REGISTRATION RIGHTS AGREEMENT



 






Exhibit 4.13




TECHNICAL OLYMPIC USA, INC.




$200,000,000




7 1/2% Senior Subordinated Notes Due 2015




REGISTRATION RIGHTS AGREEMENT




New York, New York

December 21, 2004




Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013



Dear Sirs:




          Technical Olympic USA, Inc., a corporation organized under the laws of the State of Delaware
(the “Company”), proposes to issue and sell to Citigroup Global Markets Inc. (the “Initial
Purchaser”), upon the terms set forth in a purchase agreement, dated December 14, 2004 (the
“Purchase Agreement”) relating to the initial placement of the Notes (the “Initial Placement”),
$200,000,000 aggregate principal amount of its 7 1/2% Senior Subordinated Notes due 2015 (the
“Notes”). 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:



          Section 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.



          “Company” shall have the meaning set forth in the preamble hereto.



          “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 the 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.



          “Guarantees” shall have the meaning set forth in the preamble hereto.



          “Guarantors” shall have the meaning set forth in the preamble hereto.



          “Holder” shall have the meaning set forth in the preamble hereto.



          “Indenture” shall mean the Indenture relating to the Securities, dated as of December 21,
2004, among the Company, the Guarantors and Wells Fargo Bank, National Association, as trustee, as
the same may be amended, supplemented, waived or otherwise modified 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 and the transfer restrictions 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.



          “Notes” shall have the meaning set forth in the preamble hereto.



          “Person” shall mean an individual, trustee, corporation, partnership, limited liability
company, joint stock company, trust, unincorporated association, union, business association, firm
or other legal entity.



          “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 and the Guarantors 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.



          Section 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 respective 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;




     (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 respective 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;



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     (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), and Morgan Stanley and Co.,
Inc. (pub. avail. June 5, 1991); and (B) including a representation that the Company and the
Guarantors have not entered into any arrangement or understanding with any Person to
distribute the New Securities to be received in the Registered Exchange Offer and that, to
the best of their information and belief, each Holder participating in the Registered
Exchange Offer is acquiring the New Securities in the ordinary course of business and has no
arrangement or understanding with any Person to participate in the distribution of the New
Securities; and




     (vii) comply in all material respects with all applicable laws.



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




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




     (ii) deliver to the Trustee for cancellation in accordance with Section 5(s) all Notes
so accepted for exchange; and




     (iii) cause the Trustee or New Securities Trustee, as the case may be, promptly to
authenticate and deliver to each Holder of Securities a principal amount of New Notes equal
to the principal amount of the Notes of such Holder so accepted for exchange.



          (e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991) and Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988), as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection with any secondary
resale transaction which must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K
under the Act, if the resales are of New Securities obtained by such Holder in exchange for
Securities acquired by such Holder directly from the Company or one of its Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer shall be required to
represent to the Company and the Guarantors that, at the time of the consummation of the Registered
Exchange Offer:




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



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     (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 Securities. The Company and the
Guarantors shall use their respective 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.



          Section 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,



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     (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 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 respective 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 until 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 respective 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 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.



          Section 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 con-



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summated nor the Shelf Registration Statement has been declared effective, or (d) after either
the Exchange Offer Registration Statement or the Shelf Registration Statement has been declared
effective, such Registration Statement thereafter ceases to be effective or usable in connection
with resales of Securities or New Securities in accordance with and during the periods specified in
this Agreement (each such event referred to in clauses (a) through (d), a (“Registration Default”),
interest (“Special Interest”) will accrue on the principal amount of the Securities and the New
Securities (in addition to the stated interest on the Securities and New Securities) from and
including the date on which any such Registration Default shall occur to but excluding the date on
which all Registration Defaults have been cured. Special Interest will accrue at a rate of 0.25%
per annum during the 90-day period immediately following the occurrence of such Registration
Default and shall increase by 0.25% per annum at the end of each subsequent 90-day period, but in
no event shall such rate exceed 1.00% per annum.



          All obligations of the Company and the Guarantors set forth in the preceding paragraph that
are outstanding with respect to any Security at the time such Security is exchanged for a New
Security shall survive until such time as all such obligations with respect to such Security have
been satisfied in full.



          Section 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 respective 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.



          (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



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     (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 respective best efforts to obtain the
withdrawal of any order suspending the effectiveness of any Registration Statement or the
qualification of the Securities or New Securities therein for sale in any jurisdiction at the
earliest possible time.



          (e) The Company and the Guarantors shall furnish to each Holder of Securities or New
Securities covered by any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto, including all material
incorporated therein by reference, and, if the Holder so requests in writing, all exhibits thereto
(including exhibits incorporated by reference therein).



          (f) The Company and the Guarantors shall, during the Shelf Registration Period, deliver to
each Holder of Securities or New Securities covered by any Shelf Registration Statement, without
charge, as many copies of the Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Company and the Guarantors consent to the use of the Prospectus or any amendment or
supplement thereto by each of the selling Holders of Securities or New Securities in connection
with the offering and sale of the Securities or New Securities covered by the Prospectus, or any
amendment or supplement thereto, included in the Shelf Registration Statement.



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          (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 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



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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 or New Securities as
the Company and the Guarantors may from time to time reasonably require for inclusion in such
Registration Statement. The Company and the Guarantors may exclude from such Shelf Registration
Statement the Securities or New Securities of any Holder that fails to furnish such information
within a reasonable time after receiving such request.



          (p) In the case of any Shelf Registration Statement, the Company and the Guarantors shall
enter into such agreements and take all other appropriate actions (including if requested an
underwriting agreement in customary form) in order to expedite or facilitate the registration or
the disposition of the Securities or New Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain indemnification provisions and
procedures no less favorable than those set forth in Section 7 (or such other provisions and
procedures acceptable to the Majority Holders and the Managing Underwriters, if any, with respect
to all parties to be indemnified pursuant to Section 7).



          (q) In the case of any Shelf Registration Statement, the Company and the Guarantors shall:




     (i) make reasonably available for inspection by the Holders of Securities or New
Securities to be registered thereunder, any Underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney, accountant or other agent
retained by the Holders or any such Underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and its subsidiaries;




     (ii) cause the Company’s officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any such Underwriter, attorney,
accountant or agent in connection with any such Registration Statement as is customary for
similar due diligence examinations; provided, however, that any information that is
designated in writing by the Company, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by the Holders or any such Underwriter,
attorney, accountant or agent, unless such disclosure is made in connection with a court
proceeding or required by law, or such information becomes available to the public generally
or through a third party without an accompanying obligation of confidentiality;




     (iii) make such representations and warranties to the Holders of Securities or New
Securities registered thereunder and the Underwriters, if any, in 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,



-11-









 





if any, covering such matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by such Holders
and Underwriters;




     (v) obtain “cold comfort” letters and updates thereof from the independent certified
public accountants of the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data are, or are required to be, included in the
Registration Statement), addressed to each selling Holder of Securities or New Securities
registered thereunder and the Underwriters, if any, in customary form and covering matters
of the type customarily covered in “cold comfort” letters in connection with primary
underwritten offerings; and




     (vi) deliver such documents and certificates as may be reasonably requested by the
Majority Holders and the Managing Underwriters, if any, including those to evidence
compliance with Section 5(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company and the Guarantors.



The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall be performed at
(A) the effectiveness of such Registration Statement and each post-effective amendment thereto; and
(B) each closing under any underwriting or similar agreement as and to the extent required
thereunder.



          (r) In the case of any Exchange Offer Registration Statement, the Company and the Guarantors
shall upon the request of an Exchanging Dealer:




     (i) make reasonably available for inspection by 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 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;



-12-









 






     (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 the close of the Registered Exchange Offer and the effective date
of any post-effective amendment to the Exchange Offer Registration Statement.



          (s) If a Registered Exchange Offer is to be consummated, upon delivery of the Securities by
Holders to the Company (or to such other Person as directed by the Company) in exchange for the New
Securities, the Company shall mark, or caused to be marked, on the Securities so exchanged that
such Securities are being canceled in exchange for the New Securities. In no event shall the
Securities be marked as paid or otherwise satisfied.



          (t) The Company and the Guarantors will use their commercially reasonable best efforts to
confirm the ratings of the Securities will apply to the Securities or the New Securities, as the
case may be, covered by a Shelf Registration Statement.



          (u) In the event that any Broker-Dealer shall underwrite any Securities or New Securities or
participate as a member of an underwriting syndicate or selling group or “assist in the
distribution” (within the meaning of the Rules of Fair Practice and the By-Laws of the National
Association of Securities Dealers, Inc.) thereof, whether as a Holder of such Securities or New
Securities or as an Underwriter, a placement or sales agent or a broker or dealer in respect
thereof, or otherwise, assist such Broker-Dealer in complying with the requirements of such Rules
and By-Laws, including, without limitation, by:




     (i) if such Rules or By-Laws shall so require, engaging a “qualified independent
underwriter” (as defined in such Rules) to participate in the preparation of the
Registration Statement, to exercise usual standards of due diligence with respect thereto
and, if any portion of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to recommend the yield
of such Securities or New Securities;




     (ii) indemnifying any such qualified independent underwriter to the extent of the
indemnification of Underwriters provided in Section 7 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.



-13-









 





          (v) The Company and the Guarantors shall use their respective 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.



          Section 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.



          Section 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 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 agree 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 Guaran-



-14-









 





tors 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 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



-15-









 





New Security, applicable to the Security that was exchangeable into such New Security, as set
forth in the Purchase Agreement, 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 in the Purchase
Agreement (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 in the
Purchase Agreement, 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.



          Section 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.



-16-









 





          Section 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.



          Section 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; 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.



          Section 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.



          All such notices and communications shall be deemed to have been duly given when received.



          The Initial Purchaser, the Company or any Guarantor by notice to the other parties may
designate additional or different addresses for subsequent notices or communications.



          Section 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 or any Guarantor thereto, subsequent Holders of Securities
or New Securities. The Company and the Guarantors hereby agree 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.



          Section 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.



          Section 14. Headings. The headings used herein are for convenience only and shall not
affect the construction hereof.



-17-









 





          Section 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.



          Section 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.



          Section 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-









 





          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/ David J. Keller
	 	 	 	 	

	

	 	 	 	Name:
	 	David J. Keller	 	 	 	 
	

	 	 	 	Title:
	 	Senior Vice President, Chief Financial	 	 	 	 
	

	 	 	 	 	 	Officer and Treasurer	 	 	 	 






The foregoing Agreement is hereby

confirmed and accepted as of the

date first above written.



CITIGROUP GLOBAL MARKETS INC.



	 	 	 
	By:

	 	/s/ Richard Zogheb
	

	 	

	

	 	Name: Richard Zogheb
	

	 	Title: Managing Director






-19-









 






	 	 	 
	

	 	SUBSIDIARY GUARANTORS:
	 
	 	 
	

	 	Engle Homes Delaware, Inc.
	

	 	Newmark Homes, L.P.
	

	 	Newmark Homes Purchasing, L.P.
	

	 	Pacific United, L.P.
	

	 	Silverlake Interests, L.C.
	

	 	TOI, LLC
	

	 	TOUSA Financing, Inc.
	

	 	TOUSA, LLC
	

	 	TOUSA Homes, L.P.






	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David J. Keller
	 	 	 	 	

	

	 	 	 	Name:
	 	David J. Keller	 	 	 	 
	

	 	 	 	Title:
	 	Vice President	 	 	 	 






	 	 	 
	

	 	Engle Homes Residential Construction, L.L.C.
	

	 	Engle/James LLC
	

	 	McKay Landing LLC
	

	 	Newmark Homes, L.L.C.
	

	 	Preferred Builders Realty, Inc.
	

	 	TOUSA Delaware, Inc.
	

	 	TOUSA Homes, Inc.
	

	 	TOUSA Ventures, LLC






	 	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ David J. Keller
	 	 	 	 	

	

	 	 	 	Name:
	 	David J. Keller	 	 	 	 
	

	 	 	 	Title:
	 	Vice President and Treasurer	 	 	 	 






-20-









 






	 	 	 	 	 	 	 	 	 	 	 
	 	 	TOUSA Associates Services Company	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Patricia M. Petersen
	 	 	 	 	

	

	 	 	 	Name:
	 	Patricia M. Petersen	 	 	 	 
	

	 	 	 	Title:
	 	Vice President and Secretary	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	Newmark Homes Business Trust	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 	 	By:	 	/s/ Randy Kotler
	 	 	 	 	

	

	 	 	 	Name:
	 	Randy Kotler	 	 	 	 
	

	 	 	 	Title:
	 	Managing Trustee	 	 	 	 






-21-









 






ANNEX A




          Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. The Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an “underwriter” within the
meaning of the Securities Act. This Prospectus, as it may be amended or supplemented from time to
time, may be used by a Broker-Dealer in connection with resales of New Securities received in
exchange for Securities where such Securities were acquired by such Broker-Dealer as a result of
market-making activities or other trading activities. The Company has agreed that, for the 180-day
period following the consummation of the Registered Exchange Offer, or such shorter period as will
terminate when all New Securities held by Exchanging Dealers or the Initial Purchaser have been
sold pursuant hereto, it will make this Prospectus available to any Broker-Dealer for use in
connection with any such resale. See “Plan of Distribution.”



 









 





ANNEX B




          Each Broker-Dealer that receives New Securities for its own account in exchange for
Securities, where such Securities were acquired by such Broker-Dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Securities. See “Plan of Distribution.”




 









 








ANNEX C




PLAN OF DISTRIBUTION




          Each Broker-Dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it will deliver a prospectus in connection with any resale of such New
Securities. This Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of New Securities received in exchange for Securities
where such Securities were acquired as a result of market-making activities or other trading
activities. The Company and the Guarantors have agreed that, for the 180-day period following the
consummation of the Registered Exchange Offer, or such shorter period as will terminate when all
New Securities held by Exchanging Dealers or the Initial Purchaser have been sold pursuant hereto,
it will make this Prospectus, as amended or supplemented, available to any Broker-Dealer for use in
connection with any such resale. In addition, until                     , 200___, all dealers effecting
transactions in the New Securities may be required to deliver a prospectus.



          The Company will not receive any proceeds from any sale of New Securities by broker-dealers.
New Securities received by Broker-Dealers for their own account pursuant to the Exchange Offer may
be sold from time to time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Securities or a combination of such methods
of resale, at market prices prevailing at the time of resale, at prices related to such prevailing
market prices or negotiated prices. Any such resale may be made directly to purchasers or to or
through brokers or dealers who may receive compensation in the form of commissions or concessions
from any such Broker-Dealer and/or the purchasers of any such New Securities. Any Broker-Dealer
that resells New Securities that were received by it for its own account pursuant to the Exchange
Offer and any broker or dealer that participates in a distribution of such New Securities may be
deemed to be an “underwriter” within the meaning of the Securities Act and any profit of any such
resale of New Securities and any commissions or concessions received by any such Persons may be
deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states
that by acknowledging that it will deliver and by delivering a prospectus, a Broker-Dealer will not
be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.



          For the 180-day period following the consummation of the Registered Exchange Offer, or such
shorter period as will terminate when all New Securities held by Exchanging Dealers or the Initial
Purchaser have been sold pursuant hereto, the Company and the Guarantors will promptly send
additional copies of this Prospectus and any amendment or supplement to this Prospectus to any
Broker-Dealer that requests such documents in the Letter of Transmittal. The Company has agreed to
pay all expenses incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Securities) other than commissions or concessions of any brokers or dealers and will
indemnify the holders of the Securities (including any Broker-Dealers) against certain liabilities,
including liabilities under the Securities Act.



[If applicable, add information required by Regulation S-K Items 507 and/or 508.]





 









 








ANNEX D




Rider A




	 	 	 	 	 	 	 
	 	 	CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
	 	 	ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
	 	 	AMENDMENTS OR SUPPLEMENTS THERETO.
	 
	 	 	 	 	 	 
	

	 	Name:	 	 	 	 
	

	 	Address:
	 	
	 	 
	

	 	 	 	
	 	 
	

	 	 	 	
	 	 
	

	 	 	 	
	 	 






Rider B




If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the New
Securities in the ordinary course of its business, it is not engaged in, and does not intend to
engage in, a distribution of New Securities and it has no arrangements or understandings with any
Person to participate in a distribution of the New Securities. If the undersigned is a
Broker-Dealer that will receive New Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for New Securities were acquired by it as a result
of market-making activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Securities; however, by so acknowledging and
by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter”
within the meaning of the Securities Act.