EXHIBIT 4.5
________________________________________________________________________________
REGISTRATION RIGHTS AGREEMENT
Dated as of February 5, 1998
by and among
STANDARD PACIFIC CORP.,
SBC WARBURG DILLON READ INC.,
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
and
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
________________________________________________________________________________
TABLE OF CONTENTS
PAGE
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SECTION 1. DEFINITIONS............................................. 1
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT.................... 4
(a) Transfer Restricted Securities............................ 4
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(b) Holders of Transfer Restricted Securities................. 4
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SECTION 3. REGISTERED EXCHANGE OFFER............................... 4
SECTION 4. SHELF REGISTRATION...................................... 6
(a) Shelf Registration........................................ 6
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(b) Provision by Holders of Certain Information in
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Connection with the Shelf Registration Statement.......... 7
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SECTION 5. LIQUIDATED DAMAGES...................................... 7
SECTION 6. REGISTRATION PROCEDURES................................. 8
(a) Exchange Offer Registration Statement..................... 8
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(b) Shelf Registration Statement.............................. 10
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(c) General Provisions........................................ 10
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SECTION 7. REGISTRATION EXPENSES................................... 18
SECTION 8. INDEMNIFICATION......................................... 19
SECTION 9. RULE 144A............................................... 24
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS............ 24
SECTION 11. SELECTION OF UNDERWRITERS.............................. 25
SECTION 12. MISCELLANEOUS.......................................... 25
(a) Remedies.................................................. 25
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(b) No Inconsistent Agreements................................ 25
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(c) Adjustments Affecting the Notes........................... 25
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(d) Amendments and Waivers.................................... 25
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(e) Notices................................................... 26
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(f) Successors and Assigns.................................... 26
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(g) Counterparts.............................................. 26
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(h) Captions.................................................. 26
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(i) Governing Law............................................. 27
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(j) Submission to Jurisdiction................................ 27
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(k) Severability.............................................. 27
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(l) Entire Agreement.......................................... 27
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i
This Registration Rights Agreement (the "Agreement") is made and entered
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into as of February 5, 1998 by and among STANDARD PACIFIC CORP., a Delaware
corporation (the "Company"), and SBC WARBURG DILLON READ INC., BANCAMERICA
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ SECURITIES CORPORATION (the
"Initial Purchasers"). The execution and delivery of this Agreement is a
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condition to the obligations of the Initial Purchasers to purchase $100,000,000
of the Company's 8% Senior Notes due 2008 under the Purchase Agreement, dated as
of February 5, 1998 (the "Purchase Agreement"), by and among the Company and the
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Initial Purchasers.
The Company and the Initial Purchasers hereby 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
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promulgated by the Commission pursuant thereto.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
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Business day: Any day except Saturday, Sunday or any day which shall be a
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legal holiday or a day on which banking institutions in the State of New York
generally are authorized or required by law or other governmental actions to
close.
Closing Date: The date that the Notes are purchased by the Initial
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Purchasers pursuant to the Purchase Agreement.
Commission: The Securities and Exchange Commission.
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Consummate: The Exchange Offer shall be deemed "Consummated" for purposes
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of this Agreement upon the occurrence of (i) the filing and effectiveness under
the Act of the Exchange Offer Registration Statement relating to the New 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(b) of
this Agreement and (iii) the delivery by the Company to the Registrar under the
Indenture of New Notes in the same aggregate principal amount as the aggregate
principal amount of Old Notes that were so tendered.
Damages Payment Date: With respect to the Notes, each Interest Payment
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Date.
1
Effectiveness Target Date: As defined in Section 5 of this Agreement.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and the
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rules and regulations promulgated by the Commission pursuant thereto.
Exchange Offer: The registration under the Act by the Company of the New
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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 Old Notes that are Transfer Restricted Securities
held by such Holders for New Notes in an aggregate principal amount equal to the
aggregate principal amount of the Old Notes that are Transfer Restricted
Securities tendered in such exchange offer by such Holders.
Exchange Offer Effective Date: The dated on which the Exchange Offer
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Registration Statement is declared effective by the Commission.
Exchange Offer Registration Statement: The Registration Statement
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relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
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to sell the Notes to (i) certain "qualified institutional buyers," as such term
is defined in Rule 144A under the Act, and (ii) other eligible purchasers
pursuant to Regulation S under the Act.
Holder(s): As defined in Section 2(b) of this Agreement.
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Indenture: The Indenture, dated as of April 1, 1992, by and between the
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Company and United States Trust Company of New York, as trustee (the "Trustee"),
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pursuant to which the Notes are to be issued, as such Indenture is amended or
supplemented from time to time in accordance with its terms.
Interest Payment Date: As defined in the Notes.
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NASD: National Association of Securities Dealers, Inc.
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New Notes: The Company's 8% Senior Notes due 2008 to be issued pursuant to
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the Indenture in connection with the Exchange Offer and evidencing the same debt
as the Old Notes.
Notes: Old Notes and New Notes.
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Old Notes: The Company's 8% Senior Notes due 2008 to be issued pursuant to
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the Indenture on the Closing Date.
2
Participating Broker Dealer: As defined in Section 6(a)(iii) of this
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Agreement.
Person: An individual, partnership, corporation, trust or unincorporated
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organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in any Registration Statement, as
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amended or supplemented by any prospectus supplement and by all other amendments
and supplements thereto, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference, if any, in
such Prospectus.
Registration Default: As defined in Section 5 of this Agreement.
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Registration Statement: Any registration statement of the Company relating
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to (a) an offering of New Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement that is filed pursuant to the provisions of this
Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including pre-and post-effective amendments)
and all exhibits and material incorporated by reference or deemed to be
incorporated by reference, if any, therein.
Shelf Filing Deadline: As defined in Section 4(a) of this Agreement.
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Shelf Registration Statement: As defined in Sec tion 4(a) of this
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Agreement.
Subsidiary: With respect to any Person, any other Person of which a
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majority of the equity ownership or the voting securities is at the time owned,
directly or indirectly, by such Person or by one or more other subsidiaries of
such Person or a combination thereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C. Section
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77aaa-77bbbb), as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note until the earliest to occur of
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(i) the date on which each such Old Note has been exchanged by a person other
than a Broker-Dealer for a New Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of an Old Note for a New Note,
the date on which such New Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (iii) the date on which
such Note has
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been effectively registered under the Act and disposed of in accordance with the
Shelf Registration Statement or (iv) the date on which such Note is distributed
(or is eligible to be) to the public pursuant to Rule 144 under the Act.
Underwritten Registration or Underwritten Offering: A registration in
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which securities of the Company are sold to an underwriter for reoffering to the
public pursuant to an effective Registration Statement.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
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benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be a
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holder of Transfer Restricted Securities (each, a "Holder") whenever such Person
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beneficially owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless, due to a change in law or Commission policy after the date
hereof, the Exchange Offer shall not be permissible under applicable federal law
or Commission policy, the Company shall (i) cause to be filed with the
Commission as soon as practicable on or prior to 60 days after the Closing Date,
a Registration Statement under the Act relating to the New Notes and the
Exchange Offer and (ii) use its best efforts to cause such Registration
Statement to be declared effective by the Commission as soon as practicable on
or prior to 120 days after the Closing Date. In connection with the foregoing,
the Company shall (A) file all pre-effective amendments to such Registration
Statement as may be necessary 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, (C) cause all
necessary filings in connection with the registration and qualification of the
New Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer (provided, however, that
the Company shall not be obligated to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified or to take any action that would
subject it to general service of process or taxation in any jurisdiction where
it is not so subject, except service of process with respect to the offering and
sale of the Notes) and (D) upon the effectiveness of such Registration
Statement, commence the Exchange Offer and use its best efforts to issue on or
prior to 45 days after the Exchange Offer Effective Date, New Notes in exchange
for all Old Notes tendered in the Exchange Offer. The Exchange Offer
Registration Statement shall be on the appropriate form permitting registration
of the New Notes to be offered in
4
exchange for the Transfer Restricted Securities and to permit resales of New
Notes held by Broker-Dealers as contemplated by Section 3(c) below. If, after
such Exchange Offer Registration Statement initially is declared effective by
the Commission, the Exchange Offer or the issuance of New Notes under the
Exchange Offer or the resale of New Notes received by Broker-Dealers in the
Exchange Offer as contemplated by Section 3(c) below is interfered with by any
stop order, injunction or other order or requirement of the Commission or any
other governmental agency or court, such Registration Statement shall be deemed
not to have become effective for purposes of this Agreement during the period
that such stop order, injunction or other similar order or requirement shall
remain in effect.
(b) The Company shall cause the Exchange Offer Registration Statement to be
continuously effective and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
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event shall such period be less than 20 business days. The Company shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. The Company shall only offer to exchange New Notes for Old Notes in the
Exchange Offer, and only the New Notes shall be registered under the Exchange
Offer Registration Statement.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus included in the Exchange Offer Registration
Statement that any Broker-Dealer that holds Old 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 Old
Notes pursuant to the Exchange Offer; provided, however, that such Broker-Dealer
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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 New Notes received by such Broker-Dealer in
the Exchange Offer. Such "Plan of Distribution" section shall allow the use of
the Prospectus by all Persons subject to the prospectus delivery requirements of
the Act, including Participating Broker-Dealers, and shall also contain all
other information with respect to such resales by Broker-Dealers that the
Commission may require to permit such resales pursuant thereto, but such "Plan
of Distribution" shall not name any such Broker-Dealer or disclose the amount of
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.
During the period required by Section 3(b) above, the Company shall use its
best efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented and
5
amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities, 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. 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.
Unless otherwise agreed by the Company, no Broker-Dealer shall deliver such
Prospectus after the expiration of the period required by Section 3(b).
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company is not required to file an
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Exchange Offer Registration Statement or to consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy or (ii) any Holder of Transfer Restricted Securities shall notify the
Company within 20 business days after the commencement of the Exchange Offer
that such Holder (A) is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) may not resell the New Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
is a Broker-Dealer and holds Old Notes (including the Initial Purchaser who
holds Old Notes as part of an unsold allotment from the original offering of the
Notes) acquired directly from the Company or one of its affiliates or (iii) the
Company does not consummate the Exchange Offer within 45 days following the
effectiveness date of the Exchange Offer Registration Statement, then the
Company 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"), on
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or prior to the earliest to occur of (1) the 60th day after the date on which
the Company determines that it is not required to file the Exchange Offer
Registration Statement or (2) the 60th day after the date on which the Company
receives notice from a Holder of Transfer Restricted Securities as contemplated
by clause (ii) above (such earliest date being the "Shelf Filing Deadline"),
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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) of this Agreement, and (y) use its best
efforts to cause such Shelf Registration Statement to be declared effective by
the Commission on or before the 120th day after the Shelf Filing Deadline. The
Company shall use its best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
6
of Sections 6(b) and (c) of this Agreement 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
continuous period of two years following the date on which such Shelf
Registration Statement becomes effective under the Act or such shorter period
that will terminate when all the Notes covered by the Shelf Registration
Statement have been sold pursuant to such Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with the
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Shelf Registration Statement. No Holder of Transfer Restricted Securities may
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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 10 business days after receipt of a request
therefor, such information regarding such Holder as the Company may reasonably
request for use in connection with any Shelf Registration Statement or
Prospectus or preliminary Prospectus included in such Shelf Registration
Statement. 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 to make the information previously furnished to the Company by such
Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any of such Registration Statements has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"), (iii) the
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Exchange Offer has not been Consummated within 30 business days after the
Exchange Offer Effective Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is
filed and declared effective but shall thereafter cease to be effective or
usable in connection with the Exchange Offer or resales of Transfer Restricted
Securities, as applicable, during the periods required by this Agreement (each
such event referred to in clauses (i) through (iv), a "Registration Default"),
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the Company hereby agrees to pay liquidated damages to each Holder of Transfer
Restricted Securities with respect to the first 90-day period immediately
following the occurrence of such Registration Default, in an amount equal to
$.05 per week per $1,000 principal amount of Notes constituting Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues. The amount of the liquidated damages shall
increase by an additional $.05 per week per $1,000
7
in principal amount of Notes constituting Transfer Restricted Securities with
respect to each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of liquidated damages of $.30 per week per
$1,000 in principal amount of Notes constituting Transfer Restricted Securities
(regardless of whether one or more than one Registration Default is
outstanding). Notwithstanding the foregoing, the Company shall not be required
to pay liquidated damages to Holders of Transfer Restricted Securities if the
Registration Default arises from the failure of the Company to file, or cause to
become effective, a Shelf Registration Statement within the time period required
by Section 4 of this Agreement and such Registration Default is by reason of the
failure of a Holder to provide the information regarding the Holder reasonably
requested by the Company, the NASD or any other regulatory agency having
jurisdiction over the Company or any of the Holders at least 10 business days
prior to such Registration Default. All accrued liquidated damages shall be
paid by the Company on each Damages Payment Date to the Holders by wire transfer
of immediately available funds or by federal funds check and to the Holders of
certificated securities by mailing a check to such Holders' registered
addresses. Following the cure of all Registration Defaults relating to any
particular Transfer Restricted Securities, the accrual of liquidated damages
with respect to such Transfer Restricted Securities will cease.
All obligations of the Company set forth in the preceding paragraph 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 Transfer Restricted
Security shall have been satisfied in full.
The parties hereto agree that the liquidated damages provided in this
Section 5 constitute a reasonable estimate of, and are intended to constitute,
the sole damages that will be suffered by the holders by reason of any
Registration Default.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the Exchange
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Offer, the Company shall comply with all of the provisions of Section 6(c)
below, shall use its best efforts to effect such exchange, and shall comply with
all of the following provisions:
(i) If, due to a change in law or Commission policy after the date
hereof, in the reasonable opinion of counsel to the Company there is a
question as to whether the Exchange Offer is permitted by applicable
federal law or Commission policy, the Company hereby agrees to seek a no-
8
action letter or other favorable decision from the Commission allowing the
Company to Consummate an Exchange Offer for such Old Notes. The Company
hereby agrees to pursue the issuance of such a no-action letter or
favorable decision to the Commission staff level but shall not be required
to take commercially unreasonable action to effect a change of Commission
policy. The Company hereby agrees, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to the Commission
an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an Exchange
Offer should be permitted and (C) diligently pursue a resolution (which
need not be favorable) by the Commission of such submission. The Initial
Purchasers shall be given prior notice of any action taken by the Company
under this clause (i).
(ii) 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 of the Exchange Offer, 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 New Notes to be issued in the
Exchange Offer and (C) it is acquiring the New 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.
(iii) The Company and the Initial Purchasers acknowledge that the
staff of the Commission has taken the position that any broker-dealer that
owns New Notes that were received by such broker-dealer for its own account
in the Exchange Offer (a "Participating Broker-Dealer") may be deemed to be
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an "underwriter" within the meaning of the Act and must deliver a
prospectus meeting the requirements of the Act in connection with any
resale of such New 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 it is the
Commission staff's 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 New Notes, without naming the Participating Broker-
Dealers or specifying the amount of New Notes owned by them, such Prospectus may
be delivered by Participating Broker-Dealers to satisfy their
9
prospectus delivery obligations under the Act in connection with resales of New
Notes for their own accounts, so long as the Prospectus otherwise meets the
requirements of the Act.
(b) Shelf Registration Statement. In the event that a Shelf
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Registration Statement is required by this Agreement, the Company shall comply
with all the provisions of Section 6(c) of this Agreement and shall use its 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 of such Transfer Restricted Securities and, in
connection therewith, the Company will as expeditiously as possible prepare and
file with the Commission a Shelf 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 of such Transfer Restricted
Securities.
(c) General Provisions. In connection with any Registration Statement
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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, to the extent that the same are required
to be available to permit resales of Notes by Broker-Dealers), the Company
shall:
(i) use its best efforts to keep such Registration Statement
continuously effective for the applicable time period required hereunder
and provide all requisite financial statements for the periods 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 usable for the Exchange Offer or
the resale of Transfer Restricted Securities, as applicable, during the
period required by this Agreement, the Company shall promptly notify the
Holders to suspend use of the Prospectus, and the Holders shall suspend use
of the Prospectus, and such Holders shall not communicate non-public
information to any third party, in violation of the securities laws, until
the Company has made 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), the Company shall
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 such Registration
10
Statement as may be necessary to keep the Registration Statement effective
for the applicable periods set forth in Section 3 or 4 of this Agreement,
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 during the applicable time period required hereunder 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 and the Exchange
Act with respect to the disposition of all Transfer Restricted Securities
covered by such Registration Statement during such period in accordance
with the intended method or methods of distribution by the sellers of such
securities set forth in such Registration Statement as so amended or in
such Prospectus as so supplemented;
(iii) advise the underwriter(s), if any, the Initial Purchasers, and,
in the case of a Shelf Registration Statement, each of the selling Holders
promptly and, if requested by such Persons, 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 to such Registration Statement or
Prospectus, (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 to such Registration
Statement or Prospectus, as the case may be, or any document incorporated
by reference in such Registration Statement or Prospectus untrue in any
material respect, or that requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make
the statements in such Registration Statement or Prospectus 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. If at any
time the Commission shall issue any stop order
11
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 shall use its best efforts to obtain the withdrawal or lifting of
such order at the earliest possible time;
(iv) furnish to each of the underwriter(s), if any, the Initial
Purchasers and, in the case of a Shelf Registration Statement, each of the
selling Holders before filing with the Commission, copies of any
Registration Statement or any Prospectus included in such Registration
Statement or Prospectus or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents incorporated
by reference after the initial filing of such Registration Statement),
which documents will be subject to the reasonable review of such
underwriter(s), if any, the Initial Purchasers, and such Holders for a
period of at least five business days prior to the initial filing of such
Registration Statement (or two business days in the case of any amendment
or supplement to any Prospectus or any document incorporated by reference),
and the Company will not file any such Registration Statement or Prospectus
or any amendment or supplement to any such Registration Statement or
Prospectus, as the case may be, (including all such documents incorporated
by reference) to which any underwriter, Initial Purchaser or selling Holder
shall reasonably object within such five or two, as applicable, business
days after the receipt of such Registration Statement or Prospectus. A
selling Holder or underwriter, if any, shall be deemed to have reasonably
objected to such filing if such Registration Statement, Prospectus,
amendment or supplement, as applicable, as proposed to be filed, contains a
material misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, (a)
provide copies of such document to the selling Holders and to the
underwriter(s), if any, (b) make the Company's representatives available to
respond to inquiries regarding such document and other customary due
diligence matters as the selling Holders or underwriter(s), if any, may
reasonably request; provided that such discussion and due diligence shall
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be coordinated on behalf of the selling Holders by one counsel designated
by and on behalf of such selling Holders and (c) include such information
in such document prior to the filing of such document as such selling
Holders or underwriter(s), if any, may reasonably request;
(vi) make available at reasonable times for inspection by the selling
Holders, any underwriter participating in any
12
disposition pursuant to such Registration Statement and any attorney or
accountant retained by such selling Holders or any of the underwriter(s),
if any, at the offices where normally kept, during reasonable business
hours, all relevant financial and other records, pertinent corporate
documents and properties of the Company and cause the Company's officers,
directors and employees to supply all information reasonably requested by
any such Holder, underwriter, 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 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;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such selling Holders and underwriter(s), if any, may
reasonably request to have included therein, 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), the
purchase price being paid for Transfer Restricted Securities and any other
terms of the offering of the Transfer Restricted Securities to be sold in
such offering; and make all required filings of 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; provided, however, that the Company shall not be
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required to take any action pursuant to this Section 6(c)(vii) that would,
in the opinion of counsel for the Company, violate applicable law;
(viii) furnish to each underwriter, if any, the Initial Purchasers
and, upon request to the Company, to a selling
13
Holder without charge, at least one conformed copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including, upon the request of such Person, all documents
incorporated by reference therein and all exhibits to the extent requested
(including exhibits incorporated therein by reference);
(ix) deliver to each selling Holder, each of the underwriter(s), if
any, and the Initial Purchasers, without charge, as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons may reasonably request; the Company
hereby consents to the use of the Prospectus and any amendment or
supplement to the Prospectus 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 in accordance with the terms hereof and
thereof and with U.S. Federal securities laws and Blue Sky laws covered by
the Prospectus or any amendment or supplement thereto;
(x) enter into such agreements (including an underwriting agreement
in form, scope and substance as is customary in underwritten offerings of
securities of this type) and take all such other reasonable actions in con-
nection therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to any Registration Statement
contemplated by this Agreement, all as may be reasonably requested by any
Holder of Transfer Restricted Securities or the underwriter(s), if any, in
connection with any sale or resale of Transfer Restricted Securities
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 shall (i)
make such representations and warranties to the Holders of such Transfer
Restricted Securities and the underwriters, if any, with respect to the
business of the Company and its Subsidiaries (including with respect to
businesses or assets acquired or to be acquired by any of them), and the
Shelf Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein, in each
case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings, and confirm the same if and when
customarily requested; (ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the underwriters, if any, and special
counsel to the Holders of the Transfer Restricted Securities being sold),
addressed to each selling Holder of Transfer Restricted Securities and each
of the underwriters, if any, covering the matters customarily covered in
opinions
14
requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters, if any, and special counsel to
Holders of Transfer Restricted Securities; (iii) use its best efforts to
obtain customary "cold comfort" letters and updates thereof 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 or any such subsidiary
for which financial statements and financial data is, or is required to be,
included in the Registration Statement), addressed (where reasonably
possible) to each selling Holder of Transfer Restricted Securities and each
of the underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters
in connection with underwritten offerings; (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable to the selling Holders and the
underwriters, if any, than those set forth in Section 8 hereof (or such
other provisions and procedures acceptable to Holders of a majority in
aggregate principal amount of Transfer Restricted Securities covered by
such Shelf Registration Statement and the underwriters, if any); and (v)
deliver such documents and certificates as may be reasonably requested by
the Holders of a majority in aggregate principal amount of the Transfer
Restricted Securities being sold and the underwriters, if any, to evidence
the continued validity of the representations and warranties made pursuant
to clause (i) above and to evidence compliance with any customary
conditions contained in the underwriting agreement or other agreement
entered into by the Company.
If at any time the representations and warranties of the Company
contemplated in clause (X)(i) above cease to be true and correct, the Company
shall so advise the Initial Purchasers and the underwriter(s), if any, and each
selling Holder promptly and, if requested by any of them, shall confirm such
advice in writing;
(xi) prior to any public offering of Transfer Re stricted Securities,
cooperate with the selling Holders, the underwriter(s), if any, and their
respective counsel in connection with the registration and qualification
(or exemption from such registration or qualification) of the Transfer
Restricted Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions as the selling Holders and underwriter(s), if
any, may reasonably request in writing and take reasonable steps necessary
or advisable to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the Registration Statement;
provided, however, that the Company shall not be required to register or
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qualify as a foreign
15
corporation where it is not now so qualified or to take any action that
would subject it to the service of process 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) if a Shelf Registration is filed pursuant to Section 2(b),
cooperate with the selling Holders of Registrable Securities and the
managing Underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities 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 Transfer Restricted Securities to be in such denominations and
registered in such names as the managing Underwriters, if any, or Holders
may reasonably request;
(xiii) in connection with any sale or transfer of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, 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 as the
Holders or 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 as may be
necessary to enable the seller or sellers of such Transfer Restricted
Securities or the underwriter(s), if any, to consummate the disposition of
such Transfer Restricted Securities, subject to the proviso contained in
clause (xi) above;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D) of
this Agreement shall exist or have occurred, prepare a supplement or post-
effective amendment to the Registration Statement or related Prospectus or
any document incorporated in such Registration Statement or Prospectus by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Registration Statement will not contain an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein not misleading and the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to
16
make the statements contained therein, in the light of the circumstances
under which they were made, not misleading;
(xvi) provide a CUSIP number for all New Notes 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 that are in a form eligible for deposit with The Depository
Trust Company;
(xvii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter" that is
required to be retained in accordance with the rules and regulations of the
NASD);
(xviii) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission in regards to any Registration
Statement, and make generally available to its securityholders, as soon as
practicable, a consolidated earning statement of the Company 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 commitment or
reasonable 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 connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the Indenture, if any, as may be
required for such Indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its best efforts to cause the Trustee to
execute, all customary 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.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) of this Agreement, such Holder
will forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the applicable Registration Statement until such Holder's receipt of
the copies of the supplemented or amended Prospectus contemplated by Section
6(c)(xv) of this Agreement, or until it is advised in writing (the "Advice") by
------
17
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 that the Company shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 of this Agreement, 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) of this Agreement 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)(xv) of this Agreement or shall have
received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All fees and expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including filings
made with the NASD (and, if applicable, the fees and expenses of any "qualified
independent underwriter" and its counsel that may be required by the rules and
regulations of the NASD)); (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 New Notes to be issued in the Exchange
Offer and printing of Prospectuses); (iv) all fees and disbursements of counsel
for the Company and, subject to Section 7(b) below, the Holders of Transfer
Restricted Securities; and (v) all fees and disbursements of independent
certified public accountants of the Company (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 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 them.
Notwithstanding the foregoing or anything in this Agreement to the
contrary, each Holder of Transfer Restricted Notes shall pay all underwriting
discounts and commissions of any underwriters with respect to any Notes sold by
or on behalf of it.
18
(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 not more than one counsel, who shall be
O'Melveny & ▇▇▇▇▇ LLP or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless (i) the Initial
Purchasers, each Holder of Transfer Restricted Securities and each Participating
Broker Dealer, (ii) each person, if any, who controls any of the foregoing
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(any of the persons referred to in this clause (ii) being hereinafter referred
to as a "controlling person") and (iii) its agents, employees, officers and
------------------
directors and the agents, employees, officers and directors of any such
controlling person (collectively, the "Indemnified Persons") 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) to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (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 the Registration
Statement or Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
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; provided, however, that the Company will not be liable in
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any such case to the extent, but only to the extent, that any such loss,
liability, claim, damage or expense arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission
made therein in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any Indemnified Person relating to
such Indemnified Person expressly for use therein. This indemnity agreement will
be in addition to any liability that the Company may otherwise have, including,
but
19
not limited to, liability under this Agreement.
If any action is brought against any Indemnified Persons or any such
person in respect of which indemnity may be sought against the Company pursuant
to the foregoing paragraph, such Indemnified Persons or such person shall
promptly notify the indemnifying party in writing of the institution of such
action and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses, provided, however, except to the
extent that the indemnifying party shall be materially prejudiced thereby
(through the forfeiture of substantive rights or defenses), that the omission to
so notify the indemnifying party shall not relieve the indemnifying party from
any liability which they may have to the Indemnified Persons or any such person
or otherwise. Such Indemnified Persons shall have the right to employ its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Persons unless the employment of such counsel
shall have been authorized in writing by the indemnifying party in connection
with the defense of such action or the indemnifying party shall not have
employed counsel to have charge of the defense of such action or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party 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 fees and expenses
shall be borne by the indemnifying party and paid as incurred (it being
understood, however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel (together with appropriate local
counsel) in any one action or series of related actions in the same jurisdiction
representing the indemnified parties who are parties to such action). The
indemnifying party shall not be liable for any settlement of any such claim or
action effected without its written consent but if settled with the written
consent of the indemnifying party, the indemnifying party agrees to indemnify
and hold harmless any Indemnified Persons and any such person from and against
any loss or liability by reason of such settlement. 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 the second sentence of this paragraph, 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 30 days'
20
prior notice of its intention to settle and the proposed terms thereof. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(b) In connection with any Registration Statement or Prospectus
pursuant to which a Holder of Transfer Restricted Securities offers or sells
Transfer Restricted Securities, such Holder agrees, severally and not jointly,
to indemnify and hold harmless the Company, its directors and officers and any
person controlling the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and each of its agents, employees, officers and
directors and the agents, employees, officers and directors of such controlling
person from and against any 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) to which they or either of them may become subject under the Act,
the Exchange Act or otherwise insofar as such losses, liabilities, claims,
damages or expenses (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 the Registration Statement or Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein 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, in each case to the extent, but only
to the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information relating to such Holder furnished to the Company by
such Holder expressly for use in such Registration Statement or Prospectus.
If any action is brought against the Company or any such person in
respect of which indemnity may be sought against any Holder of Transfer
Restricted Securities pursuant to foregoing paragraph, the Company or such
person shall promptly notify such Holder in writing of the institution of such
action and such Holder shall assume the defense of such action, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses, provided, however, except to the extent that
the indemnifying party shall be materially prejudiced thereby (through the
21
forfeiture of substantive rights or defenses), that the omission to so notify
such Holder shall not relieve such Holder from any liability which they may have
to the Company or any such person or otherwise. The Company or such person shall
have the right to employ its own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of the Company or such person
unless the employment of such counsel shall have been authorized in writing by
such Holder of Transfer Restricted Securities in connection with the defense of
such action or such Holder shall not have employed counsel to have charge of the
defense of such action or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to those available to such Holder (in which
case such Holder shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties, but such Holder may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Holder), in any of which events such
fees and expenses shall be borne by such Holder and paid as incurred (it being
understood, however, that such Holder shall not be liable for the expenses of
more than one separate counsel in any one action or series of related actions in
the same jurisdiction representing the indemnified parties who are parties to
such action). Anything in this paragraph to the contrary notwithstanding, any
Holder of Transfer Restricted Securities shall not be liable for any settlement
of any such claim or action effected without the written consent of such Holder
but if settled with the written consent of such Holder, such Holder agrees to
indemnify and hold harmless the Company and any such person from and against any
loss or liability by reason of such settlement. 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 the second sentence of this paragraph, 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 indemnifying 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 30 days' prior notice of its intention to settle and the proposed
terms thereof. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding.
22
(c) In order to provide for contribution in circumstances in which
the indemnification provided for in paragraphs (a) and (b) of this Section 8 is
for any reason held to be unavailable from the indemnifying party, or is
insufficient to hold harmless a party indemnified under this Section 8, the
Company and the Indemnified Parties shall contribute to the aggregate losses,
claims, damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action or
any claims asserted) to which the Company and the Indemnified Parties may be
subject, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Indemnified Parties,
on the other hand, from the offering of the Old Notes 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 in clause (i)
above but also the relative fault of the Company, on the one hand, and the
Indemnified Parties, on the other hand, in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the Indemnified Parties,
on the other hand, shall be deemed to be in the same proportion as the total
proceeds from the offering of Old Notes (net of discounts but before deducting
expenses) received by the Company as set forth in the table on the cover page of
the Offering Memorandum bear to the total proceeds received by such Holder with
respect to its sale of Transfer Restricted Securities or New Notes. The
relative fault of the Company, on the one hand, and the Indemnified Parties, on
the other hand, 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 Indemnified Parties and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this paragraph (c) of this Section 8
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 paragraph (c) of this Section 8, (i) in no
case shall an Indemnified Party be required to contribute any amount in excess
of the amount by which the total received by such Indemnified Party with respect
to its sale of its Transfer Restricted Securities or New Notes, as the case may
be, exceeds the amount of any damages that such Indemnified Party 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
23
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes
of this paragraph (c) of this Section 8, each person, if any, who controls an
Indemnified Party within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such Indemnified
Party, and each person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this paragraph. 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 paragraph 8(c), notify such party or parties from whom contribution
may be sought, but, except to the extent that the indemnifying party shall be
materially prejudiced thereby (through the forfeiture of substantive rights and
defenses), 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 paragraph (c) or otherwise. No party shall be liable
for contribution with respect to any action or claim settled without its written
consent; provided, however, that such written consent was not unreasonably
-------- -------
withheld.
SECTION 9. RULE 144A
The Company shall use its best efforts, 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
of such securities 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. Notwithstanding the foregoing,
nothing in this Section 9 shall be deemed to require the Company to register any
of its securities pursuant to the Exchange Act.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration under this
Agreement 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 under this Agreement to approve such
arrangements and (b) completes and executes all reasonable questionnaires,
powers of attorneys, indemnities, underwriting agreements, lock-up letters and
other documents required under the terms of such underwriting arrangements.
24
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. Each Holder, in addition to being entitled to exercise
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all rights provided in this Agreement, in the Indenture, the Purchase Agreement
or granted by law, including recovery of liquidated or other damages, will be
entitled to specific performance of its rights under this Agreement. The
Company agrees that monetary damages 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 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 of this Agreement. The Company has not
previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
under this Agreement 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 of this Agreement.
(c) Adjustments Affecting the Notes. Without the written consent of
-------------------------------
the Holders of a majority in aggregate principal amount of outstanding Transfer
Restricted 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 of this Agreement may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to depart from the provisions of this Agreement
that relates exclusively to the
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rights of Holders whose securities are being sold or tendered pursuant to a
Registration Statement and that does not affect directly or indirectly the
rights of other Holders whose securities are not being sold or tendered pursuant
to such Registration Statement may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities being so sold or
tendered.
(e) Notices. All notices and other communications provided for or
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permitted hereunder shall be made in writing by hand-delivering, first-class
mail (registered or certified, return receipt requested), telex, telecopier or
air courier guaranteeing overnight delivery:
(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, at:
Standard Pacific Corp.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
All such notices and communications shall be deemed to have been duly
given: (i) at the time delivered by hand, if personally delivered; (ii) five
business days after being deposited in the mail, postage prepaid, if mailed;
(iii) when answered back, if telexed; (iv) when receipt acknowledged, if
telecopied; and (v) 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 permitted assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties to this Agreement 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) Captions. The captions included in this Agreement are included
--------
solely for convenience of reference and are not to be considered a part of this
Agreement.
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(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) Submission to Jurisdiction. The Company irrevocably submits to
--------------------------
the nonexclusive jurisdiction of any State or Federal court sitting in New York
over any suit, action or proceeding arising out of or relating to this
agreement. The Company irrevocably waives, to the fullest extent permitted by
law, any objection it may now or thereafter have to the laying of venue of any
such court and any claim that any such suit, action or proceeding brought in
such a court has been brought in an inconvenient forum. The Company agrees that
a final judgment in any such suit, action or proceeding brought in any such
court shall be conclusive and binding upon the Company and may be enforced in
any other courts to the jurisdiction of which the Company is or may be subject,
by suit upon such judgment.
(k) Severability. In the event that any one or more of the provisions
------------
contained in this Agreement, or the application of any such provision 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 in this Agreement shall not be affected or
impaired thereby.
(l) 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 to
this Agreement in respect of the subject matter contained in this Agreement.
There are no restrictions, promises, warranties or undertakings, other than
those set forth or referred to in this Agreement 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.
[Signatures on Next Page]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
STANDARD PACIFIC CORP.
By: _________________________
Name:
Title:
SBC WARBURG DILLON READ INC.
By: _________________________
Name:
Title:
By: _________________________
Name:
Title:
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
By: _________________________
Name:
Title:
▇▇▇▇▇▇▇▇▇, LUFKIN & ▇▇▇▇▇▇▇▇
SECURITIES CORPORATION
By: _________________________
Name:
Title:
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