REGISTRATION RIGHTS AGREEMENT Dated as of September 11, 2009 By and Among BEAZER HOMES USA, INC., as Issuer, the GUARANTORS named herein and CITIGROUP GLOBAL MARKETS INC., as Representative of the Initial Purchasers 12% Senior Secured Notes due 2017
Exhibit 4.3
Execution Version
Dated as of September 11, 2009
By and Among
BEAZER HOMES USA, INC.,
as Issuer,
the GUARANTORS named herein
and
CITIGROUP GLOBAL MARKETS INC.,
as Representative of the Initial Purchasers
as Representative of the Initial Purchasers
12% Senior Secured Notes due 2017
TABLE OF CONTENTS
Page | |||||
Section 1. |
Definitions | 1 | |||
Section 2. |
Exchange Offer | 5 | |||
Section 3. |
Shelf Registration | 9 | |||
Section 4. |
Liquidated Damages | 10 | |||
Section 5. |
Registration Procedures | 11 | |||
Section 6. |
Registration Expenses | 21 | |||
Section 7. |
Indemnification | 22 | |||
Section 8. |
Rules 144 and 144A | 25 | |||
Section 9. |
Underwritten Registrations | 25 | |||
Section 10. |
Miscellaneous | 26 |
i
This Registration Rights Agreement (this “Agreement”) is dated as of September 11,
2009, by and among Beazer Homes USA, Inc., a Delaware corporation (the “Company”), and each
of the Guarantors (as defined herein) (the Company and the Guarantors are referred to collectively
herein as the “Issuers”), on the one hand, and Citigroup Global Markets Inc., for itself
and as representative (the “Representative”) of the Initial Purchasers (as defined herein),
on the other hand.
This Agreement is entered into in connection with the Purchase Agreement, dated as of
September 3, 2009, by and among the Issuers and the Representative (the “Purchase
Agreement”), relating to the offering and sale of $250,000,000 aggregate principal amount of
the Company’s 12% Senior Secured Notes due 2017 (including the guarantees thereof by the
Guarantors, the “Notes”) to the Initial Purchasers. The execution and delivery of this
Agreement is a condition to the Initial Purchasers’ obligations to purchase the Notes under the
Purchase Agreement.
The parties hereby agree as follows:
Section 1. Definitions
As used in this Agreement, the following terms shall have the following meanings:
“action” shall have the meaning set forth in Section 7(c) hereof.
“Additional Interest” shall have the meaning set forth in Section 4(a) hereof.
“Advice” shall have the meaning set forth in Section 5 hereof.
“Agreement” shall have the meaning set forth in the first introductory paragraph
hereto.
“Applicable Period” shall have the meaning set forth in Section 2(b) hereof.
“Board of Directors” shall have the meaning set forth in Section 5 hereof.
“Business Day” shall mean a day that is not a Legal Holiday.
“Commission” shall mean the Securities and Exchange Commission.
“Company” shall have the meaning set forth in the introductory paragraph hereto and
shall also include the Company’s permitted successors and assigns.
“day” shall mean a calendar day.
“Delay Period” shall have the meaning set forth in Section 5 hereof.
“Effectiveness Period” shall have the meaning set forth in the second paragraph of
Section 3(a) hereof.
“Event Date” shall have the meaning set forth in Section 4(b) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
“Exchange Notes” shall have the meaning set forth in Section 2(a) hereof.
“Exchange Offer” shall have the meaning set forth in Section 2(a) hereof.
“Exchange Offer Registration Statement” shall have the meaning set forth in Section
2(a) hereof.
“FINRA” shall have the meaning set forth in Section 5(u) hereof.
“Guarantors” means each of the Persons executing this Agreement on the date hereof
listed on Schedule I and each Person who executes and delivers a counterpart of this Agreement
hereafter pursuant to Section 10(e) hereof.
“Holder” shall mean any holder of a Registrable Note or Registrable Notes.
“Indenture” shall mean the Indenture, dated as of September 11, 2009, as amended or
supplemented from time to time in accordance with the terms thereof, by and among the Company, the
Guarantors, U.S. Bank National Association, as trustee, and Wilmington Trust FSB, as collateral
agent.
2
“Initial Purchasers” shall mean Citigroup Global Markets Inc. and Moelis & Company
LLC.
“Initial Shelf Registration Statement” shall have the meaning set forth in Section
3(a) hereof.
“Inspectors” shall have the meaning set forth in Section 5(p) hereof.
“Issue Date” shall mean September 11, 2009, the date of original issuance of the
Notes.
“Issuers” shall have the meaning set forth in the introductory paragraph hereto.
“Legal Holiday” shall mean a Saturday, a Sunday or a day on which banking institutions
in New York, New York are authorized or required by law, regulation or executive order to remain
closed.
“Liquidated Damages” shall have the meaning set forth in Section 4(a) hereof.
“Losses” shall have the meaning set forth in Section 7(a) hereof.
“Notes” shall have the meaning set forth in the second introductory paragraph hereto.
“Participant” shall have the meaning set forth in Section 7(a) hereof.
“Participating Broker-Dealer” shall have the meaning set forth in Section 2(b) hereof.
“Person” shall mean an individual, corporation, partnership, joint venture
association, joint stock company, trust, unincorporated limited liability company, government or
any agency or political subdivision thereof or any other entity.
“Private Exchange” shall have the meaning set forth in Section 2(b) hereof.
“Private Exchange Notes” shall have the meaning set forth in Section 2(b) hereof.
3
“Prospectus” shall mean 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, including post-effective amendments, and all exhibits thereto and material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
“Purchase Agreement” shall have the meaning set forth in the second introductory
paragraph hereof.
“Records” shall have the meaning set forth in Section 5(r) hereof.
“Registrable Notes” shall mean each Note upon its original issuance 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, in each case until (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section 2(c)(iv) hereof is
applicable, the Exchange Offer Registration Statement) covering such Note, Exchange Note or Private
Exchange Note has been declared effective by the Commission and such Note, Exchange Note or such
Private Exchange Note, as the case may be, has been disposed of in accordance with such effective
Registration Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for an
Exchange Note or Exchange Notes that may be resold without restriction under state and federal
securities laws, (iii) such Note, Exchange Note or Private Exchange Note, as the case may be,
ceases to be outstanding for purposes of the Indenture or (iv) such Note, Exchange Note or Private
Exchange Note has been sold in compliance with Rule 144.
“Registration Default” shall have the meaning set forth in Section 4(a) hereof.
“Registration Statement” shall mean any appropriate registration statement of the
Issuers covering any of the Registrable Notes filed with the Commission under the Securities Act,
and all amendments and supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
“Requesting Participating Broker-Dealer” shall have the meaning set forth in Section
2(b) hereof.
“Rule 144” shall mean 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 Commission providing for offers and sales of securities made in
4
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” shall mean 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 Commission.
“Rule 415” shall mean 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
Commission.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Shelf Filing Event” shall have the meaning set forth in Section 2(c) hereof.
“Shelf Registration Statement” shall have the meaning set forth in Section 3(b)
hereof.
“Subsequent Shelf Registration Statement” shall have the meaning set forth in Section
3(b) hereof.
“TIA” shall mean the Trust Indenture Act of 1939, as amended, and the rules and
regulations of the Commission promulgated thereunder.
“Trustee” shall mean the trustee under the Indenture and the trustee (if any) under
any indenture governing the Exchange Notes and Private Exchange Notes.
“underwritten registration or underwritten offering” shall mean a registration in
which securities of the Company are sold to an underwriter for reoffering to the public.
Section 2. Exchange Offer
(a) Unless the Exchange Offer would violate applicable law or any applicable interpretation of
the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “Exchange
Offer Registration Statement”) with the Commission on an appropriate registration form with
respect to a registered offer (the “Exchange Offer”) to exchange any and
5
all of the Registrable Notes for a like aggregate principal amount of notes (including the
guarantees with respect thereto, the “Exchange Notes”) that are identical in all material
respects to the Notes (except that the Exchange Notes shall not contain terms with respect to
transfer restrictions or Liquidated Damages upon a Registration Default), (ii) use their
commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared
effective under the Securities Act and (iii) use their commercially reasonable efforts to
consummate the Exchange Offer within 180 days after the Issue Date. Upon the Exchange Offer
Registration Statement being declared effective by the Commission, the Company will offer the
Exchange Notes in exchange for surrender of the Notes. The Company shall keep the Exchange Offer
open for not less than 20 Business Days (or longer if required by applicable law) after the date
notice of the Exchange Offer is mailed to Holders.
Each Holder that participates in the Exchange Offer will be required to represent to the
Company in writing that (i) any Exchange Notes to be received by it will be acquired in the
ordinary course of its business, (ii) it has no arrangement or understanding with any Person to
participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in
violation of the provisions of the Securities Act, (iii) it is not an affiliate (as defined in Rule
405 under the Securities Act) of any Issuer or, if it is an affiliate, it will comply with the
registration and prospectus delivery requirements of the Securities Act to the extent applicable,
(iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in,
a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive
Exchange Notes for its own account in exchange for Notes that were acquired as a result of
market-making or other trading activities, it will deliver a prospectus in connection with any
re-sale of such Exchange Notes.
(b) The Company and the Initial Purchasers acknowledge that the staff of the Commission has
taken the position that any broker-dealer that elects to exchange Notes that were acquired by such
broker-dealer for its own account as a result of market-making or other trading activities for
Exchange Notes in the Exchange Offer (a “Participating Broker-Dealer”) may be deemed to be
an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the
requirements of the Securities Act in connection with any resale of such Exchange Notes (other than
a resale of an unsold allotment resulting from the original offering of the Notes).
The Company and the Initial Purchasers also acknowledge that the staff of the Commission has
taken the position that if the Prospectus contained in the Exchange Offer Registration Statement
includes a plan of distribution containing a statement to the above effect and the means by which
Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating
Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be
delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under
the Securities Act in connection with resales of Exchange Notes for their own accounts, so long as
the Prospectus otherwise meets the requirements of the Securities Act.
6
In light of the foregoing, if requested by a Participating Broker-Dealer (a “Requesting
Participating Broker-Dealer”), the Issuers agree to use their reasonable best efforts to keep
the Exchange Offer Registration Statement continuously effective for a period of up to 210 days
after the date on which the Exchange Registration Statement is declared effective, or such longer
period if extended pursuant to the penultimate paragraph of Section 5 hereof (such period, the
“Applicable Period”), or such earlier date as all Requesting Participating Broker-Dealers
shall have notified the Company in writing that such Requesting Participating Broker-Dealers have
resold all Exchange Notes acquired in the Exchange Offer. The Company shall include a plan of
distribution in such Exchange Offer Registration Statement that meets the requirements set forth in
the preceding paragraph.
If, prior to consummation of the Exchange Offer, any Holder holds any Notes acquired by it
that have, or that are reasonably likely to be determined to have, the status of an unsold
allotment in an initial distribution, or if any Holder is not entitled to participate in the
Exchange Offer, the Company upon the request of any such Holder shall simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to any such Holder, in
exchange (the “Private Exchange”) for such Notes held by any such Holder, a like principal
amount of notes (the “Private Exchange Notes”) of the Company that are identical in all
material respects to the Exchange Notes. The Private Exchange Notes shall be issued pursuant to
the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes.
In connection with the Exchange Offer, the Company shall:
(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange
Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(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 and the Private Exchange, if any,
the Company shall:
7
(1) accept for exchange all Notes validly tendered and not validly withdrawn pursuant
to the Exchange Offer and the Private Exchange;
(2) deliver or cause to be delivered to the Trustee for cancellation in accordance with
Section 5(t) 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 Offer and the Private Exchange shall not be subject to any conditions, other than
that (i) the Exchange Offer or Private Exchange, as the case may be, does not violate applicable
law or any applicable interpretation of the staff of the Commission, (ii) no action or proceeding
shall have been instituted or threatened in any court or by any governmental agency which might
materially impair the ability of the Issuers to proceed with the Exchange Offer or the Private
Exchange, and no material adverse development shall have occurred in any existing action or
proceeding with respect to the Issuers and (iii) all governmental approvals shall have been
obtained, which approvals the Issuers (based upon advice of counsel) deem necessary for the
consummation of the Exchange Offer or Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued under (i) the Indenture or
(ii) an indenture identical in all material respects to the Indenture (in either case, with such
changes as are necessary to comply with any requirements of the Commission to effect or maintain
the qualification thereof under the TIA) and which, in either case, has been qualified under the
TIA and shall provide that the Exchange Notes shall not 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 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) In the event that (i) any changes in law or the applicable interpretations of the staff of
the Commission do not permit the Issuers to effect the Exchange Offer, (ii) for any reason the
Exchange Offer is not consummated within 180 days of the Issue Date, (iii) any Holder (other than
the Initial Purchasers) is prohibited by law or the applicable interpretations of the staff of the
Commission or is otherwise ineligible from participating in the Exchange Offer, (iv) in the case of
any Holder that participates in the Exchange Offer, such Holder does not receive Exchange Notes on
the date of the exchange that may be sold without restriction under state and federal securities
laws (other than due solely to the status of such holder as an affiliate of any Issuer), (v) the
Initial Purchasers so request with respect to Notes that have, or that are reasonably likely to be
determined to have, the status of unsold allotments in an initial distribution or (vi) any Holder
of Private Exchange Notes so requests (each such event referred to in clauses (i) through (vi) of
this sentence, a “Shelf Filing Event”), then the Issuers shall file a Shelf Registration
Statement pursuant to Section 3 hereof.
8
Section 3. Shelf Registration
If at any time a Shelf Filing Event shall occur, then:
(a) Shelf Registration. The Issuers shall file with the Commission a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415 (the “Initial
Shelf Registration Statement”) covering all of the Registrable Notes. The Issuers shall file
with the Commission the Initial Shelf Registration Statement as promptly as practicable and in any
event on or prior to the 45th day after such Shelf Filing Event occurs. The Initial Shelf
Registration Statement shall be on Form S-3 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, in one or more underwritten offerings). The Company shall not
permit any securities other than the Registrable Notes to be included in the Initial Shelf
Registration Statement or in any Subsequent Shelf Registration Statement (as defined below).
The Issuers shall (x) use their commercially reasonable efforts to cause the Initial Shelf
Registration Statement to be declared effective under the Securities Act on or prior to the 90th
day after such Shelf Filing Event occurs (but in no event shall such effectiveness be required
prior to 180 days following the Issue Date) and (y) use their commercially reasonable efforts to
keep the Initial Shelf Registration Statement continuously effective under the Securities Act for
the period ending on the date which is two years from the date it becomes effective (or one year if
the Initial Shelf Registration Statement is filed at the request of the Initial Purchasers),
subject to extension pursuant to the penultimate paragraph of Section 5 hereof (the
“Effectiveness Period”), or such shorter period ending when (i) all Registrable Notes
covered by the Initial Shelf Registration Statement have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration Statement or (ii) a Subsequent Shelf Registration
Statement covering all of the Registrable Notes covered by and not sold under the Initial Shelf
Registration Statement or an earlier Subsequent Shelf Registration Statement has been declared
effective under the Securities Act; provided, however, that (i) the Effectiveness
Period in respect of the Initial Shelf Registration Statement shall be extended to the extent
required to permit dealers to comply with the applicable prospectus delivery requirements of Rule
174 under the Securities Act and as otherwise provided herein and (ii) the Company may suspend the
effectiveness of the Initial Shelf Registration Statement by written notice to the Holders solely
as a result of the filing of a post-effective amendment to the Initial Shelf Registration Statement
to incorporate annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared effective to permit holders
to use the related Prospectus.
(b) Subsequent Shelf Registration Statements. If the Initial Shelf Registration
Statement or any Subsequent Shelf Registration Statement 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), the Issuers shall use their respective reasonable best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof, and in any event shall as
soon as practicable after such cessation amend the Initial Shelf Registration Statement or such
9
Subsequent Shelf Registration Statement, as the case may be, in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an additional Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Notes covered by and not sold under the Initial Shelf Registration Statement or such
earlier Subsequent Shelf Registration Statement (each, a “Subsequent Shelf Registration
Statement”). If a Subsequent Shelf Registration Statement is filed, the Issuers shall use
their commercially reasonable efforts to cause the Subsequent Shelf Registration Statement to be
declared effective under the Securities Act as soon as practicable after such filing and to keep
such Subsequent Shelf Registration Statement continuously effective for a period equal to the
number of days in the Effectiveness Period less the aggregate number of days during which the
Initial Shelf Registration Statement and any Subsequent Shelf Registration Statement were
previously continuously effective. As used herein, the term “Shelf Registration Statement”
includes the Initial Shelf Registration Statement and any Subsequent Shelf Registration Statement.
(c) Supplements and Amendments. The Issuers agree to supplement or make amendments to
the Shelf Registration Statement as and when required by the rules, regulations or instructions
applicable to the registration form used for such Shelf Registration Statement or by the Securities
Act for a shelf registration, or if reasonably requested 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.
Section 4. Liquidated Damages
(a) The Issuers and the Initial Purchasers agree that the Holders 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
that if:
(i) the Exchange Offer is not consummated on or prior to the 180th day following the
Issue Date, or, if that day is not a Business Day, then the next succeeding day that is a
Business Day, or
(ii) the Shelf Registration Statement is required to be filed but is not filed or
declared effective within the time periods set forth herein or is declared effective but
thereafter ceases to be effective or usable prior to the expiration of the Effectiveness
Period, except if the Shelf Registration Statement ceases to be effective or usable as
specifically permitted by the penultimate paragraph of Section 5 hereof,
(each such event referred to in clauses (i) and (ii), a “Registration Default”), liquidated
damages in the form of additional cash interest (“Liquidated Damages”) will accrue on the
affected Notes and the affected Exchange Notes, as applicable. The rate of Liquidated Damages will
be 0.25%
10
per annum for the first 90-day period immediately following the occurrence of a Registration
Default, increasing by an additional 0.25% per annum with respect to each subsequent 90-day period
up to a maximum amount of additional interest of 1.0% per annum (“Additional Interest”),
from and including the date on which any such Registration Default shall occur to, but excluding,
the earlier of (1) the date on which all Registration Defaults have been cured or (2) the date on
which all the Notes and Exchange Notes otherwise become freely transferable by Holders other than
affiliates of the Issuer without further registration under the Securities Act.
Notwithstanding the foregoing, (1) the amount of Liquidated Damages payable shall not increase
because more than one Registration Default has occurred and is pending and (2) a Holder of Notes or
Exchange Notes who is not entitled to the benefits of the Shelf Registration Statement (i.e., such
Holder has not elected to include information) shall not be entitled to Liquidated Damages with
respect to a Registration Default that pertains to the Shelf Registration Statement.
(b) The Company shall notify the Trustee within one Business Day after each and every date on
which an event occurs in respect of which Liquidated Damages are required to be paid (an “Event
Date”). Any amounts of Liquidated Damages due pursuant to this Section 4 will be payable in
addition to any other interest payable from time to time with respect to the Registrable Notes in
cash semi-annually on the Interest Payment Dates specified in the Indenture (to the holders of
record as specified in the Indenture), commencing with the first such interest payment date
occurring after any such Liquidated Damages commence to accrue. The amount of Liquidated Damages
will be determined in a manner consistent with the calculation of interest under the Indenture.
Section 5. Registration Procedures
In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof,
the Issuers shall effect such registrations 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 Commission the Registration Statement or Registration Statements
prescribed by Section 2 or 3 hereof, and use their commercially reasonable efforts to cause each
such Registration Statement to become effective and remain effective as provided herein; provided
that if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus contained in the
Exchange Offer 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 relating thereto, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company shall 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
11
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 five Business Days prior to such filing) and
use its commercially reasonable efforts to reflect in each such document, when so filed with the
Commission, such comments as any such Person determines are reasonably necessary to be included
therein. The Company shall not file any Registration Statement or Prospectus or any amendments or
supplements thereto 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 reasonably object.
(b) Prepare and file with the Commission such amendments and post-effective amendments to each
Shelf Registration Statement or Exchange Offer 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, 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 each of them 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, in each case, in accordance with the intended methods of distribution set forth in
such Registration Statement or Prospectus, as so amended or supplemented, as the case may be.
(c) Ensure that any Registration Statement and any amendment thereto and any Prospectus
forming a part thereof and any amendment or supplement thereto: (i) complies in all material
respects with the Securities Act and (ii) does not, when the Registration Statement or such
amendment or supplement becomes effective, contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the statements therein
(in the case of a Prospectus, in the light of the circumstances under which they were made) not
misleading.
(d) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer 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 relating thereto (from whom the Issuers
have received written notice that it will be a Participating Broker-Dealer in the Exchange Offer),
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, as promptly as possible, and, if
requested by any such Person, confirm such notice in writing (which notice pursuant to clauses (ii)
through (vii) hereof shall be accompanied by an instruction to suspend the use of the Prospectus
until the Issuers shall have remedied the basis for such suspension), (i) when a Registration
Statement, Prospectus or any Prospectus supplement or
12
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 Company, 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 any request by the Commission for any amendment or supplement
to the Registration Statement or the Prospectus or for additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness of 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, (iv) 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) or
Section 5(o) hereof cease to be true and correct in all material respects, (v) of the receipt by
any of 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 for offer or sale in any jurisdiction, or the initiation or threatening of any
proceeding for such purpose, (vi) subject to the penultimate paragraph of Section 5, of the
happening of any event, the existence of any condition or any information becoming known to any
Issuer 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 the light of the circumstances under which they were made, not misleading, and (vii)
subject to the penultimate paragraph of Section 5, of the Company’s determination that a
post-effective amendment to a Registration Statement would be appropriate.
(e) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer 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, use their reasonable best 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, as the case
may be, for sale in any jurisdiction, and, if any such order is issued, to use their reasonable
best efforts to obtain the withdrawal of any such order at the earliest practicable moment.
(f) If (1) a Shelf Registration Statement is filed pursuant to Section 3 or (2) a Prospectus
contained in the Exchange Offer Registration Statement filed pursuant to Section 2
13
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 and if requested by the managing
underwriter or underwriters (if any), the Holders of a majority in aggregate principal amount of
the Registrable Notes covered by such Registration Statement or any Participating Broker-Dealer, as
the case may be, (i) promptly incorporate in such Registration Statement or Prospectus a prospectus
supplement or post-effective amendment containing such information as the managing underwriter or
underwriters (if any), such Holders or any Participating Broker-Dealer, as the case may be (based
upon advice of counsel), determine is reasonably necessary to be included therein and (ii) make all
required filings of such prospectus supplement or such post-effective amendment as soon as
practicable after the Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment; provided, however, that the
Issuers shall not be required to take any action hereunder that would, in the opinion of counsel to
the Company, violate applicable laws.
(g) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer 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 or each such Participating Broker-Dealer, as the case may be, who so requests,
their counsel and each managing underwriter, if any, at the sole expense of the Company, 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.
(h) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer 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 Company, as many copies of the
Prospectus or Prospectuses (including each form of preliminary prospectus) 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, the Issuers hereby
consent 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 or the sale by Participating Broker-Dealers of the Exchange Notes.
(i) Prior to the Exchange Offer or any other public offering of Registrable Notes or Exchange
Notes or any delivery of a Prospectus contained in the Exchange Offer Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, use
their reasonable best efforts to register or qualify, and to
14
cooperate with the 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 or Exchange Notes, as the case may be, 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 (provided that where Exchange Notes or Registrable Notes are offered other than
through an underwritten offering, the Company agrees to cause the Company’s counsel to perform Blue
Sky investigations and file registrations and qualifications required to be filed pursuant to this
Section 5(i)) and 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 such Exchange Notes or Registrable Notes covered by the applicable Registration
Statement); provided, however, that no Issuer shall be required to (A) qualify
generally to do business in any jurisdiction where it is not then so qualified, (B) take any action
that would subject it to general service of process in any such jurisdiction where it is not then
so subject or (C) subject itself to taxation in excess of a nominal dollar amount in any such
jurisdiction where it is not then so subject.
(j) If a Shelf Registration Statement 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 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
selling Holders may request at least two Business Days prior to any sale of such Registrable Notes
or Exchange Notes.
(k) Use their reasonable best efforts to cause the Registrable Notes or Exchange Notes covered
by any Registration Statement to be registered with or approved by such other governmental agencies
or authorities as may be reasonably necessary to enable the seller or sellers thereof or the
underwriter or underwriters, if any, to consummate the disposition of such Registrable Notes or
Exchange Notes, except as may be required solely as a consequence of the nature of such selling
Holder’s business, in which case the Company will cooperate in all reasonable respects with the
filing of such Registration Statement and the granting of such approvals.
(l) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof, or (2) a
Prospectus contained in the Exchange Offer 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 Section 5(d)(vi) or 5(d)(vii) hereof, as promptly as practicable prepare and
(subject to Section 5(a) and the penultimate paragraph of this Section 5) file with the Commission,
at the sole expense of the Company, a supplement or post-effective amendment to
15
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.
(m) 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 in a form
eligible for deposit with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Notes.
(n) In connection with any underwritten offering of Registrable Notes pursuant to a Shelf
Registration Statement, 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 expedite or 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 Company and its subsidiaries (including any acquired business, properties or
entity, if applicable) 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 primary underwritten offerings of debt securities similar to the
Notes and covering matters including, but not limited to, similar to those set forth in the
Purchase Agreement, and confirm the same in writing if and when requested; (ii) use their
reasonable best efforts to obtain written opinions of counsel to the Company 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 and such other matters as may be reasonably requested by the
managing underwriter or underwriters; (iii) use their reasonable best efforts to 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
Company (and, if necessary, any other independent certified public accountants of any subsidiary of
the Company or of any business acquired by the Company for which financial statements and financial
data are, or are required to be, included or incorporated by reference in the Registration
Statement), addressed to the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in “cold comfort” letters in connection with primary
underwritten offerings; and (iv) deliver such documents and certificates as may be reasonably
requested by the managing underwriter or underwriters, including those to evidence compliance with
Section 5(l) and with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Issuers. 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 the Holders of a majority
in aggregate principal amount of Registrable Notes covered by such Registration
16
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 any such
underwriting agreement, or as and to the extent required thereunder.
(o) In connection with any Prospectus contained in the Exchange Offer Registration Statement
filed pursuant to Section 2 hereof that is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period, take all
such actions as are reasonably requested by each such Participating Broker-Dealer in order to
expedite or facilitate the disposition of such Exchange Notes, including (i) make such
representations and warranties to, and covenants with, each such Participating Broker-Dealer with
respect to the business of the Company and its subsidiaries (including any acquired business,
properties or entity, if applicable) 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 primary underwritten offerings of debt securities
similar to the Exchange Notes, and confirm the same in writing if and when requested; (ii) use
their reasonable best efforts to obtain written opinions of counsel to the Company and written
updates thereof (which opinions, in form, scope and substance, shall be reasonably satisfactory to
each such Participating Broker-Dealer), addressed to each such Participating Broker-Dealer covering
the matters customarily covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by each such Participating Broker-Dealer or its counsel;
(iii) use their reasonable best efforts to obtain “cold comfort” letters and updates thereof in
form, scope and substance reasonably satisfactory to each such Participating Broker-Dealer from the
independent certified public accountants of the Company (and, if necessary, any other independent
certified public accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required to be, included or
incorporated by reference in the Registration Statement), addressed to each such Participating
Broker-Dealer, such letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters in connection with primary underwritten offerings, or if
requested by any such Participating Broker-Dealer or its counsel in lieu of a “cold comfort”
letter, an agreed-upon procedures letter under Statement on Auditing Standards No. 35, covering
matters requested by such Participating Broker-Dealer or its counsel; and (iv) deliver such
documents and certificates as may be reasonably requested by Participating Broker-Dealers holding a
majority in aggregate principal amount of Notes held by Participating Broker-Dealers, including
those to evidence compliance with Section 5(l) and with any customary conditions contained in
underwriting agreements. The above shall be done at the close of the Registered Exchange Offer.
(p) If (1) a Shelf Registration Statement is filed pursuant to Section 3 hereof or (2) a
Prospectus contained in the Exchange Offer 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
17
(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 Company and its 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, and use commercially reasonable efforts to cause the
accountants and auditors, of the Company and its subsidiaries to supply all information reasonably
requested by any such Inspector in connection with such Registration Statement and Prospectus.
Each Inspector shall agree in writing that it will not disclose any records that the Company
determines, in good faith, to be confidential and that it notifies the Inspectors in writing are
confidential unless (i) the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement or Prospectus, (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 necessary or advisable in 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 the Purchase
Agreement, or any transactions contemplated hereby or thereby or arising hereunder or thereunder,
or (iv) the information in such Records has been made generally available to the public;
provided, however, that such Inspectors shall take such actions as are reasonably
necessary to protect the confidentiality of such information (if practicable) to the extent such
action is otherwise not inconsistent with an impairment of or in derogation of the rights and
interests of the Holder or any Inspector; provided, however, further, that
to the extent the foregoing inspections shall be made contemporaneously by more than one Holder,
there shall be one law firm (plus local counsel) and one accounting firm retained by all such
Holders to make such investigation.
(q) 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(b) hereof 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 or Exchange
Notes, as applicable, 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 their
reasonable best 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 Commission to
enable such indenture to be so qualified in a timely manner. In the event that such qualification
would require the appointment of a new trustee under the Indenture or the trust indenture provided
for in Section 2(b) hereof, the Company shall appoint a new trustee thereunder pursuant to the
applicable provisions thereof.
(r) Comply with all applicable rules and regulations of the Commission and make generally
available to the Company’s security holders 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) as soon as practicable after the effective date of the applicable Registration
Statement and in no event 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 or Exchange Notes are
18
sold to underwriters in a firm commitment or best 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.
(s) Upon the request of a Holder, upon consummation of the Exchange Offer or a Private
Exchange, use their reasonable best efforts to obtain an opinion of counsel to the Company, in a
form customary for underwritten transactions, addressed to the Trustee for the benefit of all
Holders of Registrable Notes participating in the Exchange Offer or the Private Exchange, as the
case may be, that the Exchange Notes or Private Exchange Notes, as the case may be, and the related
indenture constitute legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with its respective terms, subject to customary exceptions and
qualifications.
(t) If the Exchange Offer or a Private Exchange is to be consummated, upon delivery of the
Registrable Notes by Holders to the Company (or to such other Person as directed by the Company) in
exchange for the Exchange Notes or the Private Exchange Notes, as the case may be, 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.
(u) Cooperate with each seller of Registrable Notes covered by any Registration Statement and
each broker-dealer registered under the Exchange Act that shall underwrite any Registrable Notes or
participate as a member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the Conduct Rules of FINRA) thereof, whether as a Holder of
such Registrable Notes or as an underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, and their respective counsel in connection with any filings required
to be made with the Financial Industry Regulatory Authority, Inc. (the “FINRA”).
(v) Use their reasonable best efforts to take all other steps necessary or advisable to effect
the registration or disposition of the Exchange Notes and/or Registrable Notes covered by a
Registration Statement contemplated hereby.
The Company may require each seller of Registrable Notes or Exchange Notes as to which any
registration is being effected to furnish to the Company such information regarding such seller and
the distribution of such Registrable Notes or Exchange Notes as the Company may, from time to time,
reasonably request. The Company may exclude from such registration the Registrable Notes or
Exchange Notes of any seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request and the failure to include any such seller shall not
be deemed to be a Registration Default. Each seller covered by any Shelf Registration Statement
agrees to furnish promptly to the Company all information required to be
19
disclosed in order to make any information previously furnished to the Company by such seller
not materially misleading.
If any such Registration Statement refers to any Holder by name or otherwise as the holder of
any securities of the Company, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such Holder, to the effect
that the holding by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial requirements of the Company,
or (ii) in the event that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the reference to such
Holder in any amendment or supplement to the Registration Statement filed or prepared subsequent to
the time that such reference ceases to be required.
Each Holder of Registrable Notes and each Participating Broker-Dealer agrees by acquisition of
such Registrable Notes or Exchange Notes that, upon actual receipt of any notice from the Company
(x) of the happening of any event of the kind described in Section 5(d)(ii) through 5(d)(vii)
hereof, or (y) that the Board of Directors of the Company (the “Board of Directors”) has
resolved that the Company has a bona fide business purpose for doing so, then the Company may delay
the filing or the effectiveness of the Exchange Offer Registration Statement or the Shelf
Registration Statement (if not then filed or effective, as applicable) and shall not be required to
maintain the effectiveness thereof or amend or supplement the Exchange Offer Registration Statement
or the Shelf Registration Statement, in all cases, for a period (a “Delay Period”) expiring
upon the earlier to occur of (i) in the case of the immediately preceding clause (x), such Holder’s
or Participating Broker-Dealer’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(l) hereof or until it is advised in writing (the “Advice”) by the
Company that the use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto or (ii) in the case of the immediately preceding clause (y), the
date which is the earlier of (A) the date on which such business purpose ceases to interfere with
the Company’s obligations to file or maintain the effectiveness of any such Registration Statement
pursuant to this Agreement or (B) 60 days after the Company notifies the Holders of such good faith
determination (and it is further agreed that during the Delay Period, the Issuers shall not be
required to provide any information pursuant to Section 5(d)(v) or 5(d)(vii) to the extent the
provision thereof would violate Regulation FD under the Exchange Act). There shall not be more
than 60 days of Delay Periods during any 12-month period. Each of the Effectiveness Period and the
Applicable Period, if applicable, shall be extended by the number of days during any Delay Period.
Any Delay Period will not alter the obligations of the Company to pay Liquidated Damages under the
circumstances set forth in Section 4 hereof.
In the event of any Delay Period pursuant to clause (y) of the preceding paragraph, notice
shall be given as soon as practicable after the Board of Directors makes such a determination of
the need for a Delay Period and shall state, to the extent practicable, an estimate of the duration
of such Delay Period and shall advise the recipient thereof of the agreement of
20
such Holder provided in the next succeeding sentence. Each Holder, by his acceptance of any
Registrable Note, agrees that during any Delay Period, each Holder will discontinue disposition of
such Notes or Exchange Notes covered by such Registration Statement or Prospectus or Exchange Notes
to be sold by such Holder or Participating Broker-Dealer, as the case may be.
Section 6. Registration Expenses
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 Registration Statement or
the Shelf Registration Statement is filed or becomes effective or the Exchange Offer is
consummated, including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with the FINRA 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 an Exchange Offer, or (y) as provided in Section 5(i) hereof, in the case of a Shelf
Registration Statement or in the case of 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, or by the Holders of a majority in
aggregate principal amount of the Registrable Notes included in any Registration Statement or in
respect of Exchange Notes to be sold by any Participating Broker-Dealer during the Applicable
Period, as the case may be, (iii) messenger, telephone and delivery expenses, (iv) fees and
disbursements of counsel for the Company and reasonable fees and disbursements of one special
counsel for all of the sellers of Registrable Notes pursuant to a Shelf Registration Statement
(exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and disbursements of all
independent certified public accountants referred to in Section 5(n)(iii) and Section 5(o)(iii)
hereof (including, without limitation, the expenses of any special audit and “cold comfort” letters
required by or incident to such performance), (vi) Securities Act liability insurance, if the
Company desires such insurance, (vii) fees and expenses of all other Persons retained by any of the
Issuers, (viii) internal expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Company performing legal or accounting duties), (ix) the
expense of any audit, (x) the fees and expenses incurred in connection with the listing of the
securities to be registered on any securities exchange, and the obtaining of a rating of the
securities, in each case, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting agreements, indentures and
any other documents necessary in order to comply with this Agreement. Notwithstanding the
foregoing or anything to the contrary, (i) each Holder shall pay all underwriting discounts and
commissions of any underwriters with respect to any Registrable Notes sold by or on behalf of it
and (ii) all Holders shall pay all fees and expenses of counsel to the underwriters in any
underwritten offering made pursuant to a Shelf Registration Statement.
21
Section 7. Indemnification
(a) Each Issuer, jointly and severally, agrees to indemnify and hold harmless each Holder of
Registrable Notes and each Participating Broker-Dealer selling Exchange Notes during the Applicable
Period, each Person, if any, who controls any such Person within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, the agents, employees, officers and directors
of each Holder and each such Participating Broker-Dealer and the agents, employees, officers and
directors of any such controlling Person (each, a “Participant”) from and against any and
all losses, liabilities, claims, damages and expenses whatsoever (including, but not limited to,
reasonable attorneys’ fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all reasonable amounts paid in settlement of any claim or litigation)
(collectively, “Losses”) to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or supplements thereto)
or any 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 the case of the Prospectus, in the light of the circumstances under which
they were made, not misleading, provided that (i) the foregoing indemnity shall not be available to
any Participant insofar as such Losses are caused by any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with information relating to
such Participant furnished to the Company in writing by or on behalf of such Participant expressly
for use therein, and (ii) that the foregoing indemnity with respect to any preliminary prospectus
shall not inure to the benefit of any Participant from whom the Person asserting such Losses
purchased Registrable Notes if (x) it is established in the related proceeding that such
Participant failed to send or give a copy of the Prospectus (as amended or supplemented if such
amendment or supplement was furnished to such Participant prior to the written confirmation of such
sale) to such Person with or prior to the written confirmation of such sale, if required by
applicable law, and (y) the untrue statement or omission or alleged untrue statement or omission
was completely corrected in the Prospectus (as amended or supplemented if amended or supplemented
as aforesaid) and such Prospectus does not contain any other untrue statement or omission or
alleged untrue statement or omission that was the subject matter of the related proceeding. This
indemnity agreement will be in addition to any liability that the Issuers may otherwise have,
including, but not limited to, liability under this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify and hold harmless each
Issuer, each Person, if any, who controls any Issuer within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and each of their respective agents,
employees, officers and directors and the agents, employees, officers and directors of any such
controlling Person from and against any Losses to which they or any of them may become subject
under the Securities Act, the Exchange Act or otherwise insofar as such Losses (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged untrue
22
statement of a material fact contained in any Registration Statement (or any amendment
thereto) or Prospectus (as amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) or any 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 the case of the Prospectus, in light of the
circumstances under which they were made, not misleading, in each case to the extent, but only to
the extent, that any such Loss arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in conformity with
information relating to such Participant furnished in writing to the Company by or on behalf of
such Participant expressly for use therein.
(c) Promptly after receipt by an indemnified party under subsection 7(a) or 7(b) above of
notice of the commencement of any action, suit or proceeding (collectively, an “action”),
such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is to be sought in
writing of the commencement of such action (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability that it may have under this Section 7
except to the extent that it has been prejudiced in any material respect by such failure). In case
any such action is brought against any indemnified party, and it notifies an indemnifying party of
the commencement of such action, the indemnifying party will be entitled to participate in such
action, and to the extent it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense of
such action with counsel reasonably satisfactory to such indemnified party. Notwithstanding the
foregoing, the indemnified party or parties shall have the right to employ its or their own counsel
in any such action, but the reasonable fees and expenses of such counsel shall be at the expense of
such indemnified party or parties unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying parties in connection with the defense of such action,
(ii) the indemnifying parties shall not have employed counsel to take charge of the defense of such
action within a reasonable time after notice of commencement of the action, (iii) the named parties
to such action (including any impleaded parties) include such indemnified party and the
indemnifying party or parties (or such indemnifying parties have assumed the defense of such
action), and such indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them that are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall not have the right to
direct the defense of such action on behalf of the indemnified party or parties), or (iv) the use
of counsel chosen by the indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, in any of which events such reasonable fees and expenses of
counsel shall be borne by the indemnifying parties. In no event shall the indemnifying party be
liable for the fees and expenses of more than one counsel (together with appropriate local counsel)
at any time for all indemnified parties in connection with any one action or separate but
substantially similar or related actions arising in the same jurisdiction out of the same general
allegations or circumstances. An indemnifying party shall not be liable for any settlement of any
claim or action effected without its written consent, which consent may not be unreasonably
withheld. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel
as contemplated by paragraph (a) or (b) of
23
this Section 7, then the indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such settlement is entered into more
than 60 Business Days after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 45 days’ prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) In order to provide for contribution in circumstances in which the indemnification
provided for in this Section 7 is for any reason held to be unavailable from the indemnifying
party, or is insufficient to hold harmless a party indemnified under this Section 7, each
indemnifying party shall contribute to the amount paid or payable by such indemnified party as a
result of such aggregate Losses (i) in such proportion as is appropriate to reflect the relative
benefits received by each indemnifying party, on the one hand, and each indemnified party, on the
other hand, from the sale of the Notes to the Initial Purchasers or the resale of the Registrable
Notes by such Holder, as applicable, or (ii) if such allocation is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits referred to above
but also the relative fault of each indemnified party, on the one hand, and each indemnifying
party, on the other hand, in connection with the statements or omissions that resulted in such
Losses, as well as any other relevant equitable considerations. The relative benefits received by
the Issuers, on the one hand, and each Participant, on the other hand, shall be deemed to be in the
same proportion as (x) the total proceeds from the sale of the Notes to the Initial Purchasers (net
of discounts and commissions but before deducting expenses) received by the Issuers are to (y) the
total net profit received by such Participant in connection with the sale of the Registrable Notes.
The relative fault of the 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 or such Participant and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission or alleged statement or omission.
(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 or by any other method of allocation that does not
take into account the equitable considerations referred to above. Notwithstanding the provisions
of this Section 7, (i) in no case shall any Participant be required to contribute any amount in
excess of the amount by which the total net profit received by such Participant in connection with
the sale of the Registrable Notes exceeds the amount of any damages that such Participant has
otherwise been required to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission and (ii) no Person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any Person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section 7, each Person, if any, who
controls any party within the meaning of
24
Section 15 of the Act or Section 20(a) of the Exchange Act and each director, officer,
employee and agent of such party shall have the same rights to contribution as such party. Any
party entitled to contribution will, promptly after receipt of notice of commencement of any action
against such party in respect of which a claim for contribution may be made against another party
or parties under this Section 7, notify such party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party or parties from
whom contribution may be sought from any obligation it or they may have under this Section 7 or
otherwise, except to the extent that it has been prejudiced in any material respect by such
failure; provided, however, that no additional notice shall be required with
respect to any action for which notice has been given under this Section 7 for purposes of
indemnification. Anything in this section to the contrary notwithstanding, no party shall be
liable for contribution with respect to any action or claim settled without its written consent,
provided, however, that such written consent was not unreasonably withheld.
(f) The provisions of this Section 7 will remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuers or any of the indemnified persons
referred to in this Section 7, and will survive the sale by a Holder of securities covered by a
Registration Statement.
Section 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 Commission
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 is not required to file such reports, it will, upon
the request of any Holder or beneficial owner of Registrable Notes, make publicly available such
information for so long as necessary to permit sales pursuant to Rules 144 and 144A under the
Securities Act. The Issuers further covenant that they will take such further action as any Holder
of Registrable Notes may reasonably request from time to time to enable such Holder to sell
Registrable Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 and Rule 144A (including the requirements of Rule 144A(d)(4))
under the Securities Act, as such Rules may be amended from time to time and (b) any similar rule
or regulation hereafter adopted by the Commission. The Issuers will provide a copy of this
Agreement to prospective purchasers of Registrable Notes identified to the Issuers by the Initial
Purchasers upon request. Notwithstanding the foregoing, nothing in this Section 8 shall be deemed
to require any Issuer to register any of its securities pursuant to the Exchange Act.
Section 9. Underwritten Registrations
If any of the Registrable Notes covered by any Shelf Registration Statement are to be sold in
an underwritten offering, the investment banker or investment bankers and manager or managers that
will manage the offering will be selected by the Holders of a majority in aggregate
25
principal amount of such Registrable Notes included in such offering and shall be reasonably
acceptable to the Company.
No Holder of Registrable Notes may participate in any underwritten registration hereunder if
such Holder does not (a) agree 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) complete and execute all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents required under the terms of such underwriting arrangements.
Section 10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date hereof, and
shall not, after the date of this Agreement, enter into any agreement with respect to any of their
securities that is inconsistent with the rights granted to the Holders of Registrable Notes in this
Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders
hereunder do not conflict with and are not inconsistent with, in any material respect, the rights
granted to the holders of any of the Issuers’ other issued and outstanding securities under any
such agreements. The Issuers have not entered and will not enter into any agreement with respect
to any of their securities which will grant to any Person piggyback registration rights with
respect to any Registration Statement.
(b) Adjustments Affecting Registrable Notes. The Company shall not, directly or
indirectly, take any action with respect to the Registrable Notes as a class that would adversely
affect the ability of the Holders of Registrable Notes to include such Registrable Notes in a
registration undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from the provisions
hereof may not be given except pursuant to a written agreement duly signed and delivered by (I) the
Company (on behalf of all Issuers) and (II)(A) the Holders of not less than a majority in aggregate
principal amount of the then outstanding Registrable Notes and (B) in circumstances that would
adversely affect the Participating Broker-Dealers, the Participating Broker-Dealers holding not
less than a majority in aggregate principal amount of the Exchange Notes held by all Participating
Broker-Dealers; provided, however, that Section 4, Section 7, and this Section
10(c) may not be amended, qualified, modified or supplemented, and waivers or consents to
departures from the provisions thereof or hereof may not be given, except pursuant to a written
agreement duly signed and delivered by each Holder and each Participating Broker-Dealer (including
any Person who was a Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes,
as the case may be, disposed of pursuant to any Registration Statement) affected by any such
amendment, modification, qualification, supplement, waiver, or consent. 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
26
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 pursuant to such Registration Statement.
(d) 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 telecopier:
(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.
(ii) if to the Issuers, at the address as follows:
Beazer Homes USA, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx
With a copy to:
Xxxxxx Xxxxxx & Xxxxxxx LLP
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
(iii) if to the Initial Purchasers, at the address as follows:
Citigroup Global Markets Inc.
00 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: General Counsel
00 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: 000-000-0000
Attention: General Counsel
27
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000-0000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
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; when receipt is acknowledged by the recipient’s telecopier machine, if
telecopied; and on the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be concurrently delivered by
the Person giving the same to the Trustee at the address and in the manner specified in such
Indenture.
The Initial Purchasers or the Issuers by notice to the other parties may designate additional
or different addresses for subsequent notices or communications
(e) Guarantors. So long as any Registrable Notes remain outstanding, the Issuers
shall cause each Person that becomes a guarantor of the Notes under the Indenture to execute and
deliver a counterpart to this Agreement which subjects such Person to the provisions of this
Agreement as a Guarantor. Each of the Guarantors agrees to join the Company in all of its
undertakings hereunder to effect the Exchange Offer for the Exchange Notes and the filing of any
Shelf Registration Statement required hereunder.
(f) 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, the Holders, the
Participating Broker-Dealers and the indemnified parties referred to in Section 7 hereof;
provided, however, that this Agreement shall only inure to the benefit of and be
binding upon a successor or assign of a Holder if and to the extent such successor or assign holds
Registrable Notes.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
28
(i) 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 PRINCIPLES OF CONFLICTS OF LAW.
(j) 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.
(k) Securities Held by the Company or Its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Registrable Notes is required hereunder,
Registrable Notes held by the Company or any of its affiliates (as such term is defined in Rule 405
under the Securities Act), other than Holders deemed to be affiliates solely by reason of their
holdings of such Registrable Notes, shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(l) Third-Party Beneficiaries. Holders and beneficial owners of Registrable Notes,
Participating Broker-Dealers and the indemnified parties referred to in Section 7 hereof are
intended third-party beneficiaries of this Agreement, and this Agreement may be enforced by such
Persons. No other Person is intended to be, or shall be construed as, a third-party beneficiary of
this Agreement.
(m) Attorneys’ Fees. As between the parties to this Agreement, in any action or
proceeding brought to enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the successful party shall be entitled to recover reasonable
attorneys’ fees actually incurred in addition to its costs and expenses and any other available
remedy.
(n) Entire Agreement. This Agreement, together with the Purchase Agreement and the
Indenture, is intended by the parties as a final and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein and therein
and any and all prior oral or written agreements, representations, or warranties, contracts,
understandings, correspondence, conversations and memoranda between the Holders on the one hand and
the Company on the other, or between or among any agents, representatives, parents, subsidiaries,
affiliates, predecessors in interest or successors in interest with respect to the subject matter
hereof and thereof are merged herein and replaced hereby.
29
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
BEAZER HOMES USA, INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
APRIL CORPORATION BEAZER ALLIED COMPANIES HOLDINGS, INC. BEAZER GENERAL SERVICES, INC. BEAZER HOMES CORP. BEAZER HOMES HOLDINGS CORP. BEAZER HOMES INDIANA HOLDINGS CORP. BEAZER HOMES SALES, INC. BEAZER HOMES TEXAS HOLDINGS, INC. BEAZER REALTY CORP. BEAZER REALTY, INC. BEAZER REALTY LOS ANGELES, INC. BEAZER REALTY SACRAMENTO, INC. BEAZER/XXXXXXX REALTY, INC. HOMEBUILDERS TITLE SERVICES OF VIRGINIA, INC. HOMEBUILDERS TITLE SERVICES, INC. |
||||
By: | ||||
Name: | ||||
Title: |
BEAZER MORTGAGE CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | ||||
BEAZER HOMES INDIANA LLP By: BEAZER HOMES INVESTMENTS, LLC, its Managing Partner By: BEAZER HOMES CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: | ||||
XXXXX XXXX VENTURES, LLC BEAZER CLARKSBURG, LLC BEAZER COMMERCIAL HOLDINGS, LLC DOVE BARRINGTON DEVELOPMENT LLC BEAZER HOMES INVESTMENTS, LLC BEAZER HOMES MICHIGAN, LLC ELYSIAN HEIGHTS POTOMIA, LLC |
||||
By: BEAZER HOMES CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: |
BEAZER HOMES TEXAS, L.P. By: BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner |
||||
By: | ||||
Name: | ||||
Title: | ||||
BEAZER REALTY SERVICES, LLC By: BEAZER HOMES INVESTMENTS, LLC, its Sole Member By: BEAZER HOMES CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: | ||||
BEAZER SPE, LLC By: BEAZER HOMES HOLDINGS CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: |
BH BUILDING PRODUCTS, LP By: BH PROCUREMENT SERVICES, LLC, its General Partner By: BEAZER HOMES TEXAS, L.P., its Sole Member By: BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner |
||||
By: | ||||
Name: | ||||
Title: | ||||
BH PROCUREMENT SERVICES, LLC By: BEAZER HOMES TEXAS, L.P., its Sole Member By: BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner |
||||
By: | ||||
Name: | ||||
Title: |
PARAGON TITLE, LLC By: BEAZER HOMES INVESTMENTS, LLC, its Sole Member and Manager By: BEAZER HOMES CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: | ||||
TEXAS LONE STAR TITLE, L.P. By: BEAZER HOMES TEXAS HOLDINGS, INC., its General Partner |
||||
By: | ||||
Name: | ||||
Title: | ||||
TRINITY HOMES, LLC By: BEAZER HOMES INVESTMENTS, LLC, its Member By: BEAZER HOMES CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: |
CLARKSBURG ARORA LLC By: BEAZER CLARKSBURG, LLC, its Sole Member By: BEAZER HOMES CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: | ||||
CLARKSBURG SKYLARK, LLC By: CLARKSBURG ARORA LLC, its Sole Member By: BEAZER CLARKSBURG, LLC, its Sole Member By: BEAZER HOMES CORP., its Sole Member |
||||
By: | ||||
Name: | ||||
Title: | ||||
Accepted and agreed to as of the date first above written, on behalf of itself and the other several Initial Purchasers: CITIGROUP GLOBAL MARKETS INC. |
||||
By: | ||||
Name: | ||||
Title: | ||||
Schedule I
Schedule of Guarantors
Beazer General Services, Inc.
Beazer Homes Corp.
Beazer/Xxxxxxx Realty, Inc.
Beazer Homes Sales, Inc.
Beazer Homes Investments, LLC
Beazer Realty Corp.
Beazer Homes Holdings Corp.
Beazer Homes Indiana Holdings Corp.
Beazer Homes Texas Holdings, Inc.
Beazer Homes Texas, X.X.
Xxxxxx Homes Indiana LLP
April Corporation
Beazer SPE, LLC
Beazer Realty, Inc.
Beazer Realty Services, LLC
Beazer Realty Los Angeles, Inc.
Beazer Realty Sacramento, Inc.
BH Building Products, LP
BH Procurement Services, LLC
Homebuilders Title Services of Virginia, Inc.
Homebuilders Title Services, Inc.
Texas Lone Star Title, X.X.
Xxxxxx Allied Companies Holdings, Inc.
Paragon Title, LLC
Trinity Homes, LLC
Beazer Commercial Holdings, LLC
Beazer Clarksburg, LLC
Xxxxx Xxxx Ventures, LLC
Beazer Mortgage Corporation
Beazer Homes Michigan, LLC
Dove Barrington Development LLC
Clarksburg Arora LLC
Clarksburg Skylark, LLC
Elysian Heights Potomia, LLC
Beazer Homes Corp.
Beazer/Xxxxxxx Realty, Inc.
Beazer Homes Sales, Inc.
Beazer Homes Investments, LLC
Beazer Realty Corp.
Beazer Homes Holdings Corp.
Beazer Homes Indiana Holdings Corp.
Beazer Homes Texas Holdings, Inc.
Beazer Homes Texas, X.X.
Xxxxxx Homes Indiana LLP
April Corporation
Beazer SPE, LLC
Beazer Realty, Inc.
Beazer Realty Services, LLC
Beazer Realty Los Angeles, Inc.
Beazer Realty Sacramento, Inc.
BH Building Products, LP
BH Procurement Services, LLC
Homebuilders Title Services of Virginia, Inc.
Homebuilders Title Services, Inc.
Texas Lone Star Title, X.X.
Xxxxxx Allied Companies Holdings, Inc.
Paragon Title, LLC
Trinity Homes, LLC
Beazer Commercial Holdings, LLC
Beazer Clarksburg, LLC
Xxxxx Xxxx Ventures, LLC
Beazer Mortgage Corporation
Beazer Homes Michigan, LLC
Dove Barrington Development LLC
Clarksburg Arora LLC
Clarksburg Skylark, LLC
Elysian Heights Potomia, LLC
Sch I-1