE PERIOD"), or such earlier date as all
Requesting Participating Broker-Dealers shall have notified the Company in
writing that such Requesting Participating Broker-Dealers have resold all
Exchange Notes acquired in the Exchange Offer. The Company shall include a plan
of distribution in such Exchange Offer Registration Statement that meets the
requirements set forth in the preceding paragraph.
If, prior to consummation of the Exchange Offer, any Holder holds
any Notes acquired by it that have, or that are reasonably likely to be
determined to have, the status of an unsold allotment in an initial
distribution, or if any Holder is not entitled to participate in the Exchange
Offer, the Company upon the request of any such Holder shall simultaneously with
the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to
any such Holder, in exchange (the "PRIVATE EXCHANGE") for such Notes held by any
such Holder, a like principal amount of notes (the "PRIVATE EXCHANGE NOTES") of
the Company that are identical in all material respects to the Exchange Notes,
except for the placement of a restrictive legend on such Private Exchange Notes.
The Private Exchange Notes shall be issued pursuant to the same indenture as the
Exchange Notes and bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to
participate in the Exchange Offer a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(3) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer and the
Private Exchange, if any, the Company shall:
(1) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation
all Notes so accepted for exchange; and
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(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may
be, equal in principal amount to the Notes of such Holder so accepted for
exchange.
The Exchange Offer and the Private Exchange shall not be subject to
any conditions, other than that (i) the Exchange Offer or Private Exchange, as
the case may be, does not violate applicable law or any applicable
interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental
agency which might materially impair the ability of the Company to proceed with
the Exchange Offer or the Private Exchange, and no material adverse development
shall have occurred in any existing action or proceeding with respect to the
Company and (iii) all governmental approvals shall have been obtained, which
approvals the Company deems necessary for the consummation of the Exchange Offer
or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture (in either case, with such changes as are necessary to comply
with any requirements of the Commission to effect or maintain the qualification
thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that the Exchange Notes shall not be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such other
indenture shall provide that the Exchange Notes, the Private Exchange Notes and
the Notes shall vote and consent together on all matters as one class and that
none of the Exchange Notes, the Private Exchange Notes or the Notes will have
the right to vote or consent as a separate class on any matter.
(c) In the event that (i) any changes in law or the applicable
interpretations of the staff of the Commission do not permit the Issuers to
effect the Exchange Offer, (ii) for any reason the Exchange Offer is not
consummated within 180 days of the Issue Date, (iii) any Holder is prohibited by
law or the applicable interpretations of the staff of the Commission from
participating in the Exchange Offer, (iv) in the case of any Holder that
participates in the Exchange Offer, such Holder does not receive Exchange Notes
on the date of the exchange that may be sold without restriction under state and
federal securities laws (other than due solely to the status of such holder as
an affiliate of any Issuer), (v) the Initial Purchasers so request with respect
to Notes that have, or that are reasonably likely to be determined to have, the
status of unsold allotments in an initial distribution or (vi) any Holder of
Private Exchange Notes so requests (each such event referred to in clauses (i)
through (vi) of this sentence, a "SHELF FILING EVENT"), then the Issuers shall
file a Shelf Registration Statement pursuant to Section 3 hereof.
SECTION 3. SHELF REGISTRATION STATEMENT
If at any time a Shelf Filing Event shall occur, then:
(a) SHELF REGISTRATION STATEMENT. The Issuers shall file with the
Commission a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 (the "INITIAL SHELF REGISTRATION STATEMENT") covering
all of the Registrable Notes. The Issuers shall file with the Commission the
Initial Shelf Registration Statement as promptly as practicable and in any
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event on or prior to 45 days after such Shelf Filing Event occurs (but in no
event prior to 135 days following the date of the original issuance of the
notes). The Initial Shelf Registration Statement shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuers shall not permit
any securities other than the Registrable Notes to be included in the Initial
Shelf Registration Statement or in any Subsequent Shelf Registration Statement
(as defined below).
The Issuers shall use their respective reasonable best efforts (x)
to cause the Initial Shelf Registration Statement to be declared effective under
the Securities Act on or prior to the 90th day after such Shelf Filing Event
occurs and (y) to keep the Initial Shelf Registration Statement continuously
effective under the Securities Act for the period ending on the date which is
two years from the date it becomes effective (or one year if the Initial Shelf
Registration Statement is filed at the request of an Initial Purchaser), subject
to extension pursuant to the penultimate paragraph of Section 5 hereof (the
"EFFECTIVENESS PERIOD"), or such shorter period ending when (i) all Registrable
Notes covered by the Initial Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Initial Shelf Registration Statement
or (ii) a Subsequent Shelf Registration Statement covering all of the
Registrable Notes covered by and not sold under the Initial Shelf Registration
Statement or an earlier Subsequent Shelf Registration Statement has been
declared effective under the Securities Act; PROVIDED, HOWEVER, that (i) the
Effectiveness Period in respect of the Initial Shelf Registration Statement
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the Securities Act
and as otherwise provided herein and (ii) the Company may suspend the
effectiveness of the Initial Shelf Registration Statement by written notice to
the Holders solely as a result of the filing of a post-effective amendment to
the Initial Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit holders to use
the related Prospectus.
(b) SUBSEQUENT SHELF REGISTRATION STATEMENTS. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), the
Issuers shall use their respective reasonable best efforts to obtain the prompt
withdrawal of any order suspending the effectiveness thereof, and in any event
shall as soon as practicable after such cessation amend the Initial Shelf
Registration Statement or such Subsequent Shelf Registration Statement, as the
case may be, in a manner to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional Registration Statement for an
offering to be made on a continuing basis pursuant to Rule 415 covering all of
the Registrable Notes covered by and not sold under the Initial Shelf
Registration Statement or such earlier Subsequent Shelf Registration Statement
(each, a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a Subsequent Shelf
Registration Statement is filed, the Issuers shall use their respective
reasonable best efforts to cause the Subsequent Shelf Registration Statement to
be declared effective under the Securities Act as soon as practicable after such
filing and to keep such Subsequent Shelf Registration Statement continuously
effective for a period equal to the number of days in the Effectiveness Period
less the aggregate number of days during which the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement was previously con-
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tinuously effective. As used herein, the term "SHELF REGISTRATION
STATEMENT" includes the Initial Shelf Registration Statement and any Subsequent
Shelf Registration Statement.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers agree to supplement or
make amendments to the Shelf Registration Statement as and when required by the
rules, regulations or instructions applicable to the registration form used for
such Shelf Registration Statement or by the Securities Act or rules and
regulations thereunder for shelf registration, or if reasonably requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
SECTION 4. LIQUIDATED DAMAGES
(a) Issuers and the Initial Purchasers agree that the Holders will
suffer damages if the Issuers fail to fulfill their obligations under Section 2
or Section 3 hereof and that it would not be feasible to ascertain the extent of
such damages with precision. Accordingly, the Issuers agree that if:
(i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 90th day following the Issue Date, or, if
that day is not a Business Day, then the next day that is a Business Day,
(ii) the Exchange Offer Registration Statement is not declared
effective on or prior to the 150th day following the Issue Date, or, if
that day is not a Business Day, then the next day that is a Business Day,
(iii) the Exchange Offer is not consummated on or prior to the 180th
day following the Issue Date, or, if that day is not a Business Day, then
the next day that is a Business Day, or
(iv) the Shelf Registration Statement is required to be filed but is
not filed or declared effective within the time periods set forth herein
or is declared effective but thereafter ceases to be effective or usable
prior to the expiration of the Effectiveness Period, except if the Shelf
Registration Statement ceases to be effective or usable as specifically
permitted by the penultimate paragraph of Section 5 hereof,
(each such event referred to in clauses (i) through (iv) a "REGISTRATION
DEFAULT"), liquidated damages in the form of additional cash interest
("LIQUIDATED DAMAGES") will accrue on the affected Notes and the affected
Exchange Notes, as applicable. The rate of Liquidated Damages will be .25% per
annum for the first 90-day period immediately following the occurrence of a
Registration Default, increasing by an additional .25% per annum with respect to
each subsequent 90-day period up to a maximum amount of additional interest of
1.0% per annum, from and including the date on which any such Registration
Default shall occur to, but excluding, the earlier of (1) the date on which all
Registration Defaults have been cured or (2) the date on which all the Notes and
Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuers without further registration under the Securities Act.
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Notwithstanding the foregoing, (1) the amount of Liquidated Damages
payable shall not increase because more than one Registration Default has
occurred and is pending and (2) a Holder of Notes or Exchange Notes who is not
entitled to the benefits of the Shelf Registration Statement (I.E., such Holder
has not elected to include information) shall not be entitled to Liquidated
Damages with respect to a Registration Default that pertains to the Shelf
Registration Statement.
Notwithstanding anything to the contrary set forth herein, with
respect to any Registration Default, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of clause (i) or (iv) above, (2) upon the effectiveness
of the Exchange Offer Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of clause (ii) or (iv) above, (3) upon
completion of the Exchange Offer, in the case of clause (iii) above, or (4) upon
the filing of a post-effective amendment to the Registration Statement or an
additional Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement) to again be
declared effective or made usable, the applicable Registration Default shall be
deemed to have been cured.
(b) The Company shall notify the Trustee within one Business Day
after each and every date on which an event occurs in respect of which
Liquidated Damages are required to be paid (each, an "EVENT DATE"). Any amounts
of Liquidated Damages due pursuant to this Section 4 will be payable in addition
to any other interest payable from time to time with respect to the Registrable
Notes in cash semi-annually on the interest payment dates specified in the
Indenture (to the holders of record as specified in the Indenture), commencing
with the first such interest payment date occurring after any such Liquidated
Damages commence to accrue. The amount of Liquidated Damages will be determined
in a manner consistent with the calculation of interest under the Indenture.
SECTION 5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant
to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto, and in
connection with any Registration Statement filed by the Issuers hereunder, the
Issuers shall:
(a) Prepare and file with the Commission the Registration Statement
or Registration Statements prescribed by Section 2 or 3 hereof, and use
their reasonable best efforts to cause each such Registration Statement to
become effective and remain effective as provided herein; PROVIDED,
HOWEVER, that, if (1) such filing is pursuant to Section 3 hereof, or (2)
a Prospectus contained in the Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period relating thereto, before
filing any Registration Statement or Prospectus or any amendments or
supplements thereto, the Company shall furnish to and afford the Holders
of the Registrable Notes covered by such Registration Statement or each
such Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, a reasonable opportunity to review
copies of all such documents (including copies of any documents to be
incorporated by reference
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therein and all exhibits thereto) proposed to be filed (in each case at
least five Business Days prior to such filing). The Issuers shall not file
any Registration Statement or Prospectus or any amendments or supplements
thereto if the Holders of a majority in aggregate principal amount of the
Registrable Notes covered by such Registration Statement, or any such
Participating Broker-Dealer, as the case may be, their counsel, or the
managing underwriters, if any, shall reasonably object.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange
Offer Registration Statement, as the case may be, as may be necessary to
keep such Registration Statement continuously effective for the
Effectiveness Period or the Applicable Period, as the case may be; cause
the related Prospectus to be supplemented by any prospectus supplement
required by applicable law, and as so supplemented to be filed pursuant to
Rule 424 (or any similar provisions then in force) promulgated under the
Securities Act; and comply with the provisions of the Securities Act and
the Exchange Act with respect to the disposition of all securities covered
by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities
being sold by a Participating Broker-Dealer covered by any such
Prospectus, in each case, in accordance with the intended methods of
distribution set forth in such Registration Statement or Prospectus, as so
amended.
(c) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to
be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period relating
thereto (from whom the Issuers have received written notice that it will
be a Participating Broker-Dealer in the Exchange Offer), notify the
selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, as promptly as possible, and, if requested by any
such Person, confirm such notice in writing, (i) when a Prospectus or any
prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective amendment,
when the same has become effective under the Securities Act (including in
such notice a written statement that any Holder may, upon request, obtain,
without charge, one conformed copy of such Registration Statement or
post-effective amendment including financial statements and schedules,
and, if requested, documents incorporated or deemed to be incorporated by
reference and exhibits), (ii) of the issuance by the Commission of any
stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (iii) if at any
time when a Prospectus is required by the Securities Act to be delivered
in connection with sales of the Registrable Notes or resales of Exchange
Notes by Participating Broker-Dealers the representations and warranties
of the Issuers contained in any agreement (including any underwriting
agreement) contemplated by Section 5(m) hereof cease to be true and
correct in all material respects, (iv) of the receipt by any of the
Issuers of any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration Statement
or any of the Registrable Notes or the Exchange Notes for offer or sale in
any juris-
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diction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event, the existence of any condition
or any information becoming known to any Issuer that makes any statement
made in such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference untrue in
any material respect or that requires the making of any changes in or
amendments or supplements to such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and that in the case of the Prospectus,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading, and (vi) of the Company's determination that a
post-effective amendment to a Registration Statement would be appropriate.
(d) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to
be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, use their
reasonable best efforts to prevent the issuance of any order suspending
the effectiveness of a Registration Statement or of any order preventing
or suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Registrable Notes or the
Exchange Notes, as the case may be, for sale in any jurisdiction, and, if
any such order is issued, to use their reasonable best efforts to obtain
the withdrawal of any such order at the earliest practicable moment.
(e) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 or (2) a Prospectus contained in the Exchange Offer Registration
Statement filed pursuant to Section 2 hereof is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period and if requested by the
managing underwriter or underwriters (if any), the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement or any Participating Broker-Dealer, as the case may
be, (i) promptly incorporate in such Registration Statement or Prospectus
a prospectus supplement or post-effective amendment containing such
information as the managing underwriter or underwriters (if any), such
Holders or any Participating Broker-Dealer, as the case may be (based upon
advice of counsel), determine is reasonably necessary to be included
therein and (ii) make all required filings of such prospectus supplement
or post-effective amendment as soon as practicable after the Company has
received notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment; PROVIDED, HOWEVER, that the
Issuers shall not be required to take any action hereunder that would, in
the written opinion of counsel to the Company, violate applicable laws.
(f) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to
be delivered under the Securities Act by any Participating Bro-
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ker-Dealer who seeks to sell Exchange Notes during the Applicable Period,
furnish to each selling Holder of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, who so requests, their
counsel and each managing underwriter, if any, without charge, one
conformed copy of the Registration Statement or Registration Statements
and each post-effective amendment thereto, including financial statements
and schedules, and, if requested, all documents incorporated or deemed to
be incorporated therein by reference and all exhibits.
(g) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to
be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, deliver to
each selling Holder of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, their respective counsel, and the
underwriters, if any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and each
amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to
the last paragraph of this Section 5, the Issuers hereby consent to the
use of such Prospectus and each amendment or supplement thereto by each of
the selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any,
and dealers (if any), in connection with the offering and sale of the
Registrable Notes or the sale by Participating Broker-Dealers of the
Exchange Notes.
(h) Prior to any public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer
Registration Statement by any Participating Broker-Dealer who seeks to
sell Exchange Notes during the Applicable Period, use their reasonable
best efforts to register or qualify, and to cooperate with the selling
Holders of Registrable Notes or each such Participating Broker-Dealer, as
the case may be, the managing underwriter or underwriters, if any, and
their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Notes or Exchange Notes, as the case may be, for offer
and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any selling Holder, Participating
Broker-Dealer, or the managing underwriter or underwriters reasonably
request; PROVIDED, HOWEVER, that where Exchange Notes or Registrable Notes
are offered other than through an underwritten offering, the Company
agrees to cause the Company's counsel to perform Blue Sky investigations
and file registrations and qualifications required to be filed pursuant to
this Section 5(h), keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration
Statement is required to be kept effective and do any and all other acts
or things reasonably necessary or advisable to enable the disposition in
such jurisdictions of such Exchange Notes or Registrable Notes covered by
the applicable Registration Statement; PROVIDED, HOWEVER, that no Issuer
shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that
would subject it to general service of process in any such jurisdiction
where it is not then so subject or (C) subject itself to taxation in
excess of a nominal dollar amount in any such jurisdiction where it is not
then so subject.
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(i) If a Shelf Registration Statement is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes to
be sold, which certificates shall not bear any restrictive legends and
shall be in a form eligible for deposit with The Depository Trust Company;
and enable such Registrable Notes to be in such denominations and
registered in such names as the managing underwriter or underwriters, if
any, or selling Holders may request at least two Business Days prior to
any sale of such Registrable Notes or Exchange Notes.
(j) Use their reasonable best efforts to cause the Registrable Notes
or Exchange Notes covered by any Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such
Registrable Notes or Exchange Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Company will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals.
(k) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to
be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by Section 5(c)(v) or 5(c)(vi)
hereof, as promptly as practicable prepare and (subject to Section 5(a)
and the penultimate paragraph of this Section 5) file with the Commission,
at the sole expense of the Company, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Notes being sold
thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes in a form eligible for deposit with
The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable
Notes pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings of debt
securities similar to the Notes and take all such other actions as are
reasonably requested by the managing underwriter or underwriters in order
to expedite or facilitate the registration or the disposition of such
Registrable Notes and, in such connection,
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(i) make such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Company and its
subsidiaries (including any acquired business, properties or entity, if
applicable) and the Registration Statement, Prospectus and documents, if
any, incorporated or deemed to be incorporated by reference therein, in
each case, as are customarily made by issuers to underwriters in
underwritten offerings of debt securities similar to the Notes, and
confirm the same in writing if and when requested; (ii) use their
reasonable best efforts to obtain the written opinions of counsel to the
Company and written updates thereof in form, scope and substance
reasonably satisfactory to the managing underwriter or underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may
be reasonably requested by the managing underwriter or underwriters; (iii)
use their reasonable best efforts to obtain "cold comfort" letters and
updates thereof in form, scope and substance reasonably satisfactory to
the managing underwriter or underwriters from the independent certified
public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements
and financial data are, or are required to be, included or incorporated by
reference in the Registration Statement), addressed to each of the
underwriters, such letters to be in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection with
underwritten offerings of debt securities similar to the Notes; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set
forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of
Registrable Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at each
closing under such underwriting agreement, or as and to the extent
required thereunder.
(n) If (1) a Shelf Registration Statement is filed pursuant to
Section 3 hereof or (2) a Prospectus contained in the Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to
be delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, make
available for inspection by any selling Holder of such Registrable Notes
being sold or each such Participating Broker-Dealer, as the case may be,
any underwriter participating in any such disposition of Registrable
Notes, if any, and any attorney, accountant or other agent retained by any
such selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "INSPECTORS"), at the offices
where normally kept, during reasonable business hours, all financial and
other records, pertinent corporate documents and instruments of the
Company and its subsidiaries (collectively, the "RECORDS") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and
employees of the Company and its subsidiaries to supply all information
reasonably requested by any such Inspector in connection with such
Registration Statement and Prospectus. Each Inspector shall agree in
writing that it will not disclose any records that the Company determines,
in good faith, to be confidential and that it notifies the Inspectors in
writing are confidential unless (i) the disclosure of such Records is
necessary
-15-
(based upon the advice of counsel of any selling Holder or Participating
Broker-Dealer) to avoid or correct a misstatement or omission in such
Registration Statement or Prospectus, (ii) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction, (iii) disclosure of such information is necessary or
advisable (based upon the advice of counsel of any selling Holder or
Participating Broker-Dealer) in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving
such Inspector and arising out of, based upon, relating to, or involving
this Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iv) the
information in such Records has been made generally available to the
public (other than as a result of a disclosure or failure to safeguard
such information by such Inspectors); PROVIDED, HOWEVER, that such
Inspector shall take such actions (including in the case of clause (ii)
above, notification to the Issuers, if practicable, of the potential
disclosure of such information by an Inspector to permit the Issuers to
obtain a protective order or to take other appropriate action to prevent
the disclosure of such information) as are reasonably necessary to protect
the confidentiality of such information (if practicable) to the extent
such action is otherwise not inconsistent with, an impairment of or in
derogation of the rights and interests of the Holder or any Inspector.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(b) hereof to be qualified under the
TIA not later than the effective date of the Exchange Offer or the first
Registration Statement relating to the Registrable Notes; and in
connection therewith, cooperate with the trustee under any such indenture
and the Holders of the Registrable Notes or Exchange Notes, as applicable,
to effect such changes to such indenture as may be required for such
indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use their reasonable best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and all
other forms and documents required to be filed with the Commission to
enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the
Commission and make generally available to the Company's securityholders
earnings statements satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated
under the Securities Act) (i) commencing at the end of any fiscal quarter
in which Registrable Notes or Exchange Notes are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement.
(q) Upon the request of a Holder, upon consummation of the Exchange
Offer or a Private Exchange, use their reasonable best efforts to obtain
an opinion of counsel to the Issuers, in a form customary for underwritten
transactions, addressed to the Trustee for the benefit of all Holders of
Registrable Notes participating in the Exchange Offer or the Private
Exchange, as the case may be, that the Exchange Notes or Private Exchange
Notes, as the case may be, and the related indenture constitute legal,
valid and binding obligations of the Issuers,
-16-
enforceable against the Issuers in accordance with its respective terms,
subject to customary exceptions and qualifications.
(r) If the Exchange Offer or a Private Exchange is to be
consummated, upon delivery of the Registrable Notes by Holders to the
Company (or to such other Person as directed by the Company) in exchange
for the Exchange Notes or the Private Exchange Notes, as the case may be,
▇▇▇▇, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
(s) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use their reasonable best efforts to take all other steps
necessary or advisable to effect the registration of the Exchange Notes
and/or Registrable Notes covered by a Registration Statement contemplated
hereby.
The Company may require each seller of Registrable Notes or Exchange
Notes as to which any registration is being effected to furnish to the Company
such information regarding such seller and the distribution of such Registrable
Notes or Exchange Notes as the Company may, from time to time, reasonably
request. The Company may exclude from such registration the Registrable Notes or
Exchange Notes of any seller so long as such seller fails to furnish such
information within a reasonable time after receiving such request. Each seller
as to which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make any information previously furnished to the Company by such seller not
materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that
such holding does not imply that such Holder will assist in meeting any future
financial requirements of the Company, or (ii) in the event that such reference
to such Holder by name or otherwise is not required by the Securities Act or any
similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or
prepared subsequent to the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating
Broker-Dealer agrees by acquisition of such Registrable Notes or Exchange Notes
that, upon actual receipt of any notice from the Company (x) of the happening of
any event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or
5(c)(vi) hereof, or (y) that the Board of Directors of the Company (the "BOARD
OF DIRECTORS") has
-17-
resolved that the Company has a BONA FIDE business purpose for doing so, then
the Company may delay the filing or the effectiveness of the Exchange Offer
Registration Statement or the Shelf Registration Statement (if not then filed or
effective, as applicable) and shall not be required to maintain the
effectiveness thereof or amend or supplement the Exchange Offer Registration
Statement or the Shelf Registration Statement, in all cases, for a period (a
"DELAY PERIOD") expiring upon the earlier to occur of (i) in the case of the
immediately preceding clause (x), such Holder's or Participating Broker-Dealer's
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 5(k) hereof or until it is advised in writing (the "ADVICE") by the
Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto or (ii) in the case of
the immediately preceding clause (y), the date which is the earlier of (A) the
date on which such business purpose ceases to interfere with the Company's
obligations to file or maintain the effectiveness of any such Registration
Statement pursuant to this Agreement or (B) 60 days after the Company notifies
the Holders of such good faith determination. There shall not be more than 60
days of Delay Periods during any 12-month period. Each of the Effectiveness
Period and the Applicable Period, if applicable, shall be extended by the number
of days during any Delay Period(s). Any Delay Period(s) will not alter the
obligations of the Company to pay Liquidated Damages under the circumstances set
forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the
preceding paragraph, notice shall be given as soon as practicable after the
Board of Directors makes such a determination of the need for a Delay Period and
shall state, to the extent practicable, an estimate of the duration of such
Delay Period and shall advise the recipient thereof of the agreement of such
Holder provided in the next succeeding sentence. Each Holder, by his acceptance
of any Registrable Note, agrees that during any Delay Period, each Holder will
discontinue disposition of such Notes or Exchange Notes covered by such
Registration Statement or Prospectus or Exchange Notes to be sold by such Holder
or Participating Broker-Dealer, as the case may be.
SECTION 6. REGISTRATION EXPENSES
All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers, whether or not
the Exchange Offer Registration Statement or the Shelf Registration Statement is
filed or becomes effective or the Exchange Offer is consummated, including,
without limitation, (i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
in connection with an underwritten offering and (B) fees and expenses of
compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Notes or Exchange Notes and determination
of the eligibility of the Registrable Notes or Exchange Notes for investment
under the laws of such jurisdictions (x) where the holders of Registrable Notes
are located, in the case of an Exchange Offer, or (y) as provided in Section
5(h) hereof, in the case of a Shelf Registration Statement or in the case of
Exchange Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the managing underwriter or
underwriters, if any, or by the
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Holders of a majority in aggregate principal amount of the Registrable Notes
included in any Registration Statement or in respect of Exchange Notes to be
sold by any Participating Broker-Dealer during the Applicable Period, as the
case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Issuers and reasonable fees and disbursements
of one special counsel for all of the sellers of Registrable Notes (exclusive of
any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements
of all independent certified public accountants referred to in Section 5(m)(iii)
hereof (including, without limitation, the expenses of any special audit and
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Company desires such insurance, (vii)
fees and expenses of all other Persons retained by any of the Issuers, (viii)
internal expenses of the Issuers (including, without limitation, all salaries
and expenses of officers and employees of any of the Issuers performing legal or
accounting duties), (ix) the expense of any audit, (x) the fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement. Notwithstanding the foregoing or anything to the contrary, each
Holder shall pay all underwriting discounts and commissions of any underwriters
with respect to any Registrable Notes sold by or on behalf of it.
SECTION 7. INDEMNIFICATION
(a) Each Issuer, jointly and severally, agrees to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, each Person, if any, who
controls any such Person within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, the agents, employees, officers and
directors of each Holder and each such Participating Broker-Dealer and the
agents, employees, officers and directors of any such controlling Person (each,
a "PARTICIPANT") from and against any and all losses, liabilities, claims,
damages and expenses whatsoever (including, but not limited to, reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all reasonable amounts paid in
settlement of any claim or litigation) (collectively, "LOSSES") to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise insofar as such Losses (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the case of the Prospectus, in the light of the circumstances under
which they were made, not misleading; PROVIDED that (A) the foregoing indemnity
shall not be available to any Participant insofar as such Losses are caused by
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with information relating to such Participant
furnished to the Company in writing by or on behalf of such Participant
expressly for use therein and (B) with respect to any such untrue statement or
omission made in any preliminary Prospectus, the indemnity contained in this
Section 7(a) (to the extent and only to the
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extent that such losses, claims, damages or liabilities resulted from the untrue
statement or omission described in clause (2) below) shall not inure to the
benefit of a Participant if it shall be established that both (1) a copy of the
amended or supplemented Prospectus was not sent or given by such Participant to
the Person asserting any such losses, claims, damages or liabilities and such
Participant was required by law to so send or give such Prospectus to such
Person and (2) the untrue statement or omission in the preliminary Prospectus
was corrected in the amended or supplemented Prospectus, unless, in either case,
such failure to deliver the amended or supplemented Prospectus was a result of
noncompliance by an Issuer with any of its covenants or obligations in this
Agreement. This indemnity agreement will be in addition to any liability that
the Issuers may otherwise have, including, but not limited to, liability under
this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless each Issuer, each Person, if any, who controls any Issuer
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, and each of their respective agents, employees, officers and
directors and the agents, employees, officers and directors of any such
controlling Person from and against any Losses to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise insofar
as such Losses (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement (or any amendment thereto) or Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by, arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the case of the Prospectus, in the light of the circumstances under which they
were made, not misleading, in each case to the extent, but only to the extent,
that any such Loss arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information relating to such Participant furnished in
writing to the Company by or on behalf of such Participant expressly for use
therein; PROVIDED, HOWEVER, that with respect to any such untrue statement or
omission made in any preliminary Prospectus, the indemnity contained in this
Section 7(b) (to the extent and only to the extent that such losses, claims,
damages or liabilities resulted from an untrue statement or omission in the
preliminary Prospectus that was corrected in the amended or supplemented
Prospectus) shall not inure to the benefit of an Issuer if it shall be
established that (1) both (A) a copy of the amended or supplemented Prospectus
was sent or given by such Participant to the Person asserting any such losses,
claims, damages or liabilities and (B) the untrue statement or omission in the
preliminary Prospectus was corrected in the amended or supplemented Prospectus
or (2) such failure to deliver the amended or supplemented Prospectus was a
result of noncompliance by an Issuer with any of its covenants or obligations in
this Agreement.
(c) Promptly after receipt by an indemnified party under subsection
7(a) or 7(b) above of notice of the commencement of any action, suit or
proceeding (collectively, an "ACTION"), such indemnified party shall, if a claim
in respect thereof is to be made against the indemnifying party under such
subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an
indemnifying party shall not relieve such indemnifying party from any liability
that it may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure). In case any such action is
brought
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against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to
participate in such action, and to the extent it may elect by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice
from such indemnified party, to assume the defense of such action with counsel
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such action, but the reasonable fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless (i) the
employment of such counsel shall have been authorized in writing by the
indemnifying parties in connection with the defense of such action, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) the named parties to such action (including any impleaded
parties) include such indemnified party and the indemnifying party or parties
(or such indemnifying parties have assumed the defense of such action), and such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them that are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such reasonable fees and expenses of counsel shall be borne by the indemnifying
parties. In no event shall the indemnifying party be liable for the fees and
expenses of more than one counsel (together with appropriate local counsel)
designated by the indemnified party or parties at any time for all indemnified
parties in connection with any one action or separate but substantially similar
or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. An indemnifying party shall not be liable for any
settlement of any claim or action effected without its written consent, which
consent may not be unreasonably withheld. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by paragraph (a) or (b) of this Section 7, then the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 45 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 45 days prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 7 is for any reason held to be
unavailable from the indemnifying party, or is insufficient to hold harmless a
party indemnified under this Section 7, each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
aggregate Losses (i) in such proportion as is appropriate to reflect the
relative benefits received by each indemnifying party, on the one hand, and each
indemnified party, on the other hand, from the sale of the Notes to the Initial
Purchasers or the resale of the Registrable Notes by such Holder, as applicable,
or (ii) if such allocation is not permitted by applicable law, in such
proportion as is appropriate to re-
-21-
flect not only the relative benefits referred to above but also the relative
fault of each indemnified party, on the one hand, and each indemnifying party,
on the other hand, in connection with the statements or omissions that resulted
in such Losses, as well as any other relevant equitable considerations. The
relative benefits received by the Issuers, on the one hand, and each
Participant, on the other hand, shall be deemed to be in the same proportion as
(x) the total proceeds from the sale of the Notes to the Initial Purchasers (net
of discounts and commissions but before deducting expenses) received by the
Issuers are to (y) the total net profit received by such Participant in
connection with the sale of the Registrable Notes. The relative fault of the
parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
or such Participant and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
alleged statement or omission.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
or by any other method of allocation that does not take into account the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 7, (i) in no case shall any Participant be required to contribute
any amount in excess of the amount by which the net profit received by such
Participant in connection with the sale of the Registrable Notes exceeds the
amount of any damages that such Participant has otherwise been required to pay
by reason of any untrue or alleged untrue statement or omission or alleged
omission and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7, each Person, if any, who controls any Participant within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and each
director, officer, employee and agent of such Participant shall have the same
rights to contribution as such Participant, and each Person, if any, who
controls any Issuer within the meaning of Section 15 of the Act or Section 20(a)
of the Exchange Act and each director, officer, employee and agent of such
Issuer shall have the same rights to contribution as such Issuer. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for contribution
may be made against another party or parties under this Section 7, notify such
party or parties from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 7 or otherwise, except to the extent that it has been prejudiced in any
material respect by such failure; PROVIDED, HOWEVER, that no additional notice
shall be required with respect to any action for which notice has been given
under this Section 7 for purposes of indemnification. Anything in this section
to the contrary notwithstanding, no party shall be liable for contribution with
respect to any action or claim settled without its written consent; PROVIDED,
HOWEVER, that such written consent was not unreasonably withheld.
SECTION 8. RULES 144 AND 144A
The Company covenants that it will file the reports required to be
filed by it under the Securities Act and the Exchange Act and the rules and
regulations adopted by the Commission thereunder in a timely manner in
accordance with the requirements of the Securities Act and the Exchange
-22-
Act and, if at any time the Company is not required to file such reports, it
will, upon the request of any Holder or beneficial owner of Registrable Notes,
make available such information necessary to permit sales pursuant to Rule 144A
under the Securities Act. The Issuers further covenant that they will take such
further action as any Holder of Registrable Notes may reasonably request from
time to time to enable such Holder to sell Registrable Notes without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144(k) and Rule 144A under the Securities Act, as such
Rules may be amended from time to time, or (b) any similar rule or regulation
hereafter adopted by the Commission.
SECTION 9. UNDERWRITTEN REGISTRATIONS
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Holders of a majority in aggregate principal amount of such
Registrable Notes included in such offering and shall be reasonably acceptable
to the Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder if such Holder does not (a) agree to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
complete and execute all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
SECTION 10. MISCELLANEOUS
(a) NO INCONSISTENT AGREEMENTS. The Issuers have not entered, as of
the date hereof, and shall not enter, after the date of this Agreement, into any
agreement with respect to any of their securities that is inconsistent with the
rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The rights granted to the
Holders hereunder do not conflict with and are not inconsistent with, in any
material respect, the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements. The Issuers have
not entered and will not enter into any agreement with respect to any of their
securities which will grant to any Person piggy-back registration rights with
respect to any Registration Statement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE NOTES. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given except pursuant to a written agreement
duly signed and delivered by (I) the Issuers and (II)(A) the Holders of not less
than a majority in aggregate principal amount of the then outstand-
-23-
ing Registrable Notes and (B) in circumstances that would adversely affect the
Participating Broker-Dealers, the Participating Broker-Dealers holding not less
than a majority in aggregate principal amount of the Exchange Notes held by all
Participating Broker-Dealers; PROVIDED, HOWEVER, that Section 7 and this Section
10(c) may not be amended, modified or supplemented except pursuant to a written
agreement duly signed and delivered by each Holder and each Participating
Broker-Dealer (including any Person who was a Holder or Participating
Broker-Dealer of Registrable Notes or Exchange Notes, as the case may be,
disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, supplement or waiver. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold pursuant to such
Registration Statement.
(d) NOTICES. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture.
(ii) if to the Issuers, at the address as follows:
▇▇▇▇▇▇▇ Homes, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
(iii) if to the Initial Purchasers, at the address as follows:
-24-
UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Syndicate Department
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five Business Days
after being deposited in the mail, postage prepaid, if mailed; when receipt is
acknowledged by the recipient's telecopier machine, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) GUARANTORS. So long as any Registrable Notes remain outstanding,
the Issuers shall cause each Person that becomes a guarantor of the Notes under
the Indenture to execute and deliver a counterpart to this Agreement which
subjects such Person to the provisions of this Agreement as a Guarantor. Each of
the Guarantors agrees to join the Company in all of its undertakings hereunder
to effect the Exchange Offer for the Exchange Notes and the filing of any Shelf
Registration Statement required hereunder.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
hereto, the Holders and the Participating Broker-Dealers; PROVIDED, HOWEVER,
that this Agreement shall not inure to the benefit of or be binding upon a
successor or assign of a Holder unless and to the extent such successor or
assign holds Registrable Notes.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
-25-
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE.
(j) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES. Whenever the
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Company or any of its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(l) THIRD-PARTY BENEFICIARIES. Holders and beneficial owners of
Registrable Notes and Participating Broker-Dealers are intended third-party
beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a
third-party beneficiary of this Agreement.
(m) ATTORNEYS' FEES. As between the parties to this Agreement, in
any action or proceeding brought to enforce any provision of this Agreement, or
where any provision hereof is validly asserted as a defense, the successful
party shall be entitled to recover reasonable attorneys' fees actually incurred
in addition to its costs and expenses and any other available remedy.
(n) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors in
interest with respect to the subject matter hereof and thereof are merged herein
and replaced hereby.
-26-
SCHEDULE A
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
▇▇▇▇▇▇▇ HOMES, INC.
By:________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer and Secretary
EACH OF THE CORPORATE GUARANTORS
LISTED ON SCHEDULE A HERETO
By:________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer and Secretary
EACH OF THE OTHER GUARANTORS
LISTED ON SCHEDULE A HERETO
By: Its respective Managing Member or Sole
Manager, as the case may be
By:________________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Chief Financial Officer and Secretary
UBS WARBURG LLC
BANC AMERICA SECURITIES LLC
FLEET SECURITIES, INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: UBS WARBURG LLC
By:________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By:________________________________________
Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
Leveraged Finance
-2-
SCHEDULE A
SCHEDULE OF GUARANTORS
Melody Homes, Inc.
Melody Mortgage Co.
▇▇▇▇▇▇▇ Homes of California, Inc.
▇▇▇▇▇▇▇ Homes of Washington, Inc.
▇▇▇▇▇▇▇ Homes of Oregon, Inc.
SHLR of Washington, Inc.
SHLR of Colorado, Inc.
SHLR of Nevada, Inc.
▇▇▇▇▇▇▇ Realty/Maui. Inc.
▇▇▇▇▇▇▇ Realty/Oahu, Inc.
Vertical Construction Corporation
SHLR of Utah, Inc.
▇▇▇▇▇▇▇ Mortgage, Inc.
SHLR of California, Inc.
SSHI LLC (▇▇▇▇▇▇▇▇)
SRHI LLC (▇▇▇▇▇▇)
▇▇▇▇▇▇▇ Homes Arizona LLC
SHA Construction LLC
LAMCO Housing, Inc.
II LAMCO Housing, Inc.
AP LHI, Inc.
APLAM, LLC
AP Western GP Corporation
AP WP Partners L.P.
AP WP Operating Corporation
HPH Homebuilders 2000 ▇▇
▇▇▇▇▇▇ GP LLC
▇▇▇▇▇▇ ▇▇ LLC
Western Pacific Housing, Inc.
Western Pacific Housing Development Limited Partnership
Western Pacific Housing Development II Limited Partnership
WPH-▇▇▇▇▇▇, LLC
▇▇▇▇▇, LLC (formerly WPH-Edgewood 56, LLC)
Western Pacific Housing-Agoura I, LLC
Western Pacific Housing-American Canyon, LLC
Western Pacific Housing-Antigua, LLC
Western Pacific Housing-Bay Vista, LLC
Western Pacific Housing-Broadway, LLC
Western Pacific Housing-▇▇▇▇▇▇▇, LLC
Western Pacific Housing-Calvine, LLC
Western Pacific Housing-▇▇▇▇▇▇▇▇, LLC
Western Pacific Housing-Cloverdale I, LLC
SCHEDULE A
Western Pacific Housing-Cloverdale II, LLC
Western Pacific Housing-Communications Hill, LLC
Western Pacific Housing-▇▇▇▇▇▇▇▇ Commons I, LLC
Western Pacific Housing-Coto I, LLC
Western Pacific Housing-Creekside, LLC
Western Pacific Housing-Cypress ▇▇▇▇▇, LLC
Western Pacific Housing-Deer Creek, LLC
Western Pacific Housing-East Park, LLC
Western Pacific Housing-Edgewood 45, LLC
Western Pacific Housing-Escondido, LLC
Western Pacific Housing-Fieldstone, LLC
Western Pacific Housing-Hercules MRB, LLC
Western Pacific Housing-Hercules Village, LLC
Western Pacific Housing-Land Park North, LLC
Western Pacific Housing-▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇, LLC
Western Pacific Housing-Lomas Verdes, LLC
Western Pacific Housing-▇▇▇▇▇▇▇▇, LLC
Western Pacific Housing-Menifee, LLC
Western Pacific Housing-▇▇▇▇▇▇▇▇▇▇, LLC
Western Pacific Housing-Murrieta, LLC
Western Pacific Housing-Natomas Village 13, LLC
Western Pacific Housing-Norco Estates, LLC
Western Pacific Housing-Paradise Creek, LLC
Western Pacific Housing-Providence I, LLC
Western Pacific Housing-Robinhood Ridge, LLC
Western Pacific Housing-▇▇▇▇▇▇▇ Heights, LLC
Western Pacific Housing-Saddlebrook, LLC
Western Pacific Housing-San Elijo, LLC
Western Pacific Housing-Simi I, LLC
Western Pacific Housing-Sonoma, LLC
Western Pacific Housing-Spanish Hills, LLC
Western Pacific Housing-Stone Lake, LLC
Western Pacific Housing-Sun Valley, LLC
Western Pacific Housing-Terra Bay ▇▇▇▇▇, LLC
Western Pacific Housing-▇▇▇▇▇▇ ▇▇▇▇▇, LLC
Western Pacific Housing-Towngate, LLC
Western Pacific Housing-Valpico, LLC
Western Pacific Housing-Vineyard Terrace, LLC
Western Pacific Housing-Wesminster, LLC
Western Pacific Housing-Windsor Pointe, LLC
Western Pacific Housing-Black Mountain, LLC
Western Pacific Housing-▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLC
Western Pacific Housing-Carlsberg Ranch, LLC
Western Pacific Housing-Carpenteria, LLC
SCHEDULE A
Western Pacific Housing-Dos Vientos 78, LLC
Western Pacific Housing-Fillmore, LLC
Western Pacific Housing-▇▇▇▇▇ Canyon Partners, LLC
Western Pacific Housing-San Elijo Area R, LLC
Western Pacific Housing-▇▇▇▇▇ Ranch, LLC
Western Pacific Housing-Sorrento, LLC
Western Pacific Housing-Torrey Village Center
Western Pacific Housing-Torrey, LLC
Western Pacific Housing-Torrey Santa Fe, LLC
WPH-Camino ▇▇▇▇, LLC
WPH-HPH LLC
WPH-SAL2, L.P. (formerly WPH-Sunset Hills III, L.P.)
Western Pacific Funding, Inc.
Western Pacific Housing - ▇▇▇▇▇▇▇▇▇ Canyon, LLC
Western Pacific Housing-Torrey Commercial, LLC
Western Pacific Housing-Torrey Multi-Family, LLC
WPH-SAL1, L.P.
WPH Management Co.
III LAMCO Housing, Inc.
IV LAMCO Housing, LLC
V LAMCO Housing, LLC
Allegra, LLC
HPH Homebuilders LP 1995
HPH Homebuilders LP 1996
Livermore Homebuilders ▇▇
▇▇▇▇▇▇-Avalon LP
Western Pacific Housing-Altamar, LLC
Western Pacific Housing-Altura, L.P.
Western Pacific Housing-Arbor Hills, LLC
Western Pacific Housing-Aviara, L.P.
Western Pacific Housing-Bella Nevona, LLC
Western Pacific Housing Co.
Western Pacific Housing-Canyon Park, LLC
Western Pacific Housing-Carlsbad I, LLC
Western Pacific Housing-Carmel, LLC
Western Pacific Housing-▇▇▇▇▇▇ Station, LLC
Western Pacific Housing-Corona, L.P.
Western Pacific Housing-Coto Venture, L.P.
Western Pacific Housing-▇▇▇▇▇▇ City, L.P.
Western Pacific Housing-▇▇▇▇▇▇ Grove, LLC
Western Pacific Housing-Del Sol
Western Pacific Housing-El Camino, LLC
Western Pacific Housing-Financing Partners
Western Pacific Housing-▇▇▇▇ View, LLC
SCHEDULE A
Western Pacific Housing-Hamptons, L.P.
Western Pacific Housing-Lost Hills Park, LLC
Western Pacific Housing-Mayfair, LLC
Western Pacific Housing-Mountaingate, L.P.
Western Pacific Housing-Oso, L.P.
Western Pacific Housing-Pacific Park, L.P.
Western Pacific Housing-Pacific Park II, LLC
Western Pacific Housing-Penasquitos, LLC
Western Pacific Housing-Poinsettia, L.P.
Western Pacific Housing-Rancho Del Tio, LLC
Western Pacific Housing-Riverside I, LLC
Western Pacific Housing-San Simeon, L.P.
Western Pacific Housing-San ▇▇▇▇▇▇ ▇▇, L.P.
Western Pacific Housing-Santa Fe, LLC
Western Pacific Housing-Saugus, L.P.
Western Pacific Housing-Scripps, L.P.
Western Pacific Housing-Scripps II, LLC
Western Pacific Housing-Seacove, L.P.
Western Pacific Housing-Shadow Creek, LLC
Western Pacific Housing-Skyridge, L.P.
Western Pacific Housing-▇▇▇▇▇▇▇ I, LLC
Western Pacific Housing-Sunset Hills I, L.P.
Western Pacific Housing-Sunset Hills II, L.P.
Western Pacific Housing-▇▇▇▇▇▇ Place, LLC
Western Pacific Housing-Tiburon II, L.P.
Western Pacific Housing-Torrey Hills, LLC
Western Pacific Housing-Westlake, L.P.
Western Pacific Housing-Westlake II, L.P.
Western Pacific Housing-Windflower, L.P.
Western Pacific Housing-Winterhaven, LLC
Western Pacific Housing-▇▇▇▇▇, ▇.▇.