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Exhibit 4.2
EXECUTION VERSION
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REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 10, 2005
BY AND AMONG
WCI COMMUNITIES, INC.
EACH OF THE GUARANTORS LISTED ON THE SIGNATURE PAGES HEREIN
AND
UBS SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
COMERICA SECURITIES, INC.
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This Registration Rights Agreement (this "AGREEMENT") is made
and
entered into as of March 10, 2005, by and
among WCI Communities, Inc., a
Delaware corporation (the "COMPANY"), each
of the subsidiary guarantors listed
on the signature pages hereto (the
"GUARANTORS"), and UBS Securities LLC, Banc
of America Securities LLC and Comerica
Securities, Inc. (the "INITIAL
PURCHASERS"), each of whom has agreed to
purchase the Company's 6-5/8% Series A
Senior Subordinated Notes due 2015 (the
"SERIES A NOTES") pursuant to the
Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
March
3, 2005 (the "PURCHASE AGREEMENT"), by and
among the Company, the Guarantors and
the Initial Purchasers. In order to induce
the Initial Purchasers to purchase
the Series A Notes, the Company has agreed
to provide the registration rights
set forth in this Agreement. The execution
and delivery of this Agreement is a
condition to the obligations of the Initial
Purchasers set forth in Section 8 of
the Purchase Agreement. Capitalized terms
used herein and not otherwise defined
shall have the meaning assigned to them in
the Indenture, dated March 10, 2005,
between the Company, the Guarantors and The
Bank of New York, as Trustee,
relating to the Series A Notes and the
Series B Notes (the "INDENTURE").
The parties hereby agree as follows:
1. DEFINITIONS
As
used in this Agreement, the following capitalized terms shall
have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange
Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the
Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the
occurrence of (a) the filing and
effectiveness under the Act of the Exchange
Offer Registration Statement
relating to the Series B Notes to be issued
in the Exchange Offer, (b) the
maintenance of such Exchange Offer
Registration Statement continuously effective
and the keeping of the Exchange Offer open
for a period not less than the
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2
period required pursuant to Section 3(b)
hereof and (c) the delivery by the
Company to the Registrar under the
Indenture of Series B Notes in the same
aggregate principal amount as the aggregate
principal amount of Series A Notes
validly tendered (and not withdrawn) by
Holders thereof pursuant to the Exchange
Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a)
hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE OFFER: The exchange and issuance by the Company of a
principal amount of Series B Notes (which
shall be registered pursuant to the
Exchange Offer Registration Statement)
equal to the outstanding principal amount
of Series A Notes that are validly tendered
(and not withdrawn) by such Holders
in connection with such exchange and
issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement
relating to the Exchange Offer, including
the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial
Purchasers
propose to sell the Series A Notes to
certain "qualified institutional buyers,"
as such term is defined in Rule 144A under
the Act and pursuant to Regulation S
under the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at
the
time such Registration Statement is
declared effective, as amended or
supplemented by any prospectus supplement
and by all other amendments thereto,
including post-effective amendments, and
all material incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Company
and
the Guarantors relating to (a) an offering
of Series B Notes pursuant to an
Exchange Offer or (b) the registration for
resale of Transfer Restricted
Securities pursuant to the Shelf
Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this
Agreement and (ii) including the
Prospectus included therein, all amendments
and supplements thereto (including
post-effective amendments) and all exhibits
and material incorporated by
reference therein.
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REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SERIES B NOTES: The Company's 6-5/8% Series B Senior Notes due 2015
to
be issued pursuant to the Indenture: (i) in
the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section
77aaa-77bbbb)
as in effect on the date of the
Indenture.
TRANSFER RESTRICTED SECURITIES: Each (A) Series A Note, until
the
earliest to occur of (i) the date on which
such Series A Note is exchanged in
the Exchange Offer for a Series B Note
which is entitled to be resold to the
public by the Holder thereof without
complying with the prospectus delivery
requirements of the Act, (ii) the date on
which such Series A Note has been
disposed of in accordance with a Shelf
Registration Statement (and the
purchasers thereof have been issued Series
B Notes), or (iii) the date on which
such Series A Note is distributed to the
public pursuant to Rule 144 under the
Act and each (B) Series B Note held by a
Broker Dealer until the date on which
such Series B Note is disposed of by a
Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange
Offer Registration Statement
(including the delivery of the Prospectus
contained therein).
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted
Securities
(each, a "HOLDER") whenever such Person
owns Transfer Restricted Securities.
3. REGISTERED EXCHANGE
OFFER
(a) Unless the
Exchange Offer shall not be permitted by applicable federal
law or applicable interpretation of the
Staff and the Commission (after the
procedures set forth in Section 6(a)(i)
below have been complied with), the
Company and the Guarantors shall (i) cause
the Exchange Offer Registration
Statement to be filed with the Commission
on or prior to 90 days after the
Closing Date (such 90th day being the
"FILING DEADLINE"), (ii) use their
reasonable best efforts to cause such
Exchange Offer Registration Statement to
become effective on or prior to 180 days
after the Closing Date (such 180th day
being the "EFFECTIVENESS DEADLINE"), (iii)
in connection with the foregoing, (A)
file all pre-effective amendments to such
Exchange Offer Registration Statement
as may be necessary in order to cause it to
become effective, (B) file, if
applicable or necessary, a post-effective
amendment to such
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Exchange Offer Registration Statement
pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in
connection with the registration and
qualification of the Series B Notes to be
made under the Blue Sky laws of such
jurisdictions as are necessary to permit
Consummation of the Exchange Offer;
provided that neither the Company nor any
Guarantor shall be required to
register or qualify as a foreign
corporation where it is not now so qualified or
to take any action that would subject it to
the service of process in suits or
to taxation, other than as to matters and
transactions relating to the
Registration Statement, in any jurisdiction
where it is not now so subject, and
(iv) upon the effectiveness of such
Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer.
The Exchange Offer shall be on the
appropriate form permitting (i)
registration of the Series B Notes to be offered
in exchange for the Series A Notes that are
Transfer Restricted Securities and
(ii) resales of Series B Notes by
Broker-Dealers that tendered into the Exchange
Offer Series A Notes that such
Broker-Dealer acquired for its own account as a
result of market making activities or other
trading activities (other than
Series A Notes acquired directly from the
Company or any of its Affiliates) as
contemplated by Section 3(c) below.
(b) The Company
and the Guarantors shall use their respective reasonable
best efforts to cause the Exchange Offer
Registration Statement to be effective
continuously, and shall keep the Exchange
Offer open for a period of not less
than the minimum period required under
applicable federal and state securities
laws to Consummate the Exchange Offer;
provided that in no event shall such
period be less than 20 Business Days. The
Company and the Guarantors shall cause
the Exchange Offer to comply with all
applicable federal and state securities
laws. No securities other than the Series B
Notes shall be included in the
Exchange Offer Registration Statement.
Unless the Exchange Offer would not be
permitted by applicable law or Commission
policy, the Company and the Guarantors
shall use their respective reasonable best
efforts to cause the Exchange Offer
to be Consummated on or prior to 40
business days after the Exchange Offer
Registration Statement has become effective
(such 40th day being the
"CONSUMMATION DEADLINE").
(c) The Company
shall include a "Plan of Distribution" section in the
Prospectus contained in the Exchange Offer
Registration Statement and indicate
therein that any Broker-Dealer who holds
Transfer Restricted Securities that
were acquired for the account of such
Broker-Dealer as a result of market-making
activities or other trading activities
(other than Series A Notes acquired
directly from the Company or any Affiliate
of the Company), may exchange such
Transfer Restricted Securities pursuant to
the Exchange Offer. Such "Plan of
Distribution" section shall also contain
all other information with respect to
such sales by such Broker-Dealers that the
Commission may require in order to
permit such sales pursuant thereto, but
such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the
amount of Transfer Restricted
Securities held by any such Broker-Dealer,
except to the extent required by the
Commission as a result of a change in
policy, rules or regulations after the
date of this Agreement or as otherwise
required by the Commission. See the
Shearman & Sterling no-action letter
(available July 2, 1993).
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Because such Broker-Dealer may be deemed to be an "underwriter"
within
the meaning of the Act and must, therefore,
deliver a prospectus meeting the
requirements of the Act in connection with
its initial sale of any Series B
Notes received by such Broker-Dealer in the
Exchange Offer, the Company and
Guarantors shall permit the use of the
Prospectus contained in the Exchange
Offer Registration Statement by such
Broker-Dealer to satisfy such prospectus
delivery requirement. To the extent
necessary to ensure that the prospectus
contained in the Exchange Offer
Registration Statement is available for sales of
Series B Notes by Broker-Dealers, the
Company and the Guarantors agree to use
their respective reasonable best efforts to
keep the Exchange Offer Registration
Statement continuously effective,
supplemented, amended and current as required
by and subject to the provisions of Section
6(a) and (c) hereof and in
conformity with the requirements of this
Agreement, the Act and the policies,
rules and regulations of the Commission as
announced from time to time, for a
period of 180 days from the Consummation
Deadline or such shorter period as will
terminate when all Transfer Restricted
Securities covered by such Registration
Statement have been sold pursuant thereto.
Notwithstanding the foregoing, the
Company shall not be obligated to keep the
Exchange Offer Registration Statement
continuously effective to the extent set
forth above if the Company determines
in its reasonable judgment that the
continued effectiveness and usability of the
Exchange Offer Registration Statement would
interfere with any existing or
prospective financing, acquisition,
corporate reorganization or other material
business situation, transaction or
negotiation involving the Company or any of
its subsidiaries (a "BUSINESS REASON");
provided that the failure to keep the
Exchange Offer Registration Statement
effective and usable for a Business Reason
shall last no longer than 15 consecutive
days and shall in no event occur during
the first 14 days after the Exchange Offer
Registration Statement becomes
effective. The Company and the Guarantors
shall provide sufficient copies of the
latest version of such Prospectus to such
Broker-Dealers, promptly upon written
request, and in no event later than one day
after such request, at any time
during such period.
4. SHELF REGISTRATION
(a) Shelf
Registration. If (i) the Exchange Offer is not permitted by
applicable law or applicable interpretation
of the Staff of the Commission
(after the Company and the Guarantors have
complied with the procedures set
forth in Section 6(a)(i) below) or (ii) if
any Holder of Transfer Restricted
Securities shall notify the Company prior
to the 30th Business Day following the
Consummation Deadline that (A) such Holder
was prohibited by law or Commission
policy from participating in the Exchange
Offer or (B) such Holder may not
resell the Series B Notes acquired by it in
the Exchange Offer to the public
without delivering a prospectus and the
Prospectus contained in the Exchange
Offer Registration Statement is not
appropriate or available for such resales by
such Holder, then the Company and the
Guarantors shall:
(x) cause to be filed, on or prior to 90 days after the earlier of
(i)
the date on
which the Company determines that the Exchange Offer
Registration
Statement
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cannot be filed
as a result of clause (a)(i) above and (ii) the date on
which the
Company receives the notice specified in clause (a)(ii) above
(such earlier
date, the "FILING DEADLINE"), a shelf registration statement
pursuant to Rule
415 under the Act (which may be an amendment to the
Exchange Offer
Registration Statement (the "SHELF REGISTRATION
STATEMENT")),
relating to all Transfer Restricted Securities, and
(y) shall use their respective reasonable best efforts to cause
such
Shelf
Registration Statement to become effective on or prior to 180
days
after the
obligation to file the Shelf Registration Statement arose (such
180th day the
"EFFECTIVENESS DEADLINE").
If, after the Company has filed an Exchange Offer Registration
Statement that satisfies the requirements
of Section 3(a) above, the Company is
required to file and make effective a Shelf
Registration Statement solely
because the Exchange Offer is not permitted
under applicable federal law (i.e.,
clause (a)(i) above), then the filing of
the Exchange Offer Registration
Statement shall be deemed to satisfy the
requirements of clause (x) above;
provided that, in such event, the Company
shall remain obligated to meet the
Effectiveness Deadline set forth in clause
(y).
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of
Transfer Restricted Securities by the
Holders thereof entitled to the benefit of
this Section 4(a) and the other
securities required to be registered
therein pursuant to Section 6(b)(ii)
hereof, the Company and the Guarantors
shall use their respective reasonable
best efforts to keep any Shelf Registration
Statement required by this Section
4(a) continuously effective, supplemented,
amended and current as required by
and subject to the provisions of Sections
6(b) and (c) hereof and in conformity
with the requirements of this Agreement,
the Act and the policies, rules and
regulations of the Commission as announced
from time to time, for a period of at
least two years (as extended pursuant to
Section 6(c)(i)) following the Closing
Date, or such shorter period as will
terminate when all Transfer Restricted
Securities covered by such Shelf
Registration Statement have been sold pursuant
thereto or any change in law that would
permit the earlier free transferability
of the Transfer Restricted Securities;
provided that the Company may issue any
notice suspending the use of the Shelf
Registration required under applicable
securities laws to be issued; and provided,
further, the Company shall not be
obligated to keep the Shelf Registration
Statement continuously effective if the
Company determines, in its reasonable
judgment, that there is a Business Reason,
provided that the failure to keep the Shelf
Registration Statement effective and
usable for offers and sales of Notes due to
a Business Reason pursuant to this
proviso shall last no longer than 60 days
in any 12-month period.
(b) Provision by
Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of
Transfer Restricted Securities may
include any of its Transfer Restricted
Securities in any Shelf Registration
Statement pursuant to this Agreement
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unless and until such Holder furnishes to
the Company in writing, within 20 days
after receipt of a request therefor, the
information specified in Item 507 or
508 of Regulation S-K, as applicable, of
the Act for use in connection with any
Shelf Registration Statement or Prospectus
or preliminary Prospectus included
therein. No Holder of Transfer Restricted
Securities shall be entitled to
additional interest pursuant to Section 5
hereof unless and until such Holder
shall have provided all such information.
Each selling Holder agrees to promptly
furnish additional information required to
be disclosed in order to make the
information previously furnished to the
Company by such Holder not materially
misleading.
5. ADDITIONAL INTEREST
If (i) any Registration Statement required by this Agreement is
not
filed with the Commission on or prior to
the applicable Filing Deadline, (ii)
any such Registration Statement has not
been declared effective by the
Commission on or prior to the applicable
Effectiveness Deadline, (iii) the
Exchange Offer has not been Consummated on
or prior to the Consummation Deadline
or (iv) any Registration Statement required
by this Agreement is filed and
declared effective but shall thereafter
cease to be effective or fail to be
usable for its intended purpose without
being succeeded within five Business
Days by a post-effective amendment to such
Registration Statement that cures
such failure and that is itself declared
effective within two Business Days
(each such event referred to in clauses (i)
through (iv), a "REGISTRATION
DEFAULT"), then the Company and the
Guarantors hereby jointly and severally
agree to pay to each Holder of Transfer
Restricted Securities affected thereby
additional interest in an amount equal to
$.05 per week per $1,000 in principal
amount of Transfer Restricted Securities
held by such Holder for each week or
portion thereof that the Registration
Default continues for the first 90-day
period immediately following the occurrence
of such Registration Default. The
amount of the additional interest shall
increase by an additional $.05 per week
per $1,000 in principal amount of Transfer
Restricted Securities with respect to
each subsequent 90-day period until all
Registration Defaults have been cured,
up to a maximum amount of additional
interest of $.25 per week per $1,000 in
principal amount of Transfer Restricted
Securities; provided that no Holder who
is not entitled to the benefits of a Shelf
Registration Statement shall be
entitled to receive additional interest by
reason of a Registration Default that
pertains to a Shelf Registration Statement
and no Holder of Notes constituting
an unsold allotment from the original sale
of the Notes by the Company to the
Initial Purchasers shall be entitled to
additional interest by reason of a
Registration Default that pertains to an
Exchange Offer. Notwithstanding
anything to the contrary set forth herein,
(1) upon filing of the Exchange Offer
Registration Statement (and/or, if
applicable, the Shelf Registration
Statement), in the case of (i) above, (2)
upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if
applicable, the Shelf Registration
Statement), in the case of (ii) above, (3)
upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4)
upon the filing of a post-effective
amendment to the Registration Statement or
an additional Registration Statement
that causes the Exchange Offer Registration
Statement (and/or, if applicable,
the Shelf Registration Statement) to again
be declared effective or made usable
in the case of
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(iv) above, the additional interest payable
with respect to the Transfer
Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv), as
applicable, shall cease.
All accrued additional interest shall be paid to the Holders
entitled
thereto, in the manner provided for the
payment of interest in the Indenture, on
each Interest Payment Date, as more fully
set forth in the Indenture and the
Notes. Notwithstanding the fact that any
securities for which additional
interest are due cease to be Transfer
Restricted Securities, all obligations of
the Company and the Guarantors to pay
additional interest with respect to
securities shall survive until such time as
such obligations with respect to
such securities shall have been satisfied
in full.
6. REGISTRATION PROCEDURES
(a) Exchange
Offer Registration Statement. In connection with the Exchange
Offer, the Company and the Guarantors shall
(x) comply with all applicable
provisions of Section 6(c) below, (y) use
their respective reasonable best
efforts to effect such exchange and to
permit the resale of Series B Notes by
Broker-Dealers that tendered in the
Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account
as a result of its market making
activities or other trading activities
(other than Series A Notes acquired
directly from the Company or any of its
Affiliates) being sold in accordance
with the intended method or methods of
distribution thereof, and (z) comply with
all of the following provisions:
(i) As a condition to its participation in the Exchange Offer,
each
Holder of
Transfer Restricted Securities (including, without limitation,
any Holder who
is a Broker Dealer) shall furnish, upon the request of the
Company, prior
to the Consummation of the Exchange Offer, a written
representation
to the Company and the Guarantors (which may be contained in
the letter of
transmittal contemplated by the Exchange Offer Registration
Statement) to
the effect that (A) it is not an Affiliate of the Company,
(B) it is not
engaged in, and does not intend to engage in, and has no
arrangement or
understanding with any person to participate in, a
distribution of
the Series B Notes to be issued in the Exchange Offer and
(C) it is
acquiring the Series B Notes in its ordinary course of
business.
As a condition
to its participation in the Exchange Offer each Holder using
the Exchange
Offer to participate in a distribution of the Series B Notes
shall
acknowledge and agree that, if the resales are of Series B
Notes
obtained by such
Holder in exchange for Series A Notes acquired directly
from the Company
or an Affiliate thereof, it (1) could not, under
Commission
policy as in effect on the date of this Agreement, rely on the
position of the
Commission enunciated in Morgan Stanley and Co., Inc.
(available June
5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988),
as interpreted in the Commission's letter to Shearman &
Sterling dated
July 2, 1993, and similar no-action letters (including, if
applicable, any
no-action letter obtained pursuant to clause (i) above),
and (2) must
comply with the registration and prospectus delivery
requirements of
the Act in
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connection with
a secondary resale transaction and that such a secondary
resale
transaction 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.
(ii) Prior to effectiveness of the Exchange Offer Registration
Statement, the
Company and the Guarantors shall provide a supplemental
letter to the
Commission (A) stating that the Company and the Guarantors
are registering
the Exchange Offer in reliance on the position of the
Commission
enunciated in Exxon Capital Holdings Corporation (available May
13, 1988),
Morgan Stanley and Co., Inc. (available June 5, 1991) as
interpreted in
the Commission's letter to Shearman & Sterling dated July
2,
1993 and (B)
including a representation that neither the Company nor any
Guarantor has
entered into any arrangement or understanding with any Person
to distribute
the Series B Notes to be received in the Exchange Offer and
that, to the
best of the Company's and each Guarantor's information and
belief, each
Holder participating in the Exchange Offer is acquiring the
Series B Notes
in its ordinary course of business and has no arrangement or
understanding
with any Person to participate in the distribution of the
Series B Notes
received in the Exchange Offer.
(b) Shelf
Registration Statement.
(i) In connection with the Shelf Registration Statement, the
Company
and the
Guarantors shall comply with all the provisions of Section 6(c)
below and use
their respective reasonable best efforts to effect such
registration to
permit the sale of the Transfer Restricted Securities being
sold in
accordance with the intended method or methods of distribution
thereof (as
indicated in the information furnished to the Company pursuant
to Section 4(b)
hereof), and pursuant thereto the Company and the
Guarantors will
prepare and file with the Commission a Registration
Statement
relating to the registration on any appropriate form under the
Act, which form
shall be available for the sale of the Transfer Restricted
Securities in
accordance with the intended method or methods of
distribution
thereof within the time periods and otherwise in accordance
with the
provisions hereof, and
(ii) issue, upon the request of any Holder or purchaser of Series
A
Notes covered by
any Shelf Registration Statement contemplated by this
Agreement,
Series B Notes having an aggregate principal amount equal to
the
aggregate
principal amount of Series A Notes sold pursuant to the Shelf
Registration
Statement and surrendered to the Company for cancellation; the
Company shall register
Series B Notes on the Shelf Registration Statement
for this purpose
and issue the Series B Notes to the purchaser(s) of
securities
subject to the Shelf Registration Statement in the names as
such
purchaser(s)
shall designate.
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(c) General
Provisions. In connection with any Registration Statement and
any related Prospectus required by this
Agreement, the Company and the
Guarantors shall:
(i) use their respective reasonable best efforts to keep such
Registration
Statement continuously effective and provide all requisite
financial
statements for the period specified in Section 3 or 4 of this
Agreement, as
applicable. Upon the occurrence of any event that would cause
any such
Registration Statement or the Prospectus contained therein (A)
to
contain an
untrue statement of material fact or omit to state any material
fact necessary
to make the statements therein not misleading or (B) not to
be effective and
usable for resale of Transfer Restricted Securities during
the period
required by this Agreement, the Company and the Guarantors
shall
file promptly an
appropriate amendment to such Registration Statement
curing such
defect, and, if Commission review is required, use their
respective
reasonable best efforts to cause such amendment to be declared
effective as
soon as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective
amendments to the applicable Registration Statement as may
