EXHIBIT 1.2
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT, dated as of September 23, 1997,
by and among Emergent Group, Inc. (the "Company"), the Subsidiary Guarantors
(as defined) and First Union Capital Markets Corp., ▇▇ ▇▇▇▇▇▇ Securities, Inc.
and Wheat, First Securities, Inc. (collectively, the "Purchasers") as the
purchasers of the 10.75% Senior Notes due 2004 of the Company.
1. CERTAIN DEFINITIONS.
For purposes of this Agreement, the following terms shall have the
following respective meanings:
(a) "CLOSING DATE" shall mean the date on which the Securities are
initially issued.
(b) "COMMISSION" shall mean the Securities and Exchange Commission, or
any other federal agency at the time administering the Exchange Act or the
Securities Act, whichever is the relevant statute for the particular
purpose.
(c) "EFFECTIVE TIME", in the case of an Exchange Offer, shall mean the
date on which the Commission declares the Exchange Offer registration
statement effective or on which such registration statement otherwise
becomes effective and, in the case of a Shelf Registration, shall mean the
date on which the Commission declares the Shelf Registration effective or
on which the Shelf Registration otherwise becomes effective.
(d) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934.
(e) "EXCHANGE OFFER" shall have the meaning assigned thereto in Section
2.
(f) "Exchange Securities" shall have the meaning assumed thereto in
Section 2.
(g) The term "HOLDER" shall mean the Purchasers for so long as they own
any Registrable Securities and any person who is a holder or beneficial
owner of any Registrable Securities, for so long as such person owns any
Registrable Securities.
(h) "INDENTURE" shall mean the Indenture, dated as of September 23,
1997, among the Company, the Subsidiary Guarantors and Bankers Trust
Company, as Trustee.
(i) The term "PERSON" shall mean a corporation, limited liability
company, association, partnership, organization, business, individual,
trust, government or political subdivision thereof or governmental agency.
(j) "REGISTRABLE SECURITIES" shall mean the Securities; PROVIDED,
HOWEVER, that such Securities shall cease to be Registrable Securities
when (i) in the circumstances contemplated by Section 2(a), such Securities
have been exchanged for Exchange Securities in an Exchange Offer as
contemplated in Section 2(a) PROVIDED, HOWEVER, that any such Securities
that, pursuant to the
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last two sentences of Section 2(a), are included in a prospectus for use in
connection with resales by broker-dealers shall be deemed to be Registrable
Securities with respect to Sections 5, 6 and 9 until resale of such
Exchange Securities has been effected within the 180-day period referred to
in Section 2(a); (ii) in the circumstances contemplated by Section 2(b), a
registration statement registering such Securities under the Securities Act
has been declared or becomes effective and such Securities have been sold
or otherwise transferred by the holder thereof pursuant to such effective
registration statement; (iii) such Securities are sold pursuant to Rule 144
under circumstances in which any legend borne by such Securities relating
to restrictions on transferability thereof, under the Securities Act or
otherwise, is removed by the Company or pursuant to the Indenture or such
Securities are eligible to be sold pursuant to paragraph (k) of Rule 144;
or (iv) such Securities shall cease to be outstanding.
(k) "REGISTRATION EXPENSES" shall have the meaning assigned thereto in
Section 4 hereof.
(l) "RESTRICTED HOLDER" shall mean (i) a holder that is an affiliate of
the Company within the meaning of Rule 405 under the Securities Act, (ii) a
holder who acquires Exchange Securities outside the ordinary course of such
holder's business or (iii) a holder who has arrangements or understandings
with any person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities.
(m) "RULE 144", "RULE 405" and "RULE 415" shall mean, in each case,
such rule promulgated under the Securities Act.
(n) "SECURITIES" shall mean, collectively, the 10.75% Senior Notes due
2004 of the Company to be issued and sold to the Purchasers and securities
issued in exchange therefor or in lieu thereof pursuant to the Indenture.
(o) "SECURITIES ACT" shall mean the Securities Act of 1933.
(p) "SHELF REGISTRATION" shall have the meaning assigned thereto in
Section 2 hereof.
(q) "SUBSIDIARY GUARANTORS" means each of Carolina Investors, Inc., a
South Carolina corporation, Emergent Business Capital, Inc., a South
Carolina corporation, Emergent Commercial Mortgage, Inc., a South Carolina
corporation, Emergent Equity Advisors, Inc., a South Carolina corporation,
Emergent Financial Corp., a South Carolina corporation, Emergent Mortgage
Corp., a South Carolina corporation, Emergent Mortgage Corp. of Tennessee,
a South Carolina corporation, Premier Financial Services, Inc., a South
Carolina corporation, Sterling Lending Corporation, a South Carolina
corporation, Sterling Lending Insurance Agency, Inc., a Louisiana
corporation, and The Loan Pro$, Inc., a South Carolina corporation, in each
case unless and until it shall cease to be a Subsidiary Guarantor in
accordance with the terms of the Indenture.
(r) "TRUST INDENTURE ACT" shall mean the Trust Indenture Act of 1939,
or any successor thereto, and the rules, regulations and forms promulgated
thereunder, all as the same shall be amended from time to time.
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Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of this
Agreement, and the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this Agreement as a whole and not to any particular
Section or other subdivision. Unless the context otherwise requires, any
reference to a statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended from time
to time.
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2. REGISTRATION UNDER THE SECURITIES ACT.
(a) Except as set forth in Section 2(b) below, the Company and the
Subsidiary Guarantors agree to use their best efforts to file under the
Securities Act, as soon as practicable, but no later than 45 days after the
Closing Date, a registration statement relating to an offer to exchange (the
"Exchange Offer") any and all of the Securities for a like aggregate principal
amount of debt securities of the Company guaranteed by the Subsidiary Guarantors
which are substantially identical to the Securities and the guarantees thereof
of the Subsidiary Guarantors (and which are entitled to the benefits of a trust
indenture which is substantially identical to the Indenture or is the Indenture
and which has been qualified under the Trust Indenture Act) except that they
have been registered pursuant to an effective registration statement under the
Securities Act and will not contain provisions for the additional interest
contemplated by Section 2(c) hereof or provisions restricting transfer (such new
debt securities hereinafter called "Exchange Securities"). The Company and the
Subsidiary Guarantors agree to use their best efforts to cause such registration
statement to become effective under the Securities Act as soon as practicable,
but no later than 120 days after the Closing Date. The Exchange Offer will be
registered under the Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange Act. The
Company and the Subsidiary Guarantors further agree to use their best efforts to
commence and complete the Exchange Offer promptly after such registration
statement has become effective, hold the Exchange Offer open for at least 30
days and Exchange Securities for all Registrable Securities that have been
tendered and not withdrawn on or prior to the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been completed only if the Exchange
Securities received by holders other than Restricted Holders in the Exchange
Offer for Registrable Securities are, upon receipt, transferable by each such
holder without restriction under the Securities Act and without material
restrictions under the blue sky or securities laws of a substantial majority of
the States of the United States of America, it being understood that
broker-dealers receiving Exchange Securities will be subject to certain
prospectus delivery requirements with respect to resale of the Exchange
Securities. The Exchange Offer shall be deemed to have been completed upon the
earlier to occur of (i) the Company and the Subsidiary Guarantors having
exchanged the Exchange Securities for all outstanding Registrable Securities
pursuant to the Exchange Offer and (ii) the Company and the Subsidiary
Guarantors having exchanged, pursuant to the Exchange Offer, Exchange Securities
for all Registrable Securities that have been properly tendered and not
withdrawn before the expiration of the Exchange Offer, which shall be on a date
that is at least 30 days following the commencement of the Exchange Offer. The
Company and the Subsidiary Guarantors agree (i) to include in the registration
statement a prospectus for use in any resales by any holder of Securities that
is a broker-dealer and (ii) to keep such registration statement effective for a
period ending on the earlier of the 180th day after the Exchange Offer has been
completed or such time as such broker-dealers no longer own any Registrable
Securities. With respect to such registration statement such holders shall have
the benefit of the rights of indemnification and contribution set forth in
Section 6 hereof.
(b) If on or prior to the consummation of the Exchange Offer existing
Commission interpretations are changed such that the Exchange Securities
received by holders other than
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Restricted Holders in the Exchange Offer for Registrable Securities are not or
would not be, upon receipt, transferable by each such holder without restriction
under the Securities Act, in lieu of conducting the Exchange Offer contemplated
by Section 2(a) the Company and the Subsidiary Guarantors shall file under the
Securities Act as soon as practicable a "shelf" registration statement providing
for the registration of, and the sale on a continuous or delayed basis by the
holders of, all of the Registrable Securities, pursuant to Rule 415 under the
Securities Act and/or any similar rule that may be adopted by the Commission
(the "Shelf Registration"). The Company and the Subsidiary Guarantors agree to
use their best efforts to cause the Shelf Registration to become or be declared
effective no later than 120 days after the Closing Date and to keep such Shelf
Registration continuously effective for a period ending on the earlier of the
second anniversary of the Effective Time or such time as there are no longer any
Registrable Securities outstanding. The Company and the Subsidiary Guarantors
further agree to supplement or make amendments to the Shelf Registration, as and
when required by the rules, regulations or instructions applicable to the
registration form used by the Company and the Subsidiary Guarantors for such
Shelf Registration or by the Securities Act or rules and regulations thereunder
for shelf registration, and the Company and the Subsidiary Guarantors agree to
furnish to the holders of the Registrable Securities copies of any such
supplement or amendment prior to its being used and/or filed with the
Commission.
(c) In the event that (i) the Company and the Subsidiary Guarantors have
not filed the registration statement relating to the Exchange Offer (or, if
applicable, the Shelf Registration) on or before the 45th day after the Closing
Date, or (ii) such registration statement (or, if applicable, the Shelf
Registration), has not become effective or been declared effective by the
Commission on or before the 120th day after the Closing Date, or (iii) the
Exchange Offer has not been completed within 30 business days after the initial
effective date of the registration statement (if the Exchange Offer is then
required to be made) or (iv) any registration statement required by Section 2(a)
or 2(b) is filed and declared effective but shall thereafter cease to be
effective (except as specifically permitted herein) without being succeeded
immediately by an additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a "Registration
Default"), then the per annum interest rate of the Securities as set forth in
the Securities shall increase by 0.5%, and the per annum interest rate on the
Securities will increase by an additional 0.25% for each subsequent 90-day
period during which any Registration Default remains in effect up to a maximum
additional interest rate of 2%, for the period from and including the date of
occurrence of the Registration Default until such time as no Registration
Default is in effect (after which the interest rate will be restored to its
initial rate). In the event that the interest rate of the Securities is so
increased, the Company shall promptly notify the Trustee of such increase,
including any subsequent increase, and the beginning and ending dates therefor.
3. REGISTRATION PROCEDURES.
If the Company and the Subsidiary Guarantors file a registration statement
pursuant to Section 2(a) or Section 2(b), the following provisions shall apply:
(a) At or before the Effective Time of the Exchange Offer or the Shelf
Registration, as the case may be, the Company and the Subsidiary Guarantors
shall qualify the Indenture under the Trust Indenture Act of 1939.
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(b) In the event that such qualification would require the appointment of a
new trustee under the Indenture, the Company and the Subsidiary Guarantors shall
appoint a new trustee thereunder pursuant to the applicable provisions of the
Indenture.
(c) In connection with the Company's and the Subsidiary Guarantors'
obligations with respect to the Shelf Registration, if applicable, the Company
and the Subsidiary Guarantors shall use their best efforts to effect or cause
the Shelf Registration to permit the sale of the Registrable Securities by the
holders thereof in accordance with the intended method or methods of
distribution thereof described in the Shelf Registration. In connection
therewith, the Company and the Subsidiary Guarantors shall:
(i) as soon as reasonably possible, prepare and file with the
Commission a registration statement with respect to the Shelf Registration
on any form which may be utilized by the Company and the Subsidiary
Guarantors and which shall permit the disposition of the Registrable
Securities in accordance with the intended method or methods thereof, as
specified in writing by the holders of the Registrable Securities, and use
its best efforts to cause such registration statement to become effective
as soon as reasonably possible thereafter;
(ii) as soon as reasonably possible, prepare and file with the
Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for the period
specified in Section 2(b) hereof and as may be required by the applicable
rules and regulations of the Commission and the instructions applicable to
the form of such registration statement, and furnish to the holders of the
Registrable Securities copies of any such supplement or amendment prior to
its being used and/or filed with the Commission;
(iii) as soon as reasonably possible, comply with the provisions of the
Securities Act with respect to the disposition of all of the Registrable
Securities covered by such registration statement in accordance with the
intended methods of disposition by the holders thereof set forth in such
registration statement;
(iv) provide (A) the holders of the Registrable Securities to be
included in such registration statement, (B) the underwriters (which term,
for purposes of this Agreement, shall include a person deemed to be an
underwriter within the meaning of Section 2(11) of the Securities Act) if
any, thereof, (C) the sales or placement agent, if any, therefor, (D)
counsel for such underwriters or agent, and (E) not more than one counsel
for all the holders of such Registrable Securities the opportunity to
participate in the preparation of such registration statement, each
prospectus included therein or filed with the Commission, and each
amendment or supplement thereto;
(v) for a reasonable period prior to the filing of such registration
statement, and throughout the period specified in Section 2(b), make
available at reasonable times at the Company's principal place of business
or such other reasonable place for inspection by the parties referred to in
Section 3(c)(iv) who shall certify to the Company that they have a current
intention to sell the Registrable Securities pursuant to the Shelf
Registration such financial and other information and books and records of
the Company, and cause the officers, employees, counsel and independent
certified public accountants of the Company to respond to such inquiries,
as shall
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be reasonably necessary, in the judgment of the respective counsel referred
to in such Section, to conduct a reasonable investigation within the
meaning of Section 11 of the Securities Act; PROVIDED, HOWEVER, that each
such party shall be required to maintain in confidence and not to disclose
to any other person any information or records reasonably designated by the
Company in writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such registration statement or otherwise), or (B) such person
shall be required, or shall deem it advisable, so to disclose such
information pursuant to the subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject to
the requirements of such order, and only after such person shall have given
the Company prompt prior written notice thereof), or (C) such information
is required to be set forth in such registration statement or the
prospectus included therein or in an amendment to such registration
statement or an amendment or supplement to such prospectus in order that
such registration statement, prospectus, amendment or supplement, as the
case may be, does not contain an untrue statement of a material fact or
omit to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances then existing;
(vi) promptly notify the selling holders of Registrable Securities, the
sales or placement agent, if any, therefor and the managing underwriter or
underwriters, if any, thereof and confirm such advice in writing, (A) when
such registration statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been
filed, and, with respect to such registration statement or any
post-effective amendment, when the same has become effective, (B) of any
comments by the Commission, the Blue Sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such registration statement or
prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effective ness of such
registration statement or the initiation or threatening of any proceedings
for that purpose, (D) if at any time the representations and warranties of
the Company or any Subsidiary Guarantor contemplated by Section 3(c)(xv) or
Section 5 cease to be true and correct in all material respects, (E) of the
receipt by the Company or any Subsidiary Guarantor of any notifi cation
with respect to the suspension of the qualification of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose, or (F) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the
foregoing, contains an untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances then
existing;
(vii) use their best efforts to obtain the withdrawal of any order
suspending the effectiveness of such registration statement or any
post-effective amendment thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or underwriters, any
placement or sales agent or any holder of Registrable Securities, promptly
incorporate in a prospectus supplement or post-effective amendment such
information as is required by the applicable rules and regula tions of the
Commission and as such managing underwriter or underwriters, such agent or
such
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holder specifies should be included therein relating to the terms of the
sale of such Registrable Securities, including, without limitation,
information with respect to the principal amount of Registrable Securities
being sold by such holder or agent or to any underwriters, the name and
description of such holder, agent or underwriter, the offering price of
such Registrable Securities and any discount, commission or other
compensation payable in respect thereof, the purchase price being paid
therefor by such underwriters and with respect to any other terms of the
offering of the Registrable Securities to be sold by such holder or agent
or to such underwriters; and make all required filings of such prospectus
supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment;
(ix) furnish to each holder of Registrable Securities, each placement
or sales agent, if any, therefor, each underwriter, if any, thereof and the
respective counsel referred to in Section 3(c)(iv) an executed copy of such
registration statement, each such amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein) and such number of copies of such registration statement
(excluding exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such holder, agent or underwriter, as
the case may be) and of the prospectus included in such registration
statement (including each preliminary prospectus and any summary
prospectus), in conformity with the requirements of the Securities Act, and
such other documents, as such holder, agent, if any, and underwriter, if
any, may reasonably request in order to facilitate the offering and
disposition of the Registrable Securities owned by such holder, offered or
sold by such agent or underwritten by such underwriter and to permit such
holder, agent and underwriter to satisfy the prospectus delivery
requirements of the Securities Act; and the Company and the Subsidiary
Guarantors hereby consent to the use of such prospectus (including such
preliminary and summary prospectus) and any amendment or supplement thereto
by each such holder and by any such agent and underwriter, in each case in
the form most recently provided to such party by the Company, in connection
with the offering and sale of the Registrable Securities covered by the
prospectus (including such preliminary and summary prospectus) or any
supplement or amendment thereto;
(x) use their best efforts to (A) register or qualify the Registrable
Securities to be included in such registration statement under such
securities laws or blue sky laws of such jurisdictions as any holder of
such Registrable Securities and each placement or sales agent, if any,
therefor and underwriter, if any, thereof shall reasonably request, (B)
keep such registrations or qualifications in effect and comply with such
laws so as to permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf Registration is required
to remain effective under Section 2(b) above and for so long as may be
necessary to enable any such holder, agent or underwriter to complete its
distribution of Securities pursuant to such registration statement and (C)
take any and all other actions as may be reasonably necessary or advisable
to enable each such holder, agent, if any, and underwriter, if any, to
consummate the disposition in such jurisdictions of such Registrable
Securities; PROVIDED, HOWEVER, that neither the Company nor any Subsidiary
Guarantor shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise be
required to qualify but for the requirements of this Section 3(c)(x), (2)
consent to general service of process or taxation in any such jurisdiction,
or (3) make any changes to its articles of incorporation or by-laws or any
agreement between it and its stockholders;
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(xi) use their best efforts to obtain the consent or approval of each
governmental agency or authority, whether federal, state, provincial or
local, which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling holder or
holders to offer, or to consummate the disposition of, their Registrable
Securities;
(xii) cooperate with the holders of the Registrable Securities and the
managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold,
which certificates shall not bear any restrictive legends; and, in the case
of an underwritten offering, enable such Registrable Securities to be in
such denominations and registered in such names as the managing
underwriters may request at least two business days prior to any sale of
the Registrable Securities;
(xiii) provide a CUSIP number for all Registrable Securities, not later
than the effective date of the Shelf Registration;
(xiv) enter into one or more underwriting agreements, engagement
letters, agency agreements, "best efforts" underwriting agreements or
similar agreements, as appropriate, including (without limitation)
customary provisions relating to indemnification and contribution, and take
such other actions in connection therewith as any holders of Registrable
Securities aggregating at least 25% in aggregate principal amount of the
Registrable Securities at the time outstanding shall request in order to
expedite or facilitate the disposition of such Registrable Securities;
provided, that the Company and the Subsidiary Guarantors shall not be
required to enter into any such agreement more than twice with respect to
all of the Registrable Securities and may delay entering into such
agreement until the consummation of any underwritten public offering which
the Company shall have then engaged;
(xv) whether or not an agreement of the type referred to in Section
(3)(c)(xiv) hereof is entered into and whether or not any portion of the
offering contemplated by such registration statement is an underwritten
offering or is made through a placement or sales agent or any other entity,
(A) make such representations and warranties to the holders of such
Registrable Securi ties and the placement or sales agent, if any, therefor
and the underwriters, if any, thereof substantially the same as those set
forth in Section 1 of the Purchase Agreement and such other representations
and warranties in form, substance and scope as are customarily made in
connection with an offering of debt securities pursuant to any appropriate
agreement and/or to a registration statement filed on the form applicable
to the Shelf Registration; (B) obtain an opinion or opinions of counsel to
the Company and the Subsidiary Guarantors in customary form and covering
such other matters of the type customarily covered by such an opinion, as
the managing underwriters, if any, and as any holders of at least 25% in
aggregate principal amount of the Registrable Securities at the time
outstanding may reasonably request, addressed to such holder or holders and
the placement or sales agent, if any, therefor and the underwriters, if
any, thereof and dated the effective date of such registration statement
(and if such registration statement contemplates an underwritten offering
of a part or all of the Registrable Securities, dated the date of the
closing under the underwriting agreement relating thereto) (it being agreed
that the matters to be covered by such opinion shall include, without
limitation, the due incorporation and good standing of the Company and its
subsidiaries; the qualification of the Company and its subsidiaries to
transact business as foreign corporations; the due authorization, execution
and delivery of the relevant agreement of the type referred to in Section
(3)(c)(xiv)
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hereof, the due authorization, execution, authentication and issuance, and
the validity and enforceability, of the Securities and the Subsidiary
Guarantees; the absence of material legal or governmental proceedings
involving the Company; the absence of a breach by the Company or any of its
subsidiaries of, or a default under, material agreements binding upon the
Company or any subsidiary of the Company; the absence of governmental
approvals required to be obtained in connection with the Shelf
Registration, the offering and sale of the Registrable Securities, this
Agreement or any agreement of the type referred to in Section (3)(c)(xiv)
hereof, except such approvals as may be required under state securities or
blue sky laws; the compliance as to form of such registration statement and
any documents incorporated by reference therein and of the Indenture with
the requirements of the Securities Act and the Trust Indenture Act,
respectively; and, as of the date of the opinion and of the registration
statement or most recent post-effective amendment thereto, as the case may
be, the absence from such registration statement and the prospectus
included therein, as then amended or supplemented, and from the documents
incorporated by reference therein (in each case other than the financial
statements and other financial information contained therein) of an untrue
statement of a material fact or the omission to state therein a material
fact necessary to make the statements therein not misleading (in the case
of such documents, in the light of the circumstances existing at the time
that such documents were filed with the Commission under the Exchange
Act)); (C) obtain a "cold comfort" letter or letters from the independent
certified public accountants of the Company addressed to the selling
holders of Registrable Securities and the placement or sales agent, if any,
therefor and the underwriters, if any, thereof, dated (i) the effective
date of such registration statement and (ii) the effective date of any
prospectus supplement to the prospectus included in such registration
statement or post-effective amendment to such registration statement which
includes unaudited or audited financial statements as of a date or for a
period subsequent to that of the latest such statements included in such
prospectus (and, if such registration statement contemplates an
underwritten offering pursuant to any prospectus supplement to the
prospectus included in such registration statement or post-effective
amendment to such registration statement which includes unaudited or
audited financial statements as of a date or for a period subsequent to
that of the latest such statements included in such prospectus, dated the
date of the closing under the underwriting agreement relating thereto),
such letter or letters to be in customary form and covering such matters of
the type customarily covered by letters of such type; (D) deliver such
documents and certificates, including officers' certificates, as may be
reasonably requested by any holders of at least 25% in aggregate principal
amount of the Registrable Securities at the time outstanding and the
placement or sales agent, if any, therefor and the managing underwriters,
if any, thereof to evidence the accuracy of the representations and
warranties made pursuant to clause (A) above or those contained in Section
5(a) hereof and the compliance with or satisfaction of any agreements or
conditions contained in the underwriting agreement or other agreement
entered into by the Company or the Subsidiary Guarantors; and (E) undertake
such obligations relating to expense reimbursement, indemnifica tion and
contribution as are provided in Section 6 hereof;
(xvi) notify in writing each holder of Registrable Securities of any
proposal by the Company and the Subsidiary Guarantors to amend or waive any
provision of this Agreement pursuant to Section 9(h) hereof and of any
amendment or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected, as the
case may be;
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(xvii) in the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate as
a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Conduct (the "Rules of
Conduct") of the National Association of Securities Dealers, Inc. ("NASD"))
thereof, whether as a holder of such Registrable Securities or as an
underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such broker-dealer in complying with the
requirements of such Rules of Conduct, including, without limitation, by
(A) if such Rules of Conduct shall so require, engaging a "qualified
independent underwriter" (as defined in such Rules of Conduct) to
participate in the preparation of the registration statement relating to
such Registrable Securities, to exercise usual standards of due diligence
in respect thereto and, if any portion of the offering contemplated by such
registration statement is an underwritten offering or is made through a
placement or sales agent, to recommend the yield of such Registrable
Securities, (B) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 6
hereof, and (C) providing such information to such broker-dealer as may be
required in order for such broker-dealer to comply with the requirements of
the Rules of Conduct; and
(xviii) comply with all applicable rules and regulations of the
Commission, and make generally available to its security holders as soon
as practicable but in any event not later than eighteen months after the
effective date of such registration statement, an earning statement of the
Company and its subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Company, Rule 158 thereunder).
(d) In the event that the Company and the Subsidiary Guarantors would be
required, pursuant to Section 3(c)(vi)(F) above, to notify the selling holders
of Registrable Securities, the placement or sales agent, if any, therefor and
the managing underwriters, if any, thereof, the Company and the Subsidiary
Guarantors shall without delay prepare and furnish to each such holder, to each
placement or sales agent, if any, and to each underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as thereafter
delivered to purchasers of Registrable Securities, such prospectus shall 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 not
misleading in light of the circumstances then existing. Each holder of
Registrable Securities agrees that upon receipt of any notice from the Company
pursuant to Section 3(c)(vi)(F) hereof, such holder shall forthwith discontinue
the disposition of Registrable Securities pursuant to the registration statement
applicable to such Registrable Securities until such holder shall have received
copies of such amended or supplemented prospectus, and if so directed by the
Company, such holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's possession of
the prospectus covering such Registrable Securities at the time of receipt of
such notice.
(e) The Company may require each holder of Registrable Securities as to
which any registration is being effected to furnish to the Company such
information regarding such holder and such holder's intended method of
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing, but only to the extent that such information is
required in order to comply with the Securities Act. Each such holder agrees to
notify the Company as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Company or of the
occurrence of any event in either case as a result of which any prospectus
relating
-11-
to such registration contains or would contain an untrue statement of a material
fact regarding such holder or such holder's intended method of distribution of
such Registrable Securities or omits to state any material fact regarding such
holder or such holder's intended method of distribution of such Registrable
Securities required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing, and promptly
to furnish to the Company any additional information required to correct and
update any previously furnished information or required so that such prospectus
shall not contain, with respect to such holder or the distribution of such
Registrable Securities, 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 in light of the circumstances then existing.
4. REGISTRATION EXPENSES.
The Company agrees to bear and to pay or cause to be paid all expenses
incident to the Company's and the Subsidiary Guarantors' performance of or
compliance with this Agreement, including, without limitation, (a) all
Commission and any NASD registration and filing fees and expenses, (b) all fees
and expenses in connection with the qualification of the Securities or Exchange
Securities for offering and sale under the State securities and blue sky laws
referred to in Section 3(c)(x) hereof, including reasonable fees and
disbursements of counsel for the placement or sales agent or underwriters in
connection with such qualifications, (c) all expenses relating to the prepara
tion, printing, distribution and reproduction of each registration statement
required to be filed hereunder, each prospectus included therein or prepared for
distribution pursuant hereto, each amendment or supplement to the foregoing, the
certificates representing the Securities and Exchange Securities and all other
documents relating hereto, (d) messenger and delivery expenses, (e) fees and
expenses of the Trustee under the Indenture and of any escrow agent or
custodian, (f) internal expenses (including, without limitation, all salaries
and expenses of the Company's and the Subsidiary Guarantors' officers and
employees performing legal or accounting duties), (g) fees, disbursements and
expenses of counsel and independent certified public accountants of the Company
(including the expenses of any opinions or "cold comfort" letters required by or
incident to such performance and compliance), (h) fees, disbursements and
expenses of any "qualified independent underwriter" engaged pursuant to Section
3(c)(xvii) hereof, (i) fees, disbursements and expenses of one counsel for the
holders of Registrable Securities retained in connection with a Shelf
Registration, as selected by the holders of at least a majority in aggregate
principal amount of the Registrable Securities being registered, and fees,
expenses and disbursements of any other persons, including special experts,
retained by the Company and the Subsidiary Guarantors in connection with such
registration (collectively, the "Registration Expenses"). To the extent that any
Registration Expenses are incurred, assumed or paid by any holder of Registrable
Securities or any placement or sales agent therefor or underwriter thereof, the
Company shall reimburse such person for the full amount of the Registration
Expenses so incurred, assumed or paid promptly after receipt of a request
therefor. Notwithstanding the foregoing, the holders of the Registrable
Securities being registered shall pay all agency fees and commissions and
underwriting discounts and commissions attributable to the sale of such
Registered Securities and the fees and disbursements of any counsel or other
advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.
-12-
5. REPRESENTATIONS AND WARRANTIES.
The Company and the Subsidiary Guarantors represent and warrant to, and
agree with, the Purchasers and each of the holders from time to time of
Registrable Securities that:
(a) Each registration statement covering Registrable Securities and
each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(c)(ix) hereof and any
further amendments or supplements to any such registration statement or
prospectus, when it becomes effective or is filed with the Commission, as
the case may be, and, in the case of an underwritten offering of
Registrable Securities, at the time of the closing under the underwriting
agreement relating thereto, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and any such
registration statement and any amendment thereto 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 not
misleading and any such prospectus or any amendment or supplement thereto
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 not misleading in light of the circumstances then
existing; and at all times subsequent to the Effective Time when a
prospectus would be required to be delivered under the Securities Act,
other than from (i) such time as a notice has been given to holders of
Registrable Securities pursuant to Section 3(c)(vi)(F) hereof until (ii)
such time as the Company furnishes an amended or supplemented prospectus
pursuant to Section 3(d) hereof, each such registration statement, and each
prospectus (including any summary prospectus) contained therein or
furnished pursuant to Section 3(c)(ix) hereof, as then amended or
supplemented, will conform in all material respects to the requirements of
the Securities Act and the Trust Indenture Act and 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
not misleading in the light of the circumstances then existing; PROVIDED,
HOWEVER, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by a holder of Registrable
Securities expressly for use therein.
(b) Any documents incorporated by reference in any prospectus referred
to in Section 5(a) hereof, when they become or became effective or are or
were filed with the Commission, as the case may be, will conform or
conformed in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and none of such documents will
contain or contained an untrue statement of a material fact or will omit or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; PROVIDED, HOWEVER, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by a holder of Registrable Securities expressly for
use therein.
(c) The compliance by the Company and the Subsidiary Guarantors with
all of the provisions of this Agreement and the consummation of the
transactions herein contemplated will not con flict with or result in a
breach of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument to which the Company or any subsidiary of the Company is a
party or by which the Company or any subsidiary of the Company is bound or
to which any of the property or assets of the
-13-
Company or any subsidiary of the Company is subject nor will such action
result in any violation of the provisions of the articles of incorporation
or by-laws of the Company or any Subsidiary Guarantor or any statute or any
order, rule or regulation of any court or governmental agency or body
having jurisdiction over the Company or any subsidiary of the Company or
any of their properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the consummation by the Company and the
Subsidiary Guarantors of the transactions contemplated by this Agreement,
except the registration under the Securities Act of the Registrable
Securities, qualification of the Indenture under the Trust Indenture Act
and such consents, approvals, authorizations, registra tions or
qualifications as may be required under State securities or blue sky laws
in connection with the offering and distribution of the Registrable
Securities.
(d) This Agreement has been duly authorized, executed and delivered by
the Company and the Subsidiary Guarantors.
6. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY AND THE SUBSIDIARY GUARANTORS. Upon the
registration of the Registrable Securities pursuant to Section 2 hereof, and in
consideration of the agreements of the Purchasers contained herein, and as an
inducement to the Purchasers to purchase the Securities, each of the Company and
the Subsidiary Guarantors shall, and it hereby agrees to, indemnify and hold
harmless each of the holders of Registrable Securities to be included in such
registration, and each person who participates as a placement or sales agent or
as an underwriter in any offering or sale of such Registrable Securities against
any losses, claims, damages or liabilities, joint or several, to which such
holder, agent or underwriter may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any registration statement
under which such Registrable Securities were registered under the Securities
Act, or any preliminary, final or summary prospectus contained therein or
furnished by the Company or the Subsidiary Guarantors to any such holder, agent
or underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and each of the Company and the Subsidiary Guarantors shall, and
hereby it agrees to, reimburse such holder, such agent and such underwriter for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company and the Subsidiary Guarantors
shall not be liable to any such person in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such registration statement, or preliminary, final or summary prospectus, or
amendment or supplement thereto, in reliance upon and in conformity with written
information furnished to the Company by holders of Registrable Securities
expressly for use therein;
(b) INDEMNIFICATION BY THE HOLDERS AND ANY AGENTS AND UNDERWRITERS. The
Company may require, as a condition to including any Registrable Securities in
any registration statement filed pursuant to Section 2 hereof and to entering
into any underwriting agreement with respect thereto, that the Company and the
Subsidiary Guarantors shall have received an undertaking reasonably satisfactory
to it from the holder of such Registrable Securities and from each underwriter
named
-14-
in any such underwriting agreement, severally and not jointly, to indemnify and
hold harmless the Company and the Subsidiary Guarantors and all other holders of
Registrable Securities, against any losses, claims, damages or liabilities to
which the Company and the Subsidiary Guarantors or such other holders of
Registrable Securities may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in such registration statement, or
any preliminary, final or summary prospectus contained therein or furnished by
the Company and the Subsidiary Guarantors to any such holder, agent or
underwriter, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such holder or underwriter expressly for use therein, PROVIDED,
HOWEVER, that no such holder shall be required to undertake liability to any
person under this Section 6(b) for any amounts in excess of the dollar amount of
the proceeds to be received by such holder from the sale of such holder's
Registrable Securities pursuant to such registration.
(c) NOTICES OF CLAIMS, ETC. Promptly after receipt by an indemnified party
under subsection (a) or (b) above of written notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party pursuant to the indem nification provisions
of or contemplated by this Section 6, notify such indemnifying party in writing
of the commencement of such action; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under the indemnification provisions of or
contemplated by Section 6(a) or 6(b) hereof. In case any such action shall be
brought against any indemnified party and it shall notify an indemnifying party
of the commencement thereof, such indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except
with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, such indemnifying party shall
not be liable to such indemnified party for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the written consent of the
indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim
in respect of which indemnification or contribution may be sought hereunder
(whether or not the indemnified party is an actual or potential party to such
action or claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability arising out of
such action or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party. No indemnifying party shall be liable for the cost of any settlement
effected by an indemnified party without the written consent of such
indemnifying party, which consent shall not be unreasonably withheld.
(d) CONTRIBUTION. Each party hereto agrees that, if for any reason the
indemnification provisions contemplated by Section 6(a) or Section 6(b) are
unavailable to or insufficient to hold harmless an
-15-
indemnified party in respect of any losses, claims damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and the indemnified party in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contributions pursuant to this Section 6(d) were determined by
pro rata allocation (even if the holders or any agents or underwriters or all of
them were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in this Section 6(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, or liabilities (or actions in respect
thereof) referred to above shall be deemed to include any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6(d), no holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds
received by such holder from the sale of any Registrable Securities (after
deducting any fees, discounts and commissions applicable thereto) exceeds the
amount of any damages which such holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission, and no underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such underwriter has otherwise
been required to pay 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. The holders' and any underwriters' obligations in this
Section 6(d) to contribute shall be several in proportion to the principal
amount of Registrable Securities registered or underwritten, as the case may be,
by them and not joint.
(e) The obligations of the Company and the Subsidiary Guarantors under this
Section 6 shall be in addition to any liability which the Company and the
Subsidiary Guarantors may otherwise have and shall extend, upon the same terms
and conditions, to each officer, director and partner of each holder, agent and
underwriter and each person, if any, who controls any holder, agent or
underwriter within the meaning of the Securities Act; and the obligations of the
holders and any underwriters contemplated by this Section 6 shall be in addition
to any liability which the respective holder or underwriter may otherwise have
and shall extend, upon the same terms and conditions, to each officer and
director of the Company and the Subsidiary Guarantors (including any person who,
with his consent, is named in any registration statement as about to become a
director of the Company or a Subsidiary Guarantor) and to each person, if any,
who controls the Company or a Subsidiary Guarantor within the meaning of the
Securities Act.
-16-
7. UNDERWRITTEN OFFERINGS.
(a) SELECTION OF UNDERWRITERS. If any of the Registrable Securities covered
by the Shelf Registration are to be sold pursuant to an underwritten offering,
the managing underwriter or underwriters thereof shall be designated by the
holders of at least a majority in aggregate principal amount of the Registrable
Securities to be included in such offering, provided that such designated
managing underwriter or underwriters is or are reasonably acceptable to the
Company.
(b) PARTICIPATION BY HOLDERS. Each holder of Registrable Securities hereby
agrees with each other such holder that no such holder may participate in any
underwritten offering hereunder unless such holder (1) agrees to sell such
holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the persons entitled hereunder to approve such
arrangements and (ii) completes and executes all questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents reasonably
required under the terms of such underwriting arrangements.
8. RULE 144.
Each of the Company and the Subsidiary Guarantors covenants to the holders
of Registrable Securities that to the extent it shall be required to do so under
the Exchange Act, it shall timely file the reports required to be filed by it
under the Exchange Act or the Securities Act (including, but not limited to, the
reports under Section 13 and 15(d) of the Exchange Act referred to in
subparagraph (c)(1) of Rule 144) and the rules and regulations adopted by the
Commission thereunder, and shall take such further action as any holder of
Registrable Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Registrable Securities without
registration under the Securities Act within the limitations of the exemption
provided by Rule 144 or any similar rule or regulation hereafter adopted by the
Commission. Upon the request of any holder of Registrable Securities in
connection with that holder's sale pursuant to Rule 144, the Company or a
Subsidiary Guarantor, as applicable, shall deliver to such holder a written
statement as to whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. Each of the Company and the Subsidiary
Guarantors represents, warrants, covenants and agrees that it has not granted,
and shall not grant, registration rights with respect to Registrable Securities
or any other securities which would be inconsistent with the terms contained in
this Agreement.
(b) SPECIFIC PERFORMANCE. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder and that each party may be irreparably harmed by any such
failure, and accordingly agree that each party, in addition to any other remedy
to which it may be entitled at law or in equity, shall be entitled to compel
specific performance of the obligations of any other party under this Agreement
in accordance with the terms and conditions of this Agreement, in any court of
the United States or any State thereof having jurisdiction.
-17-
(c) NOTICES. All notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, if delivered personally or by courier, or
three days after being deposited in the mail (registered or certified mail,
postage prepaid, return receipt requested) as follows: If to the Company or a
Subsidiary Guarantor, to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer and if to a holder, to
the address of such holder set forth in the security register or other records
of the Company, or to such other address as any party may have furnished to the
others in writing in accordance herewith, except that notices of change of
address shall be effective only upon receipt.
(d) PARTIES IN INTEREST. All the terms and provisions of this Agreement
shall be binding upon, shall inure to the benefit of and shall be enforceable by
the respective successors and assigns of the parties hereto. In the event that
any transferee of any holder of Registrable Securities shall acquire Registrable
Securities, in any manner, whether by gift, bequest, purchase, operation of law
or otherwise, such transferee shall, without any further writing or action of
any kind, be deemed a party hereto for all purposes and such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities such transferee shall be entitled
to receive the benefits of and be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement.
(e) SURVIVAL. The respective indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any holder of
Registrable Securities, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof, or any
controlling person of any of the foregoing, and shall survive delivery of and
payment for the Registrable Securities pursuant to the Purchase Agreement and
the transfer and registration of Registrable Securities by such holder and the
consummation of an Exchange Offer.
(f) LAW GOVERNING. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(g) HEADINGS. The descriptive headings of the several Sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
(h) ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other writings
referred to herein (including the Indenture and the form of Securities and
guarantees by the Subsidiary Guarantors) or delivered pursuant hereto which form
a part hereof contain the entire understanding of the parties with respect to
its subject matter. This Agreement supersedes all prior agreements and under
standings between the parties with respect to its subject matter. This Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the Company, the
Subsidiary Guarantors and the holders of at least 66-2/3 percent in aggregate
principal amount of the Registrable Securities at the time outstanding, except
for any amendment the purpose of which is to evidence that an additional
subsidiary guarantor has become a party to this Agreement pursuant to Section
9(i) below, which may be effected without the consent of the holders of
-18-
Registrable Securities. Each holder of any Registrable Securities at the time or
thereafter outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Registrable Securities or is
delivered to such holder.
(i) ADDITIONAL SUBSIDIARY GUARANTORS. In the event that any subsidiary of
the Company other than a Subsidiary Guarantor becomes a subsidiary guarantor
under the Indenture prior to (i) the consummation of the Exchange Offer, if the
Exchange Offer is consummated or (ii) the termination of the period referred to
in Section 2(b), if the Shelf Registration is effected in lieu of the Exchange
Offer, as soon as practicable the Company shall cause such subsidiary to become
a party hereto and make the covenants, agreements, representations and
warranties to the holders of Registrable Securities as those of the Subsidiary
Guarantors made herein.
(j) INSPECTION. For so long as this Agreement shall be in effect, this
Agreement and a complete list of the names and addresses of all the holders of
Registrable Securities shall be made available for inspection and copying on any
business day by any holder of Registrable Securities at the offices of the
Company at the address thereof set forth in Section 9(c) above and at the office
of the Trustee under the Indenture.
(k) COUNTERPARTS. This agreement may be executed by the parties in
counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.
-19-
Agreed to and accepted as of the date referred to above.
EMERGENT GROUP, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: VP, CFO & Treasurer
CAROLINA INVESTORS, INC.
EMERGENT BUSINESS CAPITAL, INC.
EMERGENT COMMERCIAL MORTGAGE, INC.
EMERGENT EQUITY ADVISORS, INC.
EMERGENT FINANCIAL CORP.
EMERGENT MORTGAGE CORP.
EMERGENT MORTGAGE CORP. OF
TENNESSEE
PREMIER FINANCIAL SERVICES, INC.
STERLING LENDING CORPORATION
STERLING LENDING INSURANCE
AGENCY, INC.
THE LOAN PRO$, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
_____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: VP & Treasurer
FIRST UNION CAPITAL MARKETS CORP.
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
WHEAT, FIRST SECURITIES, INC.
By: FIRST UNION CAPITAL MARKETS
CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Director
-20-
