EX-4.18 Registration Rights Agreement



 





Exhibit 4.18



REGISTRATION RIGHTS AGREEMENT




     REGISTRATION RIGHTS AGREEMENT (this “Agreement”), dated as of July 31, 2007, by and
among TOUSA, Inc., a Delaware corporation (the “Company”) and the undersigned Lenders.



WHEREAS:




     A. The Company, certain of its subsidiaries, Deutsche Bank Trust Company Americas, Deutsche
Bank Securities Inc., other entities party thereto, and the lenders (the “Lenders”) party to that
certain $137,500,000 Senior Mezzanine Credit Agreement, dated as August 1, 2005 by and among
TE/TOUSA Mezzanine, LLC and the other parties thereto have agreed to a global settlement, as set
forth in the Settlement and Release Agreement dated June 29, 2007 (the “Settlement
Agreement”), which shall be effected in the manner and subject to the conditions set forth
therein.



     B. In connection with the Settlement Agreement, the Company has agreed, upon the terms and
subject to the conditions set forth in the Settlement Agreement, to issue to each Lender 14.75%
Senior Subordinated PIK Election Notes due 2015 (the “Notes”) to be issued pursuant to an
indenture (the “Indenture”), dated as of July 31, 2007, by and among the Company, the
subsidiary guarantors party thereto and Wells Fargo Bank, National Association, as trustee.



     C. In accordance with the terms of the Settlement Agreement, the Company has agreed to provide
certain registration rights for the Notes under the Securities Act of 1933, as amended, and the
rules and regulations thereunder, or any similar successor statute (collectively, the “1933
Act”), and applicable state securities laws.



     NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each of the Investors hereby agree as follows:



1. Definitions.



     As used in this Agreement, the following terms shall have the following meanings:




	 	(a)	 	“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.
	 
	 	(b)	 	“Broker-Dealer” shall mean any broker or dealer registered as such
under the 1934 Act (as defined herein).




 









 






	 	(c)	 	“Business Day” means any day other than Saturday, Sunday or any other
day on which commercial banks in the City of New York are authorized or required by law
to remain closed.
	 
	 	(d)	 	“Closing Date” means the date hereof.
	 
	 	(e)	 	“Effective Date” means the date that the Registration Statement has
been declared effective by the SEC.
	 
	 	(f)	 	“Effectiveness Deadline” means the date which is two-hundred and
seventy (270) days after the Closing Date.
	 
	 	(g)	 	“Exchange Offer Registration Statement” shall mean a registration
statement of the Company on an appropriate form under the 1933 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.
	 
	 	(h)	 	“Filing Deadline” means the date that is one-hundred and twenty (120)
days after the Closing Date.
	 
	 	(i)	 	“Investor” means a Lender or any transferee or assignee thereof to whom
a Lender assigns its rights under this Agreement and who agrees to become bound by the
provisions of this Agreement in accordance with Section 9 and any transferee or
assignee thereof to whom a transferee or assignee assigns its rights under this
Agreement and who agrees to become bound by the provisions of this Agreement in
accordance with Section 9.
	 
	 	(j)	 	“New Securities” shall mean debt securities of the Company, identical
in all material respects to the then outstanding 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 in exchange for the
Registrable Securities.
	 
	 	(k)	 	“Person” means an individual, a limited liability company, a
partnership, a joint venture, a corporation, a trust, an unincorporated organization
and a government or any department or agency thereof.
	 
	 	(l)	 	“register,” “registered,” and “registration” refer to a
registration effected by preparing and filing one or more Registration Statements in
compliance with the 1933 Act and pursuant to Rule 415 and the declaration or ordering
of effectiveness of such Registration Statement(s) by the SEC.
	 
	 	(m)	 	“Registered Exchange Offer” shall mean the proposed offer of the
Company to issue and deliver to the holders of the Notes that are not prohibited by any
law or policy of the SEC from participating in such offer, in exchange for the Notes, a
like aggregate principal amount of the New Securities.




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	 	(n)	 	“Registrable Securities” means the Notes and any notes paid as an
interest payment pursuant to the terms of the Indenture.
	 
	 	(o)	 	“Registration Statement” means a registration statement or registration
statements of the Company filed under the 1933 Act covering the Registrable Securities.
	 
	 	(p)	 	“Required Holders” means the holders of at least a majority of the
Registrable Securities.
	 
	 	(q)	 	“Required Registration Amount” means all of the Registrable Securities.
	 
	 	(r)	 	“Rule 415” means Rule 415 under the 1933 Act or any successor rule
providing for offering securities on a continuous or delayed basis.
	 
	 	(s)	 	“SEC” means the United States Securities and Exchange Commission.





2. Registration.





	 	(a)	 	Mandatory Registration. The Company shall prepare and use its
commercially reasonable efforts to file no later than the Filing Deadline with the SEC
the Registration Statement on Form S-3, or such other appropriate form if Form S-3 is
then unavailable, covering the resale of all of the Registrable Securities by the
Investors party hereto from time to time. The Registration Statement prepared pursuant
hereto shall register for resale the Registrable Securities in amounts at least equal
to the Required Registration Amount. The Registration Statement shall contain (except
if otherwise directed by the Required Holders) the “Plan of Distribution” section with
at least that information substantially the form attached hereto as Exhibit A,
to the extent permitted by the rules, regulations, and form requirements promulgated by
the SEC, except to the extent revised pursuant to comments received from the staff of
the SEC. The Company shall use its commercially reasonable efforts to have the
Registration Statement declared effective by the SEC as soon as practicable, but in no
event later than the Effectiveness Deadline. By 9:30 am (New York City time) on the
second Business Day following the Effective Date, the Company shall file with the SEC
in accordance with Rule 424 under the 1933 Act the final prospectus to be used in
connection with sales pursuant to such Registration Statement.
	 
	 	(b)	 	Piggy-Back Registration Rights. Unless a registration statement with
respect to the Registrable Securities has already been declared effective by the SEC,
if the Company files a registration statement covering the resale of equity or
equity-linked securities prior to the Effectiveness Deadline, (i) the Investors shall
receive fifteen (15) days prior notice thereof, and (ii) such registration statement
shall also cover the Registrable Securities to the extent the Investors elect to have
their Registrable Securities included therein.
	 
	 	(c)	 	Effect of Failure to Obtain Effectiveness of Registration Statement.
If a Registration Statement covering all of the Registrable Securities in amounts at
least equal to the Required Registration Amount is not declared effective by the




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	 	 	 	SEC on or before the Effectiveness Deadline or once effective, does not remain
effective, other than during a Grace Period (each a “Registration Default”)
then, as full liquidated damages to any holder by reason of any such Registration
Default (which remedy shall be the exclusive remedy available at law or in equity),
the interest rate applicable to the Notes shall increase by 0.25% per annum for the
first 90 days of a Registration Default (the “Registration Default
Payment”), which amount shall increase by an additional 0.25% every 90 days a
Registration Default is continuing, not to exceed 1.0% in the aggregate, from and
including the date of the Registration Default to and excluding the date on which
the Registration Default is cured. Following the cure of all Registration Default,
the accrual or accretion of Registration Default Additional Dividends shall cease
and the interest rate will revert to the original rate. The Registration Default
Payments shall be paid, at the Company’s option, in (i) cash, (ii) additional Notes,
or (iii) a combination thereof.
	 
	 	(d)	 	Notwithstanding anything contained herein, the Company may satisfy its
obligations under Sections 2(a), (b), and (c) by filing with the SEC by the Filing
Deadline an Exchange Offer Registration Statement with respect to a Registered Exchange
Offer. The Company shall use its commercially reasonable efforts to consummate a
Registered Exchange Offer by the Effectiveness Deadline, provided, however, any failure
to consummate a Registered Exchange Offer by the Effectiveness Deadline shall be a
Registration Default and subject to Registration Default Payments under Section 2(c)
until cured or until a Registration Statement has been declared effective as
contemplated by Section 2(a).






(i) Upon the effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder electing to
exchange Notes 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 to participate in the
distribution of the New Securities and is not prohibited by any law or policy
of the SEC 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 of America.




(ii) In connection with the Registered Exchange Offer, the Company shall:




     (A) mail to each holder of Notes a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter
of transmittal and related documents;




     (B) keep the Registered Exchange Offer open for not less than 20 business
days (or longer if required by applicable law);



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(iii) As soon as practicable after the close of the Registered Exchange Offer,
the Company shall:




(A) accept for exchange all Notes tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;




(B) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and




(C) cause the Trustee to authenticate and deliver to each holder of Notes
a principal amount of New Securities equal to the principal amount of the
Notes of such holder so accepted for exchange.




(iv) Each Investor hereby acknowledges and agrees that any Broker-Dealer
and any such Investor using the Registered Exchange Offer to participate in a
distribution of the New Securities (x) could not under SEC policy as in effect
on the date of this Agreement rely on the position of the SEC 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 SEC’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
1934 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 1933 Act, if the resales are of New Securities obtained by such
Investor in exchange for Notes acquired by such Investor directly from the
Company or one of its Affiliates. Accordingly, each Investor participating in
the Registered Exchange Offer shall be required to represent to the Company
that, at the time of the consummation of the Registered Exchange Offer:




     (A) any New Securities received by such Investor will be acquired in the
ordinary course of business;




     (B) such Investor will have no arrangement or understanding with any
Person to participate in the distribution of the Securities or the New
Securities;




     (C) such Investor is not an Affiliate of the Company or any of the
Guarantors or if it is an Affiliate, such Investor will comply with the
registration and prospectus delivery requirements of the 1934 Act to the
extent applicable;




     (D) if such Investor is not a Broker-Dealer, that it is not engaged in,
and does not intend to engage in, the distribution of the New Securities;



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and





(v) if such Investor 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.



3. Related Obligations.



     At such time as the Company is obligated to file a Registration Statement with the SEC
pursuant to Section 2(a), the Company will use its commercially reasonable efforts to effect the
registration of the Registrable Securities in accordance with the intended method of disposition
thereof and, pursuant thereto, the Company shall have the following obligations:




	 	(a)	 	The Company shall use its commercially reasonable efforts to keep the
Registration Statement effective pursuant to Rule 415 at all times until the earlier of
(i) the expiration of two years; or (ii) the date upon which the Registrable Securities
have been sold pursuant to the registration statement and/or Rule 144 (as defined
below) (the “Registration Period”). The Company shall ensure that each
Registration Statement (including any amendments or supplements thereto and
prospectuses contained therein) shall not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein, or necessary to
make the statements therein (in the case of prospectuses, in the light of the
circumstances in which they were made) not misleading, other than with respect to any
information provided to the Company in writing by an Investor for inclusion therein.
	 
	 	(b)	 	The Company shall use its commercially reasonable efforts to prepare and file
with the SEC such amendments (including post-effective amendments) and supplements to a
Registration Statement and the prospectus used in connection with such Registration
Statement, which prospectus is to be filed pursuant to Rule 424 promulgated under the
1933 Act, as may be necessary to keep such Registration Statement effective at all
times during the Registration Period, and, during such period, comply with the
provisions of the 1933 Act with respect to the disposition of all Registrable
Securities of the Company covered by such Registration Statement until such time as all
of such Registrable Securities shall have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof as set forth in such
Registration Statement. In the case of amendments and supplements to a Registration
Statement which are required to be filed pursuant to this Agreement (including pursuant
to this Section 3(b)) by reason of the Company filing a report on Form 10-Q, Form 8-K,
Form 10-K or any analogous report under the Securities Exchange Act of 1934, as amended
(the “1934 Act”), the Company shall have incorporated such report by reference
into such Registration Statement, if applicable, or shall file such amendments or
supplements with the SEC within three (3) Business Days from the date on which




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	 	 	 	the 1934 Act report is filed which created the requirement for the Company to amend
or supplement such Registration Statement.
	 
	 	(c)	 	The Company shall notify each Investor in writing of the happening of any
event, as promptly as practicable after becoming aware of such event, as a result of
which a Registration Statement, as then in effect, includes an untrue statement of a
material fact or omission to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances under which
they were made, not misleading (provided that in no event shall such notice contain any
material, nonpublic information), and promptly prepare a supplement or amendment to
such Registration Statement to correct such untrue statement or omission. The Company
shall also promptly notify each Investor in writing (i) when a prospectus or any
prospectus supplement (solely to the extent it does more than add a selling
securityholder) or post-effective amendment has been filed, and when a Registration
Statement or any post-effective amendment has become effective and (ii) of the
Company’s reasonable determination that a post-effective amendment to a Registration
Statement would be appropriate.
	 
	 	(d)	 	The Company shall use its commercially reasonable efforts to prevent the
issuance of any stop order or other suspension of effectiveness of a Registration
Statement, or the suspension of the qualification of any of the Registrable Securities
for sale in any jurisdiction in the United States to the extent reasonably requested by
an Investor and, if such an order or suspension is issued, to obtain the withdrawal of
such order or suspension at the earliest possible moment and shall notify each Lender
which holds Registrable Securities being sold of the issuance of such order and the
resolution thereof or its receipt of actual notice of the initiation or threat of any
proceeding for such purpose.
	 
	 	(e)	 	If reasonably requested by an Investor, the Company shall as soon as
practicable (i) incorporate in a prospectus supplement or post-effective amendment such
information as such Investor reasonably requests to be included therein relating to the
sale and distribution of Registrable Securities, including, without limitation,
information with respect to the number of Registrable Securities being offered or sold,
the purchase price being paid therefor and any other terms of the offering of the
Registrable Securities to be sold in such offering; (ii) make all required filings of
such prospectus supplement or post-effective amendment after being notified of the
matters to be incorporated in such prospectus supplement or post-effective amendment;
and (iii) supplement or make amendments to any Registration Statement if reasonably
requested by an Investor holding any Registrable Securities, provided that the Company
shall not be required to assist in any underwritten offerings.
	 
	 	(f)	 	The Company shall otherwise use its commercially reasonable efforts to comply
with all applicable rules and regulations of the SEC in connection with any
registration hereunder.




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	 	(g)	 	Notwithstanding anything to the contrary herein, at any time after the
Effective Date, the Company may suspend the use of the Registration Statement if
required by applicable law or for valid business reasons (which does not include
avoidance of the Company’s obligations in this Agreement) (a “Grace Period”);
provided, that the Company shall promptly (i) notify the Investors in writing of the
existence of such Grace Period and the date on which the Grace Period will begin, and
(ii) notify the Investors in writing of the date on which the Grace Period ends; and,
provided further, that such Grace Periods shall not exceed an aggregate of seventy-five
(75) days in any 365 day period. For purposes of determining the length of a Grace
Period above, the Grace Period shall begin on and include the date the Investors
receive the notice referred to in clause (i) and shall end on and include the later of
the date the Investors receive the notice referred to in clause (ii) and the date
referred to in such notice.
	 
	 	(h)	 	The Company shall, during the Registration Period, deliver to each holder of
Registrable Securities, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in the Registration Statement and any amendment
or supplement thereto as such Holder may reasonably request. The Company, subject to
the terms hereof, consents to the use of the Prospectus or any amendment or supplement
thereto by each of the Investors in connection with the offering and sale of the
Registrable Securities covered by the Prospectus, or any amendment or supplement
thereto, included in the Registration Statement.
	 
	 	(i)	 	Not later than the effective date of the Registration Statement, the Company
shall provide a CUSIP number for the Registrable Securities registered under such
Registration Statement.





4. Obligations of the Investors.




	 	(a)	 	At least fifteen (15) Business Days prior to the first anticipated filing date
of a Registration Statement, the Company shall notify each Investor in writing of the
information the Company requires from each such Investor if such Investor elects to
have any of such Investor’s Registrable Securities included in such Registration
Statement. It shall be a condition precedent to the obligations of the Company to
complete the registration pursuant to this Agreement with respect to the Registrable
Securities of a particular Investor that such Investor shall furnish to the Company
such information regarding itself, the Registrable Securities held by it and the
intended method of disposition of the Registrable Securities held by it, as shall be
reasonably required to effect and maintain the effectiveness of the registration of
such Registrable Securities and shall execute such documents in connection with such
registration as the Company may reasonably request.
	 
	 	(b)	 	Each Investor, by such Investor’s acceptance of the Registrable Securities,
agrees to cooperate with the Company as reasonably requested by the Company in
connection with the preparation and filing of any Registration Statement hereunder,
unless such Investor has notified the Company in writing of such




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	 	 	 	Investor’s election to exclude all of such Investor’s Registrable Securities from
such Registration Statement.
	 
	 	(c)	 	Each Investor agrees that, upon receipt of any notice from the Company of a
Grace Period, such Investor will immediately discontinue disposition of Registrable
Securities pursuant to any Registration Statement(s) covering such Registrable
Securities until such Investor’s receipt that such Grace Period has expired.
	 
	 	(d)	 	Each Investor covenants and agrees that it will comply with the prospectus
delivery requirements of the 1933 Act as applicable to it or an exemption therefrom in
connection with sales of Registrable Securities pursuant to the Registration Statement.
	 
	 	(e)	 	Notwithstanding anything contained herein, in order to have its Registrable
Securities included in the Registration Statement, an Investor will have to confirm in
writing its obligations hereunder.





5. Expenses of Registration.



     All reasonable expenses, other than underwriting discounts and commissions, if any, incurred
by the Company in connection with registrations, filings or qualifications pursuant to Sections 2
and 3, including, without limitation, all registration, listing and qualifications fees, and
accounting fees, and fees and disbursements of counsel for the Company shall be paid by the
Company.



6. Indemnification.



     In the event any Registrable Securities are included in a Registration Statement under this
Agreement:




	 	(a)	 	To the fullest extent permitted by law, the Company will, and hereby does,
indemnify, hold harmless and defend each Investor, the directors, officers, members,
partners, employees, agents, representatives of, and each Person, if any, who controls
any Investor within the meaning of the 1933 Act or the 1934 Act (each, an
“Indemnified Person”), against any losses, claims, damages, liabilities,
judgments, fines, penalties, charges, costs, reasonable attorneys’ fees, amounts paid
in settlement or expenses, joint or several (collectively, “Claims”), incurred
in investigating, preparing or defending any action, claim, suit, inquiry, proceeding,
investigation or appeal taken from the foregoing by or before any court or
governmental, administrative or other regulatory agency, body or the SEC, whether
pending or threatened, whether or not an indemnified party is or may be a party thereto
(“Indemnified Damages”), to which any of them may become subject insofar as
such Claims (or actions or proceedings, whether commenced or threatened, in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact in a Registration Statement or any post-effective
amendment thereto, or the omission or alleged omission to state a material fact
required to be stated therein or necessary to make




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	 	 	 	the statements therein not misleading, or contained in the final prospectus (as
amended or supplemented, if the Company files any amendment thereof or supplement
thereto with the SEC) or the omission or alleged omission to state therein any
material fact necessary to make the statements made therein, in light of the
circumstances under which the statements therein were made, not misleading (each a
“Violation”). Notwithstanding anything to the contrary contained herein,
the indemnification agreement contained in this Section 6(a): (i) shall not apply to
a Claim by an Indemnified Person arising out of or based upon a Violation which
occurs in reliance upon and in conformity with information furnished in writing to
the Company by such Indemnified Person for such Indemnified Person expressly for use
in connection with the preparation of the Registration Statement or any such
amendment thereof or supplement thereto; and (ii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without the prior written
consent of the Company, which consent shall not be unreasonably withheld or delayed.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Indemnified Party and shall survive the
transfer of the Registrable Securities by the Investors pursuant to Section 9.
	 
	 	(b)	 	In connection with any Registration Statement in which an Investor is
participating, each such Investor agrees to severally and not jointly indemnify, hold
harmless and defend, to the same extent and in the same manner as is set forth in
Section 6(a), the Company, each of its directors, each of its officers and each Person,
if any, who controls the Company within the meaning of the 1933 Act or the 1934 Act
(each, an “Indemnified Party”), against any Claim or Indemnified Damages to
which any of them may become subject, under the 1933 Act, the 1934 Act or otherwise,
insofar as such Claim or Indemnified Damages arise out of or are based upon any
Violation, in each case to the extent, and only to the extent, that such Violation
occurs in reliance upon and in conformity with written information furnished to the
Company by such Investor expressly for use in connection with such Registration
Statement; and, subject to Section 6(c), such Investor will reimburse any legal or
other expenses reasonably incurred by an Indemnified Party in connection with
investigating or defending any such Claim; provided, however, that the indemnity
agreement contained in this Section 6(b) and the agreement with respect to contribution
contained in Section 7 shall not apply to amounts paid in settlement of any Claim if
such settlement is effected without the prior written consent of such Investor, which
consent shall not be unreasonably withheld or delayed. Such indemnity shall remain in
full force and effect regardless of any investigation made by or on behalf of such
Indemnified Party and shall survive the transfer of the Registrable Securities by the
Investors pursuant to Section 9. Notwithstanding anything to the contrary contained
herein, each Investor shall be liable under this Section 6(b) for only that amount as
does not exceed the proceeds to such Investor as a result of the sale of Registrable
Securities pursuant to such Registration Statement.
	 
	 	(c)	 	Promptly after receipt by an Indemnified Person or Indemnified Party under this
Section 6 of notice of the commencement of any action or proceeding (including




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	 	 	 	any governmental action or proceeding) involving a Claim, such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is to be made against any
indemnifying party under this Section 6, deliver to the indemnifying party a written
notice of the commencement thereof, and the indemnifying party shall have the right
to participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume control of the
defense thereof with counsel mutually satisfactory to the indemnifying party and the
Indemnified Person or the Indemnified Party, as the case may be; provided, however,
that an Indemnified Person or Indemnified Party shall have the right to retain its
own counsel with the fees and expenses of not more than one counsel for all such
Indemnified Person or Indemnified Party to be paid by the indemnifying party, if, in
the reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party and
the indemnifying party would be inappropriate due to actual or potential differing
interests between such Indemnified Person or Indemnified Party and any other party
represented by such counsel in such proceeding. In the case of an Indemnified
Person, legal counsel referred to in the immediately preceding sentence shall be
selected by the Investors holding at least a majority in interest of the Registrable
Securities included in the Registration Statement to which the Claim relates. The
Indemnified Party or Indemnified Person shall cooperate reasonably with the
indemnifying party in connection with any negotiation or defense of any such action
or Claim by the indemnifying party and shall furnish to the indemnifying party all
information reasonably available to the Indemnified Party or Indemnified Person
which relates to such action or Claim. The indemnifying party shall keep the
Indemnified Party or Indemnified Person fully apprised at all times as to the status
of the defense or any settlement negotiations with respect thereto. No indemnifying
party shall be liable for any settlement of any action, claim or proceeding effected
without its prior written consent, provided, however, that the indemnifying party
shall not unreasonably withhold, delay or condition its consent. No indemnifying
party shall, without the prior written consent of the Indemnified Party or
Indemnified Person, consent to entry of any judgment or enter into any settlement or
other compromise which does not include as an unconditional term thereof the giving
by the claimant or plaintiff to such Indemnified Party or Indemnified Person of a
release from all liability in respect to such Claim or litigation, and such
settlement shall not include any admission as to fault on the part of the
Indemnified Party. Following indemnification as provided for hereunder, the
indemnifying party shall be subrogated to all rights of the Indemnified Party or
Indemnified Person with respect to all third parties, firms or corporations relating
to the matter for which indemnification has been made. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall not relieve such indemnifying party of any
liability to the Indemnified Person or Indemnified Party under this Section 6,
except to the extent that the indemnifying party is prejudiced in its ability to
defend such action.




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	 	(d)	 	The indemnification required by this Section 6 shall be made by periodic
payments of the amount thereof during the course of the investigation or defense, as
and when bills are received or Indemnified Damages are incurred.
	 
	 	(e)	 	The indemnity agreements contained herein shall be in addition to (i) any cause
of action or similar right of the Indemnified Party or Indemnified Person against the
indemnifying party or others, and (ii) any liabilities the indemnifying party may be
subject to pursuant to the law.





7. Contribution.




     To the extent any indemnification by an indemnifying party is prohibited or limited by law,
the indemnifying party agrees to make the maximum contribution with respect to any amounts for
which it would otherwise be liable under Section 6 to the fullest extent permitted by law;
provided, however, that: (i) no Person involved in the sale of Registrable Securities which Person
is guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) in
connection with such sale shall be entitled to contribution from any Person involved in such sale
of Registrable Securities who was not guilty of fraudulent misrepresentation; and (ii) contribution
by any seller of Registrable Securities shall be limited in amount to the net amount of proceeds
received by such seller from the sale of such Registrable Securities pursuant to such Registration
Statement.



8. Reports Under the 1934 Act.




     With a view to making available to the Investors the benefits of Rule 144 promulgated under
the 1933 Act or any other similar rule or regulation of the SEC that may at any time permit the
Investors to sell securities of the Company to the public without registration (“Rule
144”), the Company agrees to:




	 	(a)	 	make and keep public information available, as those terms are understood and
defined in Rule 144; or
	 
	 	(b)	 	file with the SEC in a timely manner all reports and other documents required
of the Company under the 1933 Act and the 1934 Act so long as the Company remains
subject to such requirements and the filing of such reports and other documents is
required for the applicable provisions of Rule 144.





9. Assignment of Registration Rights.



     The rights under this Agreement shall be automatically assignable by the Investors to any
transferee of all or any portion of such Investor’s Registrable Securities if: (i) the Investor
agrees in writing with the transferee or assignee to assign such rights, and a copy of such
agreement is furnished to the Company within a reasonable time, but no later than fifteen (15) days
after such assignment; (ii) the Company is, within such time, furnished with written notice of (a)
the name and address of such transferee or assignee, and (b) the securities with respect to which
such registration rights are being transferred or assigned; (iii) immediately following such
transfer or assignment the further disposition of such securities by the transferee or assignee is
restricted under the 1933 Act or applicable state securities laws; and (iv) at or before the time
the Company



12









 







receives the written notice contemplated by clause (ii) of this sentence the transferee or
assignee agrees in writing with the Company to be bound by all of the provisions contained herein.



10. Amendment of Registration Rights.



     Provisions of this Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or prospectively), only with the
written consent of the Company and the Required Holders. Any amendment or waiver effected in
accordance with this Section 10 shall be binding upon each Investor and the Company. No such
amendment shall be effective to the extent that it applies to less than all of the holders of the
Registrable Securities. No consideration shall be offered or paid to any Person to amend or
consent to a waiver or modification of any provision of this Agreement unless the same
consideration also is offered to all of the parties to this Agreement.



11. Miscellaneous.




	 	(a)	 	A Person is deemed to be a holder of Registrable Securities whenever such
Person owns or is deemed to own of record such Registrable Securities. If the Company
receives conflicting instructions, notices or elections from two or more Persons with
respect to the same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from such record owner of such Registrable
Securities.
	 
	 	(b)	 	Any notices, consents, waivers or other communications required or permitted to
be given under the terms of this Agreement must be in writing and will be deemed to
have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt,
when sent by facsimile (provided confirmation of transmission is mechanically or
electronically generated and kept on file by the sending party); or (iii) one Business
Day after deposit with a nationally recognized overnight delivery service, in each case
properly addressed to the party to receive the same. The addresses and facsimile
numbers for such communications shall be:





If to the Company:



Attn: Antonio B. Mon

Attn: Paul Berkowitz

TOUSA, Inc.

4000 Hollywood Boulevard

Suite 500N

Hollywood, FL 33021

Facsimile: (954) 364-4010





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with copies to:


 

Attn: Christian O. Nagler, Esq.

Kirkland & Ellis LLP

153 E. 53rd Street



New York, NY 10022-4611

Facsimile: (212) 446-4900




If to the Lenders:



Attn: Mark B. Cohen

Deutsche Bank Trust Company Americas

60 Wall Street

11th Floor

New York, NY 10005

Facsimile: (212) 797-5696



with copies to:



Attn: Sandeep Qusba, Esq.

White & Case LLP

1155 Avenue of the Americas

New York, NY 10036-2787

Facsimile: (212) 354-8113




     If to an Investor, to the address set forth in the records of the Company, it being each
Investor’s obligation hereunder to provide notice instructions to the Company at the address set
forth above which must include an email address and facsimile number.



     If to a Lender, to its address and facsimile number set forth on the Schedule of Lenders
attached hereto, with copies to such Lender’s representatives as set forth on the Schedule of
Lenders, or to such other address and/or facsimile number and/or to the attention of such other
Person as the recipient party has specified by written notice given to each other party five (5)
days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the
recipient of such notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender’s facsimile machine containing the time, date, recipient
facsimile number and an image of the first page of such transmission or (C) provided by a courier
or overnight courier service shall be rebuttable evidence of personal service, receipt by facsimile
or receipt from a nationally recognized overnight delivery service in accordance with clause (i),
(ii) or (iii) above, respectively.




	 	(c)	 	Failure of any party to exercise any right or remedy under this Agreement or
otherwise, or delay by a party in exercising such right or remedy, shall not operate as
a waiver thereof.
	 
	 	(d)	 	All questions concerning the construction, validity, enforcement and
interpretation of this Agreement shall be governed by the internal laws of the State of
New York, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdictions) that would cause the
application of the laws of any jurisdictions other than the State of New York. Each
party hereby irrevocably submits to the exclusive jurisdiction of the state and federal
courts sitting in The City of New York, Borough of Manhattan, for the adjudication of
any dispute hereunder or in




14









 






	 	 	 	connection herewith or with any transaction contemplated hereby or discussed herein,
and hereby irrevocably waives, and agrees not to assert in any suit, action or
proceeding, any claim that it is not personally subject to the jurisdiction of any
such court, that such suit, action or proceeding is brought in an inconvenient forum
or that the venue of such suit, action or proceeding is improper. Each party hereby
irrevocably waives personal service of process and consents to process being served
in any such suit, action or proceeding by mailing a copy thereof to such party at
the address for such notices to it under this Agreement and agrees that such service
shall constitute good and sufficient service of process and notice thereof. Nothing
contained herein shall be deemed to limit in any way any right to serve process in
any manner permitted by law. If any provision of this Agreement shall be invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall not
affect the validity or enforceability of the remainder of this Agreement in that
jurisdiction or the validity or enforceability of any provision of this Agreement in
any other jurisdiction.
	 
	 	(e)	 	This Agreement constitutes the entire agreement among the parties hereto with
respect to the subject matter hereof. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein and therein. This
Agreement and the instruments referenced herein supersede all prior agreements and
understandings among the parties hereto with respect to the subject matter hereof and
thereof.
	 
	 	(f)	 	Subject to the requirements of Section 9, this Agreement shall inure to the
benefit of and be binding upon the permitted successors and assigns of each of the
parties hereto.
	 
	 	(g)	 	The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.
	 
	 	(h)	 	This Agreement may be executed in identical counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same agreement.
This Agreement, once executed by a party, may be delivered to the other party hereto by
facsimile transmission of a copy of this Agreement bearing the signature of the party
so delivering this Agreement.
	 
	 	(i)	 	Each party shall do and perform, or cause to be done and performed, all such
further acts and things, and shall execute and deliver all such other agreements,
certificates, instruments and documents as any other party may reasonably request in
order to carry out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
	 
	 	(j)	 	This Agreement is intended for the benefit of the parties hereto and their
respective permitted successors and assigns, and is not for the benefit of, nor may any
provision hereof be enforced by, any other Person.




15









 









	 	(k)	 	The obligations of each Investor hereunder are several and not joint with the
obligations of any other Investor, and no provision of this Agreement is intended to
confer any obligations on any Investor vis-à-vis any other Investor. Nothing contained
herein, and no action taken by any Investor pursuant hereto, shall be deemed to
constitute the Investors as a partnership, an association, a joint venture or any other
kind of entity, or create a presumption





     that the Investors are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated herein.



* * * * * *




[Signature Page Follows]




16









 





     IN WITNESS WHEREOF, each Lender and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first written above.



	 	 	 	 	 
	 	COMPANY:



TOUSA, INC.

 	 
	 	By:  	/s/ Stephen M. Wagman
 	 
	 	 	Name:  	Stephen M. Wagman 	 
	 	 	Title:  	Chief Financial Officer 	 
	 




 









 







     IN WITNESS WHEREOF, each Lender and the Company have caused their respective signature page to
this Registration Rights Agreement to be duly executed as of the date first written above.



	 	 	 	 	 
	 	        LENDERS:



        DEUTSCHE BANK TRUST COMPANY AMERICAS

        as Senior Mezzanine Administrative Agent

 	 
	 	By:  	/s/ Dusan Lazarov
 	 
	 	 	Name:  	Dusan Lazarov 	 
	 	 	Title:  	Vice President 	 
	 
	 	        DEUTSCHE BANK SECURITIES INC.


        as Sole Lead Arranger and Sole Book Running

        Manager

 	 
	 	By:  	/s/ Linda Wang
 	 
	 	 	Name:  	Linda Wang 	 
	 	 	Title:  	Director 	 
	 




 









 







     IN WITNESS WHEREOF, the Lender hereto has caused to be duly executed
and delivered this Agreement as of the date first above written.



	 	 	 	 	 	 	 
	 	 	LENDER
 	 	 
	 	 	DEUTSCHE BANK TRUST COMPANY

AMERICAS	 	 
	 
	 	 	 	 	 	 
	 

	 	By:

Name:
	 	/s/ Mark B. Cohen
 

Mark B. Cohen
	 	 
	 

	 	Title:
	 	Managing Director	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Dusan Lazarov	 	 
	 

	 	Name:
	 	 

Dusan Lazarov
	 	 
	 

	 	Title:
	 	Vice President	 	 






 









 





Exhibit A




     We are registering our 14.75% Senior Subordinated PIK Notes to permit the resale of such
securities. We will not receive any of the proceeds from the sale by the selling securityholder of
the securities.



     The selling securityholder may sell all or a portion of the securities beneficially owned by
it and offered hereby from time to time directly or through one or more underwriters,
broker-dealers or agents. If the securities are sold through underwriters or broker-dealers, the
selling securityholder will be responsible for underwriting discounts or commissions or agent’s
commissions. The securities may be sold in one or more transactions at fixed prices, at prevailing
market prices at the time of the sale, at varying prices determined at the time of sale, or at
negotiated prices. These sales may be effected in transactions, which may involve crosses or block
transactions,




	•	 	on any national securities exchange or quotation service on which the securities may be listed or quoted at the time of
sale;
	 
	•	 	in the over-the-counter market;
	 
	•	 	in transactions otherwise than on these exchanges or systems or in the over-the-counter market;
	 
	•	 	through the writing of options, whether such options are listed on an options exchange or otherwise;
	 
	•	 	ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
	 
	•	 	block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion
of the block as principal to facilitate the transaction;
	 
	•	 	purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
	 
	•	 	an exchange distribution in accordance with the rules of the applicable exchange;
	 
	•	 	privately negotiated transactions;
	 
	•	 	short sales;
	 
	•	 	sales pursuant to Rule 144;
	 
	•	 	broker-dealers may agree with the selling securityholder to sell a specified number of such shares at a stipulated
price per share;
	 
	•	 	a combination of any such methods of sale; and
	 
	•	 	any other method permitted pursuant to applicable law.




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     If the selling securityholders effect such transactions by selling shares of common stock to
or through underwriters, broker-dealers or agents, such underwriters, broker-dealers or agents may
receive commissions in the form of discounts, concessions or commissions from the selling
securityholders or commissions from purchasers of the securities for whom they may act as agent or
to whom they may sell as principal (which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those customary in the types of
transactions involved). In connection with sales of the securities, the selling securityholders may
enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the
shares of common stock in the course of hedging in positions they assume. The selling
securityholder may also sell securities short and deliver securities covered by this prospectus to
close out short positions and to return borrowed shares in connection with such short sales. The
selling securityholder may also loan or pledge securities to broker-dealers that in turn may sell
such securities.



     The selling securityholders and any broker-dealer participating in the distribution of the
securities may be deemed to be “underwriters” within the meaning of the Securities Act of 1933, and
any commission paid, or any discounts or concessions allowed to, any such broker-dealer may be
deemed to be underwriting commissions or discounts under the Securities Act of 1933. At the time a
particular offering of the securities is made, a prospectus supplement, if required, will be
distributed which will set forth the aggregate amount of shares of securities being offered and the
terms of the offering, including the name or names of any broker-dealers or agents, any discounts,
commissions and other terms constituting compensation from the selling securityholders and any
discounts, commissions or concessions allowed or reallowed or paid to broker-dealers.



     There can be no assurance that the selling securityholders will sell any or all of the
securities pursuant to the shelf registration statement, of which this prospectus forms a part.



     We will pay all expenses of the registration of the securities pursuant to the registration
rights agreement, including, without limitation, Securities and Exchange Commission filing fees;
provided, however, that the selling security holders will pay all underwriting discounts and
selling commissions, if any. We will indemnify the selling security holders against liabilities,
including some liabilities under the Securities Act of 1933, in accordance with the registration
rights agreements, or the selling securityholders will be entitled to contribution. We may be
indemnified by the selling securityholders against civil liabilities, including liabilities under
the Securities Act of 1933, that may arise from any written information furnished to us by the
selling securityholders specifically for use in this prospectus, in accordance with the related
registration rights agreement, or we may be entitled to contribution.



     Once sold under the registration statement, of which this prospectus forms a part, the
securities will be freely tradable in the hands of persons other than our affiliates.




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