Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
Dated as of August 5, 2003
Among
WCI COMMUNITIES, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
DEUTSCHE BANK SECURITIES INC.
and
RAYMOND JAMES & ASSOCIATES, INC.
as Initial Purchasers
4.0% Contingent Convertible Senior Subordinated Notes Due 2023
TABLE OF CONTENTS
Page
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1. DEFINITIONS................................................................1
2. SHELF REGISTRATION.........................................................4
3. ADDITIONAL AMOUNTS.........................................................6
4. REGISTRATION PROCEDURES....................................................8
5. REGISTRATION EXPENSES.....................................................13
6. INDEMNIFICATION...........................................................13
7. RULES 144 AND 144A........................................................17
8. UNDERWRITTEN REGISTRATIONS................................................17
9. MISCELLANEOUS.............................................................17
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
August 5, 2003, by and among WCI Communities, Inc., a Delaware corporation (the
"Company"), the subsidiaries of the Company that are listed on the signature
pages hereto (collectively, the "Guarantors" and, together with the Company, the
"Issuers"), and Deutsche Bank Securities Inc. and Raymond James & Associates,
Inc., (collectively, the "Initial Purchasers") under the Purchase Agreement (as
defined below).
This Agreement is entered into in connection with that certain Purchase
Agreement, dated July 31, 2003 (the "Purchase Agreement"), by and among the
Issuers and the Initial Purchasers, which provides for the sale by the Company
to the Initial Purchasers of $125,000,000 aggregate principal amount of the
Company's 4.0% Contingent Convertible Senior Subordinated Notes Due 2023 (the
"Firm Notes") plus up to an additional $40,000,000 aggregate principal amount of
the same which the Initial Purchasers may subsequently elect to purchase
pursuant to the terms of the Purchase Agreement (the "Option Notes" and,
together with the Firm Notes, the "Notes"), each guaranteed by the Guarantors
(the "Guarantees" and together with the Notes, the "Securities") which are
convertible into common stock, par value $.01 per share, of the Company (the
"Underlying Shares"). The Securities are being issued pursuant to an Indenture
dated as of the date hereof (the "Indenture"), by and among the Issuers and The
Bank of New York, as Trustee.
In order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuers have agreed to provide the registration rights set forth
in this Agreement for the benefit of the Initial Purchasers and certain
subsequent holder or holders of the Securities or Underlying Shares as provided
herein. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Firm Notes under the Purchase
Agreement.
The parties hereto hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms shall have the
following meanings:
"Additional Amounts": See Section 3(a) hereof.
"Additional Amounts Payment Date": See Section 3(c) hereof.
"Agreement": See the first introductory paragraph hereto.
"Amendment Effectiveness Deadline Date": See Section 2(d)(i) hereof.
"Amount of Registrable Securities": (a) With respect to Securities
constituting Registrable Securities, the aggregate principal amount of all such
Securities outstanding, (b) with respect to Underlying Shares constituting
Registrable Securities, the aggregate number of such Underlying Shares
outstanding multiplied by the Conversion Price (as defined in the Indenture
relating to the Securities upon the conversion of which such Underlying Shares
were issued) in effect at the time of computing the Amount of Registrable
Securities or, if no such Securities are
then outstanding, the last Conversion Price that was in effect under such
Indenture when any such Securities were last outstanding, and (c) with respect
to combinations thereof, the sum of (a) and (b) for the relevant Registrable
Securities.
"Business Day": Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York are authorized or required by law to be closed.
"Closing Date": August 5, 2003.
"Company": See the first introductory paragraph hereto.
"Controlling Person": See Section 6 hereof.
"Deferral Period": See Section 3(b) hereof.
"Depositary": The Depository Trust Company until a successor is appointed
by the Company.
"Designated Counsel": One firm of counsel chosen by the Holders of a
majority in Amount of Registrable Securities to be included in a Registration
Statement for a Shelf Registration and identified to the Issuers in writing
prior to the filing of such Registration Statement.
"Effectiveness Date": The 180th day after the Closing Date.
"Effectiveness Period": See Section 2(a) hereof.
"Exchange Act": The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Filing Date": The 90th day after the Closing Date.
"Firm Notes": See the second introductory paragraph hereto.
"Guarantees": See the second introductory paragraph hereto.
"Guarantors": See the first introductory paragraph hereto.
"Holder": Any holder of Registrable Securities.
"Indemnified Holder": See Section 6 hereof.
"Indemnified Person": See Section 6 hereof.
"Indemnifying Person": See Section 6 hereof.
"Indenture": See the second introductory paragraph hereto.
"Initial Purchasers": See the first introductory paragraph hereto.
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"Initial Shelf Registration": See Section 2(a) hereof.
"Inspectors": See Section 4(k) hereof.
"Issuers": See the first introductory paragraph hereto.
"Notes": See the second introductory paragraph hereto.
"Notice and Questionnaire": means a written notice delivered to the
Issuers containing substantially the information called for by the Form of
Selling Securityholder Notice and Questionnaire attached as Appendix A to the
Offering Memorandum of the Issuers relating to the Securities.
"Option Notes": See the second introductory paragraph hereto.
"Person": An individual, partnership, corporation, limited liability
company, unincorporated association, trust or joint venture, or a governmental
agency or political subdivision thereof.
"Prospectus": The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
"Purchase Agreement": See the second introductory paragraph hereto.
"Records": See Section 4(k) hereof.
"Registrable Securities": All Securities and all Underlying Shares upon
original issuance thereof and at all times subsequent thereto until the earliest
to occur of (i) a Registration Statement covering such Securities and Underlying
Shares having been declared effective by the SEC and such Securities and
Underlying Shares having been disposed of in accordance with such effective
Registration Statement, (ii) such Securities and Underlying Shares having been
sold in compliance with Rule 144 or could (except with respect to affiliates of
the Issuers within the meaning of the Securities Act) be sold in compliance with
Rule 144(k), or (iii) such Securities and any Underlying Shares ceasing to be
outstanding.
"Registration Default": See Section 3(a) hereof.
"Registration Statement": Any registration statement of the Issuers filed
with the SEC pursuant to the provisions of this Agreement, including the
Prospectus, amendments and supplements to such registration statement, including
post-effective amendments, all exhibits and all documents incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
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"Rule 144": Rule 144 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule
144A) or regulation hereafter adopted by the SEC providing for offers and sales
of securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"Rule 144A": Rule 144A promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
"Rule 415": Rule 415 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
"SEC": The Securities and Exchange Commission.
"Securities": See the second introductory paragraph hereto.
"Securities Act": The Securities Act of 1933, as amended, and the
rules and regulations of the SEC promulgated thereunder.
"Selling Holder": On any date, any Holder that has delivered a
Notice and Questionnaire to the Issuers on or prior to such date.
"Shelf Registration": See Section 2(b) hereof.
"Shelf Registration Statement": See Section 2(b) hereof.
"Subsequent Shelf Registration": See Section 2(b) hereof.
"TIA": The Trust Indenture Act of 1939, as amended, and the rules
and regulations of the SEC promulgated thereunder.
"Trustee": The Trustee under the Indenture.
"Underlying Shares": See the second introductory paragraph hereto.
"Underwritten Registration" or "Underwritten Offering": A
registration in which securities of one or more of the Issuers are sold to an
underwriter for reoffering to the public.
2. Shelf Registration.
(a) Shelf Registration. The Issuers shall file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
covering all of the Registrable Securities held by Holders that have provided
the information required pursuant to the terms of Section 2(d) hereof (the
"Initial Shelf Registration") on or prior to the Filing Date.
The Initial Shelf Registration shall be on Form S-3 or another
appropriate form permitting registration of such Registrable Securities for
resale by Holders in the manner or manners designated by them (excluding
Underwritten Offerings). Other than with respect to se-
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curities covered by the Registration Rights Agreement dated March 15, 2002 among
the Company and the other parties thereto, the Issuers shall not permit any
securities other than the Registrable Securities to be included in the Initial
Shelf Registration or any Subsequent Shelf Registration (as defined below).
The Issuers shall use all reasonable best efforts to cause the
Initial Shelf Registration to be declared effective under the Securities Act on
or prior to the Effectiveness Date and to keep such Initial Shelf Registration
continuously effective under the Securities Act until the date that is two years
after the Closing Date, or if later, the date on which the Option Notes were
issued, (such period, as it may be shortened pursuant to clauses (i), (ii),
(iii) or (iv) immediately following, the "Effectiveness Period"), or such
shorter period ending when (i) all of the Registrable Securities covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration, (ii) the date on which all the
Registrable Securities (x) held by Persons who are not affiliates of the Issuers
may be resold pursuant to Rule 144(k) under the Securities Act or (y) cease to
be outstanding, (iii) all the Registrable Securities have been resold pursuant
to Rule 144 under the Securities Act or (iv) a Subsequent Shelf Registration
covering all of the Registrable Securities has been declared effective under the
Securities Act.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) ceases to be effective for
any reason at any time during the Effectiveness Period (other than because of
the sale of all of the Registrable Securities registered thereunder), the
Issuers shall use all reasonable efforts to obtain the prompt withdrawal of any
order suspending the effectiveness thereof, and in any event shall within 45
days of such cessation of effectiveness amend the Initial Shelf Registration in
a manner to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional "shelf" Registration Statement pursuant to Rule
415 covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Issuers shall
use all reasonable best efforts to cause the Subsequent Shelf Registration to be
declared effective under the Securities Act as soon as practicable after such
filing and to keep such 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 or any
Subsequent Shelf Registration was previously continuously effective. As used
herein, the term "Shelf Registration" means the Initial Shelf Registration and
any Subsequent Shelf Registration and the term "Shelf Registration Statement"
means any Registration Statement filed in connection with a Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly supplement and
amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act, or if reasonably requested by
the Holders of the majority in Amount of Registrable Securities covered by such
Registration Statement.
(d) Notice and Questionnaire. No Holder of Registrable Securities may
include any of its Registrable Securities in the Registration Statement pursuant
to this Agreement unless such Holder furnishes to the Company in writing, prior
to or on the 20th Business Day after the date the Notice and Questionnaire is
given to Holders (the "Questionnaire Deadline"), such
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information as the Company may reasonably request for use in connection with the
Registration Statement or Prospectus or preliminary Prospectus included therein
and in any application to be filed with or under state securities laws. In
connection with all such requests for information from Holders of Registrable
Securities, the Company shall notify such Holders of the requirements set forth
in the preceding sentence. No Holder of Registrable Securities shall be entitled
to Additional Amounts pursuant to Section 3 hereof unless such Holder shall have
provided all such reasonably requested information prior to or on the
Questionnaire Deadline. Each Holder as to which the Registration Statement is
being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make information previously furnished to
the Company by such Holder not materially misleading. Any Holder that does not
complete and deliver the Notice and Questionnaire or provide such other
information will not be named as a selling security holder in the Prospectus and
therefore will not be permitted to sell any Registrable Securities under the
Registration Statement. Each Holder must notify us not later than three business
days prior to any proposed sale by that Holder pursuant to the Registration
Statement. This notice will be effective for five days. Each Holder, by its
acceptance of the notes, agrees to hold any communications by us in response to
such notice of a proposed sale in confidence.
3. Additional Amounts.
(a) The Issuers and the Initial Purchasers agree that the Holders of
Registrable Securities will suffer damages if the Issuers fail to fulfill
certain of their obligations under Section 2 hereof and that it would not be
feasible to ascertain the extent of such damages with precision. Accordingly,
the Issuers agree to pay additional amounts on the Registrable Securities
("Additional Amounts") under the circumstances and to the extent set forth below
(each of which shall be given independent effect; each a "Registration
Default"). Additional Amounts shall accrue:
i. if the Initial Shelf Registration is not filed on or prior
to the Filing Date, then commencing on the day after the Filing
Date;
ii. if a Shelf Registration is not declared effective by the
SEC on or prior to the Effectiveness Date, then commencing on the
day after the Effectiveness Date; and
iii. if a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during
the Effectiveness Period (other than as permitted under Section
3(b)), then commencing on the day after the date such Shelf
Registration ceases to be effective.
provided, however, that Additional Amounts on the Registrable Securities may not
accrue under more than one of the foregoing clauses (i), (ii) and (iii) at any
one time; and provided further, however, that (1) upon the filing of the Initial
Shelf Registration as required hereunder (in the case of clause (a)(i) of this
Section 3), (2) upon the effectiveness of a Shelf Registration as required
hereunder (in the case of clause (a)(ii) of this Section 3), (3) upon the
effectiveness of a Shelf Registration which had ceased to remain effective (in
the case of clause (a)(iii) of this Section 3), Additional Amounts on the
Registrable Securities as a result of such clause (or the rele-
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vant subclause thereof, as the case may be), shall cease to accrue. It is
understood and agreed that, notwithstanding any provision to the contrary, (1)
no Additional Amounts shall accrue on any Registrable Securities that are then
covered by an effective Shelf Registration Statement and (2) the right to
receive Additional Amounts shall be the sole and exclusive remedy to the Holders
of the Registrable Securities for breach by the Issuers of their registration
obligations under this Agreement.
(b) Notwithstanding paragraph (a) of this Section 3, the Issuers, upon
written notice to the Holders, shall be permitted to suspend the effectiveness
of a Registration Statement covering the Registrable Securities for any bona
fide reason whatsoever for up to 45 consecutive days (the "Deferral Period") in
any 90-day period without paying Additional Amounts; provided, however, that in
the event such reason relates to a previously undisclosed proposed or pending
material business transaction, the disclosure of which the Issuers determine in
good faith would be reasonably likely to impede the Issuers' ability to
consummate such transaction, the Issuers may extend a Deferral Period from 45
days to 60 days without paying Additional Amounts; provided further, however,
that Deferral Periods may not total more than 90 days in the aggregate in any
twelve-month period. The Issuers shall not be required to specify in the written
notice to the Holders the nature of the event giving rise to the Deferral
Period.
(c) So long as Securities remain outstanding, the Issuers shall notify the
Trustee within five Business Days after each and every date on which an event
occurs in respect of which Additional Amounts are required to be paid.
Additional Amounts due pursuant to clause (a)(i), (a)(ii) or (a)(iii) of this
Section 3 with respect to the first 90-day period shall be payable in an amount
equal to (i) in respect of each $1,000 principal amount of notes, $0.05 per week
and (ii) in respect of any Underlying Shares, $0.05 per week per $1,000
principal amount of Securities that would then be convertible into such number
of Underlying Shares. The amount of Additional Amounts shall increase by an
additional $0.05 per week per $1,000 principal amount of Securities and, in
respect of any Underlying Shares, $0.05 per week per $1,000 principal amount of
Securities that would then be convertible into such number of Underlying Shares
with respect to each subsequent 90-day period until all registration defaults
have been cured, up to a maximum of Additional Amounts of $0.25 per week per
$1,000 principal amount of Securities and, in respect of Underlying Shares,
$0.25 per week per $1,000 principal amount of Securities that would then be
convertible into such number of Underlying Shares. Additional Amounts pursuant
to this Section 3 shall be payable by the Issuers in cash semi-annually on each
August 5 and February 5 (each, an "Additional Amounts Payment Date"), commencing
with the first such date occurring after any such Additional Amounts commence to
accrue, to Holders to whom regular interest is payable on such Additional
Amounts Payment Date, with respect to Securities that are Registrable
Securities, and to Persons that are registered Holders on July 20 or January 20
immediately prior to an Additional Amounts Payment Date with respect to
Underlying Shares that are Registrable Securities, provided that any Additional
Amounts accrued with respect to any Security or portion thereof redeemed by the
Issuers on a redemption date or converted into Underlying Shares on a conversion
date prior to the Additional Amounts Payment Date, shall, in any such event, be
paid instead to the Holder who submitted such Note or portion thereof for
redemption or conversion on the applicable redemption date or conversion date,
as the case may be, on such date (or promptly following the conversion date, in
the case of conversion).
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4. Registration Procedures.
In connection with the filing of any Registration Statement pursuant
to Section 2 hereof, the Issuers shall effect such registration to permit the
resale of the securities covered thereby in accordance with the intended method
or methods of disposition thereof, and pursuant thereto and in connection with
any Registration Statement filed by the Issuers hereunder the Issuers shall:
(a) Prepare and file with the SEC, on or prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by Section
2 hereof, and use all reasonable efforts to cause each such Registration
Statement to become effective and, subject to Section 3(b), remain
effective as provided herein.
(b) Subject to Section 3(b), prepare and file with the SEC such
amendments and post-effective amendments to each Shelf Registration, as
may be necessary to keep such Registration Statement continuously
effective for the Effectiveness Period; cause the related Prospectus to be
supplemented by any prospectus supplement required by applicable law, and
as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force) promulgated under the Securities Act; and comply
with the provisions of the Securities Act and the Exchange Act applicable
to it with respect to the disposition of all Registrable Securities
covered by such Registration Statement as so amended or in such Prospectus
as so supplemented. The Issuers shall be deemed not to have used all
reasonable best efforts to keep a Registration Statement effective during
the Effectiveness Period if it voluntarily takes any action that would
result in Selling Holders of the Registrable Securities covered thereby
not being able to sell such Registrable Securities during that period
unless such action is required by applicable law or unless the Issuers
comply with this Agreement, including without limitation the provisions of
Section 4(i) hereof.
(c) Notify the Selling Holders and Designated Counsel, if any,
promptly (but in any event within two Business Days), (i) when a
Prospectus or any prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any
post-effective amendment, when the same has become effective under the
Securities Act (including in such notice a written statement that any
Holder may, upon request, obtain, at the sole expense of the Issuers, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or
deemed to be incorporated by reference and exhibits), (ii) of the issuance
by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of
any Prospectus or the initiation of any proceedings for that purpose,
(iii) of the happening of any event, the existence of any condition or any
information becoming known that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in or amendments or
supplements to such Registration Statement, Prospectus or documents so
that, in the case of the Registration Statement, it will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary
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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 (iv) of the Issuers'
determination that a post-effective amendment to a Registration Statement
would be appropriate.
(d) Use all 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 and, if any such
order is issued, to use all reasonable best efforts to obtain the
withdrawal of any such order at the earliest possible moment, and provide,
as promptly as practicable, notice to the Selling Holders of the
withdrawal of any such order.
(e) Furnish, upon request, to each Selling Holder and Designated
Counsel, if any, at the sole expense of the Issuers, one conformed copy of
the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or deemed to be
incorporated therein by reference and all exhibits.
(f) Deliver to each Selling Holder and Designated Counsel, if any,
at the sole expense of the Issuers, as many copies of the Prospectus and
each amendment or supplement thereto and any documents incorporated by
reference therein as such Persons may reasonably request; and, subject to
Section 4A(a) and (c) hereof, the Issuers hereby consent to the use of
such Prospectus and each amendment or supplement thereto by each of the
Selling Holders of Registrable Securities and dealers, if any, in
connection with the offering and sale of the Registrable Securities
covered by such Prospectus and any amendment or supplement thereto.
(g) Cause the Issuers' counsel to perform Blue Sky law
investigations and file registrations and qualifications required to be
filed in connection with the registration or qualification (or exemption
from such registration or qualification) of such Registrable Securities or
offer and sale under the securities or Blue Sky laws of such jurisdictions
within the United States as any Selling Holder reasonably requests, 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 under Blue Sky laws to enable the disposition in such
jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that none of the Issuers shall
be required to (i) qualify generally to do business in any jurisdiction
where it is not then so qualified, (ii) take any action that would subject
it to general service of process in any such jurisdiction where it is not
then so subject or (iii) subject itself to taxation in any such
jurisdiction where they are not then so subject.
(h) Cooperate with the Selling Holders and their respective counsel
to facilitate the timely preparation and delivery of certificates
representing shares of Registrable Securities to be sold, which
certificates shall not bear any restrictive legends
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and shall be in a form eligible for deposit with The Depository Trust
Company; and enable such shares of Registrable Securities to be in such
denominations and registered in such names as the Selling Holders may
reasonably request.
(i) Subject to Section 3(b), upon the occurrence of any event contemplated
by Section 4(c)(ii), 4(c)(iii) or 4(c)(iv) hereof, as promptly as
practicable prepare and (subject to Section 4(b) hereof) file with the
SEC, at the Issuers' sole expense, a supplement or post-effective
amendment to the Registration Statement or a supplement to the related
Prospectus or any document incorporated or deemed to be incorporated
therein by reference, or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities being
sold thereunder, 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 the light of the
circumstances under which they were made, not misleading.
(j) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities.
(k) During the Effectiveness Period, make available at reasonable times
for inspection by one or more representatives of the Selling Holders,
designated in writing by Holders of a majority in Amount of Registrable
Securities to be included in such Registration Statement of such
Registrable Securities being sold, and any attorney or accountant retained
by any such Selling Holders (collectively, the "Inspectors"), at the
offices where normally kept, during reasonable business hours, at such
time or times as shall be mutually convenient for the Issuers and the
Inspectors as a group, all financial and other records, pertinent
corporate documents and instruments of the Issuers and their subsidiaries
(collectively, the "Records") as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities, and cause
the officers, directors and employees of the Issuers and their
subsidiaries to supply all information reasonably requested by any such
Inspector in connection with such Registration Statement; provided,
however, that the Issuers shall have no obligation to provide any such
information prior to the execution by the party receiving such information
of a confidentiality agreement in a form reasonably acceptable to the
Issuers. Records that the Issuers determine, in good faith, to be
confidential and any Records that it notifies the Inspectors are
confidential shall not be disclosed by any Inspector unless (i) the
disclosure of such Records is necessary to avoid or correct a material
misstatement or material omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order
from a court of competent jurisdiction, (iii) disclosure of such
information is, in the opinion of counsel for any Inspector, necessary or
advisable in connection with any action, claim, suit or proceeding,
directly involving or potentially involving such Inspector and arising out
of, based upon, relating to, or involving this Agreement or any
transactions contemplated hereby or arising hereunder or (iv) the
information in such Records has been made generally available to the
public other than through the acts of such Inspector; provided, however,
that prior notice shall be provided as soon as practicable to the Issuers
of the potential disclosure of any
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information by such Inspector pursuant to clauses (ii) or (iii) of this
sentence to permit the Issuers to obtain a protective order (or waive the
provisions of this paragraph (k)). Each Inspector shall take such actions
as are reasonably necessary to protect the confidentiality of such
information (if practicable) to the extent such actions are otherwise not
inconsistent with, an impairment of or in derogation of the rights and
interests of the Holder or any Inspector, unless and until such
information in such Records has been made generally available to the
public other than as a result of a breach of this Agreement.
(l) Provide, upon request, (i) the Holders of the Registrable
Securities to be included in such Registration Statement and Designated
Counsel, if any, (ii) the sales or placement agent, if any, thereof, and
(iii) one counsel for such agents, reasonable opportunity to participate
in the preparation of such Registration Statement, each prospectus
included therein or filed with the SEC, and each amendment or supplement
thereto.
(m) During the Effectiveness Period, comply with all applicable
rules and regulations of the SEC and make generally available to its
security holders earning statements satisfying the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder (or any similar rule
promulgated under the Securities Act) no later than 45 days after the end
of any 12-month period (or 90 days after the end of any 12-month period if
such period is a fiscal year) 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.
(n) Cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the
Trustee and the Holders of the Registrable Securities and their respective
counsel to effect such changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use all reasonable efforts to cause the Trustee to execute,
all documents as may be required to effect such changes and all other
forms and documents required to be filed with the SEC to enable the
Indenture to be so qualified in a timely manner.
(o) Use all reasonable best efforts to cause the Registrable
Securities covered by any Shelf Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may
be reasonably necessary to enable the Selling Holder or Holders thereof to
consummate the disposition of such Registrable Securities, except as may
be required solely as a consequence of the nature of such selling Holder's
business, in which case the Issuers will cooperate in all reasonable
respects with the filing of such Registration Statement and the granting
of such approvals; provided, however, that none of the Issuers shall be
required to (i) qualify generally to do business in any jurisdiction where
it is not then so qualified, (ii) take any action that would subject it to
general service of process in any such jurisdiction where it is not then
so subject or (iii) subject itself to taxation in any such jurisdiction
where they are not then so subject.
-11-
(p) If requested by Designated Counsel, if any, or the Holders of
the majority in Amount of Registrable Securities (i) promptly incorporate
in a prospectus supplement or post-effective amendment such information as
the Designated Counsel, if any, or such Holders reasonably determine is
necessary to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as
reasonably practicable after the Issuers have received notification of the
matters to be incorporated in such prospectus supplement or post-effective
amendment and (iii) supplement or make amendments to such Registration
Statement.
(q) Use all reasonable efforts to take all other steps necessary or
advisable to effect the registration of the Registrable Securities covered
by a Registration Statement contemplated hereby.
4A. Holders' Obligations. (a) Each Holder agrees, by acquisition of
the Registrable Securities, that no Holder shall be entitled to sell any of such
Registrable Securities pursuant to a Registration Statement or to receive a
Prospectus relating thereto, unless such Holder has furnished the Issuers with a
Notice and Questionnaire as required pursuant to Section 2(d) hereof (including
the information required to be included in such Notice and Questionnaire) and
the information set forth in the next sentence. Each Selling Holder agrees
promptly to furnish to the Issuers all information required to be disclosed in
order to make the information previously furnished to the Issuers by such
Selling Holder not misleading and any other information regarding such Selling
Holder and the distribution of such Registrable Securities as the Issuers may
from time to time reasonably request. Any sale of any Registrable Securities by
any Holder shall constitute a representation and warranty by such Holder that
the information relating to such Holder and its plan of distribution is as set
forth in the Prospectus delivered by such Holder in connection with such
disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder
or its plan of distribution and that such Prospectus does not as of the time of
such sale omit to state any material fact relating to or provided by such Holder
or its plan of distribution necessary to make the statements in such Prospectus,
in the light of the circumstances under which they were made, not misleading.
(b) The Issuers may require each Selling Holder of Registrable
Securities as to which any registration is being effected to furnish to the
Issuers such additional information regarding such Holder and its plan of
distribution of such Registrable Securities as the Issuers may, from time to
time, reasonably request to the extent necessary or advisable to comply with the
Securities Act. The Issuers may exclude from such registration the Registrable
Securities of any Selling Holder if such Holder fails to furnish such additional
information within 20 Business Days after receiving such request. Each Selling
Holder as to which any Shelf Registration is being effected agrees to furnish
promptly to the Issuers all information required to be disclosed so that the
information previously furnished to the Issuers by such Holder is not materially
misleading and does not omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made.
(c) Each Holder of Registrable Securities agrees by acquisition of
such Registrable Securities that, upon actual receipt of any notice from the
Issuers of the Issuers suspending the effectiveness of the Registration
Statement pursuant to Section 3(b) hereof, or upon the hap-
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pening of any event of the kind described in Section 4(c)(ii), 4(c)(iii) or
4(c)(iv) hereof, such Holder will forthwith discontinue disposition of such
Registrable Securities covered by such Registration Statement or Prospectus
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 4(i) hereof, or until it is advised in
writing by the Issuers that the use of the applicable Prospectus may be resumed,
and has received copies of any amendments or supplements thereto. Each Holder
agrees to keep any such notice confidential.
5. Registration Expenses.
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers, including,
without limitation, (i) all registration and filing fees (including, without
limitation, 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 Securities
and determination of the eligibility of the Registrable Securities for
investment under the laws of such jurisdictions as provided in Section 4(g)
hereof), (ii) printing expenses, including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing prospectuses if the printing
of prospectuses is requested by the Holders of the majority in Amount of
Registrable Securities included in any Registration Statement, (iii) messenger,
telephone and delivery expenses, (iv) fees and disbursements of counsel for the
Issuers, (v) Securities Act liability insurance, if the Issuers desires such
insurance, (vi) fees and expenses of all other Persons retained by the Issuers,
(vii) internal expenses of the Issuers (including, without limitation, all
salaries and expenses of officers and employees of the Issuers performing legal
or accounting duties), (viii) the expense of any annual audit, (ix) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange, if applicable, and (x) the expenses
relating to printing, word processing and distributing all Registration
Statements and any other documents necessary in order to comply with this
Agreement. Notwithstanding anything in this Agreement to the contrary, each
Holder shall pay all brokerage commissions with respect to any Registrable
Securities sold by it and, except as set forth in Section 5(b) below, the
Issuers shall not be responsible for the fees and expenses of any counsel,
accountant or advisor for the Holders.
(b) The Issuers shall reimburse the Holders of the Registrable Securities
being registered in a Shelf Registration for the reasonable fees and
disbursements, of Designated Counsel, which fees shall not exceed $10,000.
6. Indemnification.
Each of the Issuers agrees, jointly and severally, to indemnify and
hold harmless (a) each Holder (which, for the absence of doubt, for purposes of
this Section 6 shall include the Initial Purchasers), (b) each Person, if any,
who controls (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) any Holder (any of the Persons referred to in
this clause (b) being hereinafter referred to as a "Controlling Person"), (c)
the respective officers, directors, partners, employees, representatives and
agents of any Holder (including any predecessor holder) or any Controlling
Person (any person referred to in clause (a), (b) or (c)
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may hereinafter be referred to as an "Indemnified Holder"), against any losses,
claims, damages or liabilities to which such Indemnified Holder may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement or Prospectus, or any
amendment or supplement thereto or any related prospectus or (ii) the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in the light
of the circumstances in which they were made; provided, however, that the
Issuers will not be liable under this paragraph, (x) to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement, or omission or alleged omission made in
any such Registration Statement or Prospectus, or any amendment or supplement
thereto or any related prospectus in reliance upon and in conformity with
written information relating to any Holder furnished to the Issuers by or on
behalf of such Holder specifically for use therein or (y) with respect to any
untrue statement or alleged untrue statement, or omission or alleged omission
made in any former or preliminary prospectus if the person asserting any such
loss, claim, damage or liability who purchased Registrable Securities which are
the subject thereof did not receive a copy of the Prospectus (as then amended or
supplemented if the Issuers shall have furnished such Indemnified Holder with
such amendment or supplement thereto on a timely basis) at or prior to the
written confirmation of the sale of such Registrable Securities to such person
and, in any case where such delivery is required by applicable law and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact made in such former prospectus was corrected in the Prospectus
(as then amended or supplemented if the Issuers shall have furnished such
Indemnified Holder with such amendment or supplement thereto on a timely basis).
The Issuers shall notify such Indemnified Holder promptly of the institution,
threat or assertion of any claim, proceeding (including any governmental
investigation) or litigation in connection with the matters addressed by this
Agreement that involves the Issuers or such Indemnified Holder.
Each Holder agrees, severally and not jointly, to indemnify and hold
harmless the Issuers, their directors, officers, employees, representatives and
agents and each Person who controls the Issuers (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as the indemnity provided in the first paragraph of this Section 6 from
the Issuers to each Holder, but only with reference to such losses, claims,
damages or liabilities which 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 a Holder furnished to the Issuers in writing by
such Holder expressly for use in any Registration Statement or Prospectus, or
any amendment or supplement thereto or any related preliminary prospectus. The
liability of any Holder under this paragraph shall in no event exceed the
proceeds received by such Holder from sales of Registrable Securities giving
rise to such obligation.
In case any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
first and second paragraphs of this Section 6, such Person (the "Indemnified
Person") shall promptly notify the Person or Persons against whom such indemnity
may be sought (each an "Indemnifying Person") in writing. No indemnification
provided for in the first or second paragraphs of this Section 6 shall be
available to any Person who shall have failed to give notice as provided in this
paragraph if the party to whom
-14-
notice was not given was unaware of the proceeding to which such notice would
have related and was materially prejudiced by the failure to give such notice.
Nevertheless, the failure to give such notice shall not relieve the Indemnifying
Person or Persons from any liability which it or they may have to the
Indemnified Person for contribution or otherwise than on account of the
provisions of the first and second paragraphs of this Section 6. In case any
such proceeding shall be brought against any Indemnified Person and it shall
notify the Indemnifying Person of the commencement thereof, the Indemnifying
Person shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other Indemnifying Person similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such Indemnified
Person and shall pay as incurred (or within 30 days of presentation) the fees
and disbursements of such counsel related to such proceeding. In any such
proceeding, any Indemnified Person shall have the right to retain its own
counsel at its own expense. Notwithstanding the foregoing, the Indemnifying
Person shall pay as incurred (or within 30 days of presentation) the fees and
expenses of the counsel retained by the Indemnified Person in the event (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed in
writing to the retention of such counsel, (ii) the named parties to any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and the Indemnified Person shall have been
advised by counsel in writing that representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them or (iii) the Indemnifying Person shall have failed to assume the
defense and employ counsel reasonably acceptable to the Indemnified Person
within a reasonable period of time after notice of commencement of the action.
It is understood that the Indemnifying Person shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm for all such
Indemnified Persons. Such firm shall be designated in writing by Holders of a
majority in Amount of Registrable Securities in the case of parties indemnified
pursuant to the first paragraph of this Section 6 and by the Issuers in the case
of parties indemnified pursuant to the second paragraph of this Section 6. The
Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Person agrees to
indemnify the Indemnified Person from and against any loss or liability by
reason of such settlement or judgment. In addition, the Indemnifying Person will
not, without the prior written consent of the Indemnified Person, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding of which indemnification may be sought hereunder
(whether or not any Indemnified Person is an actual or potential party to such
claim, action or proceeding) unless such settlement, compromise or consent
includes an unconditional release of each Indemnified Person from all liability
arising out of such claim, action or proceeding.
To the extent the indemnification provided for in this Section 6 is
unavailable to or insufficient to hold harmless an Indemnified Person under the
first or second paragraph of this Section 6 in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, except by reason of the exceptions set forth in the first or second
paragraphs of this Section 6 or the failure of the Indemnified Person to give
notice as required in the fourth paragraph of this Section 6, then each
Indemnifying Person shall contribute to the amount paid or payable by such
Indemnified Person as a result of such losses, claims, damages or liabilities
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Indemnifying Person
on the one hand and
-15-
the Indemnified Person on the other hand from the offering of the Securities
pursuant to the Purchase Agreement and the Registrable Securities pursuant to
any Shelf Registration. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law then each Indemnifying
Person shall contribute to such amount paid or payable by such Indemnified
Person in such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Indemnifying Person on the one hand
and the Indemnified Person on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Issuers shall be
deemed to be equal to the total net proceeds (before deducting expenses)
received by the Issuers under the Purchase Agreement from the offering and sale
of the Registrable Securities giving rise to such obligations. The relative
benefits received by any Holder shall be deemed to be equal to the value of
receiving registration rights for the Registrable Securities under this
Agreement. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Issuers on the one hand or such Indemnified Holder on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Issuers and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to the immediately preceding
paragraph of this Section 6 were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to in the immediately preceding paragraph shall be deemed to include any legal
or other expenses reasonably incurred by such Indemnified Person in connection
with investigating or defending any such action or claim or enforcing any rights
hereunder. Notwithstanding the provisions of this paragraph and the immediately
preceding paragraph of this Section 6, (i) in no event shall any Holder be
required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the offering or sale of the Registrable
Securities pursuant to a Shelf Registration Statement exceeds the amount of
damages which such Holder would have otherwise been required to pay by reason of
such 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 Securities Act) shall be entitled to contribution from any Person
who was not guilty of such fraudulent misrepresentation.
Except as otherwise provided in this Section 6, any losses, claims,
damages, liabilities or expenses for which an Indemnified Person is entitled to
indemnification or contribution under this Section 6 shall be paid by the
Indemnifying Person to the Indemnified Person as such losses, claims, damages,
liabilities or expenses are incurred (or within 30 days of presentation).
The remedies provided for in this Section 6 are not exclusive and
shall not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
-16-
The indemnity and contribution agreements contained in this Section
6 shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
any Holder or any Person controlling any Holder or by or on behalf of the
Issuers, their officers or directors or any other Person controlling the Issuers
and (iii) acceptance of and payment for any of the Registrable Securities.
7. Rules 144 and 144A.
Each of the Issuers covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the SEC thereunder in a timely manner in accordance
with the requirements of the Securities Act and the Exchange Act and, for so
long as any Registrable Securities remain outstanding, if at any time such
Issuer is not required to file such reports, it will, upon the request of any
Holder or beneficial owner of Registrable Securities, make available such
information necessary to permit sales pursuant to Rule 144A under the Securities
Act. Each of the Issuers further covenants that, for so long as any Registrable
Securities remain outstanding, it will use all reasonable efforts to take such
further action as any Holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemptions provided by (a) Rule 144 and Rule 144A under the
Securities Act, as such rules may be amended from time to time, or (b) any
similar rule or regulation hereafter adopted by the SEC. The Issuers will
provide a copy of this Agreement to prospective purchasers of Registrable
Securities identified to the Issuers by the Initial Purchasers upon request.
Upon the request of any Holder, the Issuers shall deliver to such Holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Issuers to register any of their securities pursuant to the Exchange
Act.
8. Underwritten Registrations.
No Holder of Registrable Securities may participate in any
Underwritten Registration hereunder.
9. Miscellaneous.
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers 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 Securities in this Agreement or
otherwise conflicts with the provisions hereof.
(b) Adjustments Affecting Registrable Securities. The Issuers shall not,
directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Issuers and the Holders of not less than the majority in Amount
of Registrable Securities; provided, however,
-17-
that Section 6 and this Section 9(c) may not be amended, modified or
supplemented without the prior written consent of the Issuers and each Holder
(including, in the case of an amendment, modification or supplement of Section
6, any Person who was a Holder of Registrable Securities disposed of pursuant to
any Registration Statement). 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 Securities 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 Securities may be given by Holders of at least a majority in
principal amount of the Registrable Securities being sold by such Holders
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 facsimile:
(1) if to a Holder of Registrable Securities, at the most current
address of such Holder set forth on the records of the registrar under the
Indenture, in the case of Holders of Securities, and the stock ledger of the
Company, in the case of Holders of common stock of the Company, unless, in
either such case, any Holder shall have provided notice information in a Notice
and Questionnaire or any amendment thereto, in which case such information shall
control.
(2) if to the Initial Purchasers:
c/o Deutsche Bank Securities Inc.
60 Wall Street, 45th Floor
New York, New York 10005
Facsimile No.: (212) 797-0085
Attention: General Counsel
with copies to:
Cahill Gordon & Reindel llp
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
Attention: Daniel J. Zubkoff, Esq.
(3) if to the Company:
WCI Communities, Inc.
24301 Walden Center Drive
Bonita Springs, Florida 34134
Facsimile No.: (239) 498-8338
Attention: Vivian Hastings, Esq.
with copies to:
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Simpson Thacher & Bartlett LLP
425 Lexington Avenue, 14th Floor
New York, NY 10017
Facsimile No.: (212) 455-2502
Attention: John B. Tehan, Esq.
All such notices and communications shall be deemed to have been
duly given: when delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; one Business
Day after being timely delivered to a next-day air courier; and when the
addressor receives facsimile confirmation, if sent by facsimile during normal
business hours, and otherwise on the next Business Day during normal business
hours.
(e) 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,
including the Holders; provided, however, that this Agreement shall not inure to
the benefit of or be binding upon a successor or assign of a Holder unless and
except to the extent such successor or assign holds Registrable Securities.
(f) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, including via
facsimile, 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO
AGREES TO SUBMIT TO THE JURISDICTION OF THE FEDERAL AND NEW YORK STATE COURTS
SITTING IN MANHATTAN, NEW YORK CITY, THE STATE OF NEW YORK, IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(i) 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.
(j) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage in Amount of
Registrable Securities is required hereunder, Registrable Securities held by the
Issuers or their affiliates (as such term is defined in
-19-
Rule 405 under the Securities Act) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Securities are
intended third party beneficiaries of this Agreement and this Agreement may be
enforced by such Persons.
(l) 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 Initial Purchasers on
the one hand and the Issuers 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.
[Signature pages follow]
-20-
IN WITNESS WHEREOF, the parties have executed this Registration
Rights Agreement as of the date first written above.
WCI COMMUNITIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
GUARANTORS:
BAY COLONY-GATEWAY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
COMMUNITY SPECIALIZED SERVICES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
FINANCIAL RESOURCES GROUP, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
FIRST FIDELITY TITLE, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
FLORIDA LIFESTYLE MANAGEMENT COMPANY
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
WCI CAPITAL CORPORATION
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
LIVINGSTON ROAD, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
SUN CITY CENTER GOLF PROPERTIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-2-
SUN CITY CENTER REALTY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
WATERMARK REALTY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
THE COLONY AT PELICAN LANDING GOLF CLUB,
INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
COMMUNITIES AMENITIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
COMMUNITIES HOME BUILDERS, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-3-
GATEWAY COMMUNICATIONS SERVICES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
JYC HOLDINGS, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
MARBELLA AT PELICAN BAY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
PELICAN LANDING GOLF RESORT VENTURES,
INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
SARASOTA TOWER, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-4-
TARPON COVE YACHT & RACQUET CLUB, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
TIBURON GOLF VENTURES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
WCI ARCHITECTURE & LAND PLANNING, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
WATERMARK REALTY REFERRAL, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
WCI COMMUNITIES PROPERTY MANAGEMENT,
INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-5-
WCI GOLF GROUP, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
WCI REALTY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
BAY COLONY REALTY ASSOCIATES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
BAY COLONY OF NAPLES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
CORAL RIDGE COMMUNITIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-6-
CORAL RIDGE PROPERTIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
CORAL RIDGE REALTY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
CORAL RIDGE REALTY SALES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
FLORIDA DESIGN COMMUNITIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
FLORIDA NATIONAL PROPERTIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-7-
GATEWAY COMMUNITIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
GATEWAY REALTY SALES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
HERON BAY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
HERON BAY GOLF COURSE PROPERTIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
PELICAN BAY PROPERTIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-8-
PELICAN LANDING PROPERTIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
PELICAN MARSH PROPERTIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
TARPON COVE REALTY, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
WCI HOMES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
COMMUNITIES FINANCE COMPANY, LLC
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-9-
PELICAN LANDING COMMUNITIES, INC.
By: /s/ James D. Cullen
-----------------------------
Name: James D. Cullen
Title: Vice President
-10-
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Deutsche Bank Securities Inc.
Raymond James & Associates, Inc.
By: Deutsche Bank Securities Inc.
By: /s/ Stephen N. Sachman
--------------------------
Name: Stephen N. Sachman
Title: Director
By: /s/ Tom Bradshaw
--------------------------
Name: Tom Bradshaw
Title: Director
For themselves and the other Initial Purchasers
named in Exhibit B to the Purchase Agreement.
-11-