EXHIBIT 4.3
TECHNICAL OLYMPIC USA, INC.
$200,000,000
9% Senior Notes Due 2010
REGISTRATION RIGHTS AGREEMENT
New York, New York
June 25, 2002
Salomon Smith Barney Inc.
Deutsche Bank Securities Inc.
Fleet Securities, Inc.
As Representatives of the Initial Purchasers
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Dear Sirs:
Technical Olympic USA, Inc., a corporation organized under the
laws of the State of Delaware (the "Company"), proposes to issue and sell to
certain purchasers (the "Initial Purchasers"), upon the terms set forth in a
purchase agreement, dated June 14, 2002 (the "Purchase Agreement"), $200,000,000
aggregate principal amount of its 9% Senior Notes Due 2010 (the "Notes")
relating to the initial placement of the Notes (the "Initial Placement"). The
Notes will be unconditionally guaranteed (the "Guarantees" and together with the
Notes, the "Securities") on a senior basis by each of the Company's direct and
indirect domestic subsidiaries set forth on the signature page hereto (the
"Guarantors"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
and the Guarantors agree with you for your benefit and the benefit of the
holders from time to time of the Securities (including the Initial Purchasers)
and the New Securities (as defined herein) (each a "Holder" and, together, the
"Holders"), as follows:
1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other
Person that, directly or indirectly, is in control of, is controlled by, or is
under common control with, such specified Person. For purposes of this
definition, control of a Person shall mean the power, direct or
indirect, to direct or cause the direction of the management and policies of
such Person whether by contract or otherwise; and the terms "controlling" and
"controlled" shall have meanings correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as
such under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or trust
companies are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
"Exchange Offer Registration Period" shall mean the 180-day
period following the consummation of the Registered Exchange Offer, exclusive of
any period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement, or such shorter
period as will terminate when all New Securities held by Exchanging Dealers or
Initial Purchasers have been sold pursuant thereto.
"Exchange Offer Registration Statement" shall mean a
registration statement of the Company and the Guarantors on an appropriate form
under the Act with respect to the Registered Exchange Offer, all amendments and
supplements to such registration statement, including post-effective amendments
thereto, in each case including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include
any Initial Purchaser) that is a Broker-Dealer and elects to exchange for New
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company).
"Final Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" shall have the meaning set forth in the preamble
hereto.
"Indenture" shall mean the Indenture relating to the
Securities, dated as of June, 2002, between the Company, the Guarantors and
Wells Fargo Bank Minnesota, National Association, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the
preamble hereto.
"Initial Purchasers" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
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"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities and/or New Securities, as applicable,
registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
"New Notes" shall mean debt securities of the Company,
guaranteed by the Guarantors, identical in all material respects to the Notes
(except that the cash interest and interest rate step-up provisions and the
transfer restrictions shall be modified or eliminated, as appropriate) and to be
issued under the Indenture or the New Securities Indenture.
"New Securities" shall mean debt securities of the Company and
the related guarantees of the Guarantors, identical in all material respects to
the Securities (except that the cash interest and interest rate step-up
provisions and the transfer restrictions shall be modified or eliminated, as
appropriate) and to be issued under the Indenture or the New Securities
Indenture.
"New Securities Indenture" shall mean an indenture between the
Company, the Guarantors and the New Securities Trustee, identical in all
material respects to the Indenture (except that the cash interest and interest
rate step-up provisions will be modified or eliminated, as appropriate).
"New Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchasers, as trustee with respect to
the New Securities under the New Securities Indenture.
"Prospectus" shall mean the prospectus included in any
Registration Statement (including, without limitation, a prospectus that
discloses information previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A under the Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto and
all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of
the Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
New Notes and Related Guarantees.
"Registration Statement" shall mean any Exchange Offer
Registration Statement or Shelf Registration Statement that covers any of the
Securities or the New Securities pursuant to the provisions of this Agreement,
any amendments and supplements to such registration statement, including
post-effective amendments (in each case including the Prospectus contained
therein), all exhibits thereto and all material incorporated by reference
therein.
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"Related Guarantees" shall mean the guarantees of the
Guarantors to be issued under the Indenture or the New Securities Indenture in
respect of New Notes.
"Securities" shall have the meaning set forth in the preamble
hereto.
"Shelf Registration" shall mean a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in
Section 3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
registration statement of the Company and the Guarantors pursuant to the
provisions of Section 3 hereof which covers some or all of the Securities and/or
New Securities, as applicable, on an appropriate form under Rule 415 under the
Act, or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Trustee" shall mean the trustee with respect to the
Securities and New Securities under the Indenture.
"Underwriter" shall mean any underwriter of Securities or New
Securities in connection with an offering thereof under a Registration
Statement.
2. Registered Exchange Offer.
(a) The Company and the Guarantors shall prepare, at
their cost, and, not later than 90 days following the date of the
original issuance of the Securities (or if such 90th day is not a
Business Day, the next succeeding Business Day), shall file with the
Commission the Exchange Offer Registration Statement with respect to
the Registered Exchange Offer. The Company and the Guarantors shall use
their best efforts to cause the Exchange Offer Registration Statement
to become effective under the Act not later than 150 days following the
date of the original issuance of the Securities (or if such 150th day
is not a Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantors shall promptly
commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange
Securities for New Securities (assuming that such Holder is not an
Affiliate of the Company, acquires the New Securities in the ordinary
course of such Holder's business, has no arrangements with any Person
to participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from participating in
the Registered Exchange Offer) and to trade such New Securities from
and after their receipt without any limitations or restrictions under
the Act and without material restrictions under the securities laws of
a substantial proportion of the several states of the United States.
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(c) In connection with the Registered Exchange Offer,
the Company and the Guarantors shall:
(i) mail to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal
and related documents;
(ii) keep the Registered Exchange Offer open
for not less than 30 days and not more than 45 days after the
date notice thereof is mailed to the Holders (or, in each
case, longer if required by applicable law);
(iii) use their best efforts to keep the
Exchange Offer Registration Statement continuously effective
under the Act, supplemented and amended as required, under the
Act to ensure that it is available for sales of New Securities
by Exchanging Dealers or the Initial Purchasers during the
Exchange Offer Registration Period;
(iv) utilize the services of a depositary
for the Registered Exchange Offer with an address in the
Borough of Manhattan in New York City, which may be the
Trustee, the New Securities Trustee or an Affiliate of either
of them;
(v) permit Holders to withdraw tendered
Securities at any time prior to the close of business, New
York time, on the last Business Day on which the Registered
Exchange Offer is open;
(vi) prior to effectiveness of the Exchange
Offer Registration Statement, provide a supplemental letter to
the Commission (A) stating that the Company and the Guarantors
are conducting the Registered Exchange Offer in reliance on
the position of the Commission in Exxon Capital Holdings
Corporation (pub. avail. May 13, 1988), Morgan Stanley and
Co., Inc. (pub. avail. June 5, 1991); and (B) including a
representation that the Company and the Guarantors have not
entered into any arrangement or understanding with any Person
to distribute the New Securities to be received in the
Registered Exchange Offer and that, to the best of their
information and belief, each Holder participating in the
Registered Exchange Offer is acquiring the New Securities in
the ordinary course of business and has no arrangement or
understanding with any Person to participate in the
distribution of the New Securities; and
(vii) comply in all material respects with
all applicable laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company and the Guarantors shall:
(i) accept for exchange all Notes tendered
and not validly withdrawn pursuant to the Registered Exchange
Offer;
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(ii) deliver to the Trustee for cancellation
in accordance with Section 5(s) all Notes so accepted for
exchange; and
(iii) cause the Trustee or New Securities
Trustee, as the case may be, promptly to authenticate and
deliver to each Holder of Securities a principal amount of New
Notes equal to the principal amount of the Notes of such
Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that
any Broker-Dealer and any such Holder using the Registered Exchange
Offer to participate in a distribution of the New Securities (x) could
not under Commission policy as in effect on the date of this Agreement
rely on the position of the Commission in Morgan Stanley and Co., Inc.
(pub. avail. June 5, 1991) and Exxon Capital Holdings Corporation (pub.
avail. May 13, 1988), as interpreted in the Commission's letter to
Shearman & Sterling dated July 2, 1993 and similar no-action letters;
and (y) must comply with the registration and prospectus delivery
requirements of the Act in connection with any secondary resale
transaction which must be covered by an effective registration
statement containing the selling security holder information required
by Item 507 or 508, as applicable, of Regulation S-K under the Act if
the resales are of New Securities obtained by such Holder in exchange
for Securities acquired by such Holder directly from the Company or one
of its Affiliates. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent to the Company
and the Guarantors that, at the time of the consummation of the
Registered Exchange Offer:
(i) any New Securities received by such
Holder will be acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or
understanding with any Person to participate in the
distribution of the Securities or the New Securities within
the meaning of the Act;
(iii) such Holder is not an Affiliate of the
Company or any of the Guarantors or if it is an Affiliate,
such Holder will comply with the registration and prospectus
delivery requirements of the Act to the extent applicable;
(iv) if such Holder is not a Broker-Dealer,
that it is not engaged in, and does not intend to engage in,
the distribution of the New Securities; and
(v) if such Holder is a Broker-Dealer, that
it will receive New Securities for its own account in exchange
for Securities that were acquired as a result of market-making
activities or other trading activities and that it will
deliver a prospectus in connection with any resale of such New
Securities.
(f) If any Initial Purchaser determines that it is
not eligible to participate in the Registered Exchange Offer with
respect to the exchange of Securities constituting any portion of an
unsold allotment, at the request of such Initial Purchaser, the Company
and the Guarantors shall issue and deliver to such Initial Purchaser or
the
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Person purchasing New Securities registered under a Shelf Registration
Statement as contemplated by Section 3 hereof from such Initial
Purchaser, in exchange for such Securities, a like principal amount of
New Notes and Related Guarantees. The Company and the Guarantors shall
use their reasonable efforts to cause the CUSIP Service Bureau to issue
the same CUSIP number for such New Securities as for New Securities
issued pursuant to the Registered Exchange Offer.
3. Shelf Registration.
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted
to effect the Registered Exchange Offer as contemplated by Section 2
hereof; (ii) for any other reason the Exchange Offer Registration
Statement is not declared effective within 150 days following the date
of the original issuance of the Securities or the Registered Exchange
Offer is not consummated within 180 days following the date of the
original issuance of the Securities; (iii) any Initial Purchaser so
requests with respect to Securities that are not eligible to be
exchanged for New Securities in the Registered Exchange Offer and that
are held by it following consummation of the Registered Exchange Offer;
(iv) any Holder (other than an Initial Purchaser) is not eligible to
participate in the Registered Exchange Offer or does not receive freely
tradeable New Securities in the Registered Exchange Offer other than by
reason of such Holder being an Affiliate of the Company (it being
understood that the requirement that a participating Broker-Dealer
deliver the prospectus contained in the Exchange Offer Registration
Statement in connection with sales of New Securities shall not result
in such New Securities being not "freely tradeable"); or (v) in the
case of any Initial Purchaser that participates in the Registered
Exchange Offer or acquires New Securities pursuant to Section 2(f)
hereof, such Initial Purchaser does not receive freely tradeable New
Securities in exchange for Securities constituting any portion of an
unsold allotment (it being understood that (x) the requirement that an
Initial Purchaser deliver a Prospectus containing the information
required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of New Securities acquired in exchange for such
Securities shall result in such New Securities being not "freely
tradeable;" and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a
result of market-making activities or other trading activities shall
not result in such New Securities being not "freely tradeable") the
Company and the Guarantors shall effect a Shelf Registration Statement
in accordance with subsection (b) below.
(b) If required pursuant to subsection (a) above,
(i) the Company and the Guarantors, at their
cost, shall as promptly as practicable, file with the
Commission and thereafter shall use their best efforts to
cause to be declared effective under the Act a Shelf
Registration Statement relating to the offer and sale of the
Securities or the New Securities, as applicable, by the
Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth
in such Shelf Registration Statement; provided, however, that
no Holder (other than an Initial
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Purchaser) shall be entitled to have the Securities or New
Securities held by it covered by such Shelf Registration
Statement unless such Holder agrees in writing to be bound by
all of the provisions of this Agreement applicable to such
Holder; and provided further, that with respect to New
Securities received by an Initial Purchaser in exchange for
Securities constituting any portion of an unsold allotment,
the Company and the Guarantors may, if permitted by current
interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration
Statement containing the information required by Item 507 or
508 of Regulation S-K, as applicable, in satisfaction of their
obligations under this subsection with respect thereto, and
any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions
herein applicable to, a Shelf Registration Statement.
(ii) the Company and the Guarantors shall
use their best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended as
required by the Act, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period the earlier
of (A) the time when all of the Securities or New Securities,
as applicable, covered by the Shelf Registration Statement can
be sold pursuant to Rule 144 without limitation under clauses
(c), (e), (f) and (h) of Rule 144, (B) the date on which all
the Securities or New Securities, as applicable, covered by
the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement, and (C) the date two years
from the date the Shelf Registration Statement is declared
effective by the Commission (in any such case, such period
being called the "Shelf Registration Period"). The Company and
the Guarantors shall be deemed not to have used their best
efforts to keep the Shelf Registration Statement effective
during the requisite period if they voluntarily take any
action that would result in Holders of Securities or New
Securities covered thereby not being able to offer and sell
such Securities or New Securities during that period, unless
(A) such action is required by applicable law; or (B) such
action is taken by the Company and the Guarantors in good
faith and for valid business reasons (not including avoidance
of the Company's and the Guarantors' obligations hereunder),
including the acquisition or divestiture of assets, so long as
the Company and the Guarantors promptly thereafter comply with
the requirements of Section 5(k) hereof, if applicable.
(iii) the Company and the Guarantors shall
cause the Shelf Registration Statement and the related
Prospectus and any amendment or supplement thereto, as of the
effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to comply in all material
respects with the applicable requirements of the Securities
Act and the rules and regulations of the Commission; and (B)
not to contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
4. Special Interest. If (a) on or prior to the 90th day
following the original issue date of the Securities, neither the Exchange Offer
Registration Statement nor the Shelf
8
Registration Statement has been filed with the Commission, (b) on or prior to
the 150th day following the original issue date of the Securities, neither the
Exchange Offer Registration Statement nor the Shelf Registration Statement has
been declared effective, (c) on or prior to the 180th day following the original
issue date of the Securities, neither the Registered Exchange Offer has been
consummated nor the Shelf Registration Statement has been declared effective, or
(d) after either the Exchange Offer Registration Statement or the Shelf
Registration Statement has been declared effective, such Registration Statement
thereafter ceases to be effective or usable in connection with resales of
Securities or New Securities in accordance with and during the periods specified
in this Agreement (each such event referred to in clauses (a) through (d), a
("Registration Default"), interest ("Special Interest") will accrue on the
principal amount of the Securities and the New Securities (in addition to the
stated interest on the Securities and New Securities) from and including the
date on which any such Registration Default shall occur to but excluding the
date on which all Registration Defaults have been cured. Special Interest will
accrue at a rate of 0.25% per annum during the 90-day period immediately
following the occurrence of such Registration Default and shall increase by
0.25% per annum at the end of each subsequent 90-day period, but in no event
shall such rate exceed 1.00% per annum.
All obligations of the Company and the Guarantors set forth in
the preceding paragraph that are outstanding with respect to any Security at the
time such Security is exchanged for a New Security shall survive until such time
as all such obligations with respect to such Security have been satisfied in
full.
5. Additional Registration Procedures. In connection with any
Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantors shall:
(i) furnish to you, not less than five
Business Days prior to the filing thereof with the Commission,
a copy of any Exchange Offer Registration Statement and any
Shelf Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus
included therein (including all documents incorporated by
reference therein after the initial filing) and shall use
their commercially reasonable best efforts to reflect in each
such document, when so filed with the Commission, such
comments as you reasonably propose;
(ii) include the information set forth in
Annex A hereto on the facing page of the Exchange Offer
Registration Statement, in Annex B hereto in the forepart of
the Exchange Offer Registration Statement in a section setting
forth details of the Exchange Offer, in Annex C hereto in the
underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in
Annex D hereto in the letter of transmittal delivered pursuant
to the Registered Exchange Offer;
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(iii) if requested by an Initial Purchaser,
include the information required by Item 507 or 508 of
Regulation S-K, as applicable, in the Prospectus contained in
the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration
Statement, include the names of the Holders that propose to
sell Securities or New Securities, as applicable, pursuant to
the Shelf Registration Statement as selling security holders.
(b) The Company and the Guarantors shall ensure that:
(i) any Registration Statement and any
amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all material
respects with the Act and the rules and regulations
thereunder; and
(ii) any Registration Statement and any
amendment thereto does not, when it becomes effective, contain
an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make the statements therein not misleading.
(c) The Company and the Guarantors shall advise you,
the Holders of Securities or New Securities covered by any Shelf
Registration Statement and any Exchanging Dealer or Initial Purchaser
under any Exchange Offer Registration Statement that has provided in
writing to the Company and the Guarantors a telephone or facsimile
number and address for notices, and, if requested by you or any such
Holder, Exchanging Dealer or Initial Purchaser, shall confirm such
advice in writing (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the
Prospectus until the Company and the Guarantors shall have remedied the
basis for such suspension):
(i) when a Registration Statement and any
amendment thereto has been filed with the Commission and when
the Registration Statement or any post-effective amendment
thereto has become effective;
(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 the
Registration Statement or the initiation of any proceedings
for that purpose;
(iv) of the receipt by the Company and the
Guarantors of any notification with respect to the suspension
of the qualification of the Securities or New Securities
included therein for sale in any jurisdiction or the
initiation of any proceeding for such purpose; and
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(v) of the happening of any event that
requires any change in the Registration Statement or the
Prospectus so that, as of such date, the statements therein
are not misleading and do not omit to state 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.
(d) The Company and the Guarantors shall use their
best efforts to obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement or the qualification of the
Securities or New Securities therein for sale in any jurisdiction at
the earliest possible time.
(e) The Company and the Guarantors shall furnish to
each Holder of Securities or New Securities covered by any Shelf
Registration Statement, without charge, at least one copy of such Shelf
Registration Statement and any post-effective amendment thereto,
including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Company and the Guarantors shall, during the
Shelf Registration Period, deliver to each Holder of Securities or New
Securities covered by any Shelf Registration Statement, without charge,
as many copies of the Prospectus (including each preliminary
Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request.
The Company and the Guarantors consent to the use of the Prospectus or
any amendment or supplement thereto by each of the selling Holders of
Securities or New Securities in connection with the offering and sale
of the Securities or New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration
Statement.
(g) The Company and the Guarantors shall furnish to
each Exchanging Dealer or Initial Purchaser which so requests, without
charge, at least one copy of the Exchange Offer Registration Statement
and any post-effective amendment thereto, including all material
incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(h) The Company and the Guarantors shall promptly
deliver to each Initial Purchaser, each Exchanging Dealer and each
other Person required to deliver a Prospectus during the Exchange Offer
Registration Period, without charge, as many copies of the Prospectus
included in such Exchange Offer Registration Statement and any
amendment or supplement thereto as any such Person may reasonably
request. The Company and the Guarantors consent to the use of the
Prospectus or any amendment or supplement thereto by any Initial
Purchaser, any Exchanging Dealer and any such other Person that may be
required to deliver a Prospectus following the Registered Exchange
Offer in connection with the offering and sale of the New Securities
covered by the
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Prospectus, or any amendment or supplement thereto, included in the
Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any
other offering of Securities or New Securities pursuant to any
Registration Statement, the Company and the Guarantors shall arrange,
if necessary, for the qualification of the Securities or the New
Securities for sale under the laws of such jurisdictions as any Holder
shall reasonably request and will maintain such qualification in effect
so long as required; provided that in no event shall the Company and
the Guarantors be obligated to qualify to do business in any
jurisdiction where they are not then so qualified or to take any action
that would subject them to service of process in suits or taxation,
other than those arising out of the Initial Placement, the Registered
Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where they are not then so subject.
(j) The Company and the Guarantors shall cooperate
with the Holders of Securities and New Securities to facilitate the
timely preparation and delivery of certificates representing New
Securities or Securities to be issued or sold pursuant to any
Registration Statement free of any restrictive legends and in such
denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by
subsections (c)(ii) through (v) above, the Company and the Guarantors
shall promptly prepare a post-effective amendment to the applicable
Registration Statement or an amendment or supplement to the related
Prospectus or file any other required document so that, as thereafter
delivered to Initial Purchasers or Exchanging Dealers, the Prospectus
will not include an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 and the
Shelf Registration Statement provided for in Section 3(b) shall each be
extended by the number of days from and including the date of the
giving of a notice of suspension pursuant to Section 5(c) to and
including the date when the Initial Purchasers, the Holders of the
Securities or New Securities and any known Exchanging Dealer shall have
received such amended or supplemented Prospectus pursuant to this
Section.
(l) Not later than the effective date of any
Registration Statement, the Company and the Guarantors shall provide a
CUSIP number for the Securities or the New Securities, as the case may
be, registered under such Registration Statement and provide the
Trustee with printed certificates for such Securities or New
Securities, in a form eligible for deposit with The Depository Trust
Company.
(m) The Company and the Guarantors shall comply with
all applicable rules and regulations of the Commission and shall make
generally available to their security holders as soon as practicable
after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the
Act.
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(n) The Company and the Guarantors shall cause the
Indenture or the New Securities Indenture, as the case may be, to be
qualified under the Trust Indenture Act in a timely manner.
(o) The Company and the Guarantors may require each
Holder of Securities or New Securities to be sold pursuant to any Shelf
Registration Statement to furnish to the Company and the Guarantors
such information regarding the Holder and the distribution of such
Securities as the Company and the Guarantors may from time to time
reasonably require for inclusion in such Registration Statement. The
Company and the Guarantors may exclude from such Shelf Registration
Statement the Securities or New Securities of any Holder that fails to
furnish such information within a reasonable time after receiving such
request.
(p) In the case of any Shelf Registration Statement,
the Company and the Guarantors shall enter into such agreements and
take all other appropriate actions (including if requested an
underwriting agreement in customary form) in order to expedite or
facilitate the registration or the disposition of the Securities or New
Securities, and in connection therewith, if an underwriting agreement
is entered into, cause the same to contain indemnification provisions
and procedures no less favorable than those set forth in Section 7 (or
such other provisions and procedures acceptable to the Majority Holders
and the Managing Underwriters, if any, with respect to all parties to
be indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement,
the Company and the Guarantors shall:
(i) make reasonably available for inspection
by the Holders of Securities or New Securities to be
registered thereunder, any Underwriter participating in any
disposition pursuant to such Registration Statement, and any
attorney, accountant or other agent retained by the Holders or
any such Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company
and its subsidiaries;
(ii) cause the Company's officers, directors
and employees to supply all relevant information reasonably
requested by the Holders or any such Underwriter, attorney,
accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence
examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall
be kept confidential by the Holders or any such Underwriter,
attorney, accountant or agent, unless such disclosure is made
in connection with a court proceeding or required by law, or
such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) make such representations and
warranties to the Holders of Securities or New Securities
registered thereunder and the Underwriters, if any, in
13
form, substance and scope as are customarily made by issuers
to Underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the
Company and the Guarantors and updates thereof (which counsel
and opinions (in form, scope and substance) shall be
reasonably satisfactory to the Managing Underwriters, if any)
addressed to each selling Holder and the Underwriters, if any,
covering such matters as are customarily covered in opinions
requested in underwritten offerings and such other matters as
may be reasonably requested by such Holders and Underwriters;
(v) obtain "cold comfort" letters and
updates thereof 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 in the Registration Statement),
addressed to each selling Holder of Securities or New
Securities registered thereunder and the Underwriters, if any,
in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings; and
(vi) deliver such documents and certificates
as may be reasonably requested by the Majority Holders and the
Managing Underwriters, if any, including those to evidence
compliance with Section 5(k) and with any customary conditions
contained in the underwriting agreement or other agreement
entered into by the Company and the Guarantors.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration
Statement, the Company and the Guarantors shall upon the request of an
Exchanging Dealer:
(i) make reasonably available for inspection
by such Initial Purchaser or Exchanging Dealer, and any
attorney, accountant or other agent retained by such Initial
Purchaser or Exchanging Dealer, all relevant financial and
other records, pertinent corporate documents and properties of
the Company and its subsidiaries;
(ii) cause the Company's officers, directors
and employees to supply all relevant information reasonably
requested by such Initial Purchaser or Exchanging Dealer or
any such attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any
information that is designated in
14
writing by the Company, in good faith, as confidential at the
time of delivery of such information shall be kept
confidential by such Initial Purchaser or Exchanging Dealer or
any such attorney, accountant or agent, unless such disclosure
is made in connection with a court proceeding or required by
law, or such information becomes available to the public
generally or through a third party without an accompanying
obligation of confidentiality;
(iii) make such representations and
warranties to such Initial Purchaser or Exchanging Dealer, in
form, substance and scope as are customarily made by issuers
to Underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the
Purchase Agreement;
(iv) obtain opinions of counsel to the
Company and the Guarantors and updates thereof (which counsel
and opinions (in form, scope and substance) shall be
reasonably satisfactory to such Initial Purchaser or
Exchanging Dealer and their respective counsel, addressed to
such Initial Purchaser or Exchanging Dealer, covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such Initial Purchaser or Exchanging
Dealer or their respective counsel;
(v) obtain "cold comfort" letters and
updates thereof 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 in the Registration Statement),
addressed to such Initial Purchaser or Exchanging Dealer, 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 such Initial
Purchaser or Exchanging Dealer or their respective 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 Initial Purchaser or Exchanging
Dealer or their respective counsel; and
(vi) deliver such documents and certificates
as may be reasonably requested by such Initial Purchaser or
Exchanging Dealer or their respective counsel, including those
to evidence compliance with Section 5(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section if so requested shall be performed at close of the Registered Exchange
Offer and the effective date of any post-effective amendment to the Exchange
Offer Registration Statement.
(s) If a Registered Exchange Offer is to be
consummated, upon delivery of the Securities by Holders to the Company
(or to such other Person as directed by the Company) in exchange for
the New Securities, the Company shall mark, or caused to be marked, on
the Securities so exchanged that such Securities are being canceled in
15
exchange for the New Securities. In no event shall the Securities be
marked as paid or otherwise satisfied.
(t) The Company and the Guarantors will use their
commercially reasonable best efforts to confirm the ratings of the
Securities will apply to the Securities or the New Securities, as the
case may be, covered by a Shelf Registration Statement.
(u) In the event that any Broker-Dealer shall
underwrite any Securities or New Securities or participate as a member
of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the
By-Laws of the National Association of Securities Dealers, Inc.)
thereof, whether as a Holder of such Securities or New Securities or as
an Underwriter, a placement or sales agent or a broker or dealer in
respect thereof, or otherwise, assist such Broker-Dealer in complying
with the requirements of such Rules and By-Laws, including, without
limitation, by:
(i) if such Rules or By-Laws shall so
require, engaging a "qualified independent underwriter" (as
defined in such Rules) to participate in the preparation of
the Registration Statement, to exercise usual standards of due
diligence with respect thereto and, if any portion of the
offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales
agent, to recommend the yield of such Securities or New
Securities;
(ii) indemnifying any such qualified
independent underwriter to the extent of the indemnification
of Underwriters provided in Section 6 hereof; and
(iii) providing such information to such
Broker-Dealer as may be required in order for such
Broker-Dealer to comply with the requirements of such Rules.
(v) The Company and the Guarantors shall use their
commercially reasonable best efforts to take all other steps necessary
to effect the registration of the Securities or the New Securities, as
the case may be, covered by a Registration Statement.
6. Registration Expenses. The Company and the Guarantors shall
bear all expenses incurred in connection with the performance of their
obligations under Sections 2, 3 and 5 hereof and, in the event of any Shelf
Registration Statement, will reimburse the Holders for the reasonable fees and
disbursements of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the case of any
Exchange Offer Registration Statement, will reimburse the Initial Purchasers for
the reasonable fees and disbursements of counsel acting in connection therewith
if such Initial Purchaser shall resell Securities or New Securities pursuant to
the prospectus contained such Exchange Offer Registration Statement.
16
7. Indemnification and Contribution.
(a) The Company and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder of
Securities or New Securities, as the case may be, covered by any
Registration Statement (including each Initial Purchaser and, with
respect to any Prospectus delivery as contemplated in Section 5(h)
hereof, each Exchanging Dealer), the directors, officers, employees and
agents of each such Holder and each Person who controls any such Holder
within the meaning of either the Act or the Exchange Act against any
and all Losses, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulation, at common law or otherwise, insofar
as such Losses arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement as originally filed or in any amendment thereof,
or in any preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them
in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company and
the Guarantors will not be liable in any case to the extent that any
such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company and the Guarantors by or
on behalf of any such Holder specifically for inclusion therein. This
indemnity agreement will be in addition to any liability which the
Company and the Guarantors may otherwise have.
The Company and the Guarantors also, jointly and severally,
agree to indemnify or contribute as provided in Section 7(d) to Losses of any
Underwriter of Securities or New Securities, as the case may be, registered
under a Shelf Registration Statement, their directors, officers, employees or
agents and each Person who controls such Underwriter on substantially the same
basis as that of the indemnification of the Initial Purchasers and the selling
Holders provided in this Section 7(a) and shall, if requested by any Holder,
enter into an underwriting agreement reflecting such agreement, as provided in
Section 5(p) hereof.
(b) Each Holder of Securities or New Securities
covered by a Registration Statement (including each Initial Purchaser
and, with respect to any Prospectus delivery as contemplated in Section
5(h) hereof, each Exchanging Dealer) severally agrees to indemnify and
hold harmless the Company and the Guarantors, each of their directors,
officers, employees and agents and each Person who controls the Company
or any of the Guarantors within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the
Company and the Guarantors to each such Holder, but only with reference
to written information relating to such Holder furnished to the Company
and the Guarantors by or on behalf of such Holder specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any such
Holder may otherwise have.
17
(c) Promptly after receipt by an indemnified party
under this Section 7 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section, notify the
indemnifying party in writing of the commencement thereof; but the
failure so to notify the indemnifying party (i) will not relieve it
from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure
results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other
than the indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint counsel of
the indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest; (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action; or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding. An indemnifying
party shall not be liable under this Section 7 to any indemnified party
regarding any settlement or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit
or proceeding in respect of which indemnification or contribution may
be sought hereunder (whether or not the indemnified parties are actual
or potential parties to such claim or action) unless such settlement,
compromise or consent is consented to by such indemnifying party, which
consent shall not be unreasonably withheld.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section is unavailable to or insufficient
to hold harmless an indemnified party for any reason, then each
applicable indemnifying party shall have a joint and several obligation
to contribute to the aggregate losses, claims, damages and liabilities
(including legal or
18
other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which such indemnified party
may be subject in such proportion as is appropriate to reflect the
relative benefits received by such indemnifying party, on the one hand,
and such indemnified party, on the other hand, from the Initial
Placement and the Registration Statement which resulted in such Losses;
provided, however, that in no case shall any Initial Purchaser or any
subsequent Holder of any Security or New Security be responsible, in
the aggregate, for any amount in excess of the purchase discount or
commission applicable to such Security, or in the case of a New
Security, applicable to the Security that was exchangeable into such
New Security, as set forth on the cover page of the Final Memorandum,
nor shall any Underwriter be responsible for any amount in excess of
the underwriting discount or commission applicable to the securities
purchased by such Underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying
party and the indemnified party shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements
or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and
the Guarantors shall be deemed to be equal to the sum of (x) the total
net proceeds from the Initial Placement (before deducting expenses) as
set forth on the cover page of the Final Memorandum and (y) the total
amount of additional interest that the Company and the Guarantors were
not required to pay as a result of registering the Securities or New
Securities covered by the Registration Statement which resulted in such
Losses. Benefits received by the Initial Purchasers shall be deemed to
be equal to the total purchase discounts and commissions as set forth
on the cover page of the Final Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the Act.
Benefits received by any Underwriter shall be deemed to be equal to the
total underwriting discounts and commissions, as set forth on the cover
page of the Prospectus forming a part of the Registration Statement
which resulted in such Losses. Relative fault shall be determined by
reference to, among other things, whether any alleged untrue statement
or omission relates to information provided by the indemnifying party,
on the one hand, or by the indemnified party, on the other hand, the
intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The parties agree that it would not be just and equitable
if contribution were determined by pro rata allocation (even if the
Holders were treated as one entity for such purpose) or any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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, each Person who
controls a Holder within the meaning of either the Act or the Exchange
Act and each director, officer, employee and agent of such Holder shall
have the same rights to contribution as such Holder, and each Person
who controls the Company or any of the Guarantors within the meaning of
either the Act or the Exchange Act and each officer, employee, agent or
19
director of the Company or any of the Guarantors who would be entitled
to indemnity under this Agreement shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in
full force and effect, regardless of any investigation made by or on
behalf of any Holder or the Company and the Guarantors or any of the
officers, directors or controlling Persons referred to in this Section
hereof, and will survive the sale by a Holder of Securities or New
Securities covered by a Registration Statement.
8. Underwritten Registrations.
(a) If any of the Securities or New Securities, as
the case may be, covered by any Shelf Registration Statement are to be
sold in an underwritten offering, the Managing Underwriters shall be
selected by the Majority Holders.
(b) No Person may participate in any underwritten
offering pursuant to any Shelf Registration Statement, unless such
Person (i) agrees to sell such Person's Securities or New Securities,
as the case may be, on the basis reasonably provided in any
underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of
such underwriting arrangements.
9. No Inconsistent Agreements. The Company has not, as of the
date hereof, entered into, nor shall it, on or after the date hereof, enter
into, any agreement with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with the provisions
hereof.
10. Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Securities); provided
that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Securities or New Securities, as the case may be, are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect the rights of other Holders may be given by the Majority
Holders, determined on the basis of Securities or New Securities, as the case
may be, being sold rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier or air courier guaranteeing overnight delivery:
20
(a) if to a Holder, at the most current address given
by such holder to the Company in accordance with the provisions of this
Section, which address initially is, with respect to each Holder, the
address of such Holder maintained by the Registrar under the Indenture,
with a copy in like manner to Salomon Smith Barney Inc;
(b) if to you, initially at the respective addresses
set forth in the Purchase Agreement; and
(c) if to the Company or the Guarantors, initially at
its or their address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchasers or the Company by notice to the other
parties may designate additional or different addresses for subsequent notices
or communications.
12. Successors. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties,
including, without the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities or New Securities. The Company
hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the New Securities, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. Counterparts. This Agreement may be in signed
counterparts, each of which shall an original and all of which together shall
constitute one and the same agreement.
14. Headings. The headings used herein are for convenience
only and shall not affect the construction hereof.
15. Applicable Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
16. Severability. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. Securities Held by the Company, etc. Whenever the consent
or approval of Holders of a specified percentage of principal amount of
Securities or New Securities is required hereunder, Securities or New
Securities, as applicable, held by the Company or its Affiliates (other than
subsequent Holders of Securities or New Securities if such subsequent Holders
are deemed to be Affiliates solely by reason of their holdings of such
Securities or New Securities) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
21
18. Agent for Service; Submission to Jurisdiction; Waiver of
Immunities. By the execution and delivery of this Agreement, each of the Company
and the Guarantors (i) acknowledges that it has, by separate written instrument,
irrevocably designated and CT Corp. (and any successor entity), as its
authorized agent upon which process may be served in any suit or proceeding
arising out of or relating to this Agreement that may be instituted in any
federal or state court in the State of New York or brought under federal or
state securities laws, and acknowledges that CT Corp. has accepted such
designation, (ii) submits to the nonexclusive jurisdiction of any such court in
any such suit or proceeding, and (iii) agrees that service of process upon CT
Corp. and written notice of said service to the Company shall be deemed in every
respect effective service of process upon it in any such suit or proceeding. The
Company further agrees to take any and all action, including the execution and
filing of any and all such documents and instruments, as may be necessary to
continue such designation and appointment of CT Corp. in full force and effect
so long as any of the Securities shall be outstanding.
22
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this Agreement and your acceptance shall represent a binding agreement
among the Company, the Guarantors and the several Initial Purchasers.
Very truly yours,
TECHNICAL OLYMPIC USA, INC.
By: /s/ TOMMY L. McADEN
------------------------------------------
Name: Tommy L. McAden
Title: Vice President - Finance and
Administration and Chief Financial
Officer
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
SALOMON SMITH BARNEY INC.
DEUTSCHE BANK SECURITIES INC.
FLEET SECURITIES, INC.
By: SALOMON SMITH BARNEY INC.
By: /s/ STEPHEN CUNNINGHAM
-------------------------------
Name: Stephen Cunningham
Title: Director
For themselves and the other several Initial Purchasers named in Schedule I to
the foregoing Agreement.
23
SUBSIDIARY GUARANTORS:
ADLER REALTY CO.
ADRO CONST., INC.
BANYAN TRAILS, INC.
ENGLE HOMES DELAWARE, INC.
ENGLE HOMES FINANCING, INC.
ENGLE HOMES REALTY, INC.
ENGLE HOMES, INC.
ENGLE HOMES/ARIZONA CONSTRUCTION, INC.
ENGLE HOMES/ARIZONA, INC.
ENGLE HOMES/ATLANTA, INC.
ENGLE HOMES/BROWARD, INC.
ENGLE HOMES/COLORADO, INC.
ENGLE HOMES/GEORGIA, INC.
ENGLE HOMES/GULF COAST, INC.
ENGLE HOMES/JACKSONVILLE, INC.
ENGLE HOMES/LAKE BERNADETTE, INC.
ENGLE HOMES/NORTH CAROLINA, INC.
ENGLE HOMES/ORLANDO, INC.
ENGLE HOMES/PALM BEACH, INC.
ENGLE HOMES/PEMBROKE, INC.
ENGLE HOMES/SOUTHWEST FLORIDA, INC.
ENGLE HOMES/TEXAS, INC.
ENGLE HOMES/VIRGINIA, INC.
GREENLEAF HOMES, INC.
NEWMARK FINANCE AFFILIATE, LTD
NEWMARK FINANCE CORPORATION
NEWMARK HOME CORPORATION
NEWMARK HOMES BUSINESS TRUST
NEWMARK HOMES L.P.
NEWMARK HOMES PURCHASING, L.P.
NHC HOMES, INC.
NMH INVESTMENTS, INC.
PACIFIC UNITED DEVELOPMENT CORP.
PACIFIC UNITED L.P.
PEMBROKE FALLS REALTY, INC.
PREFERRED BUILDERS REALTY, INC.
PREFERRED HOME MORTGAGE COMPANY
PRESTIGE ABSTRACT & TITLE, LLC
PROFESSIONAL ADVANTAGE TITLE, LTD.
PUDC, INC.
SILVERLAKE INTERESTS, L.C.
ST. TROPEZ AT BOCA GOLF, INC.
TAP ACQUISITION CO.
TECHNICAL MORTGAGE, L.P.
THE ADLER COMPANIES, INC.
TM INVESTMENTS, L.L.C.
UNIVERSAL LAND TITLE, INC.
UNIVERSAL LAND TITLE AGENCY, INC.
UNIVERSAL LAND TITLE INVESTMENT #1, L.L.C.
UNIVERSAL LAND TITLE INVESTMENT #2, L.L.C.
UNIVERSAL LAND TITLE INVESTMENT #3, L.L.C.
UNIVERSAL LAND TITLE INVESTMENT #4, L.L.C.
UNIVERSAL LAND TITLE OF SOUTH FLORIDA, LTD.
UNIVERSAL LAND TITLE OF TEXAS, INC.
UNIVERSAL LAND TITLE OF THE PALM BEACHES, LTD.
UNIVERSAL LAND TITLE OF VIRGINIA, INC.
By: /s/ Tommy L. McAden
------------------------------------------
Name: Tommy L. McAden
Title: Vice President - Finance and
Administration
24
ANNEX A
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Securities received in exchange for Securities where such
Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities. The Company has agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, or such shorter period as will terminate when
all New Securities held by Exchanging Dealers or Initial Purchasers have been
sold pursuant hereto, it will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
25
ANNEX B
Each Broker-Dealer that receives New Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such New Securities. See "Plan of Distribution."
26
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company and the
Guarantors have agreed that, starting on the Expiration Date and ending on the
close of business one year after the Expiration Date or such shorter period as
will terminate when all New Securities held by Exchanging Dealers or Initial
Purchasers have been sold pursuant hereto, it will make this Prospectus, as
amended or supplemented, available to any Broker-Dealer for use in connection
with any such resale. In addition, until __________, 200__, all dealers
effecting transactions in the New Securities may be required to deliver a
prospectus.
The Company will not receive any proceeds from any sale of New
Securities by brokers-dealers. New Securities received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such New
Securities. Any Broker-Dealer that resells New Securities that were received by
it for its own account pursuant to the Exchange Offer and any broker or dealer
that participates in a distribution of such New Securities may be deemed to be
an "underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Securities and any commissions or concessions received by any
such Persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will deliver
and by delivering a prospectus, a Broker-Dealer will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date or such
shorter period as will terminate when all New Securities held by Exchanging
Dealers or Initial Purchasers have been sold pursuant hereto, the Company and
the Guarantors will promptly send additional copies of this Prospectus and any
amendment or supplement to this Prospectus to any Broker-Dealer that requests
such documents in the Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offer (including the expenses of one counsel
for the holder of the Securities) other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Securities (including
any Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K
Items 507 and/or 508.]
27
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name:
---------------------------------
Address:
---------------------------------
---------------------------------
Rider B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Securities in the ordinary course of its business, it is not
engaged in, and does not intend to engage in, a distribution of New Securities
and it has no arrangements or understandings with any Person to participate in a
distribution of the New Securities. If the undersigned is a Broker-Dealer that
will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired
by it as a result of market-making activities or other trading activities and
acknowledges that it will deliver a prospectus in connection with any resale of
such New Securities; however, by so acknowledging and by delivering a
prospectus, the undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
28