EXHIBIT 4.20
TECHNICAL OLYMPIC USA, INC.
$35,000,000
10 3/8% Senior Subordinated Notes Due 2012
REGISTRATION RIGHTS AGREEMENT
New York, New York
April 22, 2003
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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
Citigroup Global Markets Inc. (the "Initial Purchaser"), upon the terms set
forth in a purchase agreement, dated April 15, 2003 (the "Purchase Agreement"),
$35,000,000 aggregate principal amount of its 10 3/8% Senior Subordinated Notes
due 2012 (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
subordinated unsecured 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 Purchaser 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 Purchaser) 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 Purchaser 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
the 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 25, 2002, between the Company, the Guarantors and
Xxxxx 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 Purchaser" shall have the meaning set forth in the
preamble hereto.
"Losses" shall have the meaning set forth in Section 7(d)
hereof.
"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.
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"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 Purchaser, 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.
"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.
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"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 180 days following the
date of the original issuance of the Securities (or if such 180th 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.
(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;
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(ii) keep the Registered Exchange Offer
open for not less than 20 business 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 Purchaser 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), Xxxxxx
Xxxxxxx 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;
(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.
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(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 Xxxxxx Xxxxxxx 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 the 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 the Initial Purchaser, the Company
and the Guarantors shall issue and deliver to the Initial Purchaser or
the Person purchasing New Securities registered under a Shelf
Registration Statement as contemplated by Section 3 hereof from the
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.
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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 180
days following the date of the original issuance of the Securities or the
Registered Exchange Offer is not consummated within 45 days following the date
that is 180 days following the date of the original issuance; (iii) the 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 the 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 the Initial Purchaser that participates in the Registered Exchange Offer
or acquires New Securities pursuant to Section 2(f) hereof, the 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 the 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
the Initial 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 the 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
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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 Registration Statement has been filed with
the Commission, (b) on or prior to the 180th 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 45th day following the date the Exchange Offer Registration Statement is
first declared effective, 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
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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;
(iii) if requested by the 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.
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(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 the 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 the 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
(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
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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 the 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 the 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 the 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 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
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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 the Initial Purchaser 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 Purchaser, 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.
(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, if
applicable.
(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
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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 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
13
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 the Initial Purchaser or Exchanging Dealer, and
any attorney, accountant or other agent retained by the
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 the 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 writing by the Company,
in good faith, as confidential at the time of delivery of such
information shall be kept confidential by the 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 the Initial Purchaser or Exchanging Dealer, in
form, substance and scope as are customarily
14
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 Initial Purchaser or Exchanging
Dealer and their respective counsel, addressed to the 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 the 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 the 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 the 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 the Initial Purchaser or Exchanging
Dealer or their respective counsel; and
(vi) deliver such documents and
certificates as may be reasonably requested by the 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 xxxx, or caused to be marked, on
the Securities so exchanged that such Securities are being canceled in
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
15
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 Purchaser for
the reasonable fees and disbursements of counsel acting in connection therewith
if the Initial Purchaser shall resell Securities or New Securities pursuant to
the prospectus contained in such Exchange Offer Registration Statement.
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 the 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
16
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 Purchaser 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 the 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.
(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
17
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 other expenses reasonably incurred in connection
with investigating or defending the 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
the 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
18
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 Purchaser 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
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.
19
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 the Initial Purchaser, the Company shall obtain
the written consent of the 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:
(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 Citigroup Global Markets
Inc.;
(b) if to you, initially at the address 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.
20
All such notices and communications shall be deemed to have
been duly given when received.
The Initial Purchaser 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 be 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 or 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.
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 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.
21
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 Initial Purchaser.
Very truly yours,
TECHNICAL OLYMPIC USA, INC.
By: /s/ Xxxxx X. XxXxxx
-----------------------------------
Name: Xxxxx X. XxXxxx
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.
CITIGROUP GLOBAL MARKETS INC.
By: /s/ Xxxx Xxxxxxx
-------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
SUBSIDIARY GUARANTORS:
Xxxxx Homes Delaware, Inc.
Xxxxx Homes/Arizona Construction, Inc.
Newmark Homes X.X.
Xxxxxxx Homes Purchasing, L.P.
Pacific United L.P.
Silverlake Interests, X.X.
XXXXX Financing, Inc.
TOUSA Shared Services, LLC
By: /s/ Xxxxx X. XxXxxx
----------------------------------------------
Xxxxx X. XxXxxx
Vice President - Finance and Administration
TOUSA Associates Services Company
By: /s/ Xxxxxxxx X. Xxxxxxxx
----------------------------------------------
Name: Xxxxxxxx X. Xxxxxxxx
Title: Vice President and Secretary
Newmark Homes Business Trust
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Name: Xxxxx Xxxxx
Title: Managing Trustee
Alliance Insurance and Information Services, LLC
Xxxxx Homes/Colorado, Inc.
Xxxxx Homes Residential Construction, LLC
Xxxxx Homes/Virginia, Inc.
Newmark Homes, LLC
Pembroke Falls Realty, Inc.
Preferred Builders Realty, Inc.
Preferred Home Mortgage Company
Prestige Abstract & Title, LLC
Professional Advantage Title, Ltd.
TOUSA Homes, Inc.
TOUSA Ventures, LLC
Universal Land Title, 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.
By: /s/ Xxxxx X. XxXxxx
---------------------------------------------
Xxxxx X. XxXxxx
Vice President and Treasurer
