Exhibit 4.16
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 17, 2002
By and Among
BEAZER HOMES USA, INC.,
as Issuer,
the other GUARANTORS named herein
and
UBS WARBURG LLC
BANC ONE CAPITAL MARKETS, INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
BNP PARIBAS SECURITIES CORP.
COMERICA SECURITIES, INC.
PNC CAPITAL MARKETS, INC.
SUNTRUST CAPITAL MARKETS, INC.
and
FIRST UNION SECURITIES, INC.
as Initial Purchasers
8-3/8% Senior Notes due 2012
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TABLE OF CONTENTS
PAGE
1. Definitions...............................................................1
2. Exchange Offer............................................................4
3. Shelf Registration........................................................7
4. Liquidated Damages........................................................9
5. Registration Procedures..................................................10
6. Registration Expenses....................................................18
7. Indemnification..........................................................18
8. Rules 144 and 144A.......................................................22
9. Underwritten Registrations...............................................22
10. Miscellaneous............................................................22
(a) No Inconsistent Agreements..........................................22
(b) Adjustments Affecting Registrable Notes.............................22
(c) Amendments and Waivers..............................................23
(d) Notices.............................................................23
(e) Guarantors..........................................................24
(f) Successors and Assigns..............................................24
(g) Counterparts........................................................24
(h) Headings............................................................25
(i) Governing Law.......................................................25
(j) Severability........................................................25
(k) Securities Held by the Company or Its Affiliates....................25
(l) Third-Party Beneficiaries...........................................25
(m) Attorneys' Fees.....................................................25
(n) Entire Agreement....................................................25
SIGNATURES...................................................................S-1
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REGISTRATION RIGHTS AGREEMENT
This
Registration Rights Agreement (this "AGREEMENT") is dated as
of April 17, 2002, by and among Beazer Homes USA, 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 One Capital Markets, Inc., Credit Suisse First
Boston Corporation, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., BNP Paribas Securities Corp.,
Comerica Securities, Inc., PNC Capital Markets, Inc., SunTrust Capital Markets,
Inc., and First Union Securities, Inc. (the "INITIAL PURCHASERS"), on the other
hand.
This Agreement is entered into in connection with the Purchase
Agreement, dated as of April 11, 2002, by and among the Issuers and the Initial
Purchasers (the "PURCHASE AGREEMENT"), relating to the offering of $350,000,000
aggregate principal amount of the Company's 8-3/8% Senior Notes due 2012
(including the guarantees thereof by the Guarantors, the "NOTES"). 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.
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"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, dated as of April 17, 2002,
as amended or supplemented from time to time in accordance with the terms
thereof, by and among the Company and U.S. Bank National Association, as
trustee, and the First Supplemental Indenture, dated as of April 17, 2002, by
and among the Issuers and U.S. Bank National Association, as trustee, pursuant
to which the Notes are being issued.
"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 April 17, 2002, 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.
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"NASD" shall have the meaning set forth in Section 5(s) hereof.
"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.
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"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 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
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form with respect to a registered offer (the "EXCHANGE OFFER") to exchange any
and all of the 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 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) 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 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 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.
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
(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.
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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 Issuers 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
Issuers and (iii) all governmental approvals shall have been obtained, which
approvals the Issuers deem 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
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 (other than an
Initial Purchaser) 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 pursuant to Section 3
hereof.
Section 3. SHELF REGISTRATION
If at any time a Shelf Filing Event shall occur, then:
(a) SHELF REGISTRATION. 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 event on or
prior to 45 days after such Shelf Filing Event occurs (but in no event prior to
90 days following the Issue Date). 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
Company
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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 Self Registration Statement to be declared effective under
the Securities Act on or prior to the 90th day after such Shelf Filing Event
occurs (but in no event shall such effectiveness be required prior to 180 days
following the Issue Date) 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
continuously 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
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applicable to the registration form used for such Shelf Registration Statement
or by the Securities Act for a 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) The Issuers and the Initial Purchasers agree that the Holders
will suffer damages if the Company fails to fulfill its 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 0.25% per
annum for the first 90-day period immediately following the occurrence of a
Registration Default, increasing by an additional 0.25% 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 Issuer without further registration under the Securities Act.
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
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(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.
(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 (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 therein and all exhibits thereto) proposed to be filed (in each
case at least five Business Days prior to such filing). The Company 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
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Act and the Exchange Act applicable to each of them 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 or supplemented, as the case may be.
(c) If (1) a Shelf Registration 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, at the sole
expense of the Company, one conformed copy of such Registration Statement
or post-effective amendment including financial statements and schedules,
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
jurisdiction, 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.
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(d) If (1) a Shelf Registration 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 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 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 such
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
opinion of counsel to the Company, violate applicable laws.
(f) If (1) a Shelf Registration 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, 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, at the sole expense of the Company, 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 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, at
the sole expense of the Company, as many copies of the Prospectus or
Prospectuses (including each form of preliminary prospectus) and
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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.
(i) If a Shelf Registration 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
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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 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, 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, (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
-15-
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; 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 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 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 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; PROVIDED, HOWEVER, that such Inspector shall take such actions 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
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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) no later than 45 days after the end of any
12-month period (or 90 days after the end of any 12-month period if such
period is a fiscal year) (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, which statements shall cover said 12-month periods.
(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 Company, 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 Company, enforceable against
the Company 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 canceled 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
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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 and the failure to include any such seller shall not be
deemed to be a Registration Default. Each seller as to which any Shelf
Registration 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)(iii), 5(c)(iv), or
5(c)(v) hereof, or (y) that the Board of Directors of the Company (the "BOARD OF
DIRECTORS") has 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, 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. Any Delay Period 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
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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 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 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 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 Company 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 the Company 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
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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 (i) 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 (ii) that the
foregoing indemnity with respect to any preliminary prospectus shall not inure
to the benefit of any Participant from whom the Person asserting such Losses
purchased Registrable Notes if (x) it is established in the related proceeding
that such Participant failed to send or give a copy of the Prospectus (as
amended or supplemented if such amendment or supplement was furnished to such
Participant prior to the written confirmation of such sale) to such Person with
or prior to the written confirmation of such sale, if required by applicable
law, and (y) the untrue statement or omission or alleged untrue statement or
omission was completely corrected in the Prospectus (as amended or supplemented
if amended or supplemented as aforesaid) and such Prospectus does not contain
any other untrue statement or omission or alleged untrue statement or omission
that was the subject matter of the related proceeding. 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
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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.
(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 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
reasonably 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) 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 60 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
-21-
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 reflect 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. 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.
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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 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
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, as of the
date hereof, and shall not, after the date of this Agreement, enter 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 Company 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.
-23-
(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 Company (on behalf of all
Issuers) and (II)(A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding 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 Company, at the address as follows:
Beazer Homes USA, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
With a copy to:
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
-24-
(iii) if to the Initial Purchasers, at the address as follows:
UBS Warburg LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax number: (▇▇▇) ▇▇▇-▇▇▇▇
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.
-25-
(h) HEADINGS. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(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 PRINCIPLES OF CONFLICTS OF LAW.
(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 Company 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.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
BEAZER HOMES USA, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Director
BEAZER MORTGAGE CORPORATION
BEAZER HOMES CORP.
BEAZER HOMES SALES ARIZONA, INC.
BEAZER REALTY CORP.
BEAZER/▇▇▇▇▇▇▇ REALTY, INC.
BEAZER HOMES HOLDINGS CORP.
BEAZER HOMES TEXAS HOLDINGS, INC.
APRIL CORPORATION
BEAZER HOMES INVESTMENT CORP.
BEAZER REALTY, INC.
HOMEBUILDERS TITLE SERVICES OF
VIRGINIA, INC.
HOMEBUILDERS TITLE SERVICES, INC.
UNIVERSAL SOLUTIONS INSURANCE
AGENCY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
BEAZER HOMES TEXAS, LP
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Director of
the General Partner, Beazer
Homes Texas Holdings, Inc.
BEAZER SPE, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Director of
Beazer Homes Holdings Corp,
Sole Member
BEAZER CLARKSBURG, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Director of
Beazer Homes Corp., Sole
Member
TEXAS LONE STAR TITLE, LP
By: Beazer Homes Texas Holdings, Inc.,
Its General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President and Director
BUILDER'S LINK, INC.
CROSSMANN COMMUNITIES OF NORTH
CAROLINA, INC.
CROSSMANN COMMUNITIES OF OHIO, INC.
CROSSMANN COMMUNITIES OF TENNESSEE, LLC
CROSSMANN INVESTMENTS, INC.
CROSSMANN MANAGEMENT, INC.
CROSSMANN MORTGAGE CORP.
CROSSMANN REALTY, CO.
CUTTER HOMES LTD
DELUXE AVIATION, INC.
DELUXE HOMES OF LAFAYETTE, INC.
DELUXE HOMES OF OHIO, INC.
MERIT REALTY, INC.
TRINITY HOMES LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
CROSSMANN COMMUNITIES PARTNERSHIP
By: Crossmann Communities, Inc.,
Partner
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
PARAGON TITLE, LLC
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Manager
PINEHURST BUILDERS, LLC
By: Crossmann Communities of North
Carolina, Inc., sole member
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary
UBS WARBURG LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
BANC ONE CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
CREDIT SUISSE FIRST BOSTON CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
BNP PARIBAS SECURITIES CORP.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signatory
COMERICA SECURITIES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Managing Director
PNC CAPITAL MARKETS, INC.
By: /s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: J. ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
SUNTRUST CAPITAL MARKETS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
FIRST UNION SECURITIES, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Vice President
SCHEDULE A
SCHEDULE OF GUARANTORS
Beazer Homes Corp.
Beazer/▇▇▇▇▇▇▇ Realty, Inc.
Beazer Homes Sales Arizona Inc.
Beazer Realty Corp.
Beazer Mortgage Corporation
Beazer Homes Holdings Corp.
Beazer Homes Texas Holdings, Inc.
Beazer Homes Texas, L.P.
April Corporation
Beazer SPE, LLC
Beazer Homes Investment Corp.
Beazer Realty, Inc.
Beazer Clarksburg, LLC
Homebuilders Title Services of Virginia, Inc.
Homebuilders Title Services, Inc.
Texas Lone Star Title, L.P.
Universal Solutions Insurance Agency, Inc.
Builder's Link, Inc.
Crossmann Communities of North Carolina, Inc.
Crossmann Communities of Ohio, Inc.
Crossmann Communities of Tennessee, LLC
Crossmann Communities Partnership
Crossmann Investments, Inc.
Crossmann Management Inc.
Crossmann Mortgage Corp.
Crossmann Realty, Co.
Cutter Homes Ltd.
Deluxe Aviation, Inc.
Deluxe Homes of Lafayette, Inc.
Deluxe Homes of Ohio, Inc.
Merit Realty, Inc.
Paragon Title, LLC
Pinehurst Builders LLC
Trinity Homes LLC