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Exhibit 10.123
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
Dated as of April 1, 1998
by and among
BLUEGREEN CORPORATION
and
THE SUBSIDIARY GUARANTORS
named herein
and
NATWEST CAPITAL MARKETS LIMITED
and
XXXXXXXX & COMPANY SECURITIES, INC.
as the Initial Purchasers
$110,000,000
10 1/2% SENIOR SECURED NOTES DUE 2008
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TABLE OF CONTENTS
PAGE
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1. Definitions...............................................................................................
2. Exchange Offer............................................................................................
3. Notes Shelf Registration..................................................................................
4 Additional Interest.......................................................................................
5. Registration Procedures...................................................................................
6. Registration Expenses.....................................................................................
7. Indemnification...........................................................................................
8. Rules 144 and 144A........................................................................................
9. Underwritten Registrations................................................................................
10. Miscellaneous.............................................................................................
(a) No Inconsistent Agreements.......................................................................
(b) Adjustments Affecting Registrable Notes..........................................................
(c) Amendments and Waivers...........................................................................
(d) Notices..........................................................................................
(e) Successors and Assigns...........................................................................
(f) Counterparts.....................................................................................
(g) Headings.........................................................................................
(h) Governing Law....................................................................................
(i) Severability.....................................................................................
(j) Notes Held by the Issuers or their Affiliates....................................................
(k) Third Party Beneficiaries........................................................................
Schedule A: Adjustments Reflecting Registrable Notes
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EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Notes Exchange and Registration Rights Agreement (the "Agreement")
is dated as of April 1, 1998, by and among Bluegreen Corporation, a
Massachusetts corporation (the "Company"), Bluegreen Resorts Management, Inc., a
Delaware corporation, Bluegreen Resorts, Inc., a Delaware corporation, Bluegreen
Holding Corporation (Texas), a Delaware corporation, Properties of Southwest
One, Inc., a Delaware corporation, Properties of the Southwest L.P., a Delaware
limited partnership, Bluegreen Asset Management Corporation, a Delaware
corporation, Bluegreen Carolina Land, Inc., a Delaware corporation, Bluegreen
Corporation of Montana, a Montana corporation, Bluegreen Corporation of
Tennessee, a Delaware corporation, Bluegreen Corporation of the Rockies, a
Delaware corporation, Virginia Land & Forest Corporation, a Delaware
corporation, Bluegreen Communities, Inc., a Delaware corporation, Bluegreen
Resorts International, Inc., a Delaware corporation, Carolina National Golf
Club, Inc., a Delaware corporation, Leisure Capital Corporation, a Delaware
corporation, Properties of the West, Inc., a Delaware corporation, BG/RDI
Acquisition Corporation, a Delaware corporation, RDI Group, Inc., a Florida
corporation, Dellona Enterprises, Inc., a Florida corporation, Resort
Development International, Inc., a Florida corporation, RDI Resort Services
Corporation, a Florida corporation, RDI Resources, Inc., a Florida corporation
(collectively, the "Subsidiary Guarantors"), and NatWest Capital Markets Limited
and XxXxxxxx & Company Securities, Inc. (each an "Initial Purchaser" and,
collectively the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated March 26, 1998, among the Company, the Subsidiary Guarantors
and the Initial Purchasers (the "Purchase Agreement"), which provides for the
sale by the Company to the Initial Purchasers of $110,000,000 aggregate
principal amount of the Company's 10 1/2% Senior Secured Notes due 2008 (the
"Notes"), which Notes will be guaranteed by the Subsidiary Guarantors and
secured by mortgages on properties held by certain Subsidiary Guarantors. The
Company and the Subsidiary Guarantors are collectively referred to herein as the
"Issuers." In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchasers and their direct and
indirect transferees. The execution and delivery of this Agreement is a
condition to the obligation of the Initial Purchasers to purchase the Notes
under the Purchase Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
Advice: Has the meaning provided in the last paragraph of Section 5
hereof.
Agreement: Has the meaning provided in the first introductory paragraph
hereto.
Applicable Period: Has the meaning provided in Section 2(b) hereof.
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Closing Date: Has the meaning provided in the Purchase Agreement.
Company: Has the meaning provided in the first introductory paragraph
hereto.
Effectiveness Date: The 135th day after the Issue Date.
Effectiveness Period: Has the meaning provided in Section 3(a) hereof.
Event Date: Has the meaning provided in Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: Has the meaning provided in Section 2(a) hereof.
Exchange Offer: Has the meaning provided in Section 2(a) hereof.
Exchange Registration Statement: Has the meaning provided in Section
2(a) hereof.
Filing Date: The 75th day after the Issue Date.
Holder: Any holder of a Note or Registrable Notes.
Indemnified Person: Has the meaning provided in Section 7(c) hereof.
Indemnifying Person: Has the meaning provided in Section 7(c) hereof.
Indenture: Means the Indenture dated as of April 1, 1998 among the
Company, the Subsidiary Guarantors and SunTrust Bank, Central Florida, National
Association ("SunTrust"), as Trustee, pursuant to which the Notes are being
issued, as amended or supplemented from time to time in accordance with the
terms thereof.
Initial Purchasers: Has the meaning provided in the first introductory
paragraph hereto.
Inspectors: Has the meaning provided in Section 5(n) hereof.
Issue Date: The date on which the original Notes were sold to the
Initial Purchasers pursuant to the Purchase Agreement.
Issuers: Has the meaning provided in the second introductory paragraph
hereto.
NASD: Has the meaning provided in Section 5(r) hereof.
Notes: Has the meaning provided in the second introductory paragraph
hereto.
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Notes Additional Interest: Has the meaning provided in Section 4(a)
hereof.
Notes Shelf Request: Has the meaning provided in Section 2(c) hereof.
Participant: Has the meaning provided in Section 7(a) hereof.
Participating Broker-Dealer: Has the meaning provided in Section 2(b)
hereof.
Persons: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
Private Exchange: Has the meaning provided in Section 2(b) hereof.
Private Exchange Notes: Has the meaning provided in Section 2(b)
hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, with respect to the terms of the offering of any portion of the
Registrable Notes covered by such Registration Statement including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
Purchase Agreement: Has the meaning provided in the second introductory
paragraph hereto.
Records: Has the meaning provided in Section 5(n) hereof.
Registrable Notes: Each Note upon original issuance of the Notes and at
all times subsequent thereto, each Exchange Note as to which Section 2(c)(iv)
hereof is applicable upon original issuance and at all times subsequent thereto
and each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iv) hereof is applicable, the Exchange Registration Statement) covering
such Note, Exchange Note or Private Exchange Note, as the case may be, has been
declared effective by the SEC and such Note (unless such Note was not tendered
for exchange by the Holder thereof), Exchange Note or Private Exchange Note, as
the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note, Exchange Note or Private Exchange Note,
as the case may be, is, or may be, sold in compliance with Rule 144, or (iii)
such Note, Exchange Note or Private Exchange Note, as the case may be, ceases to
be outstanding for purposes of the Indenture.
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Registration Statement: Any registration statement of the Company,
including, but not limited to, the Exchange Registration Statement, that covers
any of the Registrable Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission or any successor thereto.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Registration: Has the meaning provided in Section 3(a) hereof.
Shelf Registration Statement: shall mean a "shelf" registration
statement of the Company and the Subsidiary Guarantors which covers all of the
Registrable Notes on an appropriate form under Rule 415 under the Securities
Act, or any similar rule that may be adopted by the SEC, 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.
Subsidiary Guarantors: Has the meaning provided in the first
introductory paragraph hereto.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: SunTrust, as trustee under the Indenture and any successor
trustee under the Indenture.
Underwritten registration or underwritten offering: A registration in
which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
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2. EXCHANGE OFFER
(a) Each of the Issuers agrees to file with the SEC no later than the
Filing Date an Exchange Registration Statement with respect to an offer
to exchange (the "Exchange Offer") any and all of the Registrable Notes
(other than the Private Exchange Notes, if any) for a like aggregate
principal amount of debt securities of the Company, guaranteed by the
Subsidiary Guarantors and secured by mortgages on properties held by
certain Subsidiary Guarantors (to the extent such properties have not
been sold), which are identical in all material respects to the Notes
(the "Exchange Notes") (and which are entitled to the benefits of the
Indenture or a trust indenture which is identical in all material
respects to the Indenture (other than such changes to the Indenture or
any such identical trust indenture as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof
under the TIA) and which, in either case, has been qualified under the
TIA), except that the Exchange Notes (other than Private Exchange
Notes, if any) shall have been registered pursuant to an effective
Registration Statement under the Securities Act and shall contain no
restrictive legend thereon. The Exchange Offer shall be registered
under the Securities Act on the appropriate form (the "Exchange
Registration Statement") and shall comply with all applicable tender
offer rules and regulations under the Exchange Act. The Issuers agree
to use their reasonable efforts to (x) cause the Exchange Registration
Statement to be declared effective under the Securities Act no later
than the Effectiveness Date; (y) keep the Exchange Offer open for at
least 30 days (or longer if required by applicable law) after the date
that notice of the Exchange Offer is mailed to the Holders; and (z)
consummate the Exchange Offer on or prior to the 165th day following
the Issue Date. If after such Exchange Registration Statement is
declared effective by the SEC, the Exchange Offer or the issuance of
the Exchange Notes thereunder is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, such Exchange Registration Statement
shall be deemed not to have become effective for purposes of this
Agreement until such stop order, injunction or other order or
requirement is no longer in effect. Each Holder who participates in the
Exchange Offer will be required to represent that any Exchange Notes
received by it will be acquired in the ordinary course of its business,
that at the time of the consummation of the Exchange Offer such Holder
will have no arrangement or understanding with any Person to
participate in the distribution of the Exchange Notes in violation of
the provisions of the Securities Act, that such Holder in not an
"affiliate" of any of the Issuers within the meaning of the Securities
Act or acting on behalf of a person who could not truthfully make the
foregoing representations, and that such Holder is not a broker-dealer
tendering Notes acquired directly from the Company for its own account.
Upon consummation of the Exchange Offer in accordance with this Section
2, the Issuers shall have no further obligation to register Registrable
Notes (other than Private Exchange Notes and other than in respect of
any Exchange Notes as to which clause 2(c)(v) hereof applies) pursuant
to Section 3 hereof. No securities other than the Exchange Notes shall
be included in the Exchange Registration Statement.
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(b) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of
Distribution," reasonably acceptable to the Initial Purchasers and
their counsel, which shall contain a summary statement of the positions
taken or policies made by the Staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Notes received by such broker-dealer in the Exchange Offer (a
"Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the Staff of the SEC or such positions or
policies, in the reasonable judgment of the Initial Purchasers and
their counsel, represent the prevailing views of the Staff of the SEC.
Such "Plan of Distribution" section shall also expressly permit the use
of the Prospectus by all Persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes.
Each of the Issuers shall use its reasonable efforts to keep
the Exchange Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to permit such
Prospectus to be lawfully delivered by any Participating Broker-Dealer
subject to the prospectus delivery requirements of the Securities Act
for such period of time as is necessary to comply with applicable law
in connection with any resale of the Exchange Notes; PROVIDED, HOWEVER,
that such period shall not exceed 180 days after the consummation of
the Exchange Offer (or such longer period if extended pursuant to the
last paragraph of Section 5 hereof) (the "Applicable Period").
If, prior to consummation of the Exchange Offer, either of the Initial
Purchasers holds any Notes acquired by it and having the status of an unsold
allotment in the initial distribution, the Issuers shall, upon the request of
either of the Initial Purchasers, simultaneously with the delivery of the
Exchange Notes in the Exchange Offer issue and deliver to the Initial Purchasers
in exchange (the "Private Exchange") for such Notes held by the Initial
Purchasers a like principal amount of debt securities of the Company, guaranteed
by the Subsidiary Guarantors and secured by mortgages on properties held by
certain Subsidiary Guarantors, that are identical in all material respects to
the Exchange Notes (the "Private Exchange Notes") (and which are issued pursuant
to the same Indenture as the Exchange Notes) except for the placement of a
restrictive legend on such Private Exchange Notes. The Private Exchange Notes
shall if permissible bear the same CUSIP number as the Exchange Notes.
Interest on the Exchange Notes and the Private Exchange Notes will
accrue from the last interest payment date on which interest was paid on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the Issue Date.
In connection with the Exchange Offer, the Issuers shall:
(1) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
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(2) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New
York;
(3) permit Holders to withdraw tendered Notes at any time prior to
5:00 p.m., New York time, on the last business day on which
the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable
laws, rules and regulations.
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Notes duly tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private
Exchange;
(2) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes or Private Exchange Notes, as
the case may be, equal in principal amount to the Notes of
such Holder so accepted for exchange.
The Exchange Notes and the Private Exchange Notes are to be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture, which in either event shall provide that (1) the Exchange
Notes shall not be subject to the transfer restrictions set forth in the
Indenture and (2) the Private Exchange Notes shall be subject to the transfer
restrictions set forth in the Indenture. The Indenture or such indenture shall
provide that the Exchange Notes, the Private Exchange Notes and the Notes shall
vote and consent together on all matters as to which they have the right to vote
or consent as one class and that none of the Exchange Notes, the Private
Exchange Notes or the Notes will have the right to vote or consent as a separate
class on any matter.
(c) If, (i) because of any change in law, SEC rules or regulations or
in currently prevailing interpretations of the Staff of the SEC, the
Issuers are not permitted to effect an Exchange Offer, (ii) the
Exchange Offer is not consummated within 165 days after the Issue Date,
(iii) any holder of Private Exchange Notes so requests at any time
after the consummation of the Private Exchange, or (iv) any Holder
(other than the Initial Purchasers) is not eligible to participate in
the Exchange Offer, then the Issuers shall promptly deliver to the
Holders and the Trustee written notice thereof (the "Notes Shelf
Request") and, in the case of clauses (i) and (ii) above, all Holders,
in the case of clause (iii) above, the Holders of the Private Exchange
Notes and, in the case of clause (iv) above, the affected Holder, and
shall file a Notes Shelf Registration pursuant to Section 3 hereof;
PROVIDED, HOWEVER, that in the case of clause (iii) above such Holders
shall pay all reasonable registration expenses of the Company as
described in Section 6 hereof in connection with such Notes Shelf
Registration.
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3. NOTES SHELF REGISTRATION
If a Notes Shelf Request is delivered as contemplated by Section 2(c)
hereof, then:
(a) NOTES SHELF REGISTRATION. The Issuers shall, at their cost, as
promptly as reasonably practicable, but in any case not later than the
75th day after a Notes Shelf Request, file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to
Rule 415 under the Securities Act covering all of the Registrable Notes
(the "Notes Shelf Registration"); PROVIDED, HOWEVER, that no holder of
Notes or Exchange Notes shall be entitled to have Notes or Exchange
Notes held by it covered by such Shelf Registration Statement unless
such holder expressly agrees to be bound by the provisions of this
Agreement applicable to such holder. If the Issuers shall not have yet
filed a Notes Exchange Registration Statement, each of the Issuers
shall use its reasonable efforts to file with the SEC the Notes Shelf
Registration on or prior to the Filing Date. The Notes Shelf
Registration shall be on Form S-3 (if available) or another appropriate
form permitting registration of such Registrable Notes for resale by
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuers shall not
permit any securities other than the Registrable Notes to be included
in the Notes Shelf Registration.
Each of the Issuers shall use its reasonable efforts to cause the Notes
Shelf Registration to be declared effective under the Securities Act by
the 135th day after the Notes Shelf Request and to keep the Notes Shelf
Registration continuously effective under the Securities Act until the
date which is one year from the Issue Date, subject to extension
pursuant to the last paragraph of Section 5 hereof, or such shorter
period ending when all Registrable Notes covered by the Notes Shelf
Registration have been sold in the manner set forth and as contemplated
in the Notes Shelf Registration or when the Notes become eligible for
registration without volume restrictions, pursuant to Rule 144 under
the Securities Act (the "Effectiveness Period").
(b) WITHDRAWAL OF STOP ORDERS. If the Notes Shelf Registration ceases
to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the securities
registered thereunder), each of the Issuers shall use its reasonable
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof. Issuers shall be deemed not to have used their
reasonable efforts to keep the Shelf Registration Statement effective
during the requisite period if any of them voluntarily takes any action
that would result in Holders of Notes or Exchange Notes covered thereby
not being able to offer and sell such Notes or Exchange Notes during
that period, unless such action is required by applicable law;
PROVIDED, HOWEVER, that the foregoing shall not apply to actions taken
by the issuers in good faith and for valid business reasons including,
without limitation, the acquisition or divestiture of assets, so long
as the issuers within 90 days thereafter comply with the requirements
of Section 5 hereof.
(c) SUPPLEMENTS AND AMENDMENTS. The Issuers shall promptly supplement
and amend the Notes Shelf Registration if required by the rules,
regulations or instructions applicable
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to the registration form used for such Notes Shelf Registration, if
required by the Securities Act, or if reasonably requested for such
purpose by the Holders of a majority in aggregate principal amount of
the Registrable Notes covered by such Registration Statement or by any
underwriter of such Registrable Notes.
4. ADDITIONAL INTEREST
(a) The Issuers and the Initial Purchasers agree that the Holders of
Registrable Notes will suffer damages if the Issuers fail to fulfill
their obligations under Section 2 or Section 3 hereof and that it would
not be feasible to ascertain the extent of such damages with precision.
Accordingly, the Issuers agree to pay, as liquidated damages and as the
sole and exclusive remedy therefor, additional interest on the Notes
("Notes Additional Interest") under the circumstances and to the extent
set forth below:
(i) if the Notes Exchange Offer Registration Statement or
Notes Shelf Registration Statement is not filed
within, in the case the Notes Exchange Offer
Registration Statement, 75 days following the Issue
Date or, in the case of the Notes Shelf Registration
Statement, 75 days following a Notes Shelf Request,
Notes Additional Interest shall accrue on the Notes
over and above the stated interest at a rate of 0.50%
per annum for the first 30 days commencing on the
76th day after the Issue Date or the Shelf Request,
respectively, such Notes Additional Interest rate
increasing by an additional 0.50% per annum at the
beginning of each subsequent 30-day period;
(ii) if the Notes Exchange Offer Registration Statement or
Notes Shelf Registration Statement is not declared
effective within, in the case of the Notes Exchange
Offer Registration Statement, 135 days following the
Issue Date or, in the case of the Notes Shelf
Registration Statement, 135 days following a Notes
Shelf Request, Notes Additional Interest shall accrue
on the Notes over and above the stated interest at a
rate of 0.50% per annum for the first 30 days
commencing on the 135th day after the Issue Date or
the Notes Shelf Request, respectively, such Notes
Additional Interest rate increasing by an additional
0.50% per annum at the beginning of each subsequent
30-day period; or
(iii) if (A) the Company has not exchanged all Notes
validly tendered in accordance with the terms of the
Exchange Offer on or prior to 165 days after the
Issue Date or (B) the Exchange Offer Registration
Statement ceases to be effective at any time prior to
the time that the Exchange Offer is consummated or
(C) if applicable, the Notes Shelf Registration
Statement has been declared effective and such Notes
Shelf Registration Statement ceases to be effective
at any time prior to the second anniversary of the
Issue Date (unless all the Notes have been sold
thereunder), then Notes Additional Interest shall
accrue on the Notes over
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and above the stated interest at a rate of 0.50% per
annum for the first 30 days commencing on (x) the
165th day after the Issue Date with respect to the
Notes validly tendered and not exchanged by the
Company, in the case of (A) above, or (y) the day the
Notes Exchange Offer Registration Statement ceases to
be effective or usable for its intended purpose in
the case of (B) above, or (z) the day such Notes
Shelf Registration Statement ceases to be effective
in the case of (C) above, such Notes Additional
Interest rate increasing by an additional 0.50% per
annum at the beginning of each subsequent 30-day
period; PROVIDED, HOWEVER, that the Notes Additional
Interest rate on the Notes under clauses (i) or (ii)
above or this clause (iii), may not exceed in the
aggregate 1.5% per annum; and provided further, that
(1) upon the filing of the Notes Exchange Offer
Registration Statement or Notes Shelf Registration
Statement (in the case of clause (i) above), (2) upon
the effectiveness of the Notes Exchange Offer
Registration Statement or Notes Shelf Registration
Statement (in the case of (ii) above), or (3) upon
the exchange of Exchange Notes for all Notes tendered
(in the case of clause (iii)(A) above), or upon the
effectiveness of the Notes Exchange Offer
Registration Statement which had ceased to remain
effective (in the case of clause (iii)(B) above), or
upon the effectiveness of the Notes Shelf
Registration Statement which had ceased to remain
effective (in the case of clause (iii)(C) above),
Notes Additional Interest on the Notes as a result of
such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue.
"Transfer Restricted Notes" means each Note until (i) the date on which
such Note has been exchanged for a freely transferable Exchange Note in the
Exchange Offer, (ii) the date on which such Note or Exchange Note has been
effectively registered under the Securities Act and disposed of in accordance
with the Shelf Registration Statement or (iii) the date on which such Note or
Exchange Note is distributed to the public pursuant to Rule 144 under the
Securities Act or is salable pursuant to Rule 144(k) under the Securities Act.
Notwithstanding anything to the contrary in this Section 4(a), the Company shall
not be required to pay any Notes Additional Interest to the holder of the
Transfer Restricted Notes if such holder; (a) failed to comply with its
obligations to make the representations in the first paragraph of Section 2; or
(b) failed to provide the information required to be provided by it, if any,
pursuant to the penultimate paragraph of Section 5.
(b) The Issuers shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Notes
Additional Interest is required to be paid (an "Event Date"). The
Company shall pay the Notes Additional Interest due on the Transfer
Restricted Notes by depositing with the paying agent (which shall not
be the Company for these purposes) for the Transfer Restricted Notes,
in trust, for the benefit of the holders thereof, prior to 11:00 A.M.
on the next interest payment date specified by the Indenture (or such
other indenture), sums sufficient to pay the Notes Additional Interest
then due. Any amounts of Notes Additional Interest due pursuant to
clauses (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable
to the Holders of affected Notes in cash
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semi-annually on each interest payment date specified by the Indenture
(or such other indenture) to the record holders entitled to receive the
interest payment to be made on such date, commencing with the first
such date occurring after any such Notes Additional Interest commences
to accrue. The amount of Notes Additional Interest will be determined
by multiplying the applicable Notes Additional Interest rate by the
principal amount of the affected Registrable Notes of such Holders,
multiplied by a fraction, the numerator of which is the number of days
such Notes Additional Interest rate was applicable during such period
(determined on the basis of a 360-day year comprised of twelve 30-day
months and, in the case of a partial month, the actual number of days
elapsed), and the denominator of which is 360.
(c) The Notes Additional Interest provided for herein shall be in
addition to any Title Insurance Additional Interest (as defined in the
Purchase Agreement) that may accrue pursuant to the Purchase Agreement.
5. REGISTRATION PROCEDURES
In connection with the filing of any Registration Statement pursuant to
Sections 2 or 3 hereof, the Issuers shall effect such registration(s) to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder, the Issuers
shall:
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements as prescribed by Sections 2 or 3 hereof, and
use their reasonable efforts to cause each such Registration Statement
to become effective and remain effective as provided herein; PROVIDED,
HOWEVER, that, if (1) such filing is pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the
Securities Act by any Participating Broker- Dealer who seeks to sell
Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements
thereto, the Issuers shall, if requested in writing, furnish to and
afford the Holders of the Registrable Notes covered by such
Registration Statement or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, a
reasonable opportunity to review copies of all such documents
(including copies of any documents to be incorporated by reference
therein and all exhibits thereto) proposed to be filed (in each case at
least three business days prior to such filing). The Issuers shall not
file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must be afforded an
opportunity to review prior to the filing of such document under the
immediately preceding sentence, if the Holders of a majority in
aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or any such Participating Broker-Dealer, as the
case may be, their counsel, or the managing underwriters, if any, shall
object thereto in writing, which writing shall set forth a reasonable
basis for such objection.
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(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Notes Shelf Registration or Exchange Registration
Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness
Period or the Applicable Period or until consummation of the Exchange
Offer, as the case may be; cause the related Prospectus to be
supplemented by any Prospectus supplement required by applicable law,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act
applicable to it with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such
Prospectus as so supplemented and with respect to the subsequent resale
of any securities being sold by a Participating Broker-Dealer covered
by any such Prospectus; the Company shall be deemed not to have used
its reasonable efforts to keep a Registration Statement effective
during the Applicable Period if it voluntarily takes any action that
would result in selling Holders of the Registrable Notes covered
thereby or Participating Broker-Dealers seeking to sell Exchange Notes
not being able to sell such Registrable Notes or such Exchange Notes
during that period unless such action is required by applicable law or
unless such action is taken in good faith and for valid business
reasons so long as the Company complies with this Agreement, including
without limitation, the provisions of paragraph 5(k) hereof and the
last paragraph of this Section 5.
(c) If (1) a Notes Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, notify
the selling Holders of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly (but in any event within two business
days), and confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act
(including in such notice a written statement that any Holder may, upon
request, obtain, at the sole expense of the Issuers, one conformed copy
of such Registration Statement or post-effective amendment including
financial statements and schedules, documents incorporated or deemed to
be incorporated by reference and exhibits), (ii) of the issuance by the
SEC of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any
preliminary prospectus or the initiation of any proceedings for that
purpose, (iii) if at any time when a Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Registrable Notes or resales of Exchange Notes by Participating
Broker-Dealers the representations and warranties of the Issuers
contained in any agreement (including any underwriting agreement),
contemplated by Section 5(n) hereof cease to be true and correct in all
material respects, (iv) of the receipt by the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in
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any jurisdiction, or the initiation or threatening of any proceeding
for such purpose, (v) of the happening of any event, the existence of
any condition or any information becoming known that makes any
statement made in such Registration Statement or related Prospectus or
any document incorporated or deemed to be incorporated therein by
reference untrue in any material respect or that requires the making of
any changes in or amendments or supplements to such Registration
Statement, Prospectus or documents so that, in the case of the
Registration Statement, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, and (vi) of the determination by the Issuers that a
post-effective amendment to a Registration Statement would be
appropriate.
(d) Use its reasonable efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending
the qualification (or exemption from qualification) of any of the
Registrable Notes or the Exchange Notes for sale in any jurisdiction,
and, if any such order is issued, to use its reasonable efforts to
obtain the withdrawal of any such order at the earliest possible
moment.
(e) If a Notes Shelf Registration is filed pursuant to Section 3 hereof
and if requested by the managing underwriter or underwriters (if any),
or the Holders of a majority in aggregate principal amount of the
Registrable Notes being sold in connection with an underwritten
offering, (i) promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter
or underwriters (if any), such Holders, or counsel for any of them
reasonably request to be included therein, (ii) make all required
filings of such prospectus supplement or such post-effective amendment
as soon as practicable after the Issuers have received notification of
the matters to be incorporated in such prospectus supplement or
post-effective amendment, and (iii) supplement or make amendments to
such Registration Statement.
(f) If (1) a Notes Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, furnish
to each selling Holder of Registrable Notes and to each such
Participating Broker-Dealer who so requests and to counsel and each
managing underwriter, if any, at the sole expense of the Issuers, one
conformed copy of the Registration Statement or Registration Statements
and each post-effective amendment thereto, including financial
statements and schedules, and, if requested, all documents incorporated
or deemed to be incorporated therein by reference and all exhibits.
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(g) If (1) a Notes Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker- Dealer
who seeks to sell Exchange Notes during the Applicable Period, deliver
to each selling Holder of Registrable Notes, or each such Participating
Broker-Dealer, as the case may be, their respective counsel, and the
underwriters, if any, at the sole expense of the Issuers, as many
copies of the Prospectus or Prospectuses (including each form of
preliminary pros-pectus) and each amendment or supplement thereto and
any documents incorporated by reference therein as such Persons may
reasonably request; and, subject to the last paragraph of this Section
5 or applicable law, each Issuer hereby consents to the use of such
Prospectus and each amendment or supplement thereto by each of the
selling Holders of Registrable Notes or each such Participating
Broker-Dealer, as the case-may be, and the underwriters or agents, if
any, and dealers (if any), in connection with the offering and sale of
the Registrable Notes covered by, or the sale by Participating Broker-
Dealers of the Exchange Notes pursuant to, such Prospectus and any
amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use its reasonable efforts to register or qualify
such Registrable Notes (and to cooperate with selling Holders of
Registrable Notes or each such Participating Broker-Dealer, as the case
may be, the managing underwriter or underwriters, if any, and their
respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of such
Registrable Notes) for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling
Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request in writing; PROVIDED, HOWEVER, that
where Exchange Notes held by Participating Broker-Dealers or
Registrable Notes are offered other than through an underwritten
offering, the Issuers agree to cause their counsel to perform Blue Sky
investigations and file registrations and qualifications required to be
filed pursuant to this Section 5(h); use reasonable efforts to keep
each such registration or qualification (or exemption therefrom)
effective during the period such Registration Statement is required to
be kept effective, and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions
of the Exchange Notes held by Participating Broker-Dealers or the
Registrable Notes covered by the applicable Registration Statement;
PROVIDED, HOWEVER, that none of the Issuers shall be required to
qualify as a foreign corporation or as a dealer in securities or to
execute a general consent to service of process in any jurisdiction
where it is not then so subject or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is otherwise
not subject.
(i) If a Notes Shelf Registration is filed pursuant to Section 3
hereof, cooperate with the selling Holders of Registrable Notes and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Notes
to be sold, which certificates shall not bear any restrictive legends
and
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shall be in a form eligible for deposit with The Depository Trust
Company; and enable such Registrable Notes to be in such denominations
and registered in such names as the managing underwriter or
underwriters, if any, or Holders may reasonably request.
(j) Use its reasonable efforts to cause the Registrable Notes covered
by the Registration Statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to
enable the Holders thereof or the underwriter or underwriters, if any,
to dispose of such Registrable Notes, except as may be required solely
as a consequence of the nature of a selling Holder's business, in which
case each of the Issuers will cooperate in all reasonable respects with
the filing of such Registration Statement and the granting of such
approvals.
(k) If (1) a Notes Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, upon the
occurrence of any event contemplated by paragraph 5(c)(v) or 5(c)(vi)
hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the sole expense of the Issuers, a
supplement or post-effective amendment to the Registration Statement or
a supplement to the related Prospectus or any document incorporated or
deemed to be incorporated therein by reference, or file any other
required document so that, as thereafter delivered to the purchasers of
the Registrable Notes being sold thereunder or to the purchasers of the
Exchange Notes to whom such Prospectus will be delivered by a
Participating Broker-Dealer, any such Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(l) Prior to the effective date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with
certificates for the Registrable Notes or Exchange Notes, as the case
may be, in a form eligible for deposit with The Depositary Trust
Company and (ii) provide a CUSIP number for the Registrable Notes or
Exchange Notes, as the case may be.
(m) In connection with any underwritten offering initiated by the
Company of Registrable Notes pursuant to a Notes Shelf Registration,
enter into an underwriting agreement as is customary in underwritten
offerings of debt securities similar to the Notes and take all such
other actions as are reasonably requested by the managing underwriter
or underwriters in order to facilitate the registration or the
disposition of such Registrable Notes and, in such connection, (i) make
such representations and warranties to, and covenants with, the
underwriters with respect to the business of the Issuers and their
respective subsidiaries and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by
reference therein, in each case, as are customarily made by Issuers to
underwriters in underwritten offerings of debt securities similar to
the Notes, and confirm the same in writing if and when requested; (ii)
obtain
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the written opinion of counsel to the Issuers and written updates
thereof in form, scope and substance reasonably satisfactory to the
managing underwriter or underwriters, addressed to the underwriters
covering the matters customarily covered in opinions requested in
underwritten offerings of debt similar to the Notes and such other
matters as may be reasonably requested by the managing underwriter or
underwriters; (iii) obtain "cold comfort" letters and updates thereof
in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public
accountants of the Issuers (and, if necessary, any other independent
certified public accountants of any subsidiary of any of the Issuers or
of any business acquired by any of the Issuers for which financial
statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to
each of the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort"
letters in connection with underwritten offerings of debt similar to
the Notes and such other matters as reasonably requested by the
managing underwriter or underwriters; and (iv) if an underwriting
agreement is entered into, the same shall contain indemnification
provisions and procedures no less favorable than those set forth in
Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of Registrable
Notes covered by such Registration Statement and the managing
underwriter or underwriters or agents) with respect to all parties to
be indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the extent
required thereunder.
(n) If (1) a Notes Shelf Registration is filed pursuant to Section 3
hereof, or (2) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer
who seeks to sell Exchange Notes during the Applicable Period, make
available for inspection by any selling Holder of such Registrable
Notes being sold, or each such Participating Broker-Dealer, as the case
may be, any underwriter participating in any such disposition of
Registrable Notes, if any, and any attorney, accountant or other agent
retained by any such selling Holder or each such Participating
Broker-Dealer, as the case may be, or underwriter (collectively, the
"Inspectors"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate
documents and instruments of the Issuers and their respective
subsidiaries (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Issuers and their respective subsidiaries to make available for
inspection all information reasonably requested by any such Inspector
in connection with such Registration Statement. Records which any of
the Issuers determine, in good faith, to be confidential and any
Records which the Company notifies the Inspectors are confidential
shall not be disclosed by the Inspectors unless (i) the disclosure of
such Records is necessary to avoid or correct a misstatement or
omission in such Registration Statement, (ii) the release of such
Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction, (iii) disclosure of such information is, in
the opinion of counsel (a copy of which shall be delivered to the
Issuers) for any Inspector, necessary or advisable in
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connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving such Inspector and
arising out of, based upon, relating to, or involving this Agreement,
or any transactions contemplated hereby or arising hereunder, or (iv)
the information in such Records has been made generally available to
the public. Each selling Holder of such Registrable Securities and each
such Participating Broker-Dealer will be required to agree that
information obtained by it as a result of such inspections shall be
deemed confidential and shall not be used by it as the basis for any
market transactions in the securities of the Issuers unless and until
such information is generally available to the public. Each selling
Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, promptly
upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice to the Issuers and allow the
Issuers to undertake appropriate action to prevent disclosure of the
Records deemed confidential at the Issuers' sole expense.
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the
trust indenture provided for in Section 2(a) hereof, as the case may
be, to be qualified under the TIA not later than the effective date of
the Exchange Offer or the first Registration Statement relating to the
Registrable Notes; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the Registrable
Notes, to effect such changes to such indenture as may be required for
such indenture to be so qualified in accordance with the terms of the
TIA; and execute, and use its reasonable efforts to cause such trustee
to execute, all documents as may be required to effect such changes,
and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner.
(p) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Registrable Notes are sold to underwriters in a firm commitment
or reasonable efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods.
(q) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuers (or to
such other Person as directed by the Issuers) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the
Issuers shall xxxx, or cause to be marked, on such Registrable Notes
that such Registrable Notes are being canceled in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be; in no
event shall such Registrable Notes be marked as paid or otherwise
satisfied.
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(r) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Notes and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(s) Use its reasonable efforts to take all other steps necessary or
advisable to effect the registration of the Registrable Notes covered
by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which
any Registration Statement is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable Notes
as the Issuers may, from time to time, reasonably request. The Issuers may
exclude from such Registration Statement the Registrable Notes of any seller who
fails to furnish such information within a reasonable time after receiving such
request. Each seller as to which any Notes Shelf Registration is being effected
agrees to furnish promptly to the Issuers all information required to be
disclosed in order to make the information previously furnished to the Issuers
by such seller not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon actual receipt
of any notice from the Issuers of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder will forthwith discontinue disposition of such Registrable Notes or
Exchange Notes, as the case may be, covered by such Registration Statement or
Prospectus to be sold by such Holder or Participating Broker-Dealer, as the case
may be, until such Holder's or Participating Broker-Dealer's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Issuers that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event the Issuers shall give any such
notice, the Issuers will be deemed to have satisfied its obligations to keep the
Registration Statement effective during such period of suspension and each of
the Effectiveness Period and the Applicable Period shall be extended by the
number of days during such periods from and including the date of the giving of
such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice. At the Company's request and expense, the Holders will
return all copies of the Prospectus referred to in the first sentence of this
paragraph.
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers
whether or not the Exchange Offer or a Notes Shelf Registration is filed or
becomes effective, including, without limitation, (i) all registration and
filing fees (including, without limitation, (A) fees with respect to filings
required
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to be made with the NASD in connection with an underwritten offering and (B)
fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of counsel in
connection with Blue Sky qualifications of the Registrable Notes or Exchange
Notes and determination of the eligibility of the Registrable Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the holders
of Registrable Notes are located, in the case of the Exchange Notes, or (y) as
provided in Section 5(h) hereof, in the case of Registrable Notes or Exchange
Notes to be sold by a Participating Broker-Dealer during the Applicable
Period)), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Notes or Exchange Notes in a form eligible
for deposit with The Depository Trust Company and of printing Prospectuses if
the printing of Prospectuses is requested by the managing underwriter or
underwriters, if any, by the Holders of a majority in aggregate principal amount
of the Registrable Notes included in any Registration Statement or sold by any
Participating Broker-Dealer, as the case may be, (iii) messenger, telephone and
delivery expenses, (iv) fees and disbursements of counsel for the Issuers, (v)
fees and disbursements of all independent certified public accountants referred
to in Section 5(n)(iii) hereof (including, without limitation, the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance by or incident to such performance), (vi) rating agency fees, if
any, and any fees associated with making the Registrable Notes or Exchange Notes
eligible for trading through The Depository Trust Company, (vii) Securities Act
liability insurance, if the Issuers desire such insurance, (viii) fees and
expenses of all other Persons retained by the Issuers, (ix) internal expenses of
the Issuers (including, without limitation, all salaries and expenses of
officers and employees of the Issuers performing legal or accounting duties),
(x) the expense of any annual audit, (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on any securities
exchange or any inter-dealer quotation system, if applicable, and (xii) the
expenses relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) The Issuers, jointly and severally, shall reimburse the Holders of
the Registrable Notes being registered in a Notes Shelf Registration for the
reasonable fees and disbursements of not more than one counsel chosen in writing
by the Holders of a majority in aggregate principal amount of the Registrable
Notes to be included in such Registration Statement. In addition, the Issuers,
jointly and severally, shall reimburse the Initial Purchasers for the reasonable
fees and expenses of one counsel in connection with the Exchange Offer, which
shall be Xxxxx, Day, Xxxxxx & Xxxxx, and shall not be required to pay any other
legal expenses of the Initial Purchasers in connection therewith.
7. INDEMNIFICATION. (a) Each of the Issuers, jointly and severally,
agrees to indemnify and hold harmless each Holder of Registrable Notes offered
pursuant to a Notes Shelf Registration Statement and each Participating
Broker-Dealer selling Exchange Notes during the Applicable Period, the
affiliates, directors, officers, agents, representatives and employees of each
such Person, and each other Person, if any, who controls any such Person within
the meaning of either Section 15 of the Securities Act or Section 20 of the
Exchange Act (each, a "Participant") from and against any and all losses,
claims, damages and liabilities (including,
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without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Registrable Notes or Exchange
Notes, as the case may be, is registered (or any amendment thereto) or related
Prospectus (or any amendments or supplements thereto) or any related preliminary
prospectus, or caused by, arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading; PROVIDED, HOWEVER, that the Issuers will
not be required to indemnify a Participant if (i) such losses, claims, damages
or liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
furnished to the Issuers in writing by or on behalf of such Participant
expressly for use therein or (ii) if such Participant sold to the person
asserting the claim the Registrable Notes or Exchange Notes which are the
subject of such claim and such untrue statement or omission or alleged untrue
statement or omission was contained or made in any preliminary prospectus and
corrected in the Prospectus or any amendment or supplement thereto and the
Prospectus does not contain any other untrue statement or omission or alleged
untrue statement or omission of a material fact that was the subject matter of
the related proceeding and such Participant failed to deliver or provide a copy
of the Prospectus (as amended or supplemented) to such Person with or prior to
the confirmation of the sale of such Registrable Notes or Exchange Notes sold to
such Person if required by applicable laws, unless such failure to deliver or
provide a copy of the Prospectus (as amended or supplemented) was a result of
noncompliance by the Issuers with Section 5 of this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuers, their respective affiliates, directors, officers,
agents, representatives and employees and each Person who controls the Issuers
or any such other Person within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act to the same extent as the foregoing indemnity
from the Issuers to each Participant, but only (i) with reference to information
furnished to the Issuers in writing by or on behalf of such Participant
expressly for use in any Registration Statement or Prospectus, any amendment or
supplement thereto, or any preliminary prospectus or (ii) with respect to any
untrue statement or representation made by such Participant in writing to the
Issuers.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, shall have the right to retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
actually incurred by such counsel related to such proceeding; PROVIDED, HOWEVER,
that the failure to so notify the Indemnifying Person shall not relieve it of
any obligation or liability which it may have hereunder or otherwise (unless and
only to the extent that such failure results in the loss or compromise of any
material
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rights or defenses by the Indemnifying Person). In any such proceeding, any
Indemnified Person shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the Indemnifying Person shall
have failed within a reasonable period of time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with any
one such proceeding or separate but substantially similar related proceeding in
the same jurisdiction arising out of the same general allegations, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed promptly as they are incurred. Any such separate
firm for the Participants and such control Persons of Participants shall be
designated in writing by Participants who sold a majority in interest of
Registrable Notes and Exchange Notes sold by all such Participants and any such
separate firm for the Issuers, their directors, their officers and such control
Persons of the Issuers shall be designated in writing by the Issuers. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent, but if settled with such consent or
if there be a final non-appealable judgment for the plaintiff for which the
Indemnified Person is entitled to indemnification pursuant to this Agreement,
the Indemnifying Person agrees to indemnify and hold harmless each Indemnified
Person from and against any loss or liability by reason of such settlement or
judgment. No Indemnifying Person shall, without the prior written consent of the
Indemnified Person, effect any settlement or compromise of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party, and indemnity could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional written
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of any
Indemnified Person.
(d) If the indemnification provided for in Sections 7(a) and 7(b)
hereof is for any reason unavailable to, or insufficient to hold harmless, an
Indemnified Person in respect of any losses, claims, damages or liabilities
referred to therein, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Person thereunder and in order to provide
for just and equitable contribution, shall contribute to the amount paid or
payable by such Indemnified Person as a result of such losses, claims, damages
or liabilities in such proportion as is appropriate to reflect (i) the relative
benefits received by the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other from the offering of the Notes or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other in connection with the statements or omissions or alleged
statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative fault of the
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parties shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Issuers
on the one hand or such Participant or such other Indemnified Person, as the
case may be, on the other, the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission,
and any other equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Participants were treated as one entity for such purposes) or by
any other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any reasonable
legal or other expenses actually incurred by such Indemnified Person in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to contribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceeds the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. 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.
(f) The indemnity and contribution agreements contained in this Section
7 will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
8. RULES 144 AND 144A. The Company covenants that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time the Company ceases to be required to file such reports, it
will, upon the request of any Holder of Registrable Notes, make publicly
available annual reports and such information, documents and other reports of
the type specified in Sections 13 and 15(d) of the Exchange Act. The Company
further covenants for so long as any Registrable Notes remain outstanding, to
make available to any Holder or beneficial owner of Registrable Notes in
connection with any sale thereof and any prospective purchaser of such
Registrable Notes from such Holder or beneficial owner the information required
by Rule 144(d)(4) under the Securities Act in order to permit resales of such
Registrable Notes pursuant to Rule 144A.
9. UNDERWRITTEN REGISTRATIONS. If any of the Registrable Notes covered
by any Notes Shelf Registration are to be sold in an underwritten offering
initiated by the Holders, the investment banker or investment bankers and
manager or managers that will manage the offering
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will be selected by the Holders of a majority in aggregate principal amount of
such Registrable Notes included in such offering and reasonably acceptable to
the Issuers.
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.
10. MISCELLANEOUS. (a) NO INCONSISTENT AGREEMENTS. None of the Issuers
have entered, as of the date hereof, and none of the Issuers shall, after the
date of this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Registrable Notes in this Agreement or otherwise conflicts with the provisions
hereof. None of the Issuers have entered and none of the Issuers will enter into
any agreement with respect to any of its securities which will grant to any
Person piggy-back registration rights with respect to a Registration Statement.
(b) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Holders of not less than a majority in aggregate principal amount
of the then outstanding Registrable Notes. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Notes whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Registrable Notes may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Notes being sold by such Holders
pursuant to such Registration Statement; PROVIDED, HOWEVER, that the provisions
of this sentence may not be amended, modified or supplemented except in
accordance with the provisions of the immediately preceding sentence.
(c) NOTICES. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile:
(i) if to a Holder of the Registrable Notes or any
Participating Broker-Dealer, at the most current address of such
Holder or Participating Broker-Dealer, as the case may be, set forth on
the records of the registrar under the Indenture, with a copy in like
manner to the Initial Purchasers as follows:
NatWest Capital Markets Limited
000 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxx Xxxxxxx
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with copies to:
Gleacher NatWest, Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxx
Facsimile No: (000) 000-0000
and
Xxxxx, Day Xxxxxx & Xxxxx
North Point
000 Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxxxxxxxxx X. Xxxxx
Facsimile No: (000) 000-0000
(ii) if to an Issuer, as follows:
Bluegreen Corporation
0000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
Attention: Chief Financial Officer
Facsimile No: (000) 000-0000
with a copy to:
Xxxxxx, Xxxx & Xxxxxxx
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Facsimile No: (000) 000-0000
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five business days after
being deposited in the mail, postage prepaid, if mailed; one business day after
being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties hereto;
PROVIDED, HOWEVER, that
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this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign holds
Registerable Notes.
(e) 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.
(f) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW OF SUCH STATE. EACH OF THE PARTIES HERETO AGREES
TO SUBMIT TO THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(h) SEVERABILITY. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(i) NOTES HELD BY THE ISSUERS OR THEIR AFFILIATES. Whenever the consent
or approval of Holders of a specified percentage of Registerable Notes is
required hereunder, Registerable Notes held by the Issuers or their affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
(j) THIRD PARTY BENEFICIARIES. Holders of Registerable Notes and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement, and this Agreement may be enforced by such Persons.
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IN WITNESS WHEREOF, the parties have executed the Agreement as of the
date first written above.
Issuer:
BLUEGREEN CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
BLUEGREEN RESORTS MANAGEMENT, INC.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN RESORTS, INC.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN HOLDING CORPORATION
(TEXAS)
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
PROPERTIES OF THE SOUTHWEST ONE, INC.
By: /s/ XXXXXXX X. XXXXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President
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PROPERTIES OF THE SOUTHWEST, L.P.
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive Vice President of Its General
Partner, PROPERTIES OF THE
SOUTHWEST ONE, INC.
BLUEGREEN ASSET MANAGEMENT CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN CAROLINA LAND, INC.
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN CORPORATION OF MONTANA
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN CORPORATION OF TENNESSEE
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN CORPORATION OF THE ROCKIES
By: /s/ XXXXXXX X. XXXXXXX
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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VIRGINIA LAND & FOREST CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN COMMUNITIES, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
BLUEGREEN RESORTS INTERNATIONAL, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
CAROLINA NATIONAL GOLF CLUB, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
LEISURE CAPITAL CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
PROPERTIES OF THE WEST, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
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BG/RDI ACQUISITION CORP.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
RDI GROUP, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
DELLONA ENTERPRISES, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
RESORT DEVELOPMENT INTERNATIONAL, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
RDI RESORT SERVICES CORPORATION
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
RDI RESOURCES, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
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The foregoing Agreement is hereby confirmed and accepted as of the date first
above written:
NATWEST CAPITAL MARKETS LIMITED
By: /s/ XXXXX XXXX
-------------------------------------
Name: Xxxxx Xxxx
Title: Director
XXXXXXXX & COMPANY SECURITIES, INC.
By: /s/ XXXXXX X. XXXX, XX.
-------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Senior Vice President
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