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Atlantic Gulf Communities Corporation Exhibit to the 1996 Form 10-K
Exhibit (c) 10(i)28. Registration Rights Agreement dated as of
September 30, 1996
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of September 30, 1996 by and between Atlantic Gulf Communities
Corporation, a Delaware corporation (the "Company"), and the parties set forth
in Exhibit A hereto (the "Banks").
WHEREAS, in connection with the proposed recapitalization of certain
debt (the "Recapitalization Plan") of the Company and as a material condition
to the completion of the Company's Recapitalization Plan, the Banks have
entered into a letter agreement dated as of August 22, 1996 (the "Letter
Agreement") pursuant to which the Company has certain rights to prepay at a
discount the Secured Cash Flow Notes due December 31, 1998; and
WHEREAS, the Company, pursuant to a warrant agreement dated as of the
date hereof (the "Warrant Agreement"), has issued warrants (the "Warrants") to
the Banks to acquire up to 1,500,000 shares of the Company's common stock, par
value $.10 per share (the "Common Stock"); and
WHEREAS, as an inducement to the Banks to enter into the Letter
Agreement, and as a condition to closing under, the Warrant Agreement, the
Company has agreed to provide, upon the prepayment of the Secured Cash Flow
Notes, certain registration rights to holders of the Warrants as set forth in
this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and intending to be legally bound hereby, the parties hereto agree as follows:
Section 1. Definitions. As used in this Agreement, the following
terms shall have the following meanings:
"Agreement" is defined in the Preamble to this Agreement.
"Banks" is defined in the Recitals to this Agreement.
"Common Stock" is defined in the Recitals to this Agreement.
"Company" is defined in the Preamble to this Agreement.
"Demand Period" is defined in section 3.2 hereof.
"Demand Registration" is defined in section 3.2 hereof.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar law then in force.
"Holder" or "Holders" means any person who owns or has the
right under the Warrant Agreement to acquire Registrable
Securities, provided that any subsequent holder shall be
subject to the requirements of section 2.2 hereof.
"Letter Agreement" is defined in the Recitals to this
Agreement.
"Material Transaction"means any merger or consolidation
involving the Company or a material subsidiary thereof, or
sale of all or substantially all of the assets of the Company
or a material subsidiary thereof, or financing or securities
offering by the Company, or any material subsidiary thereof,
or any material acquisition or disposition of assets by the
Company or any subsidiary thereof, or any material transaction
similar to any of the foregoing mentioned transactions
involving the Company or any material subsidiary.
"Other Holders" is defined in section 4.4 hereof.
"Person" means an individual, a partnership, an association, a
joint venture, a corporation, a trust, an unincorporated
organization and a government or any department, agency or
principal subdivision thereof.
"Piggyback Notice" is defined in section 4.1 hereof.
"Piggyback Registration" is defined in section 4.1 hereof.
"Prospectus" is the prospectus included in any Registration
Statement, as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any
portion of the Registrable Securities covered by such
Registration Statement and by all other amendments and
supplements to the prospectus, including post-effective
amendments and material incorporated by reference in such
prospectus.
"Registrable Securities" means (i) Common Stock issued to the
Banks pursuant to the Warrant Agreement, (ii) any Common Stock
issued to the Banks' transferees pursuant to a transfer
permitted pursuant to section 2.2 hereof, and (iii) any Common
Stock issued or issuable with respect to the Common Stock
referred to in clauses (i) or (ii) by way of replacement,
share dividend, share split or in connection with a
combination of shares, recapitalization, merger, consolidation
or other reorganization.
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"Registration Statement" means any registration statement of
the Company which covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such Registration
Statement, including post-effective amendments, all exhibits
and all materials incorporated by reference in such
Registration Statement.
"Registration Expenses" is defined in section 6.1 hereof.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as
amended, or any similar federal law then in force.
"Warrant" is defined in the Recitals to this Agreement.
"Warrant Agreement" is defined in the Recitals to this
Agreement.
"Warrant Holder" is defined in section 3.1 hereof.
Section 2. Registrable Securities.
2.1 Registrable Securities. The securities entitled to
the benefits of this Agreement are the Registrable Securities.
2.2 Rights of Subsequent Holder. Subject to the
restrictions on transfer set forth on the certificates representing the
Registrable Securities, any subsequent holder of 50,000 or more Registrable
Securities (such amount to be adjusted as provided in section 3 of the Warrant
Agreement) shall be entitled to all benefits hereunder as a Holder of such
Registrable Securities.
Section 3. Demands for Registration.
3.1 Demanding Shareholders. Any record holder or record
holders of Warrants (a "Warrant Holder" or collectively "Warrant Holders") for
the greater of (i) in respect of Warrant Holders on the date hereof, 10% of the
Registrable Securities covered by the then outstanding Warrants, and, in
respect of all subsequent Warrant Holders, 20% of such Registrable Securities,
or (ii) 100,000 shares of Common Stock (such amount to include all shares of
Registrable Securities purchased or purchasable under the Warrants and to be
adjusted as provided in section 3 of the Warrant Agreement) may make a request
to the Company for registration under the Securities Act of all or part of
their Registrable Securities ("Demanding Shareholders" or individually a
"Demanding Shareholder").
3.2 Demand Period. Demanding Shareholders, in addition
to other rights enumerated in this Agreement, will have three opportunities to
request registration under the
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Securities Act of all or part of their Registrable Securities (a "Demand
Registration") from the 270th day after the date of this Agreement until
termination of this Agreement pursuant to section 9.3 hereof (the "Demand
Period").
3.3 Demand Procedure.
3.3.1 Subject to subsection 3.3.2 hereof, during the Demand
Period any Demanding Shareholder or combination of Demanding Shareholders may
deliver to the Company a written request (a "Demand Registration Request") that
the Company register any or all of such Demanding Shareholders' Registrable
Securities.
3.3.2 Demanding Shareholders may only make one Demand
Registration Request in any six-month period during the Demand Period (the
"Interim Demand Period") and except as provided in subsections 3.3.4 and 3.3.8,
in the aggregate may only make three Demand Registration Requests. The Company
shall only be required to file one registration statement (as distinguished
from supplements or pre-effective or post-effective amendments thereto) in
response to each Demand Registration Request.
3.3.3 A Demand Registration Request from Demanding
Shareholders shall (i) set forth the number of Registrable Securities intended
to be sold pursuant to the Demand Registration Request, (ii) disclose whether
all or any portion of a distribution pursuant to such registration will be
sought by means of an underwriting, and (iii) identify any underwriter or
underwriters proposed for the underwritten portion, if any, of such
registration.
3.3.4 If during any Interim Demand Period, the Company
receives a Demand Registration Request from Demanding Shareholders satisfying
the requirements of section 3.1 hereof, the Company shall, subject to the
limitations in subsection 3.3.5 and section 5 hereof, promptly prepare and file
a Registration Statement on the appropriate form to register for sale all of
the Registrable Securities that the Demanding Shareholders requested to be
registered in the Demand Registration Request and in any Supplemental Demand
Registration Request received by the Company in accordance with section 3.3.6
hereof with the SEC. The Company shall use its best efforts to prepare and
file the Registration Statement within 90 days of the receipt of the Demand
Registration Request. The Company shall use its best efforts (a) to cause such
Registration Statement to become effective, and (b) thereafter to keep it
continuously effective and to prevent the happening of an event of the kind
described in section 5.1.3(f) hereof that requires the Company to give notice
pursuant to section 5.2 hereof, until the earlier of such time as the Demanding
Shareholders shall have sold or otherwise disposed of all of their Registrable
Securities included in the Registration Statement or 245 days from the date of
effectiveness of such Registration Statement. If prior to the earlier of such
dates, the Company shall fail to keep such registration statement continuously
effective or fail to prevent the happening of an event of the kind described in
section 5.1.3(f) hereof that requires the Company to give notice pursuant to
section 5.2 hereof, and such failure shall materially interfere with the
completion of the distribution contemplated by such Registration Statement,
such Registration Statement shall not
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be considered to be one of the three required Demand Registrations. Further,
if any such failure by the Company results in Registrable Securities failing to
be sold pursuant to what would otherwise constitute the last Demand
Registration that the Company is required to provide pursuant to section 3.3.2,
then the Company shall, at its option, either (i) grant the Holders of such
Registrable Securities not sold, one additional Demand Registration hereunder
with respect to such Registrable Securities not sold in the offering, on the
same terms and conditions as would have applied to such Holders had such
earlier Demand Registration not been made (except for the minimum threshold
requirements referred to in section 3.1 hereof shall not apply) or (ii) within
20 business days of the date demand is made for such additional Demand
Registration, purchase such Registrable Securities not sold in the offering at
the average per share closing price for such securities, as reported on the
principal securities exchange or inter-dealer quotation system on which such
securities are then listed, for the last five trading days preceding the date
of demand (as reported by the Wall Street Journal or, if not reported thereby,
any authoritative source reasonably acceptable to the Holders of such
securities).
3.3.5 The Company will use its best efforts to use Form S-3
or, if not available for any reason, Form S-2 (or any comparable successor
form) for any Registration Statement prepared and filed in connection with a
Demand Registration Statement hereunder. It is anticipated that the
Registration Statement filed with the SEC will allow for different means of
distribution, including sales by means of an underwriting as well as sales into
the open market. If the Demanding Shareholders desire to distribute all or
part of the Registrable Securities covered by their request by means of an
underwriting, they shall so advise the Company in writing in their initial
Demand Registration Request as described in section 3.3.3 hereof. A
determination of whether all or part of the distribution will be by means of an
underwriting shall be made by Demanding Shareholders holding a majority of the
Registrable Securities to be included in the registration. If all or part of
the distribution is to be by means of an underwriting, all subsequent decisions
concerning the underwriting which are to be made by the Demanding Shareholders
pursuant to this Agreement, which shall include the selection of the
underwriter or underwriters to be engaged and the representative, if any, of
the underwriters so engaged, shall be made by the Demanding Shareholders who
hold a majority of the Registrable Securities to be included in the
underwriting, subject to approval by the Company's Board of Directors (the
"Board") which approval shall not be unreasonably withheld. The Company agrees
to provide the Holders with notice of filing of the Registration Statement
pursuant to this section 3 and the filing of any amendments or supplements
thereto.
3.3.6 Upon the receipt by the Company of a Demand
Registration Request in accordance with subsection 3.3.3 hereof, the Company
shall, within 10 days following receipt of such Demand Registration Request,
give written notice of such request to all Holders. The Company shall include
in such notice information concerning whether all, part or none of the
distribution is expected to be made by means of an underwriting, and, if more
than one means of distribution is contemplated, may require Holders to notify
the Company of the means of distribution of their Registrable Securities to be
included in the registration. If any Holder who is not a Demanding Shareholder
desires to sell any Registrable Securities owned by such Holder,
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such Holder may elect to have all or any portion of their Registrable
Securities included in the registration statement by notifying the Company in
writing (a "Supplemental Demand Registration Request") within twenty (20) days
of receiving notice of the Demand Registration Request from the Company. The
right of any Holder to include all or any portion of its Registrable Securities
in an underwriting shall be conditioned upon the Company's having received a
timely written request for such inclusion by way of a Demand Registration
Request or Supplemental Demand Registration Request (which right shall be
further conditioned to the extent provided in this Agreement). All Holders
proposing to distribute their Registrable Securities through an underwriting
shall enter into an underwriting agreement in customary form with the
underwriter or underwriters selected for such underwriting.
3.3.7 In any registered offering pursuant to this section 3
that becomes effective in which a Holder participates, the Company shall use
its best efforts to keep available to the Holder a Prospectus meeting the
requirements of Section 10(a)(3) of the Securities Act and shall file all
amendments and supplements under the Securities Act required for those purposes
during the period specified in section 3.3.4. The Company agrees to supplement
or amend such Registration Statement, if required by the rules and regulations
or instructions applicable to the registration form utilized by the Company, or
the rules and regulations thereunder for shelf registrations pursuant to Rule
415 promulgated under the Securities Act, or as reasonably requested by the
Holders of the Registrable Securities covered by the Registration Statement, or
any underwriter of the Registrable Securities. In any offering pursuant to
this section 3 the Company will promptly use its best efforts to effect such
qualification and compliance as may be requested and as would permit or
facilitate the distribution of the Registrable Securities, including, without
limitation, appropriate qualifications under applicable blue sky or other state
securities laws, appropriate compliance with any other governmental
requirements and listing on a national securities exchange or inter-dealer
quotation system on which the Registrable Securities are then listed.
3.3.8 Notwithstanding any other provision of this section
3, if the managing underwriter advises the Company in writing that in their
opinion marketing factors require a limitation on the number of shares to be
underwritten, then the number of shares of Registrable Securities that may be
included in the underwriting shall be allocated among the Holders in proportion
(as nearly as practicable) to the respective amounts of Registrable Securities
each Holder otherwise sought to have registered pursuant to its Demand
Registration Request or Supplemental Demand Registration Request (or in such
other proportion as they shall mutually agree). Registrable Securities
excluded or withdrawn from the underwriting in accordance with this section
3.3.8 shall be withdrawn from the registration. If any such limitation results
in Registrable Securities being excluded or withdrawn from what would otherwise
constitute the last Demand Registration the Company is required to provide
pursuant to section 3.3.2, then the Company shall, at its option, either (i)
grant the Holders of such Registrable Securities excluded or withdrawn from
such registration one additional Demand Registration hereunder with respect to
such Registrable Securities not included in the offering, on the same terms and
conditions as would have applied to such Holders had such earlier Demand
Registration not been made (except
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for the minimum threshold requirements referred to in section 3.1 hereof shall
not apply) or (ii) within 20 business days of the date demand is made for such
additional Demand Registration, purchase such excluded or withdrawn Registrable
Securities at the average per share closing price for such securities, as
reported on the principal securities exchange or inter-dealer quotation system
on which such securities are then listed, for the last five trading days
preceding the date of demand (as reported by the Wall Street Journal or, if not
reported thereby, any authoritative source reasonably acceptable to the Holders
of such securities).
3.4 Priority on Demand Registration.
3.4.1. The Company will not include in any Demand
Registration any securities which are not Registrable Securities without the
prior written consent of the Holders of a majority of the shares of Registrable
Securities included in such registration. If the Holders of a majority of the
shares of Registrable Securities so request, the Company may, in its reasonable
discretion, include in any Demand Registration securities owned by Holders of
Registrable Securities which are not Registrable Securities. If the Company
permits the inclusion of such securities, the Holders owning such securities,
in addition to the costs set forth in section 6.2., shall pay all incremental
costs associated with the inclusion of such securities in the Registration
Statement, including, but not limited to, all increments in registration,
filing fees and NASD fees.
3.4.2. If a Demand Registration is an underwritten offering
and the managing underwriter advises the Company in writing that in their
opinion the number of Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds the number of
securities that can be sold in such offering without a material adverse effect
on the number of Registrable Securities or the price of the Registrable
Securities in such offering, then the Company will include in such Demand
Registration prior to the inclusion of any securities which are not Registrable
Securities the number of shares of Registrable Securities requested to be
included that in the opinion of such underwriters can be sold in such offering
without a material adverse effect on the price of the Registrable Securities in
such offering, pro rata among the respective Holders thereof on the basis of
the number of shares of Registrable Securities owned by each such Holder.
Section 4. Piggyback Registrations.
4.1 Right to Piggyback. If the Company proposes to
undertake an offering of Common Stock for its account or for the account of
Other Holders (other than on Form S-4, Form S-8 or any comparable successor
form) (a "Piggyback Registration"), then each such time the Company will give
written notice of a proposed offering (a "Piggyback Notice") to all Holders of
Registrable Securities of its intention to effect such a registration at least
25 days prior to the anticipated filing date of such registration. The
Piggyback Notice shall offer the Holders the opportunity to include in such
Registration Statement such amount of Registrable Securities as they may
request ("Piggyback Registration"). The Company will use its best efforts to
cause to be included in such Registration Statement (and related qualifications
under blue sky laws) and the
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underwriting involved therein, all Registrable Securities with respect to which
the Company has received written requests for inclusion therein within 15
business days of sending the Piggyback Notice. Notwithstanding the above, the
Company may determine, at any time, not to proceed with such Registration
Statement. Such determination, however, will be without prejudice to the
rights of Demanding Shareholders to demand the continuation of such
Registration Statement under section 3 hereof.
4.2 Underwriting Agreement. To the extent that Holders
request Piggyback Registration of their Registrable Securities, the Holders
shall (together with the Company) enter into an underwriting agreement in
customary form with the managing underwriter selected by the Company for such
underwriting.
4.3 Priority on Primary Registrations. Notwithstanding any
other provisions of this Agreement, if the managing underwriter of the proposed
offering delivers a written opinion to the Holders that the total amount or
kind of securities which the Holders and any other Persons entitled to be
included in the offering would have a material adverse effect on the number of
Registrable Securities or the price of the Registrable Securities in such
offering, then the managing underwriter may limit some or all of the
Registrable Securities that may be included in the registration and
underwriting as follows: (a) first, the securities the Company proposes to
sell, (b) second, the Registrable Securities requested to be included in such
registration and any other securities requested to be included in such
registration pursuant to the Company's Registration Rights Agreement dated
September 21, 1994, pro rata among the holders of Registrable Securities and
such holders of such other securities requesting such registration on the basis
of the number of shares of such securities owned by each such holder and (c)
third, any other securities requested to be included in such registration that
are held by Persons receiving registration rights after the date of this
Agreement.
4.4 Priority on Secondary Registrations. If a Piggyback
Registration is an underwritten secondary registration on behalf of holders of
the Company's securities other than the Holders of Registrable Securities (the
"Other Holders"), and the managing underwriters advise the Company in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number that can be sold in an orderly manner in such
offering within a price range acceptable to the Other Holders requesting such
registration, the Company will include in such registration (a) first, the
securities requested to be included therein by the Other Holders requesting
such registration and (b) second, the Registrable Securities requested to be
included in such registration hereunder, pro rata among the Holders of
Registrable Securities requesting such registration on the basis of the number
of shares of such securities owned by each such Holder.
4.5 No Demand Registration. No registration of the
Registrable Securities under this section 4 of the Agreement shall be deemed to
be a Demand Registration.
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Section 5. Registration Procedures. Whenever the Holders of
Registrable Securities have requested that any Registrable Securities be sold
pursuant to this Agreement, the Company will use its reasonable best efforts to
effect the registration and the sale of such Registrable Securities in
accordance with the intended method of disposition thereof, and pursuant
thereto the Company will as expeditiously as possible:
5.1.1 Registration Statement. (a) Prepare and file with
the SEC, as soon as practicable, a Registration Statement or Registration
Statements relating to the applicable Registration on any appropriate form
(subject to the requirements of section 3.3.5 hereof) under the Securities Act,
which form shall be available for the sale of the Registrable Securities in
accordance with the intended method or methods of distribution thereof and
shall include all financial statements required by the SEC to be filed
therewith; (b) cooperate and assist in any filings required to be made with the
National Association of Securities Dealers ("NASD"); and (c) use its best
efforts to cause such Registration Statement to become effective; provided,
however, that before filing a Registration Statement or Prospectus or any
amendments or supplements thereto, the Company will furnish to the Holders
whose Registrable Securities are covered by such Registration Statement and the
underwriters, if any, copies of all such documents proposed to be filed, which
documents will be subject to the reasonable review of such Holders and
underwriters and the Company will not file any Registration Statement, or any
amendment or supplement thereto, (except a Piggyback Registration or any
amendment or supplement thereto) to which the Holders of a majority of the
Registrable Securities covered by such Registration Statement, or the
Underwriters, if any, shall reasonably object;
5.1.2 Amendments and Supplements. (a) Prepare and file
with the SEC such amendments and post-effective amendments to the Registration
Statement as may be necessary to keep the Registration Statement continuously
effective for the applicable period, or such shorter period which will
terminate when all the Registrable Securities covered by such Registration
Statement have been sold; (b) cause the Prospectus to be supplemented by any
required Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and (c) comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by
such Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus;
5.1.3 Notifications. Notify the Holders of the Registrable
Securities covered thereby and the managing underwriters, if any, promptly, and
(if requested by any such person) confirm such advice in writing, (a) when the
Prospectus or any Prospectus supplement or post-effective amendment has been
filed, and, with respect to the Registration Statement or any post-effective
amendment, when the same has become effective; (b) of any request by the SEC
for amendments or supplements to the Registration Statement or the Prospectus
or for additional information; (c) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose; (d) if at any time to the representations and
warranties of the Company contemplated by section 5.1.14 below cease
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to be true and correct; (e) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose; or (f) of the happening of any event which makes
any statement made in the Registration Statement, the Prospectus or any
document incorporated therein by reference untrue or which requires the making
of any changes in the Registration Statement, the Prospectus or any document
incorporated therein by reference in order to make the statements therein not
misleading;
5.1.4 Stop-Orders and Suspensions. In the event of the
issuance of a stop-order or a suspension in the sale of the Common Stock, make
every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of the Registration Statement or otherwise prohibiting the offer
or sale of the Registrable Securities, including those issued by state
governmental authorities, at the earliest possible moment;
5.1.5 Distribution Disclosures. If requested by the
managing underwriter or underwriters or a Holder of Registrable Securities
being sold in connection with an underwritten offering, promptly incorporate in
a Prospectus supplement or post-effective amendment such information as the
managing underwriters and the Holders of a majority of the Registrable
Securities being sold reasonably agree should be included therein relating to
the plan of distribution with respect to such Registrable Securities,
including, without limitation, information with respect to the amount of
Registrable Securities being sold to such underwriters, the purchase price
being paid therefor by such underwriters and with respect to any other terms of
the underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment. The Company may require each of such Holders to furnish to the
Company such information regarding the distribution of such Registrable
Securities as the Company may from time to time reasonably request in writing;
5.1.6 Copies of Registration Statement. Furnish to each
Holder of Registrable Securities and each managing underwriter, without charge,
at least one signed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those
incorporated by reference);
5.1.7 Copies of the Prospectus. Deliver to each Holder of
such Registrable Securities and the underwriters, if any, 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 or any amendment or
supplement thereto by each of such Holders and the underwriters, if any, in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or any amendment or supplement thereto;
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5.1.8 Blue Sky Laws. Prior to any public offering of the
Registrable Securities, register or qualify or cooperate with the Holders of
such Registrable Securities, the underwriters, if any, and their respective
counsel in connection with the registration or qualification of such
Registrable Securities for offer and sale under the securities or blue sky laws
of such jurisdictions as any such Holder or underwriter reasonably requests in
writing and do any and all other acts or things necessary or advisable to
enable the disposition in such jurisdictions of the Registrable Securities
covered by the Registration Statement; provided, however, that the Company will
not be required to qualify generally to do business in any jurisdiction where
it is not then so qualified or to take any action which would subject it to
general service of process in any jurisdiction where it is not then so subject
or subject the Company to any income or sale tax in any such jurisdiction where
it is not then so subject;
5.1.9 Removal of Legends. Cooperate with the Holders of
such Registrable Securities and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such to be in such denominations and registered in such names as the
managing underwriters may request at least two business days prior to any sale
of Registrable Securities to the underwriters;
5.1.10 Other Governmental Filings. Use its best efforts to
cause the Registrable Securities covered by the applicable Registration
Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the Holders thereof or the
underwriters, if any, to consummate the disposition of such Registrable
Securities;
5.1.11 Prospectus Amendments and Supplements. Upon the
occurrence of any event contemplated by section 5.1.3(f) above, prepare a
supplement or post-effective amendment to the Registration Statement or the
related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading;
5.1.12 Securities Exchange Listings. Use its best efforts
to cause all Registrable Securities covered by the Registration Statement to be
listed on each securities exchange or inter-dealer quotation system on which
similar securities issued by the Company are then listed, if any; and to the
extent that the Company is unable to obtain such listing, then the Company in
any event shall cause such Registrable Securities covered by the Registration
Statement to be listed on a securities exchange or inter-dealer quotation
system if any securities issued by the Company are then listed;
5.1.13 Delivery of Certificates. Not later than the
effective date of the applicable Registration Statement, provide a CUSIP number
for the Registrable Securities and provide the transfer agent with printed
certificates for the Registrable Securities which are in a form eligible for
deposit with Depository Trust Company;
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5.1.14 Agreements and Further Actions. Enter into such
customary agreements (including an underwriting agreement) and take all such
other reasonable actions in connection therewith in order to facilitate the
disposition of such Registrable Securities and in such connection, whether or
not an underwriting agreement is entered into and whether or not the
Registration is an underwritten registration (a) make such representations and
warranties to the Holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings and covering matters including,
without limitation, those set forth in an underwriting agreement; (b) obtain
opinions of counsel to the Company and updates thereof (which opinions (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, and not objected to by the Holders of a majority of the
Registrable Securities being sold), addressed to each Holder selling
Registrable Securities and the underwriters, if any, covering the matters
customarily covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by a majority of the Holders
selling such Registrable Securities and the underwriters, if any; (c) obtain
"cold comfort" letters and updates thereof from the Company's independent
certified public accountants addressed to the Holders of such Registrable
Securities and the underwriters, if any, such letters to be in customary form
and covering matters of the type customarily covered in "cold comfort" letters
by accountants in connection with primary underwritten offerings; (d) if an
underwriting agreement is entered into, the same shall set forth in full the
indemnification provisions and procedures of section 7 hereof with respect to
all parties to be indemnified pursuant to such section; and (e) the Company
shall deliver such documents and certificates as may be requested by the
Holders of a majority of the Registrable Securities being sold and the managing
underwriters, if any, to evidence compliance with section 5.1.11 above and with
any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement or as and to the extent required
thereunder;
5.1.15 Due Diligence Examination. Make available for
inspection by a representative of the Holders of a majority of the Registrable
Securities being sold and any underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant retained
by such underwriters, all 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 representative, underwriter, attorney or accountant in connection with
such Registration Statement;
5.1.16 Earning Statements. Otherwise use its best efforts
to comply with all applicable rules and regulations of the SEC, and make
generally available to its security holders, earnings statements satisfying the
provision of Section 11(a) of the Securities Act, no later than 45 days after
the end of each 12-month period (or 90 days after the end of each 12-month
period, if such period is a fiscal year) (a) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in a
firm or best efforts underwritten offering; or (b) if not sold to underwriters
in such an offering, beginning with the first month of the Company's first
fiscal
- 12 -
13
quarter commencing after the effective date of the Registration Statement,
which statements shall cover each of such 12-month periods;
5.1.17 Incorporated Documents. Promptly prior to the
filing of any document which is to be incorporated by reference into the
Registration Statement or the Prospectus (after initial filing of the
Registration Statement), provide copies of such document to counsel to the
Holders of Registrable Securities included in such Registration Statement and
to the managing underwriters, if any; and make the Company's representatives
available for discussion of such document, and make such changes in such
document (other than exhibits thereto) prior to the filing thereof as counsel
for such Holders or underwriters may reasonably request.
5.2. Discontinuation of Distribution by Holders. Each
Holder agrees, by acquisition of such Registrable Securities, that, upon
receipt of any notice from the Company of the happening of any event of the
kind described in section 5.1.11 hereof, such Holder will forthwith discontinue
disposition of Registrable Securities until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by section 5.1.11
hereof, or until it is advised in writing (the "Advice") by the Company that
the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such 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 Registrable
Securities current at the time of receipt of such notice. In the event the
Company shall give any such notice, the time periods regarding the maintenance
of the effectiveness of any Registration Statement in section 3.3.4 hereof and
the term of this Agreement in section 9.3 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 5.1.3(f) hereof to and including the date when each seller
of Registrable Securities covered by such Registration Statement shall have
received the copies of the supplemented or amended prospectus contemplated by
section 5.1.11 hereof or the Advice.
5.3 Company's Ability to Postpone. Notwithstanding
anything to the contrary contained herein, the Company shall have the right
once in any twelve-month period to postpone the filing of any registration
statement under sections 3 or 4 hereof if the Company furnishes the Holders of
Registrable Securities a certificate signed by the Chairman of the Board or the
Company's President stating that, in its good faith judgment, the Board (or the
executive committee thereof) has determined that effecting the registration at
such time would require the Company to make public disclosure of information
the public disclosure of which would have a material adverse effect upon the
Company or would interfere with a Material Transaction, and in the case of a
Material Transaction that constitutes a securities offering by the Company or
any material subsidiary thereof (an "Offering"), the managing underwriter, if
any, requests that the Holders not effect a public sale or distribution of
Registrable Securities. Such right may be exercised not more than three times
in the aggregate during the term of this Agreement subject to the following
further limitations: (a) such right may not be exercised more than once during
the term of this Agreement with respect to an Offering and the period of such
postponement may not
- 13 -
14
exceed the 10 day period prior to the commencement of such Offering, and the 60
day period after the completion of such Offering and (b) the period of
postponement with respect to Material Transactions other than an Offering shall
not exceed 90 days.
Section 6. Registration Expenses.
6.1 Expenses Borne by Company. Except as specifically
otherwise provided in subsections 3.3 and 6.2 hereof, the Company will be
responsible for payment of all expenses incident to the Company's performance
of or compliance with this Agreement and any registration hereunder, including,
without limitation, all registration and filing fees, fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel for the underwriters in connection with the blue sky
qualifications of the Registrable Securities as the managing underwriter or
Holders of a majority of the Registrable Securities being sold may designate),
fees and expenses associated with filings required to be made with the NASD,
printing expenses (including expenses of printing certificates for the
Registrable Securities in a form eligible for deposit with Depository Trust
Company and of prospectuses), messenger and delivery expenses, and fees and
disbursements of counsel for the Company and all independent certified public
accountants (including the expenses of any special audit and "cold comfort"
letters required by or incident to such performance), underwriters (excluding
discounts, commissions or fees of underwriters, selling brokers, dealer
managers or similar securities industry professionals relating to the
distribution of the Registrable Securities), Securities Act liability insurance
if the Company so desires and other Persons retained by the Company in
connection with such registration (all such expenses borne by the Company being
herein called the "Registration Expenses").
6.2 Expenses Borne by Selling Securityholders. The selling
securityholders will be responsible for payment of brokerage discounts,
commissions and other sales expenses incident to the registration of any
Registrable Shares registered hereunder. In addition, the selling
securityholders will be responsible for the payment of their own legal fees if
they retain legal counsel separate from that of the Company, unless the Company
requires the selling securityholders to obtain their own legal counsel, in
which case the reasonable fees and expenses of one counsel representing the
securityholders jointly shall be paid by the Company. The selling
securityholders shall be responsible for payment of their out-of-pocket
expenses and the out-of-pocket expenses of any agents who manage their
accounts. The selling securityholders shall also be responsible for payment of
any underwriting fees if the selling securityholders have requested
participation of an underwriter with respect to an offering subject to a Demand
Registration or have elected to participate in a Piggyback Registration using
their own underwriter. Any such expenses which are common to the selling
securityholders shall be divided among such securityholders (including the
Company and holders of the Company's securities other than Registrable
Securities, to the extent that securities are being registered on behalf of
such Persons) pro rata on the basis of the number of shares being registered on
behalf of each such securityholder, or as such securityholders may otherwise
agree.
- 14 -
15
Section 7. Indemnification.
7.1 Indemnification by Company. The Company agrees to
indemnify, to the fullest extent permitted by law, and hold harmless each
Holder of Registrable Securities and each officer, director and employee of,
and each Person who controls (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act and the rules and regulations
promulgated thereunder) such Holder and each other Person who participates as
an underwriter in the offering or sale of such Registrable Securities, against
all losses, claims, damages, liabilities and expenses (including attorneys
fees) in connection with defending against any such losses, claims, damages and
liabilities or in connection with any investigation or inquiry, in each case
caused by or based on any untrue or alleged untrue statement of material fact
contained in any Registration Statement, Prospectus or preliminary prospectus
or any amendment thereof or supplement thereto, or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Company will reimburse each such
indemnified person for any legal or any other expenses reasonably incurred by
them or any of them in connection with investigating or defending any such
claim (or action or proceeding in respect thereof); provided that the Company
shall not be liable in any such case to the extent that (a) same arises out of
or is based on an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration Statement, any such Prospectus or
preliminary prospectus, or in any amendment or supplement thereof in reliance
on and in conformity with written information furnished to the Company by a
Holder specifically stating that it is for use in the preparation thereof, (ii)
such Holder failed to deliver a copy of the Prospectus or any amendments or
supplements thereto to the Person asserting such loss, claim, damage,
liability, or expense if the Company had furnished such Holder with a
reasonably sufficient number of copies of the same, or (iii) such Holder failed
to discontinue disposition of shares after receiving notice from the Company
pursuant to section 5.2 hereof. In connection with an underwritten offering,
the Company will indemnify such underwriters, their officers and directors and
each Person who controls (within the meaning of the Securities Act) such
underwriters at least to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of a Holder or any such underwriter and shall survive the transfer of
the Registrable Securities by a Holder.
7.2 Indemnification by Holder. In connection with any
Registration Statement in which a Holder of Registrable Securities is
participating, each such Holder will furnish to the Company in writing such
information as the Company reasonably requests for use in connection with any
such Registration Statement or Prospectus and, to the extent permitted by law,
each Holder severally, and not jointly, will indemnify the Company, its
directors and officers, and each Person who controls (within the meaning of the
Securities Act) the Company against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the Registration Statement, Prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading, but
- 15 -
16
only to the extent that such untrue statement or omission is contained in any
information so furnished in writing by such Holder expressly for use in
connection with such Registration Statement; provided that the obligation to
indemnify will be individual to each Holder (and not joint) and will be limited
to the net amount of proceeds received by such Holder from the sale of
Registrable Securities pursuant to such Registration Statement. In connection
with an underwritten offering, each such Holder will indemnify such
underwriters, their officers and directors and each Person who controls (within
the meaning of the Securities Act) such underwriters at least to the same
extent as provided above with respect to the indemnification of the Company.
7.3 Assumption of Defense by Indemnifying Party. Any
Person entitled to indemnification hereunder will (a) give prompt written
notice to the indemnifying party of any claim with respect to which it seeks
indemnification and (b) permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party;
provided, however, that any Person entitled to indemnification hereunder shall
have the right to employ separate counsel and to participate in the defense of
such claim, but the fees and expenses of such counsel shall be at the expense
of such Person unless (i) the indemnifying party has agreed to pay such fees or
expenses, or (ii) the indemnifying party shall have failed to assume the
defense of such claim and employ counsel reasonably satisfactory to such Person
or (iii) in the reasonable judgment of any such Person, based upon written
advice of its counsel, a conflict of interest may exist between such Person and
the indemnifying party with respect to such claims (in which case, if the
Person notifies the indemnifying party in writing that such Person elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
claims on behalf of such Person). If such defense is not assumed, the
indemnifying party will not be subject to any liability for any settlement made
without its consent (but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel for all parties indemnified by such indemnifying party with respect to
such claim, unless in the reasonable judgment of any indemnified party a
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim, in which case the
indemnifying party shall pay the fees and expenses of such additional counsel
or counsels. The failure of any indemnified party to provide the notice
required by section 7.3(a) above shall not relieve the indemnifying party under
this section 7, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice.
7.4 Contribution. If for any reason the indemnification
provided for in sections 7.1 and 7.2 is unavailable to an indemnified party or
insufficient to hold it harmless as contemplated by sections 7.1 and 7.2, then
the indemnifying party shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage or liability in such
proportion as is appropriate to reflect not only the relative benefits received
by the indemnified party and the indemnifying party, but also the relative
fault of the indemnified party and the indemnifying party, as well as any other
relevant equitable considerations; provided that no Holder shall be required to
contribute in an amount greater than the dollar amount of the net amount of
- 16 -
17
proceeds received by such Holder with respect to the sale of any of the
Registrable Securities. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
7.5 Binding Effect. The indemnification provided for
under this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
Section 8. Participation in Underwritten Registrations. No Person
may participate in any Registration Statement hereunder which is
underwritten unless such Person (a) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by the Person or
Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under such underwriting arrangements.
Section 9. Miscellaneous.
9.1 No Inconsistent Agreements. The Company will not on or
after the date hereof enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Holders of Registrable
Securities in this Agreement or otherwise conflicts with the provisions hereof.
The rights granted to the Holders hereunder do not in any way conflict with any
other agreement to which the Company is a party.
9.2 Remedies. All remedies under this Agreement, or by law
or otherwise afforded to any party hereto, shall be cumulative and not
alternative. Any Person having rights under any provision of this Agreement
will be entitled to enforce such rights specifically to recover damages caused
by reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law. The parties hereto agree and acknowledge that
money damages may not be an adequate remedy for any breach of the provisions of
this Agreement and that any party may in its sole discretion apply to any court
of law or equity of competent jurisdiction (without posting any bond or other
security) for specific performance and for other injunctive relief in order to
enforce or prevent violation of the provisions of this Agreement.
9.3 Term. Except as specifically otherwise provided herein,
the provisions of this Agreement shall apply until such time as all Registrable
Securities have ceased to be "Restricted Securities" (as that term is defined
by Rule 144 promulgated under the Securities Act), but in no event later than
two years from the last date of issuance of Registrable Securities pursuant to
the Warrant Agreement.
- 17 -
18
9.4 Rule 144 and Rule 144A. With a view to making available
certain exemptions from the registration provisions of the Securities Act for
the sale of the Warrants and Restricted Securities, the Company covenants that:
9.4.1 At all times that the Common Stock is registered
under Section 12(b) or 12(g) of the Exchange Act, the Company will exercise its
best efforts to file timely the reports required to be filed by the Company
under the Securities Act and the Exchange Act (or, if the Company is not
registered under Section 12(b) or 12(g) of the Exchange Act and is not
otherwise required to file such reports under Sections 13 or 15(d) thereunder,
it will, upon the request of any holder of Registerable Securities, make
publicly available such other information required under Rule 144 for so long
as necessary to permit sales pursuant to Rule 144 under the Securities Act),
and it will take such further action as any Holder may reasonably request to
the extent required from time to time to enable such Holder to sell the
Registrable Securities without registration under the Securities Act within the
limitations of the exemptions provided by (a) Rule 144 under the Securities
Act, as such Rule may be amended from time to time or (b) any similar rule or
regulation hereafter adopted by the SEC. Upon the request of any Holder, the
Company will deliver to such Holder a written statement as to whether it has
complied with such requirements.
9.4.2 So long as the Registrable Securities constitute
restricted securities, the Company will furnish each Holder a copy of the
annual and quarterly reports of the Company and such other public reports as
any Holder may reasonably request.
9.4.3 At all times the Company is not subject to Section 13
or 15(d) of the Exchange Act, the Company will use its best efforts to provide
Warrant Holders, upon their request, the information regarding the Company
required by section (d)(4)(i) and (ii) of Rule 144A so as to enable the Warrant
Holders to sell Warrants under Rule 144A.
9.5 Amendments and Waivers. Except as otherwise specifically
provided herein, this Agreement may be amended or waived only upon the prior
written consent of the Company and of the Holders of a majority of the then
outstanding shares of Registrable Securities.
9.6 Successors and Assigns. All covenants and agreements in
this Agreement by or on behalf of any of the parties hereto will bind and inure
to the benefit of the respective successors and assigns of the parties hereto
permitted in accordance with section 2.2 whether so expressed or not; provided
however, the Company may not assign its responsibilities hereunder without the
express written consent of the Holders. In addition, whether or not any
express assignment has been made, the provisions of this Agreement which are
for the benefit of Holders of Registrable Securities are also for the benefit
of, and enforceable by, any subsequent Holder of such Registrable Securities
permitted in accordance with section 2.2 so long as such securities continue to
be Restricted Securities.
- 18 -
19
9.7 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
9.8 Counterparts. This Agreement may be executed in multiple
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together will constitute one and the
same Agreement.
9.9 Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
9.10 Governing Law. All questions concerning the
construction, validity and interpretation of this Agreement will be governed by
and construed in accordance with the domestic laws of the State of Delaware,
without giving effect to any choice of law or conflict of law provision or rule
(whether of the State of Delaware or any other jurisdiction) that would cause
the application of the laws of any jurisdiction other than the State of
Delaware.
9.11 Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto with respect of the subject matter contained herein. This agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
9.12 Notices. All notices, demands or other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be delivered personally to the recipient, sent to
the recipient by reputable express courier service (charges prepaid), mailed to
the recipient by certified or registered mail, return receipt requested and
postage prepaid or by telecopy and shall be deemed to have been received at the
time of personal delivery, on the next business day if delivered by express
courier, three business days after deposit in the mail, or at the time of
transmission, if sent by telecopy during the recipient's business hours (or
otherwise on the next business day). Such notices, demands and other
communications will be sent to each Holder at the address indicated on the
records of the Company and to the Company at the address indicated below:
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20
(a) If to the Company:
Atlantic Gulf Communities Corporation
ββββ βββββ ββββββββ βββββ
βββββ, βββββββ βββββ-ββββ
Attn: ββββββ β. βββββββ
Chief Financial Officer
with a copy, which shall not constitute notice, to:
Arent Fox βββββββ βββββββ & ββββ
ββββ βββββββββββ ββββββ, β.β.
ββββββββββ, β.β. βββββ-ββββ
Attn: Carter Strong, Esquire
(b) If to the Banks:
To their respective addresses shown on the Company's
records or to such other address or to the attention of such other person as
the recipient party has specified by prior written notice to the sending party.
9.13 Delays or Omissions. No failure to exercise or
delay in the exercise of any right, power or remedy accruing to a Holder on any
breach or default of the Company under this Agreement shall impair any such
right, power or remedy nor shall it be construed to be a waiver of any such
breach.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
"THE COMPANY"
ATLANTIC GULF COMMUNITIES
CORPORATION
By:
---------------------------
Its:
-------------------------
"THE BANKS"
- 20 -
21
THE CHASE MANHATTAN BANK
By:
------------------------------
βββββ βββββ
Vice President
Notice Address:
βββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Telecopy: (βββ) βββ-ββββ
Attention: βββββ βββββ
Vice President
CARGILL FINANCIAL SERVICES CORPORATION
By:
-----------------------------
- 21 -
22
Notice Address:
ββββ ββββββββββ βββββ
ββββββββββ, βββββββββ βββββ-ββββ
Telecopy:
Attention: βββββββββββ β. Pears
MAGTEN ASSET MANAGEMENT CORP.
By:
-----------------------------
Notice Address:
ββ ββββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Telecopy:
Attention: βββ βββββββ
CERBERUS PARTNERS, L.P.
By: Cerebus Associates, L.P., its general partner
By:
----------------------------
its General Partner
Notice Address:
c/o Blackacre Capital Group, L.P.
βββ βββββ ββββββ, ββββ βββββ
βββ ββββ, βββ ββββ βββββ
Telecopy:
Attention: ββββ ββββββ
- 22 -
23
βββββββ βββββ, ββββββ ββββββ & βββββ, INCORPORATED
By:
-----------------------------
Notice Address:
World Financial Center
βββ βββββ ββββββ, ββββ βββββ
βββ ββββ, ββ βββββ-ββββ
Telecopy: (βββ) βββ-ββββ
Attn: βββββββ ββββββββ
SIGNATURES CONTINUED ON THE FOLLOWING SIGNATURE PAGES
- 23 -
24
ββββββ MASTER RETIREMENT TRUST
By: MAGTEN ASSET MANAGEMENT CORP.,
its attorney-in-fact
By:
----------------------------------------------
Notice Address:
ββ ββββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Telecopy:
Attention: βββ βββββββ
L.A. FIRE AND POLICE PENSION SYSTEMS
By: MAGTEN ASSET MANAGEMENT CORP.,
its attorney-in-fact
By:
---------------------------------------------
Notice Address:
ββ ββββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Telecopy:
Attention: βββ βββββββ
WESTERN UNION PENSION PLAN
By: MAGTEN ASSET MANAGEMENT CORP.,
its attorney-in-fact
By:
-----------------------------------------------
Notice Address:
ββ ββββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Telecopy:
- 24 -
25
Attention: βββ βββββββ
NAVY EXCHANGE SERVICE COMMAND
RETIREMENT TRUST
By: MAGTEN ASSET MANAGEMENT CORP.,
its attorney-in-fact
By:
-------------------------------------------
Notice Address:
ββ ββββ ββββ ββββββ
βββ ββββ, βββ ββββ βββββ
Telecopy:
Attention: βββ βββββββ
- 25 -
26
EXHIBIT A
The Chase Manhattan Bank
Cargill Financial Services Corporation
Cerebus Partners, β.β.
ββββββ Master Retirement Trust
L. A. Fire and Police Pension Systems
Western Union Pension Plan
Navy Exchange Service Command Retirement Trust
βββββββ βββββ, ββββββ ββββββ & βββββ, Incorporated