EXHIBIT 4.25
TECHNICAL OLYMPIC USA, INC.
$125,000,000
7 1/2% Senior Subordinated Notes Due 2011
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 17, 2004
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Technical Olympic USA, Inc., a corporation organized under the
laws of the State of Delaware (the "Company"), proposes to issue and sell to
Citigroup Global Markets Inc. (the "Initial Purchaser"), upon the terms set
forth in a purchase agreement, dated March 10, 2004 (the "Purchase Agreement")
relating to the initial placement of the Notes (the "Initial Placement"),
$125,000,000 aggregate principal amount of its 7 1/2% Senior Subordinated Notes
due 2011 (the "Notes"). The Notes will be unconditionally guaranteed (the
"Guarantees" and together with the Notes, the "Securities") on a senior
subordinated unsecured basis by each of the Company's direct and indirect
domestic subsidiaries set forth on the signature page hereto (the "Guarantors").
To induce the Initial Purchaser to enter into the Purchase Agreement and to
satisfy a condition of your obligations thereunder, the Company and the
Guarantors agree with you for your benefit and the benefit of the holders from
time to time of the Securities (including the Initial Purchaser) and the New
Securities (as defined herein) (each a "Holder" and, together, the "Holders"),
as follows:
Section 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise; and the terms "controlling" and "controlled"
shall have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Company" shall have the meaning set forth in the preamble
hereto.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the 180-day
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement, or such shorter
period as will terminate when all New Securities held by Exchanging Dealers or
the Initial Purchaser have been sold pursuant thereto.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Guarantors on an appropriate form
under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
the Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Guarantees" shall have the meaning set forth in the preamble
hereto.
"Guarantors" shall have the meaning set forth in the preamble
hereto.
"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of March 17, 2004, among the Company, the Guarantors and
Xxxxx Fargo Bank, National Association, as trustee, as the same may be amended,
supplemented, waived or otherwise modified from time to time in accordance with
the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and/or New Securities, as applicable,
registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"New Notes" shall mean debt securities of the Company,
guaranteed by the Guarantors, identical in all material respects to the Notes
(except that the cash interest and interest rate step-up provi-
-2-
sions and the transfer restrictions shall be modified or eliminated, as
appropriate) and to be issued under the Indenture or the New Securities
Indenture.
"New Securities" shall mean debt securities of the Company and
the related guarantees of the Guarantors, identical in all material respects to
the Securities (except that the cash interest and interest rate step-up
provisions and the transfer restrictions shall be modified or eliminated, as
appropriate) and to be issued under the Indenture or the New Securities
Indenture.
"New Securities Indenture" shall mean an indenture between the
Company, the Guarantors and the New Securities Trustee, identical in all
material respects to the Indenture (except that the cash interest and interest
rate step-up provisions and the transfer restrictions will be modified or
eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchaser, as trustee with respect to the
New Securities under the New Securities Indenture.
"Notes" shall have the meaning set forth in the preamble
hereto.
"Person" shall mean an individual, trustee, corporation,
partnership, limited liability company, joint stock company, trust,
unincorporated association, union, business association, firm or other legal
entity.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company and the Guarantors to issue and deliver to the Holders of the
Securities that are not prohibited by any law or policy of the Commission from
participating in such offer, in exchange for the Securities, a like aggregate
principal amount of the New Notes and Related Guarantees.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
"Related Guarantees" shall mean the guarantees of the
Guarantors to be issued under the Indenture or the New Securities Indenture in
respect of New Notes.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
-3-
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to the
provisions of Section 3 hereof which covers some or all of the Securities and/or
New Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities and New Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities or New
Securities in connection with an offering thereof under a Registration
Statement.
Section 2. Registered Exchange Offer. (a) The Company and the
Guarantors shall prepare, at their cost, and, not later than 90 days following
the date of the original issuance of the Securities (or if such 90th day is not
a Business Day, the next succeeding Business Day), shall file with the
Commission the Exchange Offer Registration Statement with respect to the
Registered Exchange Offer. The Company and the Guarantors shall use their
respective best efforts to cause the Exchange Offer Registration Statement to
become effective under the Act not later than 180 days following the date of the
original issuance of the Securities (or if such 180th day is not a Business Day,
the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Securities for New Securities (assuming
that such Holder is not an Affiliate of the Company, acquires the New Securities
in the ordinary course of such Holder's business, has no arrangements with any
Person to participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from participating in the
Registered Exchange Offer) and to trade such New Securities from and after their
receipt without any limitations or restrictions under the Act and without
material restrictions under the securities laws of a substantial proportion of
the several states of the United States.
(c) In connection with the Registered Exchange Offer, the
Company and the Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 business days and not more than 45 days after the date notice
thereof is mailed to the Holders (or, in each case, longer if required
by applicable law);
(iii) use their respective best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act,
supplemented and amended as required, under the Act to ensure that it
is available for sales of New Securities by Exchanging Dealers or the
Initial Purchaser during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Securities Trustee or an
Affiliate of either of them;
-4-
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business Day
on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantors are conducting the Registered
Exchange Offer in reliance on the position of the Commission in Exxon
Capital Holdings Corporation (pub. avail. May 13, 1988), and Xxxxxx
Xxxxxxx and Co., Inc. (pub. avail. June 5, 1991); and (B) including a
representation that the Company and the Guarantors have not entered
into any arrangement or understanding with any Person to distribute the
New Securities to be received in the Registered Exchange Offer and
that, to the best of their information and belief, each Holder
participating in the Registered Exchange Offer is acquiring the New
Securities in the ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
New Securities; and
(vii) comply in all material respects with all applicable
laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance
with Section 5(s) all Notes so accepted for exchange; and
(iii) cause the Trustee or New Securities Trustee, as the case
may be, promptly to authenticate and deliver to each Holder of
Securities a principal amount of New Notes equal to the principal
amount of the Notes of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Securities (x) could not under
Commission policy as in effect on the date of this Agreement rely on the
position of the Commission in Xxxxxx Xxxxxxx and Co., Inc. (pub. avail. June 5,
1991) and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993
and similar no-action letters; and (y) must comply with the registration and
prospectus delivery requirements of the Act in connection with any secondary
resale transaction which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508,
as applicable, of Regulation S-K under the Act, if the resales are of New
Securities obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company or one of its Affiliates. Accordingly, each
Holder participating in the Registered Exchange Offer shall be required to
represent to the Company and the Guarantors that, at the time of the
consummation of the Registered Exchange Offer:
(i) any New Securities received by such Holder will be
acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding
with any Person to participate in the distribution of the Securities or
the New Securities within the meaning of the Act;
-5-
(iii) such Holder is not an Affiliate of the Company or any of
the Guarantors or if it is an Affiliate, such Holder will comply with
the registration and prospectus delivery requirements of the Act to the
extent applicable;
(iv) if such Holder is not a Broker-Dealer, that it is not
engaged in, and does not intend to engage in, the distribution of the
New Securities; and
(v) if such Holder is a Broker-Dealer, that it will receive
New Securities for its own account in exchange for Securities that were
acquired as a result of market-making activities or other trading
activities and that it will deliver a prospectus in connection with any
resale of such New Securities.
(f) If the Initial Purchaser determines that it is not
eligible to participate in the Registered Exchange Offer with respect to the
exchange of Securities constituting any portion of an unsold allotment, at the
request of the Initial Purchaser, the Company and the Guarantors shall issue and
deliver to the Initial Purchaser or the Person purchasing New Securities
registered under a Shelf Registration Statement as contemplated by Section 3
hereof from the Initial Purchaser, in exchange for such Securities, a like
principal amount of New Securities. The Company and the Guarantors shall use
their respective reasonable efforts to cause the CUSIP Service Bureau to issue
the same CUSIP number for such New Securities as for New Securities issued
pursuant to the Registered Exchange Offer.
Section 3. Shelf Registration. (a) If (i) due to any change in
law or applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any
other reason the Exchange Offer Registration Statement is not declared effective
within 180 days following the date of the original issuance of the Securities or
the Registered Exchange Offer is not consummated within 45 days following the
date that is 180 days following the date of the original issuance; (iii) the
Initial Purchaser so requests with respect to Securities that are not eligible
to be exchanged for New Securities in the Registered Exchange Offer and that are
held by it following consummation of the Registered Exchange Offer; (iv) any
Holder (other than the Initial Purchaser) is not eligible to participate in the
Registered Exchange Offer or does not receive freely tradeable New Securities in
the Registered Exchange Offer other than by reason of such Holder being an
Affiliate of the Company (it being understood that the requirement that a
participating Broker-Dealer deliver the prospectus contained in the Exchange
Offer Registration Statement in connection with sales of New Securities shall
not result in such New Securities being not "freely tradeable"); or (v) in the
case of the Initial Purchaser that participates in the Registered Exchange Offer
or acquires New Securities pursuant to Section 2(f) hereof, the Initial
Purchaser does not receive freely tradeable New Securities in exchange for
Securities constituting any portion of an unsold allotment (it being understood
that (x) the requirement that the Initial Purchaser deliver a Prospectus
containing the information required by Item 507 or 508 of Regulation S-K under
the Act in connection with sales of New Securities acquired in exchange for such
Securities shall result in such New Securities being not "freely tradeable;" and
(y) the requirement that an Exchanging Dealer deliver a Prospectus in connection
with sales of New Securities acquired in the Registered Exchange Offer in
exchange for Securities acquired as a result of market-making activities or
other trading activities shall not result in such New Securities being not
"freely tradeable") the Company and the Guarantors shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company and the Guarantors, at their cost, shall as
promptly as practicable, file with the Commission and thereafter shall
use their best efforts to cause to be declared effective under the Act
a Shelf Registration Statement relating to the offer and sale of the
Securities or
-6-
the New Securities, as applicable, by the Holders thereof from time to
time in accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement; provided,
however, that no Holder (other than the Initial Purchaser) shall be
entitled to have the Securities or New Securities held by it covered by
such Shelf Registration Statement unless such Holder agrees in writing
to be bound by all of the provisions of this Agreement applicable to
such Holder; and provided further, that with respect to New Securities
received by the Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Company and the
Guarantors may, if permitted by current interpretations by the
Commission's staff, file a post-effective amendment to the Exchange
Offer Registration Statement containing the information required by
Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of
their obligations under this subsection with respect thereto, and any
such Exchange Offer Registration Statement, as so amended, shall be
referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(ii) the Company and the Guarantors shall use their respective
best efforts to keep the Shelf Registration Statement continuously
effective, supplemented and amended as required by the Act, in order to
permit the Prospectus forming part thereof to be usable by Holders for
a period until the earlier of (A) the time when all of the Securities
or New Securities, as applicable, covered by the Shelf Registration
Statement can be sold pursuant to Rule 144 without limitation under
clauses (c), (e), (f) and (h) of Rule 144, (B) the date on which all
the Securities or New Securities, as applicable, covered by the Shelf
Registration Statement have been sold pursuant to the Shelf
Registration Statement, and (C) the date two years from the date the
Shelf Registration Statement is declared effective by the Commission
(in any such case, such period being called the "Shelf Registration
Period"). The Company and the Guarantors shall be deemed not to have
used their respective best efforts to keep the Shelf Registration
Statement effective during the requisite period if they voluntarily
take any action that would result in Holders of Securities or New
Securities covered thereby not being able to offer and sell such
Securities or New Securities during that period, unless (A) such action
is required by applicable law; or (B) such action is taken by the
Company and the Guarantors in good faith and for valid business reasons
(not including avoidance of the Company's and the Guarantors'
obligations hereunder), including the acquisition or divestiture of
assets, so long as the Company and the Guarantors promptly thereafter
comply with the requirements of Section 5(k) hereof, if applicable.
(iii) the Company and the Guarantors shall cause the Shelf
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of the Shelf Registration
Statement or such amendment or supplement, (A) to comply in all
material respects with the applicable requirements of the Act and the
rules and regulations of the Commission; and (B) not to contain any
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
Section 4. Special Interest. If (a) on or prior to the 90th
day following the original issue date of the Securities, neither the Exchange
Offer Registration Statement nor the Shelf Registration Statement has been filed
with the Commission, (b) on or prior to the 180th day following the original
issue date of the Securities, neither the Exchange Offer Registration Statement
nor the Shelf Registration Statement has been declared effective, (c) on or
prior to the 45th day following the date the Exchange Offer Registration
Statement is first declared effective, neither the Registered Exchange Offer has
been consummated nor the Shelf Registration Statement has been declared
effective, or (d) after either the Exchange Offer Registration Statement or the
Shelf Registration Statement has been declared effective, such Registration
Statement thereafter ceases to be effective or usable in connection with resales
of Securities
-7-
or New Securities in accordance with and during the periods specified in this
Agreement (each such event referred to in clauses (a) through (d), a
("Registration Default"), interest ("Special Interest") will accrue on the
principal amount of the Securities and the New Securities (in addition to the
stated interest on the Securities and New Securities) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Special Interest will
accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of such Registration Default and shall increase by
0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such rate exceed 1.00% per annum.
All obligations of the Company and the Guarantors set forth in
the preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
Section 5. Additional Registration Procedures. In connection
with any Shelf Registration Statement and, to the extent applicable, any
Exchange Offer Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five Business Days prior to
the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall use their
respective commercially reasonable best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose;
(ii) include the information set forth in Annex A hereto on
the facing page of the Exchange Offer Registration Statement, in Annex
B hereto in the forepart of the Exchange Offer Registration Statement
in a section setting forth details of the Exchange Offer, in Annex C
hereto in the underwriting or plan of distribution section of the
Prospectus contained in the Exchange Offer Registration Statement, and
in Annex D hereto in the letter of transmittal delivered pursuant to
the Registered Exchange Offer;
(iii) if requested by the Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include
the names of the Holders that propose to sell Securities or New
Securities, as applicable, pursuant to the Shelf Registration Statement
as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules
and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
-8-
(c) The Company and the Guarantors shall advise you, the
Holders of Securities or New Securities covered by any Shelf Registration
Statement and any Exchanging Dealer or the Initial Purchaser under any Exchange
Offer Registration Statement that has provided in writing to the Company and the
Guarantors a telephone or facsimile number and address for notices, and, if
requested by you or any such Holder, Exchanging Dealer or the Initial Purchaser,
shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v)
hereof shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company and the Guarantors shall have remedied the basis
for such suspension):
(i) when a Registration Statement and any amendment thereto
has been filed with the Commission and when the Registration Statement
or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company and the Guarantors of any
notification with respect to the suspension of the qualification of the
Securities or New Securities included therein for sale in any
jurisdiction or the initiation of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company and the Guarantors shall use their respective
best efforts to obtain the withdrawal of any order suspending the effectiveness
of any Registration Statement or the qualification of the Securities or New
Securities therein for sale in any jurisdiction at the earliest possible time.
(e) The Company and the Guarantors shall furnish to each
Holder of Securities or New Securities covered by any Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including all material
incorporated therein by reference, and, if the Holder so requests in writing,
all exhibits thereto (including exhibits incorporated by reference therein).
(f) The Company and the Guarantors shall, during the Shelf
Registration Period, deliver to each Holder of Securities or New Securities
covered by any Shelf Registration Statement, without charge, as many copies of
the Prospectus (including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder
may reasonably request. The Company and the Guarantors consent to the use of the
Prospectus or any amendment or supplement thereto by each of the selling Holders
of Securities or New Securities in connection with the offering and sale of the
Securities or New Securities covered by the Prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantors shall furnish to each
Exchanging Dealer or the Initial Purchaser which so requests, without charge, at
least one copy of the Exchange Offer Registration Statement and any
post-effective amendment thereto, including all material incorporated by
reference
-9-
therein, and, if the Exchanging Dealer so requests in writing, all exhibits
thereto (including exhibits incorporated by reference therein).
(h) The Company and the Guarantors shall promptly deliver to
the Initial Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Company and the Guarantors consent to the use
of the Prospectus or any amendment or supplement thereto by the Initial
Purchaser, any Exchanging Dealer and any such other Person that may be required
to deliver a Prospectus following the Registered Exchange Offer in connection
with the offering and sale of the New Securities covered by the Prospectus, or
any amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other
offering of Securities or New Securities pursuant to any Registration
Statement, the Company and the Guarantors shall arrange, if necessary,
for the qualification of the Securities or the New Securities for sale
under the laws of such jurisdictions as any Holder shall reasonably
request and will maintain such qualification in effect so long as
required; provided that in no event shall the Company and the
Guarantors be obligated to qualify to do business in any jurisdiction
where they are not then so qualified or to take any action that would
subject them to service of process in suits or taxation, other than
those arising out of the Initial Placement, the Registered Exchange
Offer or any offering pursuant to a Shelf Registration Statement, in
any such jurisdiction where they are not then so subject.
(j) The Company and the Guarantors shall cooperate with the
Holders of Securities and New Securities to facilitate the timely preparation
and delivery of certificates representing New Securities or Securities to be
issued or sold pursuant to any Registration Statement free of any restrictive
legends and in such denominations and registered in such names as Holders may
request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Company and the Guarantors shall
promptly prepare a post-effective amendment to the applicable Registration
Statement or an amendment or supplement to the related Prospectus or file any
other required document so that, as thereafter delivered to the Initial
Purchaser or Exchanging Dealers, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading. In such circumstances, the period of effectiveness of
the Exchange Offer Registration Statement provided for in Section 2 and the
Shelf Registration Statement provided for in Section 3(b) shall each be extended
by the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 5(c) to and including the date when the Initial
Purchaser, the Holders of the Securities or New Securities and any known
Exchanging Dealer shall have received such amended or supplemented Prospectus
pursuant to this Section.
(l) Not later than the effective date of any Registration
Statement, the Company and the Guarantors shall provide a CUSIP number for the
Securities or the New Securities, as the case may be, registered under such
Registration Statement and provide the Trustee with printed certificates for
such Securities or New Securities, in a form eligible for deposit with The
Depository Trust Company.
(m) The Company and the Guarantors shall comply with all
applicable rules and regulations of the Commission and shall make generally
available to their security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
-10-
(n) The Company and the Guarantors shall cause the Indenture
or the New Securities Indenture, as the case may be, to be qualified under the
Trust Indenture Act in a timely manner, if applicable.
(o) The Company and the Guarantors may require each Holder of
Securities or New Securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company and the Guarantors such information
regarding the Holder and the distribution of such Securities or New Securities
as the Company and the Guarantors may from time to time reasonably require for
inclusion in such Registration Statement. The Company and the Guarantors may
exclude from such Shelf Registration Statement the Securities or New Securities
of any Holder that fails to furnish such information within a reasonable time
after receiving such request.
(p) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall enter into such agreements and take all other
appropriate actions (including if requested an underwriting agreement in
customary form) in order to expedite or facilitate the registration or the
disposition of the Securities or New Securities, and in connection therewith, if
an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth
in Section 7 (or such other provisions and procedures acceptable to the Majority
Holders and the Managing Underwriters, if any, with respect to all parties to be
indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the
Company and the Guarantors shall:
(i) make reasonably available for inspection by the Holders of
Securities or New Securities to be registered thereunder, any
Underwriter participating in any disposition pursuant to such
Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Underwriter all relevant financial
and other records, pertinent corporate documents and properties of the
Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such Underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at
the time of delivery of such information shall be kept confidential by
the Holders or any such Underwriter, attorney, accountant or agent,
unless such disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the public
generally or through a third party without an accompanying obligation
of confidentiality;
(iii) make such representations and warranties to the Holders
of Securities or New Securities registered thereunder and the
Underwriters, if any, in form, substance and scope as are customarily
made by issuers to Underwriters in primary underwritten offerings and
covering matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
Underwriters, if any, covering such matters as are customarily covered
in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
-11-
(v) obtain "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
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Securities or New Securities registered thereunder
and the Underwriters, if any, in customary form and covering matters of
the type customarily covered in "cold comfort" letters in connection
with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with
Section 5(k) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company
and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement,
the Company and the Guarantors shall upon the request of an Exchanging Dealer:
(i) make reasonably available for inspection by the Initial
Purchaser or Exchanging Dealer, and any attorney, accountant or other
agent retained by the Initial Purchaser or Exchanging Dealer, all
relevant financial and other records, pertinent corporate documents and
properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Initial
Purchaser or Exchanging Dealer or any such attorney, accountant or
agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however,
that any information that is designated in writing by the Company, in
good faith, as confidential at the time of delivery of such information
shall be kept confidential by the Initial Purchaser or Exchanging
Dealer or any such attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and warranties to the Initial
Purchaser or Exchanging Dealer, in form, substance and scope as are
customarily made by issuers to Underwriters in primary underwritten
offerings and covering matters including, but not limited to, those set
forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the
Guarantors and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the Initial
Purchaser or Exchanging Dealer and their respective counsel, addressed
to the Initial Purchaser or Exchanging Dealer, covering such matters as
are customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by the Initial
Purchaser or Exchanging Dealer or their respective counsel;
(v) obtain "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
for which financial statements and financial data are, or are required
to be, included in the Registra-
-12-
tion Statement), addressed to the Initial Purchaser or Exchanging
Dealer, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings, or if requested by the Initial Purchaser or
Exchanging Dealer or their respective counsel in lieu of a "cold
comfort" letter, an agreed-upon procedures letter under Statement on
Auditing Standards No. 35, covering matters requested by the Initial
Purchaser or Exchanging Dealer or their respective counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Initial Purchaser or Exchanging Dealer or
their respective counsel, including those to evidence compliance with
Section 5(k) and with conditions customarily contained in underwriting
agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section if so requested shall be performed at close of the Registered Exchange
Offer and the effective date of any post-effective amendment to the Exchange
Offer Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the New Securities, the Company shall
xxxx, or caused to be marked, on the Securities so exchanged that such
Securities are being canceled in exchange for the New Securities. In no event
shall the Securities be marked as paid or otherwise satisfied.
(t) The Company and the Guarantors will use their commercially
reasonable best efforts to confirm the ratings of the Securities will apply to
the Securities or the New Securities, as the case may be, covered by a Shelf
Registration Statement.
(u) In the event that any Broker-Dealer shall underwrite any
Securities or New Securities or participate as a member of an underwriting
syndicate or selling group or "assist in the distribution" (within the meaning
of the Rules of Fair Practice and the By-Laws of the National Association of
Securities Dealers, Inc.) thereof, whether as a Holder of such Securities or New
Securities or as an Underwriter, a placement or sales agent or a broker or
dealer in respect thereof, or otherwise, assist such Broker-Dealer in complying
with the requirements of such Rules and By-Laws, including, without limitation,
by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to
exercise usual standards of due diligence with respect thereto and, if
any portion of the offering contemplated by such Registration Statement
is an underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities or New Securities;
(ii) indemnifying any such qualified independent underwriter
to the extent of the indemnification of Underwriters provided in
Section 7 hereof; and
(iii) providing such information to such Broker-Dealer as may
be required in order for such Broker-Dealer to comply with the
requirements of such Rules.
(v) The Company and the Guarantors shall use their respective
commercially reasonable best efforts to take all other steps necessary to effect
the registration of the Securities or the New Securities, as the case may be,
covered by a Registration Statement.
-13-
Section 6. Registration Expenses. The Company and the
Guarantors shall bear all expenses incurred in connection with the performance
of their obligations under Sections 2, 3 and 5 hereof and, in the event of any
Shelf Registration Statement, will reimburse the Holders for the reasonable fees
and disbursements of one firm or counsel designated by the Majority Holders to
act as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchaser for
the reasonable fees and disbursements of counsel acting in connection therewith
if the Initial Purchaser shall resell Securities or New Securities pursuant to
the prospectus contained in such Exchange Offer Registration Statement.
Section 7. Indemnification and Contribution. (a) The Company
and the Guarantors, jointly and severally, agree to indemnify and hold harmless
each Holder of Securities or New Securities, as the case may be, covered by any
Registration Statement (including the Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(h) hereof, each Exchanging
Dealer), the directors, officers, employees and agents of each such Holder and
each Person who controls any such Holder within the meaning of either the Act or
the Exchange Act against any and all Losses, joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or other Federal
or state statutory law or regulation, at common law or otherwise, insofar as
such Losses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary Prospectus
or the 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 not misleading, and agree to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Guarantors will
not be liable in any case to the extent that any such loss, claim, damage or
liability 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 and the
Guarantors by or on behalf of any such Holder specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which the
Company and the Guarantors may otherwise have.
The Company and the Guarantors also, jointly and severally,
agree to indemnify or contribute as provided in Section 7(d) to Losses of any
Underwriter of Securities or New Securities, as the case may be, registered
under a Shelf Registration Statement, their directors, officers, employees or
agents and each Person who controls such Underwriter on substantially the same
basis as that of the indemnification of the Initial Purchaser and the selling
Holders provided in this Section 7(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in
Section 5(p) hereof.
(b) Each Holder of Securities or New Securities covered by a
Registration Statement (including the Initial Purchaser and, with respect to any
Prospectus delivery as contemplated in Section 5(h) hereof, each Exchanging
Dealer) severally agrees to indemnify and hold harmless the Company and the
Guarantors, each of their directors, officers, employees and agents and each
Person who controls the Company or any of the Guarantors within the meaning of
either the Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Guarantors to each such Holder, but only with
reference to written information relating to such Holder furnished to the
Company and the Guarantors by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such Holder
may otherwise have.
-14-
(c) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses; and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying party
shall not be liable under this Section 7 to any indemnified party regarding any
settlement or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent is consented to by such
indemnifying party, which consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in paragraph (a)
or (b) of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending the same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall the Initial Purchaser or any subsequent
Holder of any Security or New Security be responsible, in the aggregate, for any
amount in excess of the purchase discount or commission applicable to such
Security, or in the case of a New Security, applicable to the Security that was
exchangeable into such New Security, as set forth in the Purchase Agreement, nor
shall any Underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by
such Underwriter under the Registration Statement which resulted in such Losses.
If the allocation provided by the immediately preceding
-15-
sentence is unavailable for any reason, the indemnifying party and the
indemnified party shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other
hand, in connection with the statements or omissions which resulted in such
Losses as well as any other relevant equitable considerations. Benefits received
by the Company and the Guarantors shall be deemed to be equal to the sum of (x)
the total net proceeds from the Initial Placement (before deducting expenses) as
set forth in the Purchase Agreement (y) the total amount of additional interest
that the Company and the Guarantors were not required to pay as a result of
registering the Securities or New Securities covered by the Registration
Statement which resulted in such Losses. Benefits received by the Initial
Purchaser shall be deemed to be equal to the total purchase discounts and
commissions as set forth in the Purchase Agreement, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving Securities
or New Securities, as applicable, registered under the Act. Benefits received by
any Underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus forming a part
of the Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to, among other things, whether any alleged
untrue statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section, each Person who controls a Holder within the meaning of either the
Act or the Exchange Act and each director, officer, employee and agent of such
Holder shall have the same rights to contribution as such Holder, and each
Person who controls the Company or any of the Guarantors within the meaning of
either the Act or the Exchange Act and each officer, employee, agent or director
of the Company or any of the Guarantors who would be entitled to indemnity under
this Agreement shall have the same rights to contribution as the Company,
subject in each case to the applicable terms and conditions of this paragraph
(d).
(e) The provisions of this Section will remain in full force
and effect, regardless of any investigation made by or on behalf of any Holder
or the Company and the Guarantors or any of the officers, directors or
controlling Persons referred to in this Section hereof, and will survive the
sale by a Holder of Securities or New Securities covered by a Registration
Statement.
Section 8. Underwritten Registrations. (a) If any of the
Securities or New Securities, as the case may be, covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the Managing
Underwriters shall be selected by the Majority Holders.
(b) No Person may participate in any underwritten offering
pursuant to any Shelf Registration Statement, unless such Person (i) agrees to
sell such Person's Securities or New Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements.
Section 9. No Inconsistent Agreements. The Company has not, as
of the date hereof, entered into, nor shall it, on or after the date hereof,
enter into, any agreement with respect to its
-16-
securities that is inconsistent with the rights granted to the Holders herein or
otherwise conflicts with the provisions hereof.
Section 10. Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, unless the Company has obtained the
written consent of the Majority Holders; provided that, with respect to any
matter that directly or indirectly affects the rights of the Initial Purchaser,
the Company shall obtain the written consent of the Initial Purchaser against
which such amendment, qualification, supplement, waiver or consent is to be
effective. Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof with respect to a
matter that relates exclusively to the rights of Holders whose Securities or New
Securities, as the case may be, are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of
Securities or New Securities, as the case may be, being sold rather than
registered under such Registration Statement.
Section 11. Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail, telex, telecopier or air courier guaranteeing overnight
delivery:
(a) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this
Section, which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture,
with a copy in like manner to Citigroup Global Markets Inc.;
(b) if to you, initially at the address set forth in the
Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at its or
their address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchaser, the Company or any Guarantor by notice
to the other parties may designate additional or different addresses for
subsequent notices or communications.
Section 12. Successors. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without the need for an express assignment or any consent by
the Company or any Guarantor thereto, subsequent Holders of Securities or New
Securities. The Company and the Guarantors hereby agree to extend the benefits
of this Agreement to any Holder of Securities and the New Securities, and any
such Holder may specifically enforce the provisions of this Agreement as if an
original party hereto.
Section 13. Counterparts. This Agreement may be in signed
counterparts, each of which shall be an original and all of which together shall
constitute one and the same agreement.
Section 14. Headings. The headings used herein are for
convenience only and shall not affect the construction hereof.
-17-
Section 15. Applicable Law. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed in the State of New York.
Section 16. Severability. In the event that any one or more of
the provisions contained herein, or the application thereof in any
circumstances, is held invalid, illegal or unenforceable in any respect for any
reason, the validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any way
impaired or affected thereby, it being intended that all of the rights and
privileges of the parties shall be enforceable to the fullest extent permitted
by law.
Section 17. Securities Held by the Company, etc. Whenever the
consent or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
-18-
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the Initial Purchaser.
Very truly yours,
TECHNICAL OLYMPIC USA, INC.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President - Finance and
Administration and Chief Financial
Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ XXXXXXX X. XXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
-19-
SUBSIDIARY GUARANTORS:
DP-NH Investments, LP
DP-NH Management, LLC
Xxxxx Homes Delaware, Inc.
Newmark Homes, XX
Xxxxxxx Homes Purchasing, LP
Pacific United, LP
Silver Oak Trails, LP
Silverlake Interests, LC
TOI, LLC
TOUSA Financing, Inc.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President - Finance and
Administration
TOUSA Associates Services Company
By: /s/ XXXXXXXX X. XXXXXXXX
--------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President and Secretary
Newmark Homes Business Trust
By: /s/ XXXXX XXXXXX
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Managing Trustee
-20-
Alliance Insurance and Information Services, LLC
Xxxxx Homes Residential Construction, LLC
Xxxxx/Xxxxx, LLC
XxXxx Landing, LLC
Newmark Homes, LLC
Preferred Builders Realty, Inc.
Preferred Home Mortgage Company
Prestige Abstract & Title, LLC
Professional Advantage Title, Ltd.
The Century Title Agency, Inc.
TOUSA Delaware, Inc.
TOUSA Homes, Inc.
TOUSA Ventures, LLC
Universal Land Title, Inc.
Universal Land Title Investment #1, LLC
Universal Land Title Investment #2, LLC
Universal Land Title Investment #3, LLC
Universal Land Title Investment #4, LLC
Universal Land Title of South Florida, Ltd.
Universal Land Title of Texas, Inc.
Universal Land Title of The Palm Beaches, Ltd.
By: /s/ XXXXX X. XXXXXX
--------------------------------------------
Name: Xxxxx X. XxXxxx
Title: Vice President and Treasurer
-21-
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, for the
180-day period following the consummation of the Registered Exchange Offer, or
such shorter period as will terminate when all New Securities held by Exchanging
Dealers or Initial Purchasers have been sold pursuant hereto, it will make this
Prospectus available to any Broker-Dealer for use in connection with any such
resale. See "Plan of Distribution."
ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, for the 180-day period following the consummation
of the Registered Exchange Offer, or such shorter period as will terminate when
all New Securities held by Exchanging Dealers or Initial Purchasers have been
sold pursuant hereto, it will make this Prospectus, as amended or supplemented,
available to any Broker-Dealer for use in connection with any such resale. In
addition, until __________, 200__, all dealers effecting transactions in the New
Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of New
Securities by broker-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For the 180-day period following the consummation of the
Registered Exchange Offer, or such shorter period as will terminate when all New
Securities held by Exchanging Dealers or Initial Purchasers have been sold
pursuant hereto, the Company and the Guarantors will promptly send additional
copies of this Prospectus and any amendment or supplement to this Prospectus to
any Broker-Dealer that requests such documents in the Letter of Transmittal. The
Company has agreed to pay all expenses incident to the Exchange Offer (including
the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the
holders of the Securities (including any Broker-Dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or
508.]
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: ______________________________
Address: ______________________________
______________________________
______________________________
______________________________
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
