SENIOR NOTES
REGISTRATION RIGHTS AGREEMENT
Dated as of July 22, 1997
among
RESOURCE AMERICA, INC.
and
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 22nd day of July, 1997, between Resource America, Inc., a
Delaware corporation (the "Company") and Friedman, Billings, Xxxxxx & Co., Inc.
(the "Initial Purchaser,").
This Agreement is made pursuant to the Purchase Agreement, dated as of
July 22, 1997, between the Company and the Initial Purchaser (the "Purchase
Agreement"), which provides for the sale by the Company to the Initial Purchaser
of $115 million aggregate principal amount of 12% Senior Notes due 2004 (the
"Notes"). In order to induce the Initial Purchaser to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial Purchaser and its
direct and indirect transferees the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
Capitalized terms used herein without definition shall have
their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Memorandum dated July 16, 1997, in respect of
the Notes, as applicable. All references to Sections herein are to
Sections of this Agreement unless otherwise indicated. As used in this
Agreement, the following capitalized defined terms shall have the
following meanings:
"Closing Time" shall mean the Closing Time as defined in the
Purchase Agreement.
"Commission" shall mean the Securities and Exchange
Commission.
"Depositary" shall mean The Depository Trust Company, or any
other depositary appointed by the Company, provided, however, that such
depositary must have an address in the Borough of Manhattan, in the
City of New York.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Exchange Notes" shall mean the 12% Notes, issued by the
Company containing terms identical to the Notes in all material
respects (except that (i) interest thereon shall accrue from the last
interest payment date on which interest was paid on the Notes or, if no
interest has been paid, from the date of original issue of the Notes,
(ii) the transfer restrictions on the Notes shall be modified or
eliminated, as appropriate, and (iii) certain provisions relating to an
increase in the stated rate of interest of the Notes shall be
eliminated), to be offered to Holders of the Notes in exchange for the
Notes pursuant to the Exchange Offer.
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"Exchange Offer" shall mean the exchange offer by the Company
of Exchange Notes for Registrable Notes pursuant to Section 2.1.
hereof.
"Exchange Offer Registration Statement" shall mean an exchange
offer registration statement on Form S-4 (or, if applicable, on another
appropriate form), and all amendments and supplements to such
registration statement, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by
reference therein.
"Failure to Register" shall have the meaning set forth in
Section 3 hereof.
"Holders" shall mean the Initial Purchaser, for so long as it
owns any Registrable Notes, and each of its successors, assigns and
direct and indirect transferees who become registered owners of
Registrable Notes.
"Indenture" shall mean the Indenture dated as of July 22, 1997
between the Company and The Bank of New York, a New York banking
corporation, as trustee, as the same may be amended from time to time
in accordance with the terms thereof, providing for the issuance of the
Notes.
"Initial Purchaser" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of outstanding Registrable Notes; provided
that whenever the consent or approval of Holders of a specified
percentage of Registrable Notes is required hereunder, Registrable
Notes held by the Company shall not be counted in determining whether
such consent or approval was given by the Holders of such required
percentage or amount.
"Person" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus, including
a prospectus supplement with respect to the terms of the offering of
any portion of the Registrable Notes covered by a Shelf Registration
Statement, and by all other amendments and supplements to a prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble.
"Registrable Senior Note/Registrable Notes" shall mean one or
more of the Notes subject to the Indenture; provided, however, that a
Senior Note shall cease to be a Registrable Senior Note when (i) a
Registration Statement with respect to such Senior Note shall have been
declared effective under the Securities Act and such Notes shall have
been transferred pursuant to such Registration Statement, (ii) such
Senior Note shall have been sold pursuant to Rule 144 (or any similar
provision then in force, but not Rule
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144A) under the Securities Act, or shall be saleable pursuant to
paragraph (k) of Rule 144 (or any similar provision then in effect) or
pursuant to an opinion of counsel that a transfer may be effected
without compliance with the Securities Act under circumstances which
will result in the Senior Note being freely tradeable by the purchaser
provided such purchaser is not an affiliate of the Company, (iii) such
Note shall have ceased to be outstanding or (iv) such Note shall have
been exchanged for an Exchange Note upon the consummation of the
Exchange Offer.
"Registration Expenses" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. (the "NASD")
registration and filing fees, including, if applicable, the fees and
expenses of any "qualified independent underwriter" (and the reasonable
fees of its counsel) that is required to be retained by any Holder of
Registrable Notes in accordance with the rules and regulations of the
NASD, (ii) all fees and expenses incurred in connection with compliance
with state securities or blue sky laws and compliance with the rules of
the NASD (including reasonable fees and disbursements of counsel for
any underwriters or Holders in connection with blue sky qualification
of any of the Exchange Notes or Registrable Notes), (iii) all expenses
of any Persons engaged by the Company to prepare or assist in
preparing, word processing, printing and distributing any Registration
Statement, any Prospectus, any amendments or supplements thereto, any
underwriting agreements, securities sales agreements and other
documents relating to the performance of and compliance with this
Agreement, (iv) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Notes on any securities
exchange or exchanges, (v) all rating agency fees, (vi) the fees and
disbursements of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, but excluding fees of counsel to the
underwriters or the Holders and underwriting discounts and commissions
and transfer taxes, if any, relating to the sale or disposition of
Registrable Notes by a Holder, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, and (viii) any fees and
disbursements of the underwriters customarily required to be paid by
issuers or sellers of securities and the reasonable fees and expenses
of any special experts retained by the Company in connection with any
Registration Statement, but excluding underwriting discounts and
commissions and transfer taxes, if any, and the expenses of any such
Holder's counsel relating to the sale or disposition of Registrable
Notes by a Holder.
"Registration Statement" shall mean any registration statement
of the Company which covers any of the Exchange Notes or Registrable
Notes pursuant to the provisions of this Agreement, and all amendments
and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Rule 144" shall mean Rule 144 under the 1933 Act, or any
successor rule.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
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"Shelf Registration" shall mean a registration effected
pursuant to Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company pursuant to the provisions of
Section 2.2 of this Agreement which covers all of the Registrable Notes
required to be registered on an appropriate form for purposes of an
offering on a continuous basis pursuant to Rule 415, under the
Securities Act, or any similar rule that may be adopted by the
Commission, and all 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.
"Company" shall have the meaning set forth in the preamble and
shall also include the Company's successors.
"Trustee" shall mean the trustee with respect to the Notes
under the Indenture.
2. Registration Under the 0000 Xxx.
2.1 Exchange Offer.
(a) The Company shall (i) prepare and, not later than
December 30, 1997, file with the Commission an Exchange Offer
Registration Statement under the Securities Act with respect
to a proposed offer (the "Exchange Offer") to the Holders to
issue and deliver to such Holders, in exchange for the
Registrable Notes, a like principal amount of Exchange Notes,
(ii) use its best efforts to cause the Exchange Offer
Registration Statement to be declared effective under the
Securities Act on or prior to February 16, 1998, (iii) use its
best efforts to keep the Exchange Offer Registration Statement
effective until the closing of the Exchange Offer, subject to
its use by Participating Broker-Dealers (as defined below) as
contemplated in Section 3(f) below, and (iv) use its best
efforts to cause the Exchange Offer to be consummated not
later than March 30, 1998. Upon the effectiveness of the
Exchange Offer Registration Statement, the Company shall
promptly commence the Exchange Offer, it being the objective
of such Exchange Offer to enable each Holder eligible and
electing to exchange Registrable Notes for Exchange Notes
(assuming that such Holder is not an affiliate of the Company,
within the meaning of Rule 405 under the Securities Act,
acquires the Exchange Notes in the ordinary course of such
Holder's business and has no arrangements or understandings
with any Person to participate in the Exchange Offer for the
purpose of distributing the Exchange Notes and, if such Holder
is not a broker-dealer, such Holder is not engaged in, and
does not intend to engage in, a distribution (within the
meaning of the Securities Act) of such Exchange Notes) and to
trade such Exchange Notes from and after each such Holder's
receipt of the Exchange Notes without any limitations or
restrictions under the Securities Act and without material
restrictions under the securities laws of a substantial
proportion of the several states of the United States.
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(b) In connection with the Exchange Offer, the
Company 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 Exchange Offer open
for not less than 30 calendar days after the date
notice thereof is mailed to the Holders (or
longer if required by applicable law);
(iii) use the services of the
Depositary for the Exchange Offer;
(iv) permit Holders to withdraw
tendered Registrable Notes at any time prior to
the close of business, New York time, on the last
business day on which the Exchange Offer shall
remain open, by sending to the institution
specified in the notice a telegram, telex,
facsimile transmission or letter setting forth
the name of such Holder, the principal amount of
Registrable Notes delivered for exchange, and a
statement that such Holder is withdrawing his
election to have such Notes exchanged; and
(v) otherwise comply in all respects
with all applicable laws relating to the Exchange
Offer.
(c) As soon as practicable after the close of the
Exchange Offer, the Company shall:
(i) accept for exchange all
Registrable Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer in
accordance with the terms of the Exchange Offer
Registration Statement and the letter of
transmittal which is an exhibit thereto;
(ii) deliver to the Trustee for
cancellation all Registrable Notes so accepted
for exchange; and
(iii) cause the Trustee promptly to
authenticate and deliver Exchange Notes to each
Holder of Registrable Notes equal in principal
amount to the Registrable Notes of such Holder so
accepted for exchange.
Interest on each of the Exchange Notes will accrue from the last
interest payment date on which interest was paid on the Registrable Notes
surrendered in exchange therefor or, if no interest has been paid on the
Registrable Notes, from the date of original issue of the Registrable Notes. The
Exchange Offer shall not be subject to any conditions, other than that (i) the
Exchange Offer, or the making of any exchange by a Holder, does not violate
applicable law or
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any applicable interpretation of the staff of the Commission, (ii) no action or
proceeding shall have been instituted or threatened in any court by or before
any governmental agency with respect to the Exchange Offer which, in the
Company's judgment, might impair the ability of the Company to proceed with the
Exchange Offer, or (iii) there shall not have been adopted or enacted any law,
statute, rule or regulation which, in the Company's judgment, would materially
impair the ability of the Company to proceed with the Exchange Offer. Each
Holder of Registrable Notes (other than Participating Broker-Dealers (as defined
below)) who wishes to exchange such Registrable Notes for Exchange Notes will be
required to represent that (i) it is not an affiliate of the Company, (ii) any
Exchange Notes to be received by it will be acquired in the ordinary course of
its business, (iii) it has no arrangement with any Person to participate in the
distribution (within the meaning of the Securities Act) of the Exchange Notes,
and (iv) it is not engaged in, and does not intend to engage in, a distribution
(within the meaning of the Securities Act) of the Exchange Notes. The Company
shall inform the Initial Purchaser of the names and addresses of the Holders to
whom the Exchange Offer is made, and the Initial Purchaser shall have the right,
subject to applicable law and at its expense, to contact such Holders and
otherwise facilitate the tender of Registrable Notes in the Exchange Offer.
2.2 Shelf Registration.
(a) (i) If, because of any change in law or
applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect the
Exchange Offer as contemplated by Section 2.1 hereof or if for
any other reason the Exchange Offer Registration Statement is
not declared effective on or prior to February 16, 1998, (ii)
if for any other reason the Exchange Offer is not consummated
on or prior to March 30, 1998, or (iii) upon the request of
the Initial Purchaser (with respect to any Registrable Notes
which it acquired directly from the Company) following
consummation of the Exchange Offer if such Initial Purchaser
shall hold Registrable Notes which it acquired directly from
the Company and if such Initial Purchaser is not permitted, in
the opinion of counsel to such Initial Purchaser, pursuant to
applicable law or applicable interpretation of the staff of
the Commission, to participate in the Exchange Offer, the
Company shall, at the Company's cost, subject to Section 2.3
hereof,
(A) as promptly as practicable, file with
the Commission, and thereafter shall use its best
efforts to cause to be declared effective on or prior
to March 30, 1998 (or promptly in the event of a
request by the Initial Purchaser), a Shelf
Registration Statement relating to the offer and sale
of the Registrable Notes by the Holders from time to
time in accordance with the methods of distribution
selected by the Majority Holders and set forth in
such Shelf Registration Statement. In the event that
a Shelf Registration Statement is required to be
filed upon the request of the Initial Purchaser
pursuant to clause (iii) above, the Company shall
file and use its best efforts to have declared
effective by the Commission both an Exchange Offer
Registration Statement pursuant to Section 2.1 hereof
with respect to all Registrable Notes and a Shelf
Registration Statement (which may be a combined
Registration Statement with the Exchange Offer
Registration Statement) with respect to offers and
sales of
7
Registrable Notes held by such Initial Purchaser
after completion of the Exchange Offer;
(B) use its best efforts to keep the Shelf
Registration Statement continuously effective in
order to permit the Prospectus forming a part thereof
to be usable by Holders identified as selling
security holders in such Shelf Registration Statement
for a period of two years from the date the Shelf
Registration Statement is declared effective by the
Commission or until such earlier date as all
Registrable Notes shall have been disposed of or on
which all Registrable Notes shall be saleable without
registration pursuant to Rule 144 (or any similar
provision then in effect), or as a result of any
changes in the existing registration requirements
under the Securities Act which eliminate the Holders'
need for the Shelf Registration Statement, or upon
receipt of an opinion of counsel satisfactory to the
Initial Purchaser which provides that all Registrable
Notes may be resold without registration in a
transaction that would result in the Registrable
Notes being freely tradeable provided that the
purchaser is not an affiliate of the Company (the
"Effectiveness Period"); and
(C) notwithstanding any other provisions
hereof, use its best efforts to ensure that (i) any
Shelf Registration Statement and any amendment
thereto and any Prospectus forming a part thereof and
any supplement thereto complies in all material
respects with the Securities Act and the rules and
regulations thereunder, (ii) any Shelf 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 and (iii) any
Prospectus forming a part of any Shelf Registration
Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not
include an untrue statement of a material fact or
omit to state a material fact necessary in order to
make the statements therein, in light of the
circumstances under which they were made, not
misleading, except that the Company shall be entitled
to rely on the information provided to them by the
Holders with respect to such Holders.
(b) The Company further agrees, if necessary, to
supplement or amend the Shelf Registration Statement if
reasonably requested by the Majority Holders with respect to
information relating to the Holders and otherwise as required
by Section 3(b) hereof, to use their best efforts to cause any
such amendment to become effective and such Shelf Registration
Statement to become usable as soon as thereafter practicable
and to furnish to the Holders of Registrable Notes copies of
any such supplement or amendment promptly after its being used
or filed with the Commission.
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2.3 Expenses. The Company shall pay all Registration Expenses in
connection with the registration pursuant to Section 2.1 or 2.2 and, in the case
of any Shelf Registration Statement, will reimburse the Holders or Initial
Purchaser for the reasonable fees and disbursements of one firm or counsel
designated in writing by the Majority Holders to act as counsel for the Holders
of the Notes in connection therewith, and, in the case of an Exchange Offer
Registration Statement, will reimburse the Initial Purchaser, as applicable, for
the reasonable fees and disbursements of one firm or counsel in connection
therewith (however, the reimbursement of such fees and disbursements on behalf
of the Holders or the Initial Purchaser shall not exceed an amount to be agreed
upon by the Company and the Initial Purchaser prior to the filing of any such
Registration Statement). Each Holder shall pay all expenses of its counsel,
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Notes pursuant to the Shelf
Registration Statement.
2.4. Effectiveness.
(a) The Company will be deemed not to have used its
best efforts to cause the Exchange Offer Registration
Statement or the Shelf Registration Statement, as the case may
be, to become, or to remain, effective during the requisite
period if it voluntarily takes any action that would result in
any such Registration Statement not being declared effective
or in the Holders of Registrable Notes covered thereby not
being able to exchange or offer and sell such Registrable
Notes during the period unless (i) such action is required by
applicable law or (ii) such action is taken by the Company in
good faith and for valid business reasons (not including
avoidance of the Company's obligations hereunder), including
the acquisition or divestiture of assets, so long as the
Company complies with the requirements of Section 3(b) hereof,
if applicable, as promptly as practicable.
(b) An Exchange Offer Registration Statement pursuant
to Section 2.1 hereof or a Shelf Registration Statement
pursuant to Section 2.2 hereof will not be deemed to have
become effective unless it has been declared effective by the
Commission; provided, however, that if, after a Shelf
Registration Statement has been declared effective, the
offering of Registrable Notes pursuant to such Shelf
Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the Commission or
any other governmental agency or court, such Shelf
Registration Statement will be deemed not to be effective
during the period of such interference, until the offering of
Registrable Notes pursuant to such Shelf Registration
Statement may legally resume.
2.5. Additional Interest. In the event that either (i) the Exchange
Offer Registration Statement is not filed with the Commission on or prior to
December 30, 1997, (ii) the Exchange Offer Registration Statement is not
declared effective on or prior to February 16, 1998, or (iii) the Exchange Offer
is not consummated on or prior to March 30, 1998 or a Shelf Registration
Statement is not declared effective on or prior to March 30, 1998 (each a
"Registration Default") additional interest (the "Registration Penalty") will
accrue on the Notes from and including the day following such Registration
Default. The Registration Penalty will be paid semi-annually in arrears, with
the first semi-annual payment due on the first interest or distribution payment
date,
9
as applicable, following the date on which such Registration Penalty begins to
accrue. The Registration Penalty shall be equal to one-half of one percent
(0.50%) per annum following December 30, 1997 in the case of (i) above, February
16, 1998 in the case of clause (ii) above or March 30, 1998 in the case of (iii)
above, which rate will be increased by an additional one-half of one percent
(0.50%) per annum for each 90-day period that any such additional interest
continues to accrue; provided, that the aggregate increase in the Note interest
rate will in no event exceed one percent per annum (1.0%). Upon (x) the filing
of the Exchange Offer Registration Statement after December 30, 1997, (y) the
effectiveness of the Exchange Offer Registration Statement after February 16,
1998, or (z) the day before the date of the consummation of the Exchange Offer
or the effectiveness of a Shelf Registration Statement, as the case may be,
after March 30, 1998, the interest rate borne by the Notes from the date of such
filing, effectiveness or the day before the date of the consummation, as the
case may be, will be reduced by the full amount of the Registration Penalty;
provided, however, that, if after any such reduction in interest rate, a
different event specified in clause (i), (ii) or (iii) above occurs, the
interest rate may again be increased by the applicable Registration Penalty and
thereafter reduced pursuant to the foregoing provisions. At no time will a
Registration Penalty in excess of one percent (1.00%) be payable pursuant to the
provisions of this Registration Rights Agreement.
2.6 Specific Enforcement. Without limiting the remedies available to
the Initial Purchaser and the Holders, the Company acknowledges that any failure
by the Company to comply with its obligations under Section 2.1 and Section 2.2
hereof may result in material irreparable injury to the Initial Purchaser or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchaser or any Holder may obtain such relief
as may be required to specifically enforce the Company's obligations under
Section 2.1 and Section 2.2 hereof.
3. Registration Procedures.
In connection with the obligations of the Company with respect to the
Registration Statements pursuant to Sections 2.1 and 2.2 hereof, the Company
shall:
(a) prepare and file with the Commission a
Registration Statement, within the time period specified in
Section 2, on the appropriate form under the Securities Act,
which form (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale
of the Registrable Notes by the selling Holders thereof and
(iii) shall comply as to form in all material respects with
the requirements of the applicable form and include or
incorporate by reference all financial statements required by
the Commission to be filed therewith, and use its best efforts
to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the Commission such
amendments and post-effective amendments to each Registration
Statement and such supplements to the Prospectus as may be
necessary under applicable law; and comply with the provisions
of the Securities Act with respect to the disposition of all
of the Registrable Notes or Exchange Notes, as applicable,
covered by each Registration
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Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling
Holders thereof;
(c) in the case of a Shelf Registration, (i) notify
each Holder of the Registrable Notes, at least five days prior
to filing, that a Shelf Registration Statement with respect to
the Registrable Notes is being filed and advise such Holders
that the distribution of the Registrable Notes will be made in
accordance with the method selected by the Holders of a
majority in aggregate principal amount of the Registrable
Notes being registered; and (ii) furnish to each Holder of the
Registrable Notes, to counsel for the Initial Purchaser, to
one firm or counsel for the Holders and to each underwriter of
an underwritten offering of the Registrable Notes, if any,
without charge, as many copies of each Prospectus, including
each preliminary Prospectus, and any amendment or supplement
thereto and such other documents as such Holder or underwriter
may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits
(including those incorporated by reference) in order to
facilitate the public sale or other disposition of the
Registrable Notes; and (iii) subject to the penultimate
paragraph of Section 3, hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of
the selling Holders of the Registrable Notes in connection
with the offering and sale of the Registrable Notes covered by
the Prospectus or any amendment or supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Notes or Exchange Notes, as applicable, under all
applicable state securities or "blue sky" laws of such
jurisdiction as any Holder (or Participating Broker-Dealer
with respect to Exchange Notes) of the Registrable Notes or
Exchange Notes, as applicable, covered by a Registration
Statement and each underwriter of an underwritten offering of
the Registrable Notes shall reasonably request by the time the
applicable Registration Statement is declared effective by the
Commission, to cooperate with the Holders in connection with
any filings required to be made with the NASD, and do any and
all other acts and things which may be reasonably necessary or
advisable to enable each such Holder and underwriter to
consummate the disposition in each such jurisdiction of such
Registrable Notes owned by such Holder; provided, however,
that the Company shall not be required to (i) qualify as a
foreign corporation or as a dealer in securities in any
jurisdiction where it would not otherwise be required to
qualify but for this Section 3(d) or (ii) take any action
which would subject it, its board of directors or its officers
to general service of process or taxation in any such
jurisdiction where it or they are not then so subject;
(e) in the case of a Shelf Registration, notify each
Holder of the Registrable Notes and counsel for the Initial
Purchaser promptly and, if requested by such Holder or
counsel, confirm such advice in writing promptly (i) when a
Shelf Registration Statement has become effective, (ii) of any
request by the Commission or any state securities authority
for post-effective amendments and supplements to a Shelf
Registration Statement and Prospectus or for additional
information after the Shelf Registration Statement has become
effective, (iii) of
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the issuance by the Commission or any state securities
authority of any stop order suspending the effectiveness of a
Shelf Registration Statement or the initiation of any
proceedings for that purpose, (iv) if, between the effective
date of a Shelf Registration Statement and the closing of any
sale of Registrable Notes covered thereby, the representations
and warranties of the Company contained in any underwriting
agreement, securities sales agreement or other similar
agreement, if any, relating to the offering of the Registrable
Notes cease to be true and correct in all material respects,
(v) of the happening of any event or the discovery of any
facts during the period a Shelf Registration Statement is
effective which makes any statement made in such Shelf
Registration Statement or the Prospectus untrue in any
material respect or which requires the making of any changes
in such Shelf Registration Statement or Prospectus in order to
make the statements therein not misleading, (vi) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Registrable Notes for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose and (vii) of any determination
by the Company that a post-effective amendment to a Shelf
Registration Statement would be appropriate;
(f) (i) in the case of the Exchange Offer (A) include
in the Exchange Offer Registration Statement a "Plan of
Distribution" section covering the use of the Prospectus
included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable Notes for
Exchange Notes for the resale of such Exchange Notes, (B)
furnish to each broker-dealer who desires to participate in
the Exchange Offer, without charge, as many copies of each
Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any
amendment or supplement thereto, as such broker-dealer may
reasonably request, (C) include in the Exchange Offer
Registration Statement a statement that any broker-dealer who
holds Registrable Notes acquired for its own account as a
result of market-making activities or other trading activities
(a "Participating Broker-Dealer"), and who receives Exchange
Notes for Registrable Notes pursuant to the Exchange Offer,
may be a statutory underwriter and must deliver a prospectus
meeting the requirements of the Securities Act in connection
with any resale of such Exchange Notes, (D) subject to the
penultimate paragraph of Section 3, hereby consent to the use
of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto,
by any Participating Broker-Dealer in connection with the sale
or transfer of the Exchange Notes covered by the Prospectus or
any amendment or supplement thereto, and (E) include in the
transmittal letter or similar documentation to be executed by
an exchange offeree in order to participate in the Exchange
Offer (x) the following provision:
"If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and
does not intend to engage in, a distribution of
Exchange Notes. If the undersigned is a broker-dealer
that will receive Exchange Notes for its own account
in exchange for Registrable Notes, the undersigned
represents that the Registrable Notes were acquired
by it as a result of market-making or other trading
activities and acknowledges that
12
it will deliver a prospectus meeting the requirements
of the Securities Act in connection with any resale
of such Exchange Notes; 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;" and
(y) a statement to the effect that by a
Participating Broker-Dealer making the acknowledgment
described in clause (x) and by delivering a
Prospectus in connection with the exchange of
Registrable Notes, the Participating Broker-Dealer
will not be deemed to admit that it is an underwriter
within the meaning of the Securities Act; and
(ii) to the extent any Participating
Broker-Dealer participates in the Exchange
Offer, the Company shall use its best
efforts to cause to be delivered at the
request of an entity representing the
Participating Broker-Dealers (which entity
shall be the Initial Purchaser, unless it
elects not to act as such representative)
only one, if any, "cold comfort" letter with
respect to the Prospectus in the form
existing on the last date on which exchanges
will be accepted and with respect to each
subsequent amendment or supplement, if any,
effected during the period specified in
clause (D) below; and
(iii) to the extent any
Participating Broker-Dealer participates in
the Exchange Offer, the Company shall use
its best efforts to maintain the
effectiveness of the Exchange Offer
Registration Statement for a period of 180
days following the closing of the Exchange
Offer; and
(iv) the Company shall not be
required to amend or supplement the
Prospectus contained in the Exchange Offer
Registration Statement, as would otherwise
be contemplated by Section 3(b) hereof or
take any other action as a result of this
Section 3(f), during the period commencing
180 days after the last date for which
exchanges are accepted pursuant to the
Exchange Offer (as such period may be
extended by the Company) and Participating
Broker-Dealers shall not be authorized by
the Company and shall not deliver such
Prospectus after such period in connection
with resales contemplated by this Section 3;
and
(v) (A) in the case of an Exchange
Offer, furnish counsel for the Initial
Purchaser and (B) in the case of a Shelf
Registration, furnish one firm or counsel
for the Holders of the Registrable Notes,
copies of any request by the Commission or
any state securities authority for
amendments or supplements to a Registration
Statement and Prospectus or for additional
information; and
13
(vi) use its best efforts to obtain
the withdrawal of any order suspending the
effectiveness of a Registration Statement at
the earliest possible moment and provide
immediate notice to each Holder of the
withdrawal of any such order.
(g) in the case of a Shelf Registration, furnish to
each Holder of the Registrable Notes, and each underwriter, if
any, without charge, at least one conformed copy of each
Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without
documents incorporated therein by reference and all exhibits
thereto, unless requested);
(h) in the case of a Shelf Registration, cooperate
with the selling Holders of the Registrable Notes to
facilitate the timely preparation and delivery of certificates
representing the Registrable Notes to be sold and not bearing
any restrictive legends; and enable such Registrable Notes to
be in such denominations (consistent with the provisions of
the Indenture), and registered in such names as the selling
Holders or the underwriters, if any, may reasonably request at
least three business days prior to the closing of any sale of
the Registrable Notes;
(i) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each as
contemplated by Section 3(e)(ii)-(vii) hereof, use its best
efforts to 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 Notes, such Prospectus will not
contain at the time of such delivery any untrue statement of a
material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company agrees
to notify each Holder to suspend use of the Prospectus as
promptly as practicable after the occurrence or discovery of
such an event, and each Holder hereby agrees to suspend use of
the Prospectus until the Company has amended or supplemented
the Prospectus to correct such misstatement or omission. At
such time as such public disclosure is otherwise made or the
Company determines that such disclosure is not necessary, the
Company agrees promptly to notify each Holder of such
determination, to amend or supplement the Prospectus if
necessary to correct any untrue statement or omission therein
and to furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may
reasonably request;
(j) a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a
Registration Statement or amendment or supplement to a
Prospectus or any document which is to be incorporated by
reference into a Registration Statement or a Prospectus after
initial filing of a Registration Statement, (a) provide copies
of such document to the Initial Purchaser, on behalf of such
Holders, and their counsel and (b) make representatives of the
Company (as shall be reasonably requested by the Majority
Holders of the Registrable Securities, or the Initial
Purchaser on behalf of such
14
Holders), available for discussion of such document and shall
not at any time file or make any amendment to the Registration
Statement, any Prospectus or any amendment of or supplement to
a Registration Statement or a Prospectus or any document which
is to be incorporated by reference into a Registration
Statement or a Prospectus, of which the Initial Purchaser, on
behalf of such Holders, and its counsel shall not have
previously been advised and furnished a copy or to which the
Initial Purchaser, on behalf of such Holders, or its counsel
shall reasonably object;
(k) obtain a CUSIP number for all Exchange Notes or
Registrable Notes, as the case may be, not later than the
effective date of a Registration Statement, and provide the
Trustee with printed certificates for the Exchange Notes or
the Registrable Notes, as the case may be, in a form eligible
for deposit with the Depositary;
(l) (i) cause the Indenture to be qualified under the
Trust Indenture Act of 1939 (the "TIA") in connection with the
registration of the Notes, (ii) cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be
required for the Indenture to be so qualified in accordance
with the terms of the TIA and (iii) execute, and use its best
efforts to cause the Trustee to execute, all documents as may
be required to effect such changes, and all other forms and
documents required to be filed with the Commission to enable
the Indenture to be so qualified in a timely manner;
(m) in the case of a Shelf Registration, enter into
agreements (including underwriting agreements) and take all
other customary and appropriate actions (including those
reasonably requested by the Majority Holders) in order to
expedite or facilitate the disposition of such Registrable
Notes and in such connection, whether or not an underwriting
agreement is entered into and whether or not the registration
is an underwritten registration:
(i) make such representations and warranties
to the Holders of such Registrable Notes and the
underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably
requested by such underwriters;
(ii) obtain opinions of counsel to the
Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters,
if any, and the holders of a majority in aggregate
principal amount of the Registrable Notes being
sold), addressed to each selling Holder and the
underwriters, if any, covering the matters
customarily covered in opinions requested in sales of
securities or underwritten offerings and such other
matters as may be reasonably requested by such
Holders and underwriters;
15
(iii) obtain "cold comfort" letters and
updates thereof from the Company's independent
certified public accountants addressed to the
underwriters, if any, and use its best efforts to
have such letters addressed to the selling Holders of
the Registrable Notes, such letters to be in
customary form and covering matters of the type
customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten
offerings;
(iv) enter into a securities sales agreement
with the Holders and an agent of the Holders
providing for, among other things, the appointment of
such agent for the selling Holders for the purpose of
soliciting purchases of the Registrable Notes, which
agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is entered
into, cause the same to set forth indemnification
provisions and procedures substantially equivalent to
the indemnification provisions and procedures set
forth in Section 5 hereof with respect to the
underwriters and all other parties to be indemnified
pursuant to said Section; and
(vi) deliver such documents and certificates
as are customarily delivered in similar offerings and
as may be reasonably requested by the Holders of a
majority in aggregate principal amount of the
Registrable Notes being sold and the managing
underwriters, if any.
The above shall be done at (i) the effectiveness of such Shelf
Registration Statement (and each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten offering, the Company shall
provide written notice to the Holders of all of the Registrable Notes of such
underwritten offering at least 30 days prior to the filing of a Prospectus
supplement for such underwritten offering. Such notice shall (x) offer each such
Holder the right to participate in such underwritten offering, (y) specify a
date, which shall be no earlier than 10 days following the date of such notice,
by which the Holder must inform the Company of its intent to participate in such
underwritten offering and (z) include the instructions such Holder must follow
in order to participate in such underwritten offering;
(n) in the case of a Shelf Registration Statement, upon the
execution of a confidentiality agreement reasonably requested by the
Company, in accordance with such procedural conditions as the Company
shall reasonably impose, make available for inspection by
representatives of the Holders of the Registrable Notes and any
underwriters participating in any disposition pursuant to a Shelf
Registration Statement and any one firm or counsel or accountant
retained by such Holders or underwriters, all financial and other
records, pertinent corporate documents and properties of the Company
reasonably requested by any such persons, and cause the officers,
directors, employees and any other agents of the Company to supply all
information reasonably requested by any such
16
representative, underwriter, special counsel or accountant in
connection with a Registration Statement;
(o) (i) a reasonable time prior to the filing of any Exchange
Offer Registration Statement, any Prospectus forming a part thereof,
any amendment to an Exchange Offer Registration Statement or amendment
or supplement to a Prospectus, provide copies of such document to the
Initial Purchaser and make such changes in any such document prior to
the filing thereof as the Initial Purchaser may reasonably request; and
(ii) in the case of a Shelf Registration Statement, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus
forming a part thereof, any amendment to such Shelf Registration
Statement or amendment or supplement to such Prospectus, provide copies
of such documents to the Holders of the Registrable Notes, to the
Initial Purchaser, to one firm or counsel on behalf of the Holders and
to the underwriter or underwriters of an underwritten offering of the
Registrable Notes, if any, make such changes in any such document prior
to the filing thereof as counsel for the Company and counsel for the
Majority Holders and the underwriter or underwriters may reasonably
agree and make representatives of the Company (as shall be reasonably
requested by the Majority Holders of the Registrable Securities, or the
Initial Purchaser on behalf of such Holders or any underwriter),
available for discussion of such document; provided that any party
receiving any document pursuant to this clause (ii) who does not raise
any objections to the filing of such document within five calendar days
after receipt of such document shall be deemed to have no objection to
the filing of such document;
(p) in the case of a Shelf Registration Statement, use its
best efforts to cause all of the Registrable Notes to be listed on any
securities exchange on which similar securities issued by the Company
are then listed if so requested by the Majority Holders or by the
underwriter or underwriters of an underwritten offering of Registrable
Notes, if any;
(q) in the case of a Shelf Registration Statement, use its
best efforts to cause the Registrable Notes to be rated with the
appropriate rating agencies if so requested by the Majority Holders or
by the underwriter or underwriters of an underwritten offering of
Securities, if any;
(r) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission and make available
to its security holders, as soon as reasonably practicable, an earnings
statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158
thereunder; and
(s) cooperate and assist in any filings required to be made
with the NASD and, in the case of a Shelf Registration Statement, in
the performance of any due diligence investigation by any underwriter
and its counsel (including any "qualified independent underwriter" that
is required to be retained in accordance with the rules and regulations
of the NASD).
In the case of a Shelf Registration Statement, the Company may (as a
condition to such Holder's participation in the Shelf Registration) require each
Holder of the Registrable Notes to
17
furnish to the Company such information regarding the Holder and the proposed
distribution by such Holder of such Registrable Notes as the Company may from
time to time reasonably request in writing.
In the case of a Shelf Registration Statement, each Holder agrees that,
upon receipt of any notice from the Company of the happening of any event or the
discovery of any facts, each of the kind described in Section 3(e)(ii)-(vii)
hereof, such Holder will forthwith discontinue disposition of Registrable Notes
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 3(i) hereof,
and, if so directed by the Company, such Holder will deliver to the Company (at
its expense) all copies in its possession, other than permanent file copies then
in such Holder's possession, of the Prospectus covering such Registrable Notes
that was current at the time of receipt of such notice. If the Company shall
give any such notice to suspend the disposition of the Registrable Notes
pursuant to a Shelf Registration Statement as a result of the happening of any
event or the discovery of any facts, each of the kind described in Section
3(e)(ii)-(vii) hereof, the Company shall be deemed to have used its best efforts
to keep the Shelf Registration Statement effective during such period of
suspension provided that the Company shall use its best efforts to file and have
declared effective (if an amendment) as soon as practicable an amendment or
supplement to the Shelf Registration Statement.
4. Underwritten Registrations.
If any of the Registrable Notes covered by any Shelf Registration
Statement are to be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the offering will be
selected by the Majority Holders and shall be reasonably acceptable to the
Company.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
5. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless the
Initial Purchaser, each participating Holder, each Participating
Broker-Dealer, each other person who participates in an offering of the
Registrable Notes, including underwriters (as defined in the Securities
Act and referred to herein as "Underwriters"), and each person, if any,
who controls any participating Holder, Initial Purchaser or any other
participating person within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each of the foregoing being an
"Indemnitee"), as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement (or any
18
amendment thereto) pursuant to which Exchange Notes or
Registrable Notes were registered under the Securities Act,
including all documents incorporated therein by reference, or
the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact
contained in any Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim,
damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation or
investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such
alleged untrue statement or omission if such settlement is
effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as
incurred (including fees and disbursements of one firm or
counsel chosen by the Indemnitees, provided that.
notwithstanding Section 5(c), notice is promptly provided by
any party seeking reimbursement), reasonably incurred in
investigating, preparing or defending against any litigation
or investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any
such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity shall not apply to any loss, liability,
claim, damage or expense to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by the Initial
Purchaser, any Holder or any Underwriter expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto).
(b) In the case of a Shelf Registration Statement, each Holder
agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Initial Purchaser, each Underwriter and the other selling
Holders, and each of their respective "controlling persons" (within the
meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act) and the directors of the Company and each of the
Company's officers who signed the Shelf Registration Statement against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 5(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements
or omissions, made in the Shelf Registration Statement (or any
amendment thereto) or any Prospectus included therein (or any amendment
or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company expressly for use in the Shelf
Registration Statement (or any amendment thereto) or such Prospectus
(or any amendment or supplement thereto); provided, however, that no
such Holder shall be liable
19
for any claims hereunder in excess of the amount of net proceeds
received by such Holder from the sale of such Holder's Registrable
Notes pursuant to such Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action
commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability which it may have on
account of this indemnity agreement except as provided in Section
5(a)(iii). An indemnifying party may participate at its own expense in
the defense of such action. If it so elects within a reasonable time
after receipt of such notice, an indemnifying party, jointly with any
other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and approved by the
indemnified parties defendant in such action, unless such indemnified
parties reasonably object to such assumption on the ground that there
may be legal defenses available to them which are different from or in
addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying
parties shall not be liable for any fees and expenses of counsel for
the indemnified parties incurred thereafter in connection with such
action. In no event shall the indemnifying party or parties be liable
for the fees and expenses of more than one counsel separate from their
own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or
circumstances.
(d) In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 5
is for any reason held to be unenforceable by the indemnified parties
although applicable in accordance with its terms, the Company, the
Holders and the Initial Purchaser shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity incurred by the Company, the Holders and
the Initial Purchaser; provided, however, that 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. As between the
Company, the Holders and the Initial Purchaser, such parties shall
contribute to the aggregate losses, liabilities, claims, damages and
expense of the nature contemplated by such indemnity agreement in such
proportions as shall be appropriate to reflect (i) the relative
benefits received by the Company on the one hand, the Holders on
another hand and the Initial Purchaser on another hand, from the
offering of the Exchange Notes or Registrable Notes included in such
offering, and (ii) the relative fault of the Company on the one hand,
the Holders on another hand and the Initial Purchaser on another hand,
with respect to the statements or omissions which resulted in such
loss, liability, claim, damage or expense, or action in respect
thereof, as well as any other relevant equitable considerations. The
Company, the Holders and the Initial Purchaser agree that it would not
be just and equitable if contribution pursuant to this Section 5 were
to be determined by pro rata allocation or by any other method of
allocation which does not take into account the relevant equitable
considerations. For purposes of this Section 5, each Person, if any,
who controls the Initial Purchaser or a Holder within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act
shall have the same rights to
20
contribution as the Initial Purchaser or such Holder, and each trustee
of director of the Company, each officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. The parties hereto agree that any
underwriting discount or commission or reimbursement of fees paid to
Initial Purchaser pursuant to the Purchase Agreement shall not be
deemed to be a benefit received by Initial Purchaser in connection with
the offering of the Exchange Notes or Registrable Notes included in
such offering.
6. Miscellaneous.
6.1 Rule 144 and Rule 144A. For so long as the Company is subject to
the reporting requirements of Section 13 or 15 of the Exchange Act, the Company
covenants that it will file any reports required to be filed by it under Section
13(a) or 15(d) of the Exchange Act and the rules and regulations adopted by the
Commission thereunder, and that if it ceases to be so required to file such
reports it will upon the request of any Holder of the Registrable Notes (a) make
publicly available such information, if any, as is necessary to permit sales
pursuant to Rule 144 under the Securities Act), provided all of the other
applicable provisions of Rule 144 can be met by the Holder, (b) deliver such
information to a prospective purchaser as is necessary to permit sales pursuant
to Rule 144A under the Securities Act, if sales can otherwise be made under Rule
144A, and (c) take such further action that is reasonable in the circumstances,
in each case, to the extent required from time to time to enable such Holder to
sell its Registrable Notes without registration under the Securities Act within
the limitation of the exemptions provided by, but only to the extent such
exemptions apply, (i) Rule 144 under the Securities Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the Securities Act, as such Rule
may be amended from time to time, or (iii) any similar rules or regulations
hereafter adopted by the Commission. Upon the request of any Holder of the
Registrable Notes, the Company will deliver to such Holder a written statement
as to whether it has complied with such requirements.
6.2 No Inconsistent Agreements. The Company has not entered into, and
will not after the date of this Agreement enter into, any agreement which is
inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or which otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of the or the Company's
other issued and outstanding securities under any such agreements.
6.3 Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the written consent of Holders of at least a majority in aggregate
principal amount of the outstanding Registrable Notes affected by such
amendment, modification, supplement, waiver or departure has been obtained by
the Company; provided, however, that no amendment, modification, supplement,
waiver or consent to any departure from the provisions of Section 5 hereof shall
be effective as against any Holder of Registrable Notes unless consented to in
writing by such Holder.
6.4 Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier,
21
or any courier guaranteeing overnight delivery (a) if to a Holder, at the most
current address given by such Holder to the Company by means of a notice given
in accordance with the provisions of this Section 6.4, which address initially
is, with respect to Initial Purchaser, the address set forth in the Purchase
Agreement; and (b) if to the Company, initially at the Company's address set
forth in the Purchase Agreement and thereafter at such other address, notice of
which is given in accordance with the provisions of this Section 6.4.
All such notices and communications shall be deemed to have been duly
given; at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands, or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture, at the address specified in such Indenture.
6.5 Successor and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Notes in
violation of the terms of the Purchase Agreement. If any transferee of any
Holder shall acquire Registrable Notes, in any manner, whether by operation of
law or otherwise, such Registrable Notes shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Notes such
person shall be conclusively deemed to have agreed to be bound by and to perform
all of the terms and provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the Purchase Agreement,
and such person shall be entitled to receive the benefits hereof.
6.6 Third Party Beneficiaries. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they deem such enforcement
necessary or advisable to protect their rights.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
6.8 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
6.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
6.10 Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the
22
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions contained herein shall not be affected
or impaired thereby.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
RESOURCE AMERICA, INC.
By: _________________________________________
Name: ______________________________________
Title: ______________________________________
CONFIRMED AND ACCEPTED, As of the date first above written:
FRIEDMAN, BILLINGS, XXXXXX & CO., INC.
By: _____________________________________
Name: _____________________________________
Title:_____________________________________
24
