Exhibit 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 30, 1998
by and among
▇▇▇▇▇▇▇ HOMES, INC.
the SUBSIDIARY GUARANTORS PARTY HERETO
and
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
SBC WARBURG DILLON READ INC.
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of April 30, 1998, by and among ▇▇▇▇▇▇▇ Homes, Inc., a Delaware
corporation (the "Company"), the Subsidiary Guarantors (as defined herein) and
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & Company, Inc., NationsBanc
▇▇▇▇▇▇▇▇▇▇ Securities LLC and SBC Warburg Dillon Read Inc. (the "Initial
Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated April 30,
1998 (the "Purchase Agreement"), by and among the Company, the Initial
Purchasers and the Subsidiary Guarantors which provides for the sale by the
Company to the Initial Purchasers of an aggregate of $100 million principal
amount of the Company's 9% Senior Notes due 2008 (the " Senior Notes"). In
order to induce the Initial Purchasers to purchase the Senior Notes, the Company
has agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchaser set forth in Section 9(k) of the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
ACT: The Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.
ADDITIONAL INTEREST: As defined in Section 5.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CLOSING DATE: The Closing Date as defined in the Purchase Agreement.
Commission: The Securities and Exchange Commission.
CONSUMMATE: A Registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(a) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Senior Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
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EXCHANGE NOTES: The Company's 9% Senior Notes due 2008 to be issued
pursuant to the Indenture in the Exchange Offer.
EXCHANGE OFFER: The registration by the Company under the Act of the
Exchange Notes pursuant to a Registration Statement pursuant to which the
Company offers the Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted Securities held
by such Holders for Exchange Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser proposes
to sell the Senior Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act.
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a) hereof.
INITIAL PURCHASERS: As defined in the preamble hereto.
INDENTURE: The Indenture, dated as of May 6, 1998, among the Company, U.S.
Trust Company of California, N.A., as trustee (the "Trustee"), and the
Subsidiary Guarantors, pursuant to which the Notes are to be issued, as such
Indenture is amended or supplemented from time to time in accordance with the
terms thereof.
INTEREST PAYMENT DATE: As defined in the Indenture and the Notes.
ISSUE DATE: The date of this Agreement.
NASD: National Association of Securities Dealers, Inc.
NOTES: The Senior Notes and the Exchange Notes.
PERSON: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration Statement, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such Prospectus.
RECORD HOLDER: With respect to any Interest Payment Date relating to
Notes, each Person who is a Holder of Notes on the record date with respect to
the Interest Payment Date on which such Damages Payment Date shall occur.
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REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company relating
to (a) an offering of Exchange Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SPECIAL COUNSEL: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the
Initial Purchasers or such other special counsel as may be designated by the
Holders of a majority in aggregate principal amount of the Transfer Restricted
Securities outstanding.
SUBSIDIARY GUARANTORS: Those entities listed on Exhibit A hereto and by
this reference incorporated herein.
TIA: The Trust Indenture Act of 1939, as amended, as in effect on the date
of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each Senior Note, until the earliest to
occur of (a) the date on which such Senior Note is exchanged in the Exchange
Offer and entitled to be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Act, (b) the date on
which such Senior Note has been effectively registered under the Act and
disposed of in accordance with a Shelf Registration Statement and (c) the date
on which such Senior Note is distributed to the public pursuant to Rule 144
under the Act or by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be a
holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
beneficially owns Transfer Restricted Securities, PROVIDED that only Transfer
Restricted Securities of Holders who are registered holders of Transfer
Restricted Securities shall be counted for purposes of calculating any
proportion of Holders of Transfer Restriction Securities entitled to take action
or give notice pursuant to this Agreement.
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SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy, the Company and the Subsidiary Guarantors shall (i)
cause to be filed with the Commission as soon as practicable after the Issue
Date, but in no event later than 60 days after the Issue Date, a Registration
Statement under the Act relating to the Exchange Notes and the Exchange Offer,
(ii) use their best efforts to cause such Registration Statement to become
effective at the earliest possible time, but in no event later than 120 days
after the Issue Date, (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Registration Statement as may be necessary in
order to cause such Registration Statement to become effective, (B) if
applicable, file a post-effective amendment to such Registration Statement
pursuant to Rule 430A under the Act and (C) cause all necessary filings in
connection with the registration and qualification of the Exchange Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, (iv) upon the effectiveness of such
Registration Statement, commence the Exchange Offer, (v) cause the Exchange
Offer to remain open for not less than 30 days (or longer if required by
applicable law) after the date that notice of the Exchange Offer is mailed to
the Holders, (vi) cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 150 days after the Issue Date and (vii)
cause the Exchange Offer to comply with all applicable federal and state
securities laws. The Exchange Offer shall be on the appropriate form permitting
registration of the Exchange Notes to be offered in exchange for the Transfer
Restricted Securities and to permit resales of Notes held by Broker-Dealers as
contemplated by Section 3(b) below.
Each Holder who participates in the Exchange Offer will be required to
represent that any Exchange Notes received by it will be acquired in the
ordinary course of its business, that at the time of the Consummation of the
Exchange Offer such Holder will have no arrangement or understanding with any
person to participate in the distribution (within the meaning of the Act) of the
Exchange Notes and that such Holder is not an affiliate of the Company or the
Subsidiary Guarantors within the meaning of the Act or that if it is an
affiliate, that it will comply with the registration and delivery requirements
of the Act to the extent possible.
(b) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Notes that are Transfer Restricted
Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company) may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer; however, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the Act
and must, therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the Exchange Notes received by such Broker-Dealer
in the Exchange Offer, which prospectus delivery requirement may be satisfied by
the delivery by such Broker-Dealer of the Prospectus contained in the Exchange
Offer Registration Statement. Such "Plan of Distribution" section shall also
contain all other information with respect to such resales by Broker-Dealers
that the Commission may require in order to permit such resales pursuant
thereto, but such "Plan of Distribution" shall not name any
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such Broker-Dealer or disclose the amount of Senior Notes held by any such
Broker-Dealer except to the extent required by the Commission as a result of a
change in policy after the date of this Agreement.
The Company acknowledges that, pursuant to current interpretations by the
Commission's staff of Section 5 of the Act, in the absence of an applicable
exemption therefrom, (i) each Holder which is a broker-dealer electing to
exchange Transfer Restricted Securities, acquired for its own account as a
result of market making activities or other trading activities, for Exchange
Notes (an "Exchanging Dealer"), may be deemed an "underwriter" within the
meaning of the Act, and is required to deliver a prospectus containing the
information set forth in Annex A hereto on the cover, in Annex B hereto in the
"Exchange Offer Procedures" section and the "Purpose of the Exchange Offer"
section, and in Annex C hereto in the "Plan of Distribution" section of such
prospectus in connection with a sale of any such Exchange Notes received by such
Exchanging Dealer pursuant to the Exchange Offer and (ii) an Initial Purchaser
that elects to sell Exchange Notes acquired in exchange for Transfer Restricted
Securities constituting any portion of an unsold allotment is required to
deliver a prospectus containing the information required by Items 507 or 508 of
Regulation S-K under the Act, as applicable, in connection with such sale.
The Company and the Subsidiary Guarantors shall use their best efforts to
keep the Exchange Offer Registration Statement continuously effective and to
amend and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all persons subject to the prospectus
delivery requirements of the Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Notes, PROVIDED
that (i) in the case where the Prospectus must be delivered by an Exchanging
Dealer or an Initial Purchaser, such period shall be the lesser of 180 days and
the date on which all Exchanging Dealer and the Initial Purchaser have sold all
Exchange Notes held by them and (ii) the Company shall make the Prospectus
available to any broker-dealer for use in connection with any resale of any
Exchange Notes for a period of not less than 90 days after the Consummation of
the Exchange Offer. The Company shall be deemed not to have used its best
efforts to keep the Exchange Offer Registration Statement effective during the
requisite period if it voluntarily takes any action that would result in, or
refuses to take such action where such failure to act would result in, Holders
of Notes covered thereby not able to offer and sell such securities during that
period, unless such action or inaction is required by applicable law.
The Company shall provide sufficient copies of the latest version of such
Prospectus to Broker-Dealers promptly upon request at any time during such
period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Exchange Offer is not permitted by
applicable law or Commission policy (after the procedures set forth in Section
6(a) below have been complied with) (ii) the Exchange Notes would not, upon
receipt, be tradable by any Holder which is not an affiliate of the Company
without restriction under the Act and without restrictions under
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applicable Blue Sky or state securities laws, (iii) any Holder is not eligible
to participate in the Exchange Offer, (iv) the Initial Purchasers so request
with respect to any Transfer Restricted Securities not eligible to be exchange
for Exchange Notes in the Exchange Offer or (v) for any reason the Exchange
Offer is not Consummated within 150 days after the issuance date, then the
Company shall promptly deliver to the Holders and the Trustee written notice
thereof, and the Company and the Subsidiary Guarantors shall:
(x) cause to be filed a shelf registration statement pursuant to Rule
415 under the Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "SHELF REGISTRATION
STATEMENT"), as promptly as practicable but in no event later than the 60th
day after the date on which the Company determines that it is required to
file the Shelf Registration Statement, which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the Holders
of which shall have provided the information required pursuant to Section
4(b) hereof; and
(y) use their best efforts to cause such Shelf Registration Statement
to be declared effective by the Commission on or before the 150th day after
the Issue Date.
The Company and the Subsidiary Guarantors shall use their best efforts to keep
such Shelf Registration Statement continuously effective, supplemented and
amended as required by the provisions of Sections 6(b) and (c) hereof to the
extent necessary to ensure that it is available for resales of Notes by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of two years following the Issue Date
or such shorter period which will terminate when all Transfer Restricted
Securities covered by the Shelf Registration Statement are no longer Transfer
Restricted Securities.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 20 days after receipt of a
request therefor, such information as the Company may reasonably request for
use in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to Additional Interest pursuant to Section 5
hereof unless and until such Holder shall have used its best efforts to
provide all such reasonably requested information. Each Holder 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 the
information previously furnished to the Company by such Holder not materially
misleading.
SECTION 5. ADDITIONAL INTEREST
(a) REGISTRATION DEFAULT. If (i) within 60 days after the Issue Date,
neither the Exchange Offer Registration Statement nor the Shelf Registration
Statement has been filed with the Commission, (ii) within 120 days after the
Issue Date, the Exchange Offer Registration
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Statement has not been declared effective, (iii) within 150 days after the Issue
Date, the Registered Exchange Offer has not been Consummated, (iv) within 150
days after the Issue Date, the Shelf Registration Statement has not been
declared effective if a Shelf Registration Statement is required to be filed
pursuant to Section 4 of this Agreement or (v) after a Registration Statement
has been declared effective, such Registration Statement ceases to be effective
or fails to be usable for its intended purpose during the respective periods
specified herein that such Registration Statement is to be kept continuously
effective, without being succeeded immediately by a post-effective amendment to
such Registration Statement that cures such failure and that is itself
immediately declared effective (each such event referred to in clauses (i)
through (v), a "Registration Default"), the Company and the Subsidiary
Guarantors hereby jointly and severally agree to pay interest ("Additional
Interest") to each Holder of Transfer Restricted Securities in addition to the
stated interest thereon, payable on the Interest Payment Date, which will accrue
thereon, from and including the date on which any such Registration Default
shall occur but excluding the date on which all Registration Defaults shall have
been cured.
(b) RATE OF ADDITIONAL INTEREST. Additional Interest shall accrue on the
principal amount of the Transfer Restricted Securities at a rate of 0.50% per
annum during the 90-day period immediately following the occurrence of any
Registration Default and shall increase by 0.25% per annum at the end of each
subsequent 90-day period, but in no event shall such rate exceed 2.00% per
annum.
(c) CURE OF REGISTRATION DEFAULT. A Registration Default will have been
deemed cured (i) upon the filing of a Registration Statement with the Commission
(in the case of Section 5(a)(i) above), (ii) upon the effectiveness of the
Exchange Offer Registration Statement (in the case of Section 5(a)(ii) above),
(iii) upon the Consummation of the Registered Exchange Offer (in the case of
Section 5(a)(iii) above), (iv) upon the effectiveness of the Shelf Registration
Statement (in the case of Section 5(a)(iv) above) or (v) upon the effectiveness
of the Registration Statement which had ceased to remain effective (in the case
of Section 5(a)(v) above). Following the cure of all Registration Defaults
relating to any particular Transfer Restricted Securities, the accrual of
Additional Interest with respect to such Transfer Restricted Securities will
cease.
The Company shall notify the Trustee within one business day after each and
every date on which an event occurs in respect of which Additional Interest is
required to be paid (an "Event Date"). Additional Interest shall be paid by
depositing with the Trustee, in trust, for the benefit of the Holders thereof,
on or before the applicable Interest Payment Date, immediately available funds
in sums sufficient to pay the Additional Interest then due to Holder of Senior
Notes entitled to receive the interest payment to be paid on such Interest
Payment Date. Each obligation to pay Additional Interest shall be deemed to
accrue on the applicable Event Date. The amount of Additional Interest will be
determined by multiplying the applicable Additional Interest rate by the
principal amount of the Senior Notes, multiplied by a fraction, the numerator of
which is the number of days such Additional Interest rate was applicable during
such period (determined on the basis of a 360-day year comprised of twelve
30-day months), and the denominator of which is 360.
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All obligations of the Company and the Subsidiary Guarantors set forth in
this section that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such obligations with respect to such
Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company and the Subsidiary Guarantors shall comply with the
applicable provisions of Section 6(c) below, shall use their best efforts to
effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof.
As a condition to its participation in the Exchange Offer pursuant to the
terms of this Agreement, each Holder of Transfer Restricted Securities shall
furnish, upon the request of the Company, prior to the Consummation thereof, a
written representation to the Company (which may be contained in the letter of
transmittal contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding with
any person to participate in, a distribution of the Exchange Notes to be issued
in the Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business. In addition, all such Holders of Transfer Restricted
Securities shall otherwise cooperate in the Company's preparations for the
Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company and the Subsidiary Guarantors shall comply
with the applicable provisions of Section 6(c) below and shall use their best
efforts to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended method or
methods of distribution thereof, and pursuant thereto the Company will as
expeditiously as possible prepare and file with the Commission a Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
(i) use its best efforts to keep such Shelf Registration Statement
and, to the extent applicable, any Exchange Offer Registration Statement,
continuously effective and provide all requisite financial statements
(including, if required by the Act or any regulation thereunder, financial
statements of the Subsidiary Guarantors) for the period specified in
Section 3 or 4 of this Agreement, as applicable; upon the occurrence of any
event that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain a material misstatement or omission or (B)
not to be effective and
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usable for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A),
correcting any such misstatement or omission, and, in the case of either
clause (A) or (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary
to keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable, or such shorter period as
will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Act in a timely
manner; and comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the Special Counsel promptly and, if requested, to
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the
statements therein not misleading. If at any time the Commission shall
issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Company and the Subsidiary Guarantors shall use their
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish to the Special Counsel, before filing with the
Commission, copies of the Registration Statement or any Prospectus included
therein (including all
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documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review of
the Special Counsel for a period of at least five business days, and with
respect to amendments or supplements thereto, at least two business days
prior thereto, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents
incorporated by reference) to which the Special Counsel shall reasonably
object within three business days after the receipt thereof, unless such
Registration Statement or amendment thereto or the Prospectus or any
supplement thereto is required to be filed by applicable law. A selling
Holder or underwriter shall be deemed to have reasonably objected to such
filing if such Registration Statement, amendment, Prospectus or supplement,
as applicable, as proposed to be filed, contains a material misstatement or
omission;
(v) in the case of a Shelf Registration Statement and, to the extent
applicable, any Exchange Offer Registration Statement, make available at
reasonable times during normal business hours for inspection by a
representative of the Holders of Transfer Restricted Securities, Special
Counsel and any accountant retained by such Holders, in a manner designed
to permit underwriters to satisfy their due diligence investigation under
the Act, all financial and other records, pertinent corporate documents and
properties of the Company and the Subsidiary Guarantors and cause the
Company's and the Subsidiary Guarantors' officers, directors and employees
to supply all information reasonably requested by any such representative,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness; PROVIDED,
HOWEVER, that such Persons shall first agree in writing with the Company
that any information that is reasonably and in good faith designated by the
Company in writing as confidential at the time of delivery of such
information shall be kept confidential by such persons, unless and to the
extent that (i) disclosure of such information is required by court or
administrative order or is necessary to respond to inquiries of regulatory
authorities, (ii) disclosure of such information is required by law
(including any disclosure requirements pursuant to federal securities laws
in connection with the filing of the Shelf Registration Statement or the
use of any prospectus), (iii) such information becomes generally available
to the public other than as a result of a disclosure or failure to
safeguard such information by such person or (iv) such information becomes
available to such person from a source other than the Company and its
subsidiaries and such source is not bound by a confidentiality agreement;
(vi) if reasonably requested by any selling Holders or Special
Counsel, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders or Special Counsel may reasonably
request to have included therein as may be required by applicable law,
including, without limitation, information relating to the "Plan of
Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being
sold to such underwriter(s), if any, the purchase price being paid therefor
and any other terms of the offering of the Transfer Restricted Securities
to be sold in such offering; and make all required filings of
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such Prospectus supplement or post-effective amendment as soon as
practicable after the Company is notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment;
(vii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if
so requested by the Holders of a majority in aggregate principal amount of
Notes covered thereby;
(viii) in the case of a Shelf Registration Statement and, to the
extent applicable, an Exchange Offer Registration Statement, furnish to
each selling Holder and Special Counsel, without charge, at least one copy
of the Registration Statement, at the earliest time practicable under the
circumstances after first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(ix) in the case of a Shelf Registration Statement and, to the extent
applicable, an Exchange Offer Registration Statement, deliver to each
selling Holder, the Initial Purchasers, each of the Exchanging Dealers, and
Special Counsel, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement
thereto as such Persons reasonably may request; the Company and the
Subsidiary Guarantors hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(x) in the case of a Shelf Registration Statement and, to the extent
applicable, any Exchange Offer Registration Statement, enter into, and
cause the Subsidiary Guarantors to enter into, such customary agreements
(including an underwriting agreement), and make, and cause the Subsidiary
Guarantors to make, such representations and warranties, and take all such
other actions in connection therewith in order to expedite or facilitate
the disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may be reasonably requested by Special Counsel or the Holders of a
majority of the Transfer Restricted Securities being sold in connection
with any sale or resale pursuant to any Registration Statement contemplated
by this Agreement; and whether or not an underwriting agreement is entered
into and whether or not the registration is an Underwritten Registration,
the Company and the Subsidiary Guarantors shall:
(A) furnish to each selling Holder and each underwriter, if any,
in such substance and scope as reasonably satisfactory to Special
Counsel and as are customarily made by issuers to underwriters in
primary underwritten offerings, upon the date of the Consummation of
the Shelf Registration Statement:
(1) a certificate, dated the date of effectiveness of the
Shelf Registration Statement, signed by (y) the President or any
Vice President and (z) a principal financial or accounting
officer of the Company and the
11
Subsidiary Guarantors, confirming, as of the date thereof, the
matters set forth in Sections 9(a), (b), (c) and (d) of the
Purchase Agreement and such other matters as such parties may
reasonably request;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement, of counsel for the Company and the
Subsidiary Guarantors, covering the matters set forth in Section
9(f) of the Purchase Agreement and such other matter as such
parties may reasonably request, and in any event including a
statement to the effect that such counsel has participated in
conferences with officers and other representatives of the
Company, representatives of the independent public accountants
for the Company, the Initial Purchasers' representatives and the
Initial Purchasers' counsel in connection with the preparation of
such Registration Statement and the related Prospectus and have
considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that, on the basis
of the foregoing (relying as to materiality to a large extent
upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or
verification), no facts came to such counsel's attention that
caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any
post-effective amendment thereto became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date contained
an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading. Without limiting the foregoing, such counsel may
state further that such counsel assumes no responsibility for,
and has not independently verified, the accuracy, completeness or
fairness of the financial statements, notes and schedules and
other financial data included in any Registration Statement
contemplated by this Agreement or the related Prospectus; and
(3) a customary "comfort letter," dated as of the date of
the Shelf Registration Statement, from the Company's independent
accountants, in the customary form and covering matters of the
type customarily covered in comfort letters by underwriters in
connection with primary underwritten offerings, and affirming the
matters set forth in the comfort letters delivered pursuant to
Section 9(h) of the Purchase Agreement, without exception;
12
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
pursuant to this clause (xi), if any.
If at any time the representations and warranties of the Company and
the Subsidiary Guarantors contemplated in clause (A)(1) above cease to be
true and correct, the Company or the Subsidiary Guarantors shall so advise
each selling Holder and Special Counsel promptly and, if requested by such
Persons, shall confirm such advice in writing;
(xi) prior to any public offering of Transfer Restricted Securities,
to use its best efforts to cooperate with, and cause the Subsidiary
Guarantors to use their best efforts to cooperate with, the selling Holders
and Special Counsel in connection with the registration and qualification,
or exemption from such registration or qualification, of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders or underwriter(s), if any, may
reasonably request in writing and do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration
Statement; PROVIDED, HOWEVER, that neither the Company nor the Subsidiary
Guarantors shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xii) shall issue, upon the request of any Holder of Senior Notes
covered by the Shelf Registration Statement, Exchange Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Senior Notes surrendered to the Company by such Holder in exchange therefor
or being sold by such Holder; such Exchange Notes to be registered in the
name of such Holder or in the name of the purchaser(s) of such Senior
Notes, as the case may be; in return, the Senior Notes held by such Holder
shall be surrendered to the Company for cancellation;
(xiii) in the case of a Shelf Registration Statement and, to the
extent applicable, an Exchange Offer Registration Statement, cooperate
with, and cause the Subsidiary Guarantors to cooperate with, the selling
Holders and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names, in all cases consistent with the requirements set
forth in the Indenture, as the Holders or
13
the underwriter(s), if any, may request at least two business days prior to
any sale of Transfer Restricted Securities made by such underwriter(s);
(xiv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities in the United
States as may be necessary to enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xii)
above;
(xv) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, as promptly as practicable thereafter prepare
and file with the Commission a supplemental or post-effective amendment to
the Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document so
that, as thereafter delivered to the purchasers of Transfer Restricted
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration Statement
and provide the Trustee under the Indenture with printed certificates for
the Transfer Restricted Securities which are in a form eligible for deposit
with the Depository Trust Company;
(xvii) in the case of a Shelf Registration Statement and, to the
extent applicable, an Exchange Offer Registration Statement, cooperate and
assist in any filings required to be made with the NASD and in the
performance of any reasonable due diligence investigation by any
underwriter that is required to be retained in accordance with the rules
and regulations of the NASD, and use its reasonable best efforts to cause
such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the
Holders selling Transfer Restricted Securities to consummate the
disposition of such Transfer Restricted Securities;
(xviii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and in the case of a Shelf
Registration Statement and, to the extent applicable, an Exchange Offer
Registration Statement, make generally available to its security holders,
as soon as practicable, a consolidated earnings statement meeting the
requirements of Rule 158 (which need not be audited) for the twelve-month
period (A) commencing at the end of any fiscal quarter in which Transfer
Restricted Securities are sold to underwriters in a firm or best efforts
Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the Registration Statement;
(xix) cause the Indenture to be qualified under the TIA not later
than the effective date of the first Registration Statement required by
this Agreement and, in
14
connection therewith, cooperate, and cause the Subsidiary Guarantors to
cooperate, with the Trustee and the Holders of Notes to effect such changes
to the Indenture as may be required for such Indenture to be so qualified
in accordance with the terms of the TIA; and execute, and cause the
Subsidiary Guarantors to execute , and use its best efforts to cause the
Trustee to execute, all documents that 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;
(xx) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which
similar securities issued by the Company are then listed if requested by
the Holders of a majority in aggregate principal amount of Senior Notes or
the managing underwriter(s), if any; and
(xxi) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and
Section 15 of the Exchange Act.
The Company may require each seller of Transfer Restricted Securities under
a Shelf Registration Statement to furnish to the Company such information
regarding the distribution of such Transfer Restricted Securities as the Company
may from time to time reasonably request in writing and each Holder in acquiring
such Transfer Restricted Securities agrees to supply such information to the
Company promptly upon request.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
in the event of a Shelf Registration Statement or, to the extent applicable, the
Exchange Offer Registration Statement, upon receipt of any notice from the
Company of the existence of any fact of the kind described in Section
6(c)(iii)(D) hereof, such Holder will forthwith discontinue disposition of
Transfer Restricted Securities covered by the applicable Registration Statement
or Prospectus until such Holder's receipt of the copies of the supplemental or
amended Prospectus contemplated by Section 6(c)(xvi) hereof, or until it is
advised in writing (the "Advice") by the Company that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus. If so directed by
the Company, each Holder will deliver to the Company (at the Company's expense)
all copies, other than permanent file copies then in such Holder's possession,
of the Prospectus covering such Transfer Restricted Securities that was current
at the time of receipt of such notice. In the event the Company shall give any
such notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xvi) hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the Subsidiary Guarantors'
performance of or compliance with this Agreement will be borne by the Company or
the
15
Subsidiary Guarantors, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all Commission, stock exchange or
NASD registration and filing fees; (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing certificates for the Exchange Notes to be issued in
the Exchange Offer and printing of Prospectuses), messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the
Company, the Subsidiary Guarantors and, subject to Section 7(b) below, the
Holders of Transfer Restricted Securities; (v) all application and filing fees
in connection with listing Notes on a national securities exchange or automated
quotation system pursuant to the requirements hereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company and the
Subsidiary Guarantors (including the expenses of any special audit and comfort
letters required by or incident to such performance).
The Company will, in any event, bear its and the Subsidiary Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
its officers and employees performing legal or accounting duties), the expenses
of any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of Special Counsel to the Holders of Transfer
Restricted Securities, but excluding fees of counsel to underwriters and
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Transfer Restricted Securities by a Holder thereof.
SECTION 8. INDEMNIFICATION
(a) The Company and the Subsidiary Guarantors, jointly and severally,
agree to indemnify and hold harmless (i) each Holder of Transfer Restricted
Securities, each Initial Purchaser and each Exchanging Dealer and (ii) each
person, if any, who controls (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) any Holder of Transfer Restricted Securities,
Initial Purchaser or Exchanging Dealer (any of the persons referred to in this
clause (ii) being hereinafter referred to as a "controlling person") and (iii)
the respective officers, directors, partners, employees, representatives and
agents of any Holder of Transfer Restricted Securities, Initial Purchaser or
Exchanging Dealer or any controlling person (any person referred to in clause
(i), (ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"),
from and against any and all losses, claims, damages, liabilities and judgments
(including, without limitation any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement or Prospectus (or any
amendment or supplement thereto) provided by the Company or any Guarantor to any
Holder of
16
Transfer Restricted Securities, Initial Purchaser or Exchanging Dealer or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or judgments are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the persons referred to in clause (i), (ii) or (iii) above
furnished in writing to the Company by any such person expressly for use
therein; PROVIDED, HOWEVER, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any Holder of
Transfer Restricted Securities, Initial Purchaser or Exchanging Dealer from whom
the person asserting any such losses, claims, damages or liabilities purchased
Transfer Restricted Securities, or any person controlling such Holder of
Transfer Restricted Securities, Initial Purchaser or Exchanging Dealer, if a
copy of a final prospectus (as so amended or supplemented) was not sent or given
by or on behalf of such Person, or if required by law to have been so delivered,
at or prior to the written confirmation of the sale of the Transfer Restricted
Securities to such Person, and if a final prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company or the Subsidiary Guarantors, such Indemnified Holder (or the
Indemnified Holder controlled by such controlling person) shall promptly notify
the Company and the Subsidiary Guarantors in writing, PROVIDED, that the failure
to give such notice shall not relieve the Company or the Subsidiary Guarantors
of its obligations pursuant to this Agreement. Such Indemnified Holder shall
have the right to employ its own counsel in any such action and the fees and
expenses of such counsel shall be paid, as incurred, by the Company and the
Subsidiary Guarantors (regardless of whether it is ultimately determined that an
Indemnified Holder is not entitled to indemnification hereunder). The Company
shall be liable for any settlement of any such action or proceeding effected
with the Company's prior written consent, which consent shall not be withheld
unreasonably, and the Company agrees to indemnify and hold harmless any
Indemnified Holder from and against any loss, claim, damage, liability or
expense by reason of any settlement of any action effected with the written
consent of the Company. The Company shall not, without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability
arising out of such action, claim, litigation or proceeding.
(b) In connection with any Shelf Registration Statement and, to the extent
applicable, an Exchange Offer Registration Statement, each Holder of Transfer
Restricted Securities agrees, severally and not jointly, to indemnify and hold
harmless the Initial Purchasers and the Company and the Subsidiary Guarantors,
and their respective directors, officers, and any person controlling (within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act) the Company,
and the respective officers, directors, partners, employees, representatives and
agents of each
17
such person, to the same extent as the foregoing indemnity from the Company and
the Subsidiary Guarantors to each of the Indemnified Holders, but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement or Prospectus. In case any action or proceeding shall be brought
against the Company, the Subsidiary Guarantors, the Initial Purchasers or their
respective directors or officers or any such controlling person in respect of
which indemnity may be sought against a Holder of Transfer Restricted
Securities, such Holder shall have the rights and duties given the Company and
the Company or its directors or officers or such controlling person shall have
the rights and duties given to each Holder by the preceding paragraph. In no
event shall the liability of any selling Holder hereunder be greater in amount
than the dollar amount of the proceeds received by such Holder upon the sale of
the Transfer Restricted Securities giving rise to such indemnification
obligation.
The Initial Purchasers agree, severally and not jointly, to indemnify
and hold harmless the Company, the Subsidiary Guarantors, the Holders of
Transfer Restricted Securities and their respective directors, officers and
any person controlling (within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act) the Company, and the respective officers,
directors, employees, representatives and agents of each such Person, to the
same extent as the foregoing indemnity from the Company and the Subsidiary
Guarantors to each of the Indemnified Holders, but only with respect to
claims and actions based upon information relating to such Initial Purchaser
furnished in writing by such Initial Purchaser expressly for use in any
Registration Statement or Prospectus. In case any action or proceeding shall
be brought against the Company, the Subsidiary Guarantors, Holders of
Transfer Restricted Securities or their respective directors or officers or
any such controlling person in respect of which indemnity may be sought
against an Initial Purchaser, such Initial Purchaser shall have the rights
and duties given to each Initial Purchaser by paragraph two of Section 8(a).
In no event shall the liability of any Initial Purchaser hereunder be greater
than the dollar amount of the proceeds received by such Initial Purchaser
upon the sale of the Transfer Restricted Securities giving rise to such
indemnification obligation.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Holders on the other hand from their sale of
Transfer Restricted Securities or if such allocation is not permitted by
applicable law, the relative fault of the Company on the one hand and of the
Indemnified Holder on the other in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of the
Company and the Subsidiary Guarantors on the one hand and of the Indemnified
Holder on the other 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 Company or the
18
Subsidiary Guarantors or by the Indemnified Holder and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result
of the losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The Company, the Subsidiary Guarantors and each Holder of Transfer
Restricted Securities agree that it would not be just and equitable if
contribution pursuant to this Section 8(c) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages, liabilities or expenses referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this ▇▇▇▇▇▇▇ ▇, ▇▇▇▇ of the Holders (nor its
related Indemnified Holders) shall be required to contribute, in the aggregate,
any amount in excess of the amount by which the total discount received by such
Holder with respect to the Senior Notes exceeds the amount of any damages which
such Holder has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. 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. The Holders' obligations to contribute pursuant
to this Section 8(c) are several in proportion to the respective principal
amount of Senior Notes held by each of the Holders hereunder and not joint.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
19
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) REMEDIES. The Company and the Subsidiary Guarantors agree that
monetary damages (including the liquidated damages contemplated hereby) would
not be adequate compensation for any loss incurred by reason of a breach by it
of the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not, and will cause the
Subsidiary Guarantors not to, on or after the date of this Agreement enter into
any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Neither the Company nor the Subsidiary Guarantors have
previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Company's securities under any agreement in
effect on the date hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company will not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the then outstanding aggregate
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose securities are being tendered
pursuant to the Exchange Offer and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of a majority of the then
outstanding aggregate principal amount of Transfer Restricted Securities being
tendered or registered.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
20
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
▇▇▇▇▇▇▇ Homes, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With a copy to:
▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP
Two Embarcadero Place
▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, 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 specified in the Indenture.
(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, including
without limitation and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; 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 acquired
Transfer Restricted Securities from such Holder.
(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.
21
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
22
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
▇▇▇▇▇▇▇ HOMES, INC.
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
▇▇▇▇▇▇▇ HOMES OF CALIFORNIA, INC.
▇▇▇▇▇▇▇ HOMES OF OREGON, INC.
▇▇▇▇▇▇▇ HOMES OF WASHINGTON, INC.
SHLR OF WASHINGTON, INC.
MELODY HOMES, INC.
MELODY MORTGAGE CO.
▇▇▇▇▇▇▇ REALTY/MAUI, INC.
▇▇▇▇▇▇▇ REALTY/OAHU, INC.
LOKELANI CONSTRUCTION CORPORATION
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
(Signatures continued on following page)
S-1
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By:
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Name:
Title:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By:
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Name:
Title:
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
By:
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Name:
Title:
SBC WARBURG DILLON READ INC.
By:
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Name:
Title:
By:
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Name:
Title:
S-2
SCHEDULE A
GUARANTORS
▇▇▇▇▇▇▇ HOMES OF CALIFORNIA, INC.
▇▇▇▇▇▇▇ HOMES OF OREGON, INC.
▇▇▇▇▇▇▇ HOMES OF WASHINGTON, INC.
SHLR OF WASHINGTON, INC.
MELODY HOMES, INC.
MELODY MORTGAGE CO.
▇▇▇▇▇▇▇ REALTY/MAUI, INC.
▇▇▇▇▇▇▇ REALTY/OAHU, INC.
LOKELANI CONSTRUCTION CORPORATION
ANNEX A
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must agree that it will deliver a prospectus in
connection with any resale of such Exchange Notes. The Letter of Transmittal
states that by so acknowledging and by delivering a prospectus, a broker-dealer
will not be deemed to admit that it is an "underwriter" within the meaning of
the Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a broker-dealer in connection with resales of Exchange
Notes received in exchange for Senior Notes where such Senior Notes were
acquired by such broker-dealer as a result of market-making activities or other
trading activities. The Company has agreed that, for a period of 180 days after
the Expiration Date (as defined herein), it will make this Prospectus available
to any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
ANNEX B
Each broker-dealer that receives Exchange Notes for its own account in
exchange for Senior Notes, where such Senior Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Notes. See "Plan of Distribution."
ANNEX C
Each broker-dealer that receives Exchange Notes for its own account
pursuant to the Exchange Offer must agree that it will deliver a prospectus in
connection with any resale of such Exchange Notes. This Prospectus, as it may
be amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of Exchange Notes received in exchange for Senior Notes
where such Senior Notes were acquired by such broker-dealer as a result of
market-making activities or other trading activities. The Company has agreed
that, for a period of 180 days after the Expiration Date, it will make this
Prospectus, as amended or supplemented, available to any broker-dealer for use
in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange Notes
by broker-dealers. Exchange Notes received by broker-dealers for their own
account pursuant to the Exchange Offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the Exchange Notes or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such broker-dealer and/or the purchasers of any such Exchange Notes. Any
broker-dealer that resells Exchange Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such Exchange Notes may be deemed to be an
"underwriter" within the meaning of the Act and any profit of any such resale of
Exchange Notes and any commissions or concessions received by any such persons
may be deemed to be underwriting compensation under the Act. The Letter of
Transmittal states that, by acknowledging that it will deliver and by delivering
a prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send a reasonable number of additional copies of this Prospectus and
any amendment or supplement to this Prospectus to any broker-dealer that
requests such documents. The Company has agreed to pay all expenses incident to
the Exchange Offer (which shall not include any expenses of any holder in
connection with resale of Exchange Notes) and will indemnify the holders of the
Senior Notes participating in the Exchange Offer (including any broker-dealers)
against certain liabilities, including liabilities under the Act