-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UretSzWZxWRlyJDvfoZKdop0+4I0chqRRqiuIV42twUN/iWOENZXvAqHXK2cZhU2 +1i+mlYJvMhyyIMtraGZQg== 0000950142-96-000062.txt : 19960314 0000950142-96-000062.hdr.sgml : 19960314 ACCESSION NUMBER: 0000950142-96-000062 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19960313 SROS: NASD GROUP MEMBERS: TCW ASSET MANAGEMENT COMPANY GROUP MEMBERS: TCW GROUP INC GROUP MEMBERS: TCW SPECIAL CREDITS GROUP MEMBERS: TCW SPECIAL CREDITS FUND III GROUP MEMBERS: TCW SPECIAL CREDITS TRUST GROUP MEMBERS: THE TCW GROUP, INC. GROUP MEMBERS: TRUST COMPANY OF THE WEST SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KOGER EQUITY INC CENTRAL INDEX KEY: 0000835664 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 592898045 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-39744 FILM NUMBER: 96534440 BUSINESS ADDRESS: STREET 1: 3986 BLVD CTR DR STE 101 CITY: JACKSONVILLE STATE: FL ZIP: 32207 BUSINESS PHONE: 9043983403 MAIL ADDRESS: STREET 1: 3986 BLVD CTR DR STREET 2: SUITE 101 CITY: JACKSONVILLE STATE: FL ZIP: 32207 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TCW GROUP INC CENTRAL INDEX KEY: 0000850401 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 865 SOUTH FIGUEROA ST CITY: LOS ANGELES STATE: CA ZIP: 90017 MAIL ADDRESS: STREET 2: 865 SOUTH FIGUEROA STREET CITY: LOS ANGELES STATE: CA ZIP: 90017 SC 13D/A 1 SCHEDULE 13D AMENDMENT NO. 2 UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES EXCHANGE ACT OF 1934 (AMENDMENT NO. 2, FINAL AMENDMENT)* KOGER EQUITY, INC. ------------------ (Name of Issuer) COMMON STOCK, PAR VALUE $0.01 PER SHARE ---------------------------------------- (Title of Class of Securities) 50022 81 0 (CUSIP Number) Michael E. Cahill, Esq. (213) 244-0000 Managing Director & General Counsel 865 South Figueroa Street, Suite 1800 The TCW Group, Inc. Los Angeles, California 90017 - ---------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) MARCH 6, 1996 - ---------------------------------------------------------------------------- (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ]. Check the following box if a fee is being paid with the statement [ ]. (A fee is not required only if the reporting person: (1) has a previous statement on file reporting beneficial ownership of more than five percent of the class of securities described in Item 1; and (2) has filed no amendment subsequent thereto reporting beneficial ownership of five percent or less of such class.) (See Rule 13d-7.) NOTE: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 (the "Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D CUSIP NO. 50022 81 0 PAGE 2 of 16 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON The TCW Group, Inc. 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ] (b)[X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable. 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION Nevada NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 880,398 OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER -0- 9 SOLE DISPOSITIVE POWER 880,398 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 880,398 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 4.96% 14 TYPE OF REPORTING PERSON* HC, CO *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D CUSIP NO. 50022 81 0 PAGE 3 of 16 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Trust Company of the West 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ] (b)[X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable. 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION California NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 212,025 OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER -0- 9 SOLE DISPOSITIVE POWER 212,025 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 212,025 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.19% 14 TYPE OF REPORTING PERSON* CO *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D CUSIP NO. 50022 81 0 PAGE 4 of 16 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON TCW Asset Management Company 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ] (b)[X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable. 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION California NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 668,373 OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER -0- 9 SOLE DISPOSITIVE POWER 668,373 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 668,373 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.77% 14 TYPE OF REPORTING PERSON* CO, IA *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D CUSIP NO. 50022 81 0 PAGE 5 of 16 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON TCW Special Credits 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ] (b)[X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not applicable. 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION California NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 668,373 OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER -0- 9 SOLE DISPOSITIVE POWER 668,373 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 668,373 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 3.77% 14 TYPE OF REPORTING PERSON* PN, IA *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D CUSIP NO. 50022 81 0 PAGE 6 of 16 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON TCW Special Credits Fund III 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ] (b)[X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION California NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 470,583 OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER -0- 9 SOLE DISPOSITIVE POWER 470,583 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 470,583 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.65% 14 TYPE OF REPORTING PERSON* PN *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. SCHEDULE 13D CUSIP NO. 50022 81 0 PAGE 7 of 16 Pages 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON TCW Special Credits Trust 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*(a)[ ] (b)[X] 3 SEC USE ONLY 4 SOURCE OF FUNDS* Not Applicable 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)[ ] 6 CITIZENSHIP OR PLACE OF ORGANIZATION California NUMBER OF 7 SOLE VOTING POWER SHARES BENEFICIALLY 212,025 OWNED BY EACH REPORTING PERSON WITH 8 SHARED VOTING POWER -0- 9 SOLE DISPOSITIVE POWER 212,025 10 SHARED DISPOSITIVE POWER -0- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 212,025 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.19% 14 TYPE OF REPORTING PERSON* OO *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. Page 8 of 16 Pages The Schedule 13D, initially filed on December 29, 1995, as amended by Amendment No. 1 to Schedule 13D, filed on January 24, 1996, by the parties hereto with respect to the Common Stock, par value $.01 per share ("Common Stock"), of Koger Equity, Inc., a Florida corporation (the "Issuer"), is hereby amended and restated in its entirety by this Amendment No. 2 to Schedule 13D as follows. ITEM 1. SECURITY AND ISSUER This Statement relates to the Common Stock of the Issuer. The address of the principal executive office of the Issuer is 3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207. ITEM 2. IDENTITY AND BACKGROUND This Statement is filed on behalf of (1) The TCW Group, Inc., a Nevada corporation ("TCWG"); (2) Trust Company of the West, a California corporation and wholly-owned subsidiary of TCWG ("TCW"); (3) TCW Asset Management Company, a California corporation and wholly- owned subsidiary of TCWG ("TAMCO"); (4) TCW Special Credits, a California general partnership of which TAMCO is the managing general partner ("Special Credits"); (5) TCW Special Credits Fund III, a California limited partnership ("Special Credits Limited Partnership"), of which Special Credits is the general partner; and (6) TCW Special Credits Trust, a California collective investment trust ("Special Credits Trust"), of which TCW is the trustee. Special Credits, Special Credits Trust and Special Credits Limited Partnership are hereinafter collectively referred to as the "Special Credits Entities." TCWG, TCW, TAMCO and the Special Credits Entities are hereinafter collectively referred to as the "TCW Related Entities." Special Credits is also the investment manager of certain third party accounts that invest in similar securities as the Special Credit Entities. Such third party accounts that have invested in the Issuer's Common Stock are hereinafter collectively referred to as the "Special Credits Accounts". TCWG is a holding company of entities involved in the principal business of providing investment advice and management services. TCW is a trust company which provides investment management services, including to Special Credits Trust. TAMCO is an investment adviser and provides investment advice and management services to institutional and individual investors. Special Credits is an investment adviser and provides investment advice and management services to Special Credits Limited Partnership and the Special Credits Accounts and other third party accounts. Special Credits Limited Partnership is an investment partnership which invests in financially distressed entities. Special Credits Trust is a collective investment trust which invests in financially distressed entities. The address of the principal business and principal office for the TCW Related Entities is 865 South Figueroa Street, Suite 1800, Los Angeles, California 90017. The Special Credits Entities (other than Special Credits Trust) and the Special Credits Accounts are managed by Special Credits whose general partners include TAMCO and four individuals. (A)-(C) & (F) (I) The executive officers of TCWG are listed below. The principal business address for each executive officer is 865 South Figueroa Street, Suite 1800, Los Angeles, California, 90017. Each executive officer is a citizen of the United States of America unless otherwise specified below: Page 9 of 16 Pages EXECUTIVE OFFICERS Robert A. Day Chairman of the Board & Chief Executive Officer Ernest O. Ellison Vice Chairman of the Board Marc I. Stern President Alvin R. Albe, Jr. Executive Vice President, Finance & Administration Thomas E. Larkin, Jr. Executive Vice President & Group Managing Director Michael E. Cahill Managing Director, General Counsel & Secretary David K. Sandie Managing Director, Chief Financial Officer & Assistant Secretary Schedule I attached hereto and incorporated herein sets forth with respect to each director of TCWG his or her name, residence or business address, citizenship, present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted. (II) The executive officers and directors of TCW are listed below. The principal business address for each executive officer and director is 865 South Figueroa Street, Suite 1800, Los Angeles, California 90017. Each executive officer is a citizen of the United States of America unless otherwise specified below: EXECUTIVE OFFICERS & DIRECTORS Robert A. Day Chairman of the Board & Chief Executive Officer Ernest O. Ellison Director & Vice Chairman Thomas E. Larkin, Jr. Director & President Alvin R. Albe, Jr. Director & Executive Vice President, Finance & Administration Marc I. Stern Director, Executive Vice President, Managing Director & Chief Investment Officer - International Michael E. Cahill Managing Director, General Counsel & Secretary David K. Sandie Managing Director, Chief Financial Officer & Assistant Secretary (III) The executive officers and directors of TAMCO are listed below. The principal business address for each executive officer, director and portfolio manager is 865 South Figueroa Street, Suite 1800, Los Angeles, California, 90017. Each executive officer and director is a citizen of the United States of America unless otherwise specified below: EXECUTIVE OFFICERS & DIRECTORS Robert A. Day Chairman of the Board & Chief Executive Officer Thomas E. Larkin, Jr. Director & Vice Chairman of the Board Marc I. Stern Director, Vice Chairman of the Board & Chief Investment Officer - International Ernest O. Ellison Chief Investment Officer - Domestic Fixed Income Alvin R. Albe, Jr. Director, Executive Vice President, Finance & Administration Michael E. Cahill Managing Director, General Counsel & Secretary David K. Sandie Managing Director, Chief Financial Officer & Assistant Secretary Hilary G.D. Lord Senior Vice President, Chief Compliance Officer & Assistant Secretary (IV) The following sets forth with respect to each general partner of Special Credits his name, residence or business address, present principal occupation or employment and the name, principal business and address of any corporation or other organization in which such employment is conducted for. Each general partner who is a natural person is a citizen of the United States of America unless otherwise specified below. TAMCO is the Managing General Partner. See information in paragraph (iii) above. Bruce A. Karsh President and Principal Oaktree Capital Management, LLC 550 South Hope Street Suite 2200 Los Angeles, California 90071 Page 10 of 16 Pages Howard S. Marks Chairman and Principal Oaktree Capital Management, LLC 550 South Hope Street Suite 2200 Los Angeles, California 90071 Sheldon M. Stone Principal Oaktree Capital Management, LLC 550 South Hope Street Suite 2200 Los Angeles, California 90071 David Richard Masson Principal Oaktree Capital Management, LLC 550 South Hope Street Suite 2200 Los Angeles, California 90071 (V) Special Credits is the sole general partner of Special Credits Limited Partnership and the investment adviser with respect to the Special Credits Accounts. See information in paragraph (iv) above regarding Special Credits and its general partners. (D)-(E) During the last five years, none of the TCW Related Entities and the Special Credits Accounts, and, to the best of their knowledge, none of their respective executive officers, directors and general partners (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors); or (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceedings was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION The TCW Related Entities and the Special Credits Accounts acquired their respective interests in the Issuer's Common Stock pursuant to the Issuer's Chapter 11 Plan of Reorganization in late 1993. Under the Plan of Reorganization, certain debt of the Issuer (the "Debt Securities") held by such entities was converted into the Issuer's Common Stock. The source of funding for the acquisition of the Debt Securities was the investment capital of each of the purchasers thereof. ITEM 4. PURPOSE OF TRANSACTION As of December 20, 1995, the TCW Related Entities had determined that it would be in their best interests, and that it would be in the best interests of the Special Credits Accounts, to divest their respective holdings of the Issuer's Common Stock for the maximum realizable value. Pursuant to the Purchase Agreement (as defined below), the TCW Related Entities and the Special Credits Accounts have provided for the sale of, and price protection with respect to, a total of 2,644,827 shares of the Issuer's Common Stock, subject to certain conditions and as more fully described in the Purchase Agreement. As of March 6, 1996 and after giving effect to the Second Closing (as defined in the Purchase Agreement), the TCW Related Entities and the Special Credits Accounts owned a total of 880,398 shares of the Issuer's Common Stock. The TCW Related Entities continue to believe that it would be in their best interests, and that it would be in the best interests of the Special Credits Accounts, to divest their remaining respective holdings of the Issuer's Common Stock. Other than as set forth in the Purchase Agreement, the TCW Related Entities currently have no plan or proposal to effect such a divestiture. Depending on market and other conditions and subject to the terms and conditions of the Purchase Agreement, the TCW Related Entities and the Special Credits Accounts may purchase or sell shares of the Issuer's Common Stock in the open market or privately negotiated transactions. Page 11 of 16 Pages ITEM 5. INTEREST AND SECURITIES OF THE ISSUER (A) As of the date of this Schedule 13D, Special Credits Limited Partnership beneficially owns 470,583 shares of the Issuer's Common Stock, which is approximately 2.65 % of the outstanding shares of the Issuer's Common Stock; Special Credits, as the general partner of Special Credits Limited Partnership and the investment manager of the Special Credits Accounts, may be deemed to beneficially own 668,373 shares of the Issuer's Common Stock, which is approximately 3.77% of the outstanding shares of the Issuer's Common Stock. As of the date of this Schedule 13D, Special Credits Trust beneficially owns 212,025 shares of the Issuer's Common Stock, which is approximately 1.19% of the outstanding shares of the Issuer's Common Stock. TCW, as the trustee of Special Credits Trust, may be deemed to beneficially own the shares of the Issuer's Common Stock held by Special Credits Trust. TAMCO, as the managing partner of Special Credits, may be deemed to beneficially own shares of the Issuer's Common Stock held by the Special Credit Entities (other than Special Credits Trust) and the Special Credit Accounts, all of which constitutes 668,373 shares or approximately 3.77% of the outstanding shares of the Issuer's Common Stock. TCWG, as the parent corporation of TCW and TAMCO, may be deemed to beneficially own shares of the Issuer's Common Stock deemed to be owned by the other TCW Related Entities, all of which constitutes 880,398 shares of the Issuer's Common Stock (approximately 4.96% of the outstanding shares of the Issuer's Common Stock). TCWG, TCW, TAMCO and Special Credits each disclaims beneficial ownership of the shares of the Issuer's Common Stock reported herein and the filing of this Statement shall not be construed as an admission that any such entity is the beneficial owner of any securities covered by this Statement. (B) Special Credits, as the sole general partner of Special Credits Limited Partnership, has discretionary authority and control over all of the assets of Special Credits Limited Partnership pursuant to the limited partnership agreement for such limited partnership including the power to vote and dispose of the Issuer's Common Stock held by Special Credits Limited Partnership. In addition, Special Credits, as the investment manager of the Special Credits Accounts has the discretionary authority and control over all of the assets of such accounts pursuant to the investment management agreements relating to such accounts including the power to vote and dispose of the Issuer's Common Stock held in the name of the Special Credits Accounts. Therefore, Special Credits has the power to vote and dispose of 668,373 shares of the Issuer's Common Stock. TAMCO, as the managing general partner of Special Credits, also has the power to vote and dispose of the shares of Issuer's Common Stock held by Special Credits referenced above. Therefore, TAMCO has the power to vote and dispose of 668,373 shares of the Issuer's Common Stock. TCW, as the trustee of Special Credits Trust, has discretionary authority and control over all the assets of Special Credits Trust pursuant to the trust agreement for such trust, including the power to vote and dispose of the Issuer's Common Stock held by Special Credits Trust. Therefore, TCW has the power to vote and dispose of 212,025 shares of the Issuer's Common Stock. TCWG, as the parent of TCW and TAMCO, may be deemed to have the power to vote and dispose of the shares of the Issuer's Common Stock that the other TCW Related Entities and the Special Credit Accounts have power to vote and dispose, all of which constitutes 880,398 shares of the Issuer's Common Stock. (C) Except as set forth herein, none of the TCW Related Entities, and to the best of their knowledge, none of their respective executive officers, directors or general partners has effected transactions involving the Issuer's Common Stock during the last 60 days. (D) None (E) Not applicable Page 12 of 16 Pages ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER REGISTRATION RIGHTS AGREEMENT The following is a summary of certain provisions of the Registration Rights Agreement dated as of August 9, 1993 (the "Registration Rights Agreement"), by and between Koger Equity, Inc. and TCW Special Credits for itself and, as general partner or investment advisor, on behalf of TCW Special Credits Fund III, the Special Credits Accounts and TCW Special Credits Trust, a copy of which is attached as Exhibit 2 hereto and is incorporated herein by reference. This summary is qualified in its entirety by reference to the Registration Rights Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Registration Rights Agreement. Subject to certain terms and conditions, the Registration Rights Agreement provides for four demand registrations by Holders of Registrable Securities holding at the time of any such registration the greater of (i) 10% of the initial Registrable Securities and (ii) an amount of Registrable Securities consisting of at least 250,000 shares of the Issuer's Common Stock or securities issued or issuable in respect of or in exchange for such Common Stock. Subject to certain terms and conditions, the Registration Rights Agreement provides for unlimited piggyback registrations by Holders of Registrable Securities upon the filing of a registration statement with respect to any class of equity securities other than pursuant to a demand registration under the Registration Rights Agreement. SHAREHOLDERS AGREEMENT The following is a summary of certain provisions of the Shareholders Agreement dated as of August 9, 1993 (the "Shareholders Agreement"), by and between Koger Equity, Inc. and TCW Special Credits for itself and, as general partner or investment advisor, on behalf of TCW Special Credits Fund III, the Special Credits Accounts and TCW Special Credits Trust, a copy of which is attached as Exhibit 3 hereto and is incorporated herein by reference. This summary is qualified in its entirety by reference to the Shareholders Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Shareholders Agreement. Subject to certain terms and conditions, the Shareholders Agreement provides that the Board of Directors of the Issuer has determined that the Shareholders, TCWG, Special Credits and any of their Affiliates are exempt from certain restrictions on the concentration of ownership contained in the Issuer's Articles of Incorporation for ownership by such persons of up to the higher of (i) 4,047,350 shares of the Issuer's Common Stock, as adjusted for subsequent stock splits, stock dividends or other recapitalizations of the Issuer and (ii) 23% of the outstanding shares of the Issuer's Common Stock (the "Maximum Amount"). Pursuant to the Shareholders Agreement, the Issuer agreed, subject to certain terms and conditions, to amend the Common Stock Rights Agreement dated as of September 30, 1990 (the "Rights Plan"), between the Issuer and First Union National Bank, as successor Rights Agent, such that the beneficial ownership of to the Maximum Amount of the Issuer's Common Stock by the Shareholders, TCWG, Special Credits and any of their Affiliates shall not cause the distribution of the Rights (as defined in the Rights Plan). OTHER ARRANGEMENTS Special Credits, as general partner of Special Credits Limited Partnership, receives a fee for managing all the assets of Special Credits Limited Partnership. In addition, Special Credits, as investment manager of the Special Credits Accounts, receives a management fee for managing the assets of each Special Credits Account. Special Credits Limited Partnership and the Special Credits Accounts have similar investment strategies of investing in financially distressed entities; however, the implementation of these strategies may differ from among such entities. TCW, as trustee of Special Credits Trust, receives a management fee for managing all the assets of Special Credits Trust. Special Credits Trust has an investment strategy similar to Special Credits Limited Partnership and the Special Credits Accounts in investing in financially distressed entities. However, the implementation of this strategy may differ among such entities. Except to the extent the securities referred to in this Statement constitute assets of the Special Credits Entities and Special Credits Accounts, there are no contracts, understandings or relationships (legal or otherwise) among or between any member of the TCW Related Entities or, to the best of their knowledge, their respective executive officers, directors or general partners or between or among any of such persons and with respect to any securities of the Issuer. Page 13 of 16 Pages COMMON STOCK PURCHASE AND SALE AGREEMENT The following is a summary of certain provisions of the Common Stock Purchase and Sale Agreement, dated January 18, 1996 (as amended by Amendment No. 1 thereto, dated as of March 5, 1996, the "Purchase Agreement"), by and among Special Credits, for itself and as general partner or investment manager for Special Credits Limited Partnership and the Special Credits Accounts, TCW, for itself and as trustee for Special Credits Trust, and Resource Group International, Inc., a Washington corporation ("Purchaser"), a copy of which is attached as Exhibit 1 hereto and is incorporated herein by reference. This summary is qualified in its entirety by reference to the Purchase Agreement. Capitalized terms not otherwise defined herein shall have the meaning ascribed to them in the Purchase Agreement. Pursuant to the Purchase Agreement, the TCW Related Entities and the Special Credits Accounts (i) sold to Purchaser 1,200,000 shares (the "Initial Shares") of the Issuer's Common Stock on January 19, 1996, (ii) sold to Purchaser an additional 1,249,571 shares (the "Secondary Shares") of the Issuer's Common Stock and (iii) granted Purchaser a proxy to vote the Secondary Shares on their behalf. In addition, if Special Credits Limited Partnership, Special Credits Trust or the Special Credits Accounts should sell to third parties up to an additional 195,256 shares (the "Gross-Up Shares"), Purchaser will make the payments described below, subject to certain conditions. As of the date hereof, the TCW Related Entities and the Special Credits Accounts continue to have all rights with respect to the voting and disposition of the Gross-Up Shares. The purchase price (1) paid by Purchaser for the Initial Shares and the Secondary Shares purchased in accordance with the Purchase Agreement and (2) guaranteed by Purchaser to be received by Special Credits Limited Partnership, Special Credits Trust and the Special Credits Accounts with respect to the Gross-Up Shares and the Remaining Secondary Shares was and shall be $12.00 per share of the Issuer's Common Stock, plus a carrying cost from January 1, 1996 until the date of sale of each such share. The above-described price protection shall remain in effect until six months after the expiration of the Blackout Period. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS The following are filed herewith as Exhibits to this Schedule 13D: Exhibit 1- Agreement of TCW Related Entities regarding a joint Schedule 13D (and such amendments as may become necessary) with respect to the Common Stock of Koger Equity, Inc. dated as of December 28, 1995. Exhibit 2- Registration Rights Agreement dated as of August 9, 1993, by and between Koger Equity, Inc. and TCW Special Credits for itself and, as general partner or investment advisor, on behalf of TCW Special Credits Fund III, the Special Credits Accounts and TCW Special Credits Trust. Exhibit 3- Shareholders Agreement dated as of August 9, 1993, by and between Koger Equity, Inc. and TCW Special Credits for itself and, as general partner or investment advisor, on behalf of TCW Special Credits Fund III, the Special Credits Accounts and TCW Special Credits Trust. Exhibit 4- Common Stock Purchase and Sale Agreement, dated January 18, 1996, by and among Special Credits, on its own behalf and as general partner or investment manager for Special Credits Limited Partnership and the Special Credits Accounts, TCW, for itself and as trustee for Special Credits Trust, and Purchaser. Exhibit 5- Amendment No. 1, dated as of March 5, 1996, to the Common Stock Purchase and Sale Agreement, dated January 18, 1996, by and among Special Credits, on its own behalf and as general partner or investment manager for Special Credits Limited Partnership and the Special Credits Accounts, TCW, for itself and as trustee for Special Credits Trust, and Purchaser. Exhibit 6- Irrevocable Proxy granted as of March 5, 1996, by the TCW Related Entities to RGI Realty, Inc. Page 14 of 16 Pages SIGNATURE After reasonable inquiry and to the best of its knowledge and belief, the undersigned certify that the information set forth in this Statement is true, complete and correct. Dated as of the 13th day of March, 1996. THE TCW GROUP, INC. /S/ MICHAEL E. CAHILL - ----------------------------------------------- Michael E. Cahill Managing Director, General Counsel and Secretary TRUST COMPANY OF THE WEST /S/ KENNETH LIANG - ------------------------------------------------ Kenneth Liang, Authorized Signatory TCW ASSET MANAGEMENT COMPANY /S/ KENNETH LIANG - ------------------------------------------------ Kenneth Liang, Authorized Signatory TCW SPECIAL CREDITS /S/ KENNETH LIANG - ------------------------------------------------ Kenneth Liang, Authorized Signatory of TCW Asset Management Company, the Managing General Partner of TCW Special Credits TCW SPECIAL CREDITS FUND III /S/ KENNETH LIANG - ------------------------------------------------ Kenneth Liang, Authorized Signatory of TCW Asset Management Company, the Managing General Partner of TCW Special Credits, the General Partner of TCW Special Credits Fund III TCW SPECIAL CREDITS TRUST /S/ KENNETH LIANG - ------------------------------------------------ Kenneth Liang, Authorized Signatory of Trust Company of the West, the trustee of TCW Special Credits Trust Page 15 of 16 Pages SCHEDULE I BOARD OF DIRECTORS OF TCW GROUP, INC. All of the following individuals are directors of TCW Group, Inc. Each director is a citizen of the United States of America unless otherwise specified below: HOWARD P. ALLEN HAROLD R. FRANK Former Chairman & CEO Chairman of the Board Southern California Edison Applied Magnetics Corporation 2244 Walnut Grove Blvd. 75 Robin Hill Rd. Rosemead, CA 91770 Goleta, CA 93017 JOHN M. BRYAN DR. HENRY A. KISSINGER Partner Chairman Bryan & Edwards Kissinger Associates, Inc. 600 Montgomery St., 35th Floor 350 Park Ave., 26th Floor San Francisco, CA 94111 New York, NY 10022 ROBERT A. DAY Chairman of the Board, KENNETH L. LAY Chairman and Chief Executive Officer Enron Corp. Trust Company of the West 1400 Smith Street 200 Park Avenue, Suite 2200 Houston, TX 77002-7369 New York, New York 10166 DAMON P. DE LASZLO, ESQ. MICHAEL T. MASIN, ESQ. Managing Director of Harwin Vice Chairman Engineers S.A., Chairman & D.P. GTE Corporation Advisers Holdings Limited One Stamford Forum Byron's Chambers Stamford, CT 06904 A2 Albany, Piccadilly London W1V 9RD - England EDFRED L. SHANNON, JR. (Citizen of United Kingdom) Investor/Rancher 1000 S. Fremont Ave. Alhambra, CA 9l802 WILLIAM C. EDWARDS ROBERT G. SIMS Partner - Bryan & Edwards Private Investor 3000 Sand Hill Road, Suite 190 11828 Rancho Bernardo, Box 1236 Menlo Park, CA 94025 San Diego, CA 92128 ERNEST O. ELLISON CARLA A. HILLS Vice Chairman 1200 19th Street, N.W. Trust Company of the West 5th Floor 865 South Figueroa St., Suite 1800 Washington, DC 20036 Los Angeles, California 90017 Page 16 of 16 Pages EXHIBIT INDEX EXHIBIT PAGE NUMBER DESCRIPTION NUMBER Exhibit 1- Agreement of TCW Related Entities regarding a joint Schedule 13D (and such amendments as may become necessary) with respect to the Common Stock of Koger Equity, Inc. dated as of December 28, 1995. Exhibit 2- Registration Rights Agreement dated as of August 9, 1993, by and between Koger Equity, Inc. and TCW Special Credits for itself and, as general partner or investment advisor, on behalf of TCW Special Credits Fund III, the Special Credits Accounts and TCW Special Credits Trust. Exhibit 3- Shareholders Agreement dated as of August 9, 1993, by and between Koger Equity, Inc. and TCW Special Credits for itself and, as general partner or investment advisor, on behalf of TCW Special Credits Fund III, the Special Credits Accounts and TCW Special Credits Trust. Exhibit 4- Common Stock Purchase and Sale Agreement, dated January 18, 1996, by and among Special Credits, on its own behalf and as general partner or investment manager for Special Credits Limited Partnership and the Special Credits Accounts, TCW, for itself and as trustee for Special Credits Trust, and Purchaser. Exhibit 5- Amendment No. 1, dated as of March 5, 1996, to the Common Stock Purchase and Sale Agreement, dated January 18, 1996, by and among Special Credits, on its own behalf and as general partner or investment manager for Special Credits Limited Partnership and the Special Credits Accounts, TCW, for itself and as trustee for Special Credits Trust, and Purchaser. Exhibit 6- Irrevocable Proxy granted as of March 5, 1996, by the TCW Related Entities to RGI Realty, Inc. EX-1 2 EXHIBIT 1 AGREEMENT WHEREAS, The TCW Group, Inc. ("TCWG"), Trust Company of the West ("TCW"), TCW Asset Management Company ("TAMCO"), TCW Special Credits ("Special Credits"), TCW Special Credits Fund III ( "Special Credits Limited Partnership") and TCW Special Credits Trust ("Special Credits Trust") individually or collectively, may be deemed to be a beneficial owner within the meaning of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), for purposes of Section 13(d) of the Exchange Act of the Common Stock, $0.01 par value per share, of Koger Equity, Inc., a Florida corporation; and WHEREAS, TCWG, TCW, TAMCO, Special Credits, Special Credits Limited Partnership and Special Credits Trust each desires to satisfy any filing obligation each may have under Section 13(d) of the Exchange Act by filing a single Schedule 13D pursuant to such Section with respect to each class of securities. NOW THEREFORE, TCWG, TCW, TAMCO, Special Credits, Special Credits Limited Partnership and Special Credits Trust agree to file a Schedule 13D under the Exchange Act relating to the Common Stock of Koger Equity, Inc. and agree further to file any such amendments thereto as may become necessary unless and until such time as one of the parties shall give written notice to the other parties of this Agreement that it wishes to file a separate Schedule 13D relating to the Common Stock of Koger Equity, Inc. provided that each person on whose behalf the Schedule 13D or any amendment is filed is responsible for the timely filing of such Schedule 13D and any amendments thereto necessitated by the actions or intentions of such person and for the completeness and accuracy of the information pertaining to it and its actions and intentions. The Agreement may be executed in two or more counterparts, each of which shall constitute but one instrument. Dated as of 28TH day of December, 1995. THE TCW GROUP, INC. /s/ David K. Sandie _______________________________________ David K. Sandie Chief Financial Officer and Managing Director TRUST COMPANY OF THE WEST /s/ Kenneth Liang _______________________________________ Kenneth Liang, Authorized Signatory TCW ASSET MANAGEMENT COMPANY /s/ Kenneth Liang _______________________________________ Kenneth Liang, Authorized Signatory TCW SPECIAL CREDITS /s/ Kenneth Liang ________________________________________ Kenneth Liang, Authorized Signatory of TCW Asset Management Company, the Managing General Partner of TCW Special Credits TCW SPECIAL CREDITS FUND III /s/ Kenneth Liang _________________________________________ Kenneth Liang, Authorized Signatory of TCW Asset Management Company, the Managing General Partner of TCW Special Credits, the General Partner of TCW Special Credits Fund III TCW SPECIAL CREDITS TRUST /s/ Kenneth Liang _________________________________________ Kenneth Liang, Authorized Signatory of Trust Company of the West, the trustee of TCW Special Credits Trust EX-2 3 EXHIBIT 2 REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is made and entered into as of this the 9th day of August, 1993 by and between Koger Equities, Inc., a Florida corporation, and TCW Special Credits, a California general partnership ("TCW Special Credits"), for itself and, as general partner or investment advisor, on behalf of TCW Special Credits Fund III, Weyerhauser Company Master Pension Trust, The Common Fund for Bond Investments and TCW Special Credits Trust (collectively, the "Shareholders"). This Agreement is entered into in connection with the Plan (as defined below) which provides for the reorganization of Koger Properties, Inc., a Florida corporation, through a merger of Koger Properties, Inc. into Koger Equities, Inc. The Company (as defined below) and TCW Special Credits, for itself and on behalf of the Shareholders, are simultaneously herewith entering into a Shareholders Agreement (the "Shareholders Agreement") providing, among other things, that TCW Special Credits shall vote or direct the Shareholders to vote for the Plan and the merger contemplated thereby. As a condition to its willingness to enter into the Shareholders Agreement, TCW Special Credits has requested that the Company grant certain registration rights as provided in this Agreement. To induce TCW Special Credits to enter into, and in consideration of its entering into, the Shareholders Agreement, and for and in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. CERTAIN DEFINITIONS. For purposes of this Agreement, the following terms have the following meanings when used herein: (a) "BUSINESS DAY" means any Monday, Tuesday, Wednesday, Thursday or Friday that is not a day on which banking institutions in New York, New York are authorized by law, regulation or executive order to close. (b) "COMMISSION" means the Securities and Exchange Commission or any other federal agency at the time administering the Securities Act. (c) "COMMON STOCK" means the Common Stock, par value $.0l per share of the Company. (d) "COMPANY" means Koger Equities, Inc., a Florida corporation, and its successors and assigns. (e) "DEMAND REGISTRATION" means any registration of Registrable Securities effected pursuant to SECTION 3 hereof. (f) "EFFECTIVE DATE" means the effective date of the Plan. (g) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended (or any similar successor federal statute), and the rules and regulations thereunder, as in effect from time to time. (h) "INITIATING HOLDERS" shall have the meaning ascribed to such term in SECTION 3(A) HEREOF. (i) "HOLDER" mean any Person that owns Registrable Securities, including such successors and assigns as acquire Registrable Securities, directly or indirectly, from such Person. For purposes of this Agreement, the Company may deem and treat the registered of a Registrable Security as the Holder and absolute owner thereof. (j) "MAJORITY REGISTERED HOLDERS" means in the case of any registration statement, the Holders of a majority of the Registrable Securities proposed to be covered (or so covered) in such registration statement. (k) "PERSON" means any individual, partnership, corporation (including a business trust), joint stock company, trust, unincorporated association, joint venture, or other entity, or a government or any political subdivision or agency. (l) "PIGGYBACK REGISTRATION" means any registration of Registrable Securities effected pursuant to SECTION 4 hereof. (m) "PLAN" means the plan of reorganization of Koger Properties, Inc., as amended to date, filed with the Bankruptcy Court in Chapter 11 Case No. 91-12294-8P1 in the United States Bankruptcy Court for the Middle District of Florida, Tampa Division and distributed to creditors pursuant to that order of the Bankruptcy Court dated June 8, 1993 in said Chapter 11 Case approving the Third Amended and Restated Disclosure Statement (the "Disclosure Statement"). (n) "REGISTRABLE SECURITIES" means (i) the 552,600 shares of Common Stock held by the Shareholders on the date hereof and the shares of Common Stock to be issued to the Shareholders pursuant to the Plan, and (ii) any securities issued or issuable in respect of or in exchange for any of the shares of Common Stock referred to in clause (i) above by way of a stock dividend or other distribution on the Common Stock, stock split or combination of shares, recapitalization, reclassification, merger, consolidation or exchange offer. For purposes of this Agreement, a Registrable Security ceases to be a Registrable Security when (1) it has been effectively registered under the Securities Act and sold or distributed to any Person pursuant to an effective registration statement covering it, (2) it has been sold or distributed to any Person pursuant to Rule 144, or (3) it has been sold or distributed pursuant to an exemption from the registration requirements of the Securities Act to any Person other than any investment fund for which TCW Special Credits acts as manager, any partnership or other entity for which TCW Special Credits acts directly or indirectly as a general partner or controlling stockholder, any Person otherwise affiliated with TCW Special Credits, The TCW Group, Inc. and its direct or indirect subsidiaries. (o) "REGISTRATION" means any Demand Registration or Piggyback Registration. (p) "RULE 10B-6" means Rule 10b-6 promulgated by the Commission under the Exchange Act, as such Rule may be amended from time to time, or any similar successor rule that may be promulgated by the Commission. (q) "RULE 144," "RULE 145," "RULE 415" AND "RULE 424" mean, respectively, Rule 144, Rule 145, Rule 415 and Rule 424, each promulgated by the Commission under the Securities Act, in each case as amended from time to time, or any similar successor rule thereto that may be promulgated by the Commission. (r) "SECURITIES ACT" means the Securities Act of 1933, as amended (or any similar successor federal state), and the rules and regulations thereunder, as the same are in effect from time to time. 2. [RESERVED] 3. DEMAND REGISTRATIONS. (a) At any time after six months following the Effective Date, upon written notice to the Company from one or more Holders (the "Initiating Holders") of Registrable Securities holding in the aggregate the greater of (i) 10% of the initial Registrable Securities and (ii) an amount of Registrable Securities consisting of at least 250,000 shares of Common Stock or securities issued or issuable in respect of or in exchange for such shares of Common Stock by way of a stock dividend or other distribution on the Common Stock, stock split or combination of shares, recapitalization, reclassification, merger or exchange offer, requesting that the Company effect, pursuant to this SECTION 3, the registration of any of such Initiating Holders' Registrable Securities under the Securities Act (which notice shall specify the Registrable Securities so requested to be registered which amount of Registrable Securities to be so registered shall be equal to or greater than 10% of the initial Registrable Securities, the proposed amounts thereof and the intended method or methods of disposition by such Initiating Holders (including whether or not the proposed offering is to be underwritten)), the Company shall promptly (but in any event within 15 days) give written notice of such requested registration to all Holders, and thereupon the Company shall use its best efforts to effect the registration under the Securities Act of: (A) the Registrable Securities that the Initiating Holders have requested the Company to register, for disposition in accordance with the intended method or methods of disposition stated in their notice to the Company; and (B) all other Registrable Securities the Holders of which shall have made a written request to the Company for registration thereof (which request shall specify such Registrable Securities and the proposed amounts thereof) within 15 days after the receipt of such written notice from the Company; as expeditiously as possible (but in any event shall file such registration statement within 45 days of the receipt of such request), all to the extent requisite to permit the disposition by Holders of the securities then constituting Registrable Securities so to be registered. (b) FREQUENCY; DURATION. The Company is obligated to effect only four registrations pursuant to this SECTION 3 with respect to all Holders. Notwithstanding the foregoing, the Company shall not be required to effect a Demand Registration pursuant to this SECTION 3: (i) if it shall have so effected a Demand Registration during the previous seven months; (ii) if the Initiating Holders shall have requested such Demand Registration after the eighth anniversary of the Effective Date or (iii) during the period starting with the date 30 days prior to the Company's good faith estimate of the date of filing of, and ending on the date 90 days following the effective date of, a registration statement pertaining to an underwritten public offering for the account of the Company with respect to which Holders have piggyback registration rights pursuant to SECTION 4 hereof; PROVIDED, HOWEVER, that a Demand Registration shall not be deemed to have been effected for purposes of SECTION 3(B)(I) if the applicable registration statement has not been declared effective and kept effective until the earlier of (i) four months flowing the date on which such registration statement was declared effective and (ii) the sale pursuant to such registration statement of the Registrable Securities covered thereby, and FURTHER, PROVIDED, that in the event a request for registration is refused pursuant to clause (iii) above, if the Company then elects not to file a registration statement or, if a registration statement is filed, the Company elects not to complete the proposed offering, the Company shall notify in writing the Holders whose request for registration has been refused pursuant to clause (iii) above, and such Holders shall have the right, within 10 days after receiving written notice of the Company's election to request the Company to effect the registration of Registrable Securities for the account of Holders, and such registration shall be considered a Demand Registration under SECTION 3 hereof. (c) RIGHT TO DELAY REGISTRATION. The Company shall have the right to delay the filing of a registration statement required to be riled under this SECTION 3 if the Company shall furnish the Initiating Holders a certificate signed by the President of the Company (the "Certificate") (i) stating that in the good faith judgment of a majority of the disinterested members of the Board of Directors of the Company an undisclosed material event has occurred and is continuing or is likely to occur within 90 days the public disclosure of which would have a material adverse effect on the Company or on a proposed material transaction involving the Company or a substantial amount of its assets and (ii) describing in reasonable detail the undisclosed material event. The filing of the registration statement may be delayed by the Company pursuant to this SECTION 3(C) until such time as the undisclosed material event referred to in the Certificate shall have been publicly disclosed or shall have ceased to be material but in no event more than 90 days after receipt of the demand registration request from the Initiating Holders; PROVIDED, HOWEVER, that the Company may not utilize the right set forth in this SECTION 3(C) more than once in any 24-month period; and FURTHER, PROVIDED, HOWEVER, that if, following the receipt of the Certificate the Initiating Holders elect to withdraw their registration request, the last proviso of SECTION 7 hereof (relating to payment of registration expense or forfeiture of a Demand Registration right upon withdrawal of demand registration request) shall not apply to such withdrawal. (d) INCLUSION OF OTHER SECURITIES. The Company may include in a Demand Registration securities held by other Persons who have piggyback registration rights pursuant to written agreements with the Company. If any securities other than Registrable Securities are included, Registrable Securities shall have absolute priority over securities included by the Company at the request of such other Persons. The Shareholders hereby acknowledge and recognize that if any Registrable Securities are included in a registration statement filed by the Company pursuant to demand registration rights granted by the Company to Persons other than the Holders, the Company may provide in the appropriate agreement that such other Persons' securities shall have absolute priority over Registrable Securities requested by Holders to be included, pursuant to SECTION 4 hereof, in such other Persons' demand registration. 4. PIGGYBACK REGISTRATIONS. (a) EFFECTIVE REGISTRATION. If, but without any obligation to do so, the Company proposes to file a registration statement under the Securities Act with respect to any class of equity securities (other than in connection with the registration of equity securities issued or issuable pursuant to an employee stock option, stock purchase, stock bonus or similar plan or dividend reinvestment plan or pursuant to a merger, exchange offer or transaction of the type specified in Rule 145(a) under the Securities Act), including, but not limited to, a registration statement pursuant to demand registration rights granted by the Company to Persons other than the Holders, at any time on or prior to the eighth anniversary of the Effective Date, then the Company shall give written notice of such proposed filing to the Holders at least 15 days before the anticipated filing date, and such notice shall offer the Holders the opportunity to register such amount of Registrable Securities as each such Holder may request. The Company shall use its reasonable efforts to cause the managing underwriter or underwriters of a proposed underwritten offering to permit the inclusion therein of any Registrable Securities the Holders of which request, within 10 days after receiving written notice of the proposed filing from the Company, such inclusion, on the same terms and conditions as any similar securities of the Company so included. Any Holder's request for such inclusion may be withdrawn, in whole or in part, at any time prior to five days prior to the effective date of the registration statement for such offering. The Company shall be under no obligation to complete any offering of its securities it proposes to make under this SECTION 4 and shall incur no liability to any Holder for its failure to do so except for any obligation it may have under SECTION 3(B) hereof. (b) CUT-BACKS. Notwithstanding the provisions of SECTION 4(A) hereof, if the managing underwriter or underwriters of a proposed underwritten offering as described in such SECTION 4(A) advise in writing the Holders requesting inclusion of their Registrable Securities that the total amount or kind of securities that they and any other Persons seek to include in such offering would materially and adversely affect the success of such offering, then the amount or kind of securities, including Registrable Securities, to be offered for the accounts of Holders and of Persons exercising piggyback registration rights pursuant to written agreements with the Company shall be reduced PRO RATA to the extent necessary to reduce the total amount of securities, including Registrable Securities, to be included in such offering to that recommended by such managing underwriter or underwriters (which amount may be zero). 5. HOLDBACK AGREEMENTS. (a) RESTRICTIONS ON SALES BY HOLDERS OF REGISTRABLE SECURITIES. To the extent not inconsistent with applicable law, each Holder of Registrable Securities that is timely notified in writing by the managing underwriter or underwriters of any equity securities or securities convertible into or exchangeable for equity securities being registered in an underwritten offering (other than pursuant to an employee stock option, stock purchase, stock bonus or similar plan, or dividend reinvestment plan pursuant to a merger, exchange offer or a transaction of the specified in Rule 145(a) under the Securities Act or pursuant to a "shelf" registration), shall not effect any sale or distribution (including a sale pursuant to Rule 144) of any Registrable Securities that are similar to any such securities or any Registrable Securities convertible into or exchangeable or exercisable for any such securities, during the 10-day period prior to, and during the 90-day period beginning on, the effective date of the applicable registration statement, except as part of such registration, without the prior written consent of such underwriters. (b) RESTRICTIONS ON SALES BY THE COMPANY. The Company shall not effect any sale of any securities of the Company similar to any Registrable Securities being offered in an underwritten offering under a registration statement filed pursuant to SECTION 3 hereof or any securities of the Company convertible into or exchangeable or exercisable for any such Registrable Securities, during the 10-day period prior to, and during the 90-day period beginning on, the effective date of such a registration statement, except pursuant to an employee stock option, stock purchase, stock bonus or similar plan or dividend reinvestment plan or pursuant to a merger, exchange offer or a transaction specified in Rule 145(a) under the Securities Act. 6. REGISTRATION PROCEDURES. (a) COMPANY PROCEDURES. Whenever the Company is required by this Agreement to effect the registration of any Registrable Securities under the Securities Act pursuant to a registration statement, the Company shall use its best efforts to effect each such registration to permit the sale of such Registrable Securities in accordance with the intended method or methods of disposition thereof, and pursuant thereto the Company shall, as soon as practicable: (i) prepare and file with the Commission the requisite registration statement to effect such registration and thereafter use its best efforts to cause such registration statement to be declared effective as soon as practicable and to remain continuously effective for the time period required by this Agreement to the extent permitted under the Securities Act, PROVIDED that as soon as practicable but in no event later than three Business Days before filing such registration statement, any related prospectus or any amendment or supplement thereto, other than any amendment or supplement made solely as a result of incorporation by reference of documents filed with the Commission subsequent to the filing of such registration statement, the Company shall furnish to the Holders of the Registrable Securities covered by such registration statement and the underwriters, if any, copies of all such documents proposed to be filed; the Company shall not file any registration statement or amendment thereto or any prospectus or any supplement thereto (other than any amendment or supplement made solely as a result of incorporation by reference of documents filed with the Commission subsequent to the filing of such registration statement) to which the managing underwriters of the applicable offering, if any, or the Majority Registered Holders shall have reasonably objected in writing within two Business Days after receipt of such documents to the effect that such registration statement or amendment thereto or prospectus or supplement thereto does not comply in all material respects with the requirements of the Securities Act (PROVIDED that the foregoing shall not limit the right of any Holder whose Registrable Securities are covered by a registration statement to reasonably object within two Business Days after receipt of such documents, to any particular information that is to be contained in such registration statement, amendment, prospectus or supplement and relates specifically to such Holder, including, without limitation, any information describing the manner in which such Holder acquired such Registrable Securities and the intended method or methods of distribution of such Registrable Securities), and if the Company is unable to file any such document due to the objections of such underwriters or such Holders, the Company shall use its best efforts to cooperate with such underwriters and Holders to prepare, as soon as practicable, a document that is responsive in all material respects to the reasonable objections of such underwriters and Holders; (ii) prepare and file with the Commission such amendments and post-effective amendments to such registration statement as may be necessary to keep such registration statement continuously effective and current for the period required by this Agreement to the extent permitted under the Securities Act; and cause each related prospectus to be supplemented by any prospectus supplement as may be required, and as so supplemented to be filed pursuant to Rule 424; and otherwise comply with the provisions of the Securities Act as may be necessary to facilitate the disposition of all Registrable Securities covered by such registration statement during the applicable period in accordance with the intended method or methods of disposition by the selling Holders thereof set forth in such registration statement or such prospectus or prospectus supplement. (iii) notify the Holders and the managing underwriters, if any, of the applicable offering (providing, if requested by any such Persons, confirmation in writing) as soon as practicable after becoming aware of: (A) the filing of any prospectus or prospectus supplement or the filing or effectiveness (or anticipated date of effectiveness) of such registration statement or any post-effective amendment thereto; (B) any request by the Commission for amendments or supplements to such registration statement or the related prospectus or for additional information; (C) the issuance by the Commission of any stop order suspending the effectiveness of such registration statement or the initiation of any proceedings for that purpose; (D) the receipt by the Company of any notification with respect to the suspension of the qualification or registration (or exemption therefrom) of any Registrable Securities for sale in any jurisdiction in the United States or the initiation or threatening of any proceeding for such purposes; or (E) the happening of any event that makes any statement made in such registration statement or in any related prospectus, prospectus supplement, amendment or document incorporated therein by reference untrue in any material respect or that requires the making of any changes in such registration statement or in any such prospectus, supplement, amendment or other such document so that it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein (in the case of any prospectus in the light of the circumstances under which they were made) not misleading; (iv) make every reasonable effort to obtain the withdrawal of any order or other action suspending the effectiveness of any such registration statement or suspending the qualification or registration (or exemption therefrom) of the Registrable Securities for sale in any jurisdiction; (v) if reasonably requested by the managing underwriters, if any, of the applicable offering, or by the Majority Registered Holders, as soon as practicable incorporate in a prospectus supplement or post-effective amendment such information as such underwriters or the Majority Registered Holders, as the case may be, agree should be included therein relating to the sale and offering of the applicable Registrable Securities, including, without limitation, information with respect to the number of Registrable Securities being sold to any underwriters, the purchase price being paid therefor by any such underwriters and any other terms of the offering of the Registrable Securities; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable following receipt of notice of the matters to be incorporated therein; (vi) as soon as practicable after filing such documents with the Commission, furnish to the Holders and each of the underwriters, if any, without charge, at least one manually signed or conformed copy of such registration statement and any post-effective amendment thereto, including financial statements and schedules; and as soon as practicable after the request of any Holder or underwriter, furnish to such Holder or underwriter, as the case may be, at least one copy of any document incorporated by reference in such registration statement or in any related prospectus, prospectus supplement or amendment, together with all exhibits thereto (including those previously furnished or incorporated by reference); (vii) deliver to the Holders and to each of the underwriters, if any, without charge, as many copies of the prospectus or prospectuses (including each preliminary prospectus) and any amendment or supplement thereto as such Persons may reasonably request; subject to SECTION 6(B)(I) hereof, the Company consents to the use of any such prospectus or any amendment or supplement thereto by the Holders and the underwriters, if any, in connection with the offering and sale of the Registrable Securities covered by any such prospectus or any amendment or supplement thereto; (viii) use its best efforts to register or qualify the securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as shall be reasonably requested by the Holders, provided that the Company shall not be, required in connection therewith or as a condition thereto to qualify to do business or to file a general consent to service of process in any such states or jurisdiction or to subject itself to taxation in any such jurisdiction or to consent to any material condition which is not reasonable in the judgment of the Board of Directors of the Company; (ix) cooperate with Holders participating in such registration and the underwriters, if any, to facilitate the timely preparation and delivery of certificates representing the Registrable Securities to be sold; and enable such Registrable Securities to be in such denominations and registered in such names as the underwriters, if any, may request as provided in the underwriting agreement; (x) as soon as practicable after the occurrence of any event described in SECTION 6(A)(III)(E) hereof, prepare a supplement or post-effective amendment to such registration statement or to the related prospectus or any document incorporated therein by reference, or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities being sold thereunder, such prospectus shall not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; if any event described in SECTION 6(A)(III)(B) hereof occurs, use its best efforts to cooperate with the Commission to prepare, as soon as practicable, any amendment or supplement to such registration statement or such related prospectus and any other additional information, or to take other action that may have been requested by the Commission; (xi) use its best efforts to cause all Common Stock constituting Registrable Securities covered by such registration statement to be listed on each securities exchange (or quotation system operated by a national securities association) on which the Common Stock of the Company is then listed (or included), if so requested by the Majority Registered Holders or the underwriters, if any, and enter into customary agreements including, if necessary, a listing application in customary form, and provide a transfer agent for such Registrable Securities no later than the effective date of such registration statement; use its best efforts to cause any other Registrable Securities covered by such registration statement to be listed (or included) on each securities exchange (or quotation system operated by a national securities association) on which securities of the same class and series, if any, are then listed (or included) (or on any exchange or quotation system on which any Person other than a Holder shall have the right to have securities of the same class and series, if any, listed or included), if so requested by the Majority Registered Holders or the underwriters, if any, and enter into customary agreements including, if necessary, a listing application in customary form, and, if necessary, provide a transfer agent for such securities no later than the effective date of such registration statement; (xii) provide a CUSIP number for the Registrable Securities no later than the effective date of such registration statement; (xiii) enter into customary agreements (including, in the case of an underwritten offering, an underwriting agreement in customary form with the managing underwriters with respect to issuers of similar market capitalization and reporting and financial histories) and take all such other reasonable actions in connection therewith in order to expedite or facilitate the disposition of the Registrable Securities included in such registration statement and, in the case of an underwritten offering: (A) make representations and warranties to each of the underwriters, in such form, substance and scope as are customarily made to the managing underwriters by issuers of similar market capitalization and reporting and financial histories and confirm the same to the extent customary if and when requested; (B) obtain opinions of counsel to the Company and updates thereof addressed to each Holder of Registrable Securities participating in such offering and to each of the underwriters, such opinions and updates to be in customary form and covering the matters customarily covered in opinions obtained in underwritten offerings by the managing underwriters for issuers of similar market capitalization and reporting and financial histories; (C) obtain "comfort" letters and updates thereof from the Company's independent certified public accountants addressed to each Holder of Registrable Securities participating in such offering and to each of the underwriters, such letters to be in customary form and covering matters of the type customarily covered in "comfort" letters to the managing underwriters in connection with underwritten offerings by them for issuers of similar market capitalization and reporting and financial histories; (D) provide, in the underwriting agreement to be entered into in connection with such offering, indemnification in such form, substance and scope as are customarily provided by issuers of similar market capitalizations and reporting and financial histories; and (E) deliver such customary documents and certificates as may be reasonably requested by the Majority Registered Holders and the managing underwriters to evidence compliance with clause (A) of this paragraph (xiv) and with any customary conditions contained in the underwriting agreement entered into by the Company in connection with such offering; (xiv) in the case of any non-underwritten offering: (A) obtain an opinion of counsel to the Company at the time of the sale of Registrable Securities covered by such registration statement) addressed to each Holder of any Registrable Securities covered by such registration statement, covering matters that are no more extensive in scope than would be customarily covered in opinions obtained in underwritten offerings by issuers with similar market capitalization and reporting and financial histories; (B) obtain a "comfort" letter from the Company's independent certified public accountants at the time of sale of Registrable Securities covered by such registration statement and, upon the request of the Majority Registered Holders, updates thereof, in each case addressed to each Holder of Registrable Securities participating in such offering and covering matters that are no more extensive in scope than would be customarily covered in "comfort" letters and updates obtained in underwritten offerings by issuers with similar market capitalization and reporting and financial histories; and (C) deliver a certificate of a senior executive officer of the Company at the time of sale of Registrable Securities covered by such registration statement such certificates to cover matters no more extensive in scope than those matters customarily covered in officers' certificates delivered in connection with underwritten offerings by issuers with similar market capitalization and reporting and financial histories; (xv) make available, for inspection by the Holders of the Registrable Securities included in such registration, any underwriter participating in any disposition of Registrable Securities pursuant to such registration statement, and any attorney, accountant or other representative retained by such selling Holders or by any such underwriter, all pertinent financial and other records, pertinent corporate documents and properties of the Company, and cause the Company's officers, directors and employees to supply all information reasonably requested by any such underwriter, attorney, accountant or other representative in connection with such registration; (xvi) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission relating to such registration and the distribution of the securities being offered (including, without limitation, Rule 10b-6 and make generally available to its security holders earning statements satisfying the provisions of SECTION 11 (A) of the Securities Act, no later than as provided in the underwriting agreement in an underwritten offering, or, if not sold to underwriters in such an offering, beginning with the first month of the Company's first fiscal quarter commencing after the effective date of such registration statement, which earning statements shall cover the 12- month periods thereafter; (xvii) cooperate and assist in any filings required to be made with the National Association of Securities Dealers, Inc. and in the performance of any customary or required due diligence investigation by any underwriter; and (xviii) use its best efforts to take all other reasonable steps necessary and appropriate to effect such registration in the manner contemplated by this Agreement. (b) FURNISHED INFORMATION. It shall be a condition precedent to the obligations of the Company to take any action pursuant to this Agreement that the selling Holders shall furnish to the Company such information regarding themselves or the Registrable Securities held by them, and the intended method of disposition of such securities as shall be required to effect the registration of their Registrable Securities. (c) HOLDER PROCEDURES. (i) Each Holder agrees that upon receipt of any notice from the Company of the happening of any event described in SECTION 6(A) paragraphs (iii)(B), (iii)(C), (iii)(D) or (iii)(E) hereof, such Holder shall forthwith discontinue disposition of any Registrable Securities (but, in the case of an event described in SECTION 6(A)(III)(D), in the affected jurisdiction or jurisdictions only) covered by the affected registration statement or prospectus until such Holder's receipt of the copies of the supplemented or amended prospectus contemplated by SECTION 6(A) paragraphs (iii) or (xi) hereof or until such Holder is (it being agreed by the Company that the underwriters, if any, shall also be) advised in writing (the "Advice") by the Company that the use of the applicable prospectus may be resumed. If the Company shall have given any such notice during a period when a Demand Registration is in effect, the four-month period mentioned in SECTION 3(B) hereof, shall be extended by the number of days from and including the date of the giving of such notice to and including the date when each Holder of Registrable Securities included in such Registration shall have received the copies of the supplemented or amended prospectus contemplated by SECTION 6(A) paragraphs (iii) or (xi) hereof or the Advice, as the case may be. (ii) In connection with any underwritten public offering of Registrable Securities pursuant to a Demand Registration, the managing underwriter of such offering shall be an investment banking firm selected by the Majority Registered Holders and shall be reasonably acceptable to the Company. 7. REGISTRATION EXPENSES. All expenses incident to the Company's performance of or compliance with this Agreement, including without limitation all registration and filing fees, fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications or registrations (or the obtaining of exemptions therefrom) of the Registrable Securities), printing expenses (including expenses of printing prospectuses), messenger and delivery expenses, internal expenses (including, without limitation, all salaries and expenses of its officers and employees of the Company performing legal or accounting duties), fees and disbursements of its counsel and its independent certified public accountants (including the expenses of any special audit or "comfort" letters required by or incident to such performance or compliance), securities acts liability insurance (if the Company elects to obtain such insurance), reasonable fees and expenses of any special experts retained by the Company in connection with any registration hereunder, reasonable fees and expenses of other Persons retained by the Company, reasonable fees and expenses of one counsel for the Holders, selected by the Majority Registered Holders, incurred in connection with each registration hereunder (all such expenses being herein referred to as "Registration Expenses"), shall be borne by the Company; PROVIDED that Registration Expenses shall not include any underwriting discounts, commissions or fees attributable to the sale of the Registrable Securities, PROVIDED, FURTHER, that the Company shall not be required to pay for any expenses of any registration proceeding begun pursuant to SECTION 3 if the registration request is subsequently withdrawn at any time at the request of the Majority Registered Holders (in which case all participating Holders shall bear such expenses), unless the Majority Registered Holders agree to forfeit their right to one Demand Registration pursuant to SECTION 3. 8. INDEMNIFICATION; CONTRIBUTION. (a) INDEMNIFICATION BY THE COMPANY. In the event any Registrable Securities are included in a registration statement under this Agreement, the Company shall indemnify, to the full extent permitted by law, each Holder of Registrable Securities, its officers, directors, employees and agents, each Person who controls such Holder (within the meaning of the Securities Act) and any investment adviser thereof or agent therefor, against all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and legal expenses) arising out of or based upon any untrue of alleged untrue statement of a material fact contained in any registration statement covering any Registrable Securities, any related prospectus or any amendment or supplement thereto, or any omission or alleged omission to state in any thereof a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus or prospectus supplement, in light of the circumstances under which they were made) not misleading unless such untrue statement or alleged untrue statement or omission or alleged omission was contained in a preliminary prospectus and corrected in a final or amended prospectus and the seller failed to deliver a copy of the final or amended prospectus at or prior to the confirmation of the sale of the Registrable Securities to the persons asserting any such loss, claim, damage or liability in the case where such delivery by the selling Holder is required by the Securities Act, except in each case insofar, but only insofar, as the same arises out of or is based upon an untrue statement or alleged untrue statement of a material fact or an omission or alleged omission to state a material fact in such registration statement, prospectus, preliminary prospectus, amendment or supplement, as the case may be, made or omitted, as the case may be, in reliance upon and in conformity with written information furnished to the Company by such Holder expressly for use therein; PROVIDED, HOWEVER, that in no event shall the disability of any holder for indemnification under this SECTION 8(B) exceed the proceeds received by such holder from the sale of Registrable Securities under the applicable registration statement. This indemnity is in addition to any liability that the Company may otherwise have. The Company shall also indemnify any underwriters of the Registrable Securities, selling brokers, dealer managers and similar securities industry professionals participating in the distribution and their officers and directors and each Person who controls such underwriters or other Persons (within the meaning of the Securities Act) to the extent provided in the, applicable underwriting agreement. (b) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In connection with any registration statement covering Registrable Securities, each Holder any of whose Registrable Securities are covered thereby shall furnish to the Company in writing such information and affidavits with respect to such Holder as the Company reasonably requests for use in connection with such registration statement, any related prospectus or preliminary prospectus, or any amendment or supplement thereto, and shall indemnify, to the full extent permitted by law, the Company, the Company's directors, officers, employees and agents, each Person who controls the Company (within the meaning of the Securities Act) and any investment adviser thereof or agent therefor against all losses, claims, damages, liabilities costs of investigation and legal expenses) using out of or based upon any untrue or alleged untrue statement of a material fact contained in any registration statement covering any Registrable Securities, any related prospectus or preliminary prospectus, or any amendment or supplement thereto, or any omission or alleged omission to state in any thereof a material fact required to be stated therein or necessary to make the statements therein (in the case of a prospectus or prospectus supplement, in light of the circumstances under which they were made) not misleading, in each case to the extent, but only to the extent, that the same arises out of or is based upon an untrue statement or alleged untrue statement of a material fact or an omission or alleged omission to state a material fact in such registration statement or in such related prospectus, preliminary prospectus, amendment or supplement, as the case may be, made or omitted, as the case may be, in reliance upon and in conformity with written information furnished to the Company by such Holder expressly for use therein; PROVIDED, HOWEVER, that in no event shall the liability of any Holder for indemnification under this SECTION 8(B) exceed the proceeds received by such Holder from the sale of Registrable Securities under the applicable registration statement. This indemnity is in addition to any liability that a Holder may otherwise have. Each Holder participating in an offering of Registrable Securities shall, if requested by the managing underwriter or underwriters of such offering, also indemnify any underwriters of such Registrable Securities, selling brokers, dealer managers and similar securities industry professionals participating in the distribution of such Registrable Securities and their officers and directors and each Person who controls such underwriters or other Persons (within the meaning of the Securities Act) to the extent provided in the applicable underwriting agreement. (c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled to indemnification under this SECTION 8 agrees to give prompt written notice to the indemnifying party after the receipt by such Person of any written notice of the commencement of any action, suit, proceeding or investigation or threat thereof made in writing for which such Person will claim indemnification or contribution pursuant to this Agreement and the indemnifying party shall have the right to participate in, and, unless in the reasonable judgment of such indemnified party a conflict of interest may exist between such indemnified party and the indemnifying party with respect to such claim, permit the indemnifying party to assume the defense of such claim with counsel reasonably and mutually satisfactory to the parties. If the indemnifying party is not entitled to, or elects not to, assume the defense of a claim, it shall not be obligated to pay the reasonable fees and expenses of more than one counsel with respect to such claim, unless in the reasonable judgment of counsel to such indemnified party, expressed in a writing delivered to the indemnifying party, a conflict of interest may exist between such indemnified party and any other indemnified party with respect to such claim, in which event the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels (which shall be limited to one counsel per indemnified party). The indemnifying party shall not be subject to any liability for any settlement made without its consent, which consent shall not be unreasonably withheld. The failure to deliver written notice to the indemnifying party within a reasonable time of the commencement of any such action, if prejudicial to its ability to defend such action, shall relieve such indemnifying party of any liability to the indemnified party under this SECTION 8 to the extent of such prejudice. (d) CONTRIBUTION. (i) If the indemnification provided for in this SECTION 8 from the indemnifying party is unavailable to an indemnified party hereunder in respect of any losses, claims, damages, liabilities or expenses referred to therein, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses in such proportion as is appropriate to reflect the relative fault of the indemnifying party and indemnified parties in connection with the actions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations; PROVIDED, HOWEVER, that in no event shall the liability of any Holder for contribution under this SECTION 8(D) exceed the. proceeds received by such Holder from the sale of Registrable Securities under the applicable registration statement. The relative fault of such indemnifying party and indemnified parties shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been made by, or relates to information supplied by, such indemnifying party or indemnified parties, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action. The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in SECTION 8(C) hereof, any legal or other fees or expenses reasonably incurred by such party in connection with any investigation or proceeding. (ii) The parties hereto agree that it would not be just and equitable if contribution pursuant to this SECTION 8(D) were determined by PRO RATA allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. (iii) If indemnification is available under this SECTION 8, the indemnifying parties shall indemnify each indemnified party to the full extent provided in SECTION 8(A) and SECTION 8(B) hereof without regard to the relative fault of said indemnifying party or indemnified party or any other equitable consideration provided for in this SECTION 8(D). 9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Person may participate in any underwritten registration hereunder unless such Person (a) agrees to sell such Person's securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements, (b) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements and (c) agrees to pay such Person's PRO RATA portion of all underwriting discounts and commissions. 10. COOPERATION WITH THE COMPANY. Each Holder by the acceptance of Registrable Securities agrees to use its best efforts to cooperate with the Company in all reasonable respects in connection with the preparation and filing of Registrations hereunder in which such Registrable Securities are included or requested to be included. 11. MISCELLANEOUS. (a) NO INCONSISTENT AGREEMENTS. The Company shall not hereafter enter into any agreement with respect to any of its securities that contains provisions more favorable in any material respect to the holders thereof than the provisions contained in this Agreement without providing for the granting of comparable rights to the Holders in this Agreement or that contains provisions that conflict with the provisions hereof in any material respect. TCW Special Credits, for itself and on behalf of the Shareholders, hereby acknowledges and agrees, however, that the Company may grant to other Persons registration rights, and that if such registration rights are granted, except as otherwise specifically provided herein, the registration rights granted to such Persons shall be PARI PASSU with the registration rights of the Holders as provided herein. (b) REMEDIES. Each Holder of Registrable Securities, in addition to being entitled to exercise ail rights in an action at law, including recovery of damages, shall be entitled to specific performance of its rights under this Agreement. The Company agrees that monetary damages would not be adequate confirmation for any loss incurred by reason of a breach by it of the provisions of this Agreement and hereby agrees to waive the defense in any action for specific performance that a remedy at law would be adequate. (c) AMENDMENTS AND WAIVERS. Except as otherwise provided herein, the provisions of this Agreement may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the company shall have obtained the prior written consent of (i) the Holders of a majority of the securities then constituting Registrable Securities and (ii) each Holder materially and adversely affected by such amendment, modification, supplement, waiver or departure. (d) NOTICES. All notices, requests, waivers, releases, consents, and other communications required or permitted by this Agreement (collectively, "Notices") shall be in writing. Notices shall be deemed sufficiently given for all purposes under this Agreement when delivered in person, when dispatched by telegram or (upon written confirmation of receipt) by electronic facsimile transmission or (upon written confirmation of receipt), when dispatched by a nationally recognized overnight courier service, or five Business Days after being deposited in the mail, postage prepaid, if mailed. All Notices shall be delivered as follows: (i) if to a Holder of Registrable Securities, at the address indicated on Company's registrar relating to such securities or at such other address as such Holder may have furnished to the Company in writing; and (ii)if to the Company, at: Koger Equities, Inc. 3986 Boulevard Center Drive Suite 101 Jacksonville, Florida 32207 Attention: Victor Hughes Telephone Number: (904) 346-1409 Fax Number: (904) 346-1413 with a copy to: William F. McCarthy, Esq. Ropes & Gray One International Place. Boston, Massachusetts 02110-2624 Telephone Number: (617) 951-7000 Fax Number: (617) 951-7050 (e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties hereto, including any successors by merger to the Company. (f) COUNTERPARTS. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. (g) HEADINGS; CONSTRUCTION. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. Unless the context otherwise requires, all references to Sections are to Sections of this Agreement, "or" is inclusively disjunctive, and words in the singular include the plural and VICE VERSA. In computing any period of time specified in this Agreement, the date of the act or event from which such period of time is to be measured shall be included, any such period shall expire at 5:00 p.m., New York City time, on the last day of such period, and any such period denominated in months shall expire on the date in the last month of such period that has the same numerical designation as the date of the act or event from which such period is to be measured; PROVIDED, HOWEVER, that if there is no date in the last month of such period that has the same numerical designation as the date of such act or event, such period shall expire on the last day of the last month of such period. (h) CERTAIN ADJUSTMENTS. Notwithstanding anything to the contrary contained in this Agreement, the Board of Directors of the Company may make or provide for such adjustments in the numbers of shares of Common Stock or other Registrable Securities specified in any other provision of this Agreement specifying a number or percentage of Registrable Securities, as the Board may determine after consultation with TCW Special Credits on behalf of the Shareholders (or, if TCW Special Credits and the Shareholders are no longer Holders, Holders holding a majority of the securities then constituting Registrable Securities), is equitably required to prevent diminution or enlargement of the rights of Holders that otherwise would result from any stock dividend, stock split, combination of shares, recapitalization, or other similar change in the capital structure of the Company. (i) GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Florida, without regard to the principles of conflicts of laws thereof. (j) SEVERABILITY. If one or more of ft provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable in any respect, for any reason, the validity, legality and enforceability of the remaining provisions contained herein shall not be in any way affected or impaired thereby, and the provision held to be invalid, illegal or unenforceable shall be reformed to the minimum extent necessary, and in a manner as consistent with the purposes thereof as is practicable, so as to render it valid, legal and enforceable, it being intended that all of the rights and privileges of the Holders hereunder shall be enforceable to the fullest extent permitted by law. (k) AGREEMENT. This Agreement is intended by the Company and TCW Special Credits to be a final expression thereof and is intended to be a complete and exclusive statement of the agreement and understanding of the Company and TCW Special Credits, for itself and on behalf of the Shareholders, in respect of the subject matter contained herein. There are no restrictions, promises, warranties or undertakings, other than those set forth or referred to herein. This Agreement supersedes all prior agreements and understandings among the Company and any Holders with respect to such subject matter. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. KOGER EQUITIES, INC. By:________________________________ Name: Title: TCW SPECIAL CREDITS, a California general partnership, for itself and on behalf of the Shareholders (as defined herein) By: TCW ASSET MANAGEMENT COMPANY, its managing general partner By:________________________________ Name: Title: ___________________________________ Name: Title: EX-3 4 EXHIBIT 3 SHAREHOLDERS AGREEMENT This Shareholders Agreement (the "Agreement") made this 9th day of August, 1993 by and between Koger Equity, Inc., a Florida corporation ("KE" or the "Company"), and TCW Special Credits, a California general partnership ("TCW Special Credits"), for itself and, as general partner or investment advisor, on behalf of Weyerhauser Company Master Pension Trust, TCW Special Credits Fund III, The Common Fund for Bond Investments and TCW Special Credits Trust (collectively, the "Shareholders"). W I T N E S S E T H : WHEREAS, the Shareholders are holders of certain unsecured debt of Koger Properties, Inc., a Florida corporation ("KPI"), as debtor or debtor-in-possession under Chapter 11 of title 11 of the United States Code in the United States Bankruptcy Court for the Middle District of Florida, Tampa Division (the "Bankruptcy Court"), case No. 91-12294-8P1 (the "KPI Bankruptcy Case"); WHEREAS, KE and KPI have filed with the Bankruptcy Court, as joint proponents, a Third Amended and Restated Disclosure Statement (the "Disclosure Statement") relating to the Third Amended and Restated Plan of Reorganization of KPI (the "Plan"); WHEREAS, the Bankruptcy Court approved the Disclosure Statement on June 8, 1993; WHEREAS, the Shareholders currently beneficially own 552,600 shares of the common stock, $.01 par value, of KE (the "Common Stock") and, upon consummation of the Plan and the merger of KPI with and into KE (the "Merger"), as contemplated by the Agreement and Plan of Merger between KPI and KE attached as Exhibit F to the Plan (the "Merger Agreement") will receive additional shares of Common Stock; WHEREAS, TCW Special Credits acts as general partner of or investment advisor to each of the Shareholders and, as such, has the authority to take certain actions on behalf of the Shareholders and has or shares the power to vote or dispose of, or to direct the voting or disposition of, the Shares (as defined in Section 2.2 hereof) and will have or will share such power with respect to the Plan Shares (as defined in Section 2.2 hereof); WHEREAS, the Company and TCW Special Credits for itself and on behalf of the Shareholders desire to enter into this Agreement; and NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and warrants as follows: 1.1 AUTHORIZATION OF AGREEMENT; NO VIOLATIONS; CONSENTS. The execution, delivery and performance of this Agreement by the Company has been duly authorized by its Board of Directors. This Agreement has been duly and validly executed and delivered by the Company and constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated herein will, with or without the giving of notice or the lapse of time, or both, conflict with or result in any violation of or default under (a) any provision of the articles of incorporation, or the bylaws, of KE, (b) any note, bond, mortgage, indenture, lease, agreement or other material instrument, permit, concession, grant, franchise or license to which KE is a party or by which any of their properties or assets may be bound, (c) any judgment, order, decree, injunction, statute, rule, permit, license or regulation applicable to KE, any of its respective properties, or (d) which result in the acceleration of any material obligation or the creation of any material lien, charge or encumbrance upon any of the assets of KE. No authorization, consent or approval of, or declaration of, filing with or notice to any governmental body or authority is necessary for the execution and delivery of this Agreement by KE and neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby require the consent of any person or entity, other than consents which have been obtained. 1.2 EXEMPTION FROM CERTAIN PROVISIONS OF ARTICLES OF INCORPORATION. Pursuant to Article V(d) of the Company's Articles of Incorporation, the Board of Directors of the Company has determined that the ownership of up to the higher of (i) 4,047,350 shares of Common Stock, as adjusted for any subsequent stock splits, stock dividends or other recapitalizations of the Company and (ii) twenty-three percent (23%) of the then outstanding shares of Common Stock of the Company (the "Maximum Amount") by the Shareholders, The TCW Group, Inc., TCW Special Credits and any of their Affiliates (as such term is defined under the Securities Exchange Act of 1934 (the "Exchange Act") is exempt from the Limit (as defined in the Articles of Incorporation of the Company), ownership, redemption and transfer restrictions as set forth in the Articles of Incorporation of the Company while owned by the Shareholders, The TCW Group, Inc., TCW Special Credits or any of their Affiliates restrictions as set forth in the Articles of Incorporation of the Company while owned by the Shareholders, The TCW Group, Inc., TCW Special Credits or any of their Affiliates and has determined that, based upon the representations and warranties of TCW Special Credits, for itself and on behalf of the Shareholders as set forth herein, such exemption shall not jeopardize the qualification of the Company as a real estate investment trust under the Internal Revenue Code of 1986, as amended. TCW Special Credits, for itself and on behalf of the Shareholders understands, acknowledges and agrees that such exemption applies only to the Shareholders, The TCW Group, Inc., TCW Special Credits or any of their Affiliates and is limited to the shares held by the Shareholders up to the Maximum Amount. The Company hereby covenants and agrees that for a period of eight (8) years following the effective date of the Merger, the Company shall not revoke, rescind, alter or otherwise take any action to limit or eliminate the exemption from the Limit granted in this Agreement without the prior written consent of TCW Special Credits. 1.3 SHAREHOLDER RIGHTS PLAN AMENDMENT. The Common Stock Rights Agreement dated as of September 30, 1990 between the Company and First Union National Bank, as successor Rights Agent (the "Rights Agreement"), as of the effective date of the Merger, will be amended to provide that the beneficial ownership by the Shareholders, The TCW Group, Inc., TCW Special Credits and their Affiliates of shares of Common Stock of the Company up to the Maximum Amount shall not cause the distribution of the Rights as defined in the Rights Agreement. A true and correct copy of the Rights Agreement, to be amended as contemplated hereby, is attached hereto as Exhibit A. The Company hereby covenants and agrees that for a period of eight (8) years following the effective date of the Merger, the Company shall not amend, alter or otherwise modify the Rights Agreement or take any other action to limit or eliminate the right of the Shareholders, The TCW Group, Inc. and any of their Affiliates to acquire and maintain beneficial ownership of shares of Common Stock of the Company of, in the aggregate, up to the Maximum Amount without causing a distribution of the Rights without the prior written consent of TCW Special Credits. 2. REPRESENTATIONS AND WARRANTIES OF TCW SPECIAL CREDITS. TCW Special Credits represents and warrants that it has the power and authority under the terms and provisions of a partnership or other written agreement with each of the Shareholders to enter into this Agreement on behalf of the Shareholders and to make the following representations and warranties on their behalf and further represents and warrants that: 2.1 AUTHORIZATION OF AGREEMENT; NO VIOLATION; CONSENTS. The execution, delivery and performance of this has been duly and validly executed and delivered by TCW Special Credits for itself and on behalf of the Shareholders and constitutes a valid and binding agreement of each of TCW Special Credits and the Shareholders, enforceable in accordance with its terms, except that such enforcement may be limited by bankruptcy, insolvency or other similar laws affecting the enforcement of creditors' rights generally. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated herein will, with or without the giving of notice or the lapse of time, or both, conflict with or result in any violation of or default under (a) any provision of the articles of incorporation, partnership agreement, bylaws or other governing document, of the Shareholders, (b) any note, bond, mortgage, indenture, lease, agreement or other material instrument, permit, concession, grant, franchise or license to which the Shareholders are a party or by which any of their properties or assets may be bound, (c) any judgment, order, decree, injunction, statute, rule, permit, license or regulation applicable to TCW Special Credits or the Shareholders or any of their respective properties, or (d) which result in the acceleration of any material obligation of the creation of any material lien, charge or encumbrance upon any of the assets of TCW Special Credits or the Shareholders. No authorization, consent or approval of, or declaration of, filing with or notice to any governmental body or authority is necessary for the execution and delivery of this Agreement by TCW Special Credits for itself and on behalf of the Shareholders and neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby require the consent of any person or entity, other than consents which have been obtained. 2.2 OWNERSHIP OF COMMON STOCK. The Shareholders, as of the date hereof, are the beneficial holders of 552,600 shares of Common Stock (the "Shares") in the amounts set forth in Schedule I hereto, free and clear of all liens, claims, charges and encumbrances. Other than the Shares, and any shares of Common Stock to be received by the Shareholders pursuant to the Plan (the "Plan Shares"), neither TCW Special Credits nor the Shareholders have any right, directly or indirectly, to purchase or have any interest in, any other shares of Common Stock. Except as set forth in the Plan or Disclosure Statement, there are no agreements restricting the transfer, assignment, pledge or encumbrance of or affecting the rights of TCW Special Credits or any Shareholder with respect to the Shares or Plan Shares. The Shares and Plan Shares are the only shares of Common Stock beneficially owned, within the meaning of
13(d) of the Exchange Act by TCW Special Credits, the Shareholders or any of their respective Affiliates, as defined under the Exchange Act. 2.3 OWNERSHIP OF KPI UNSECURED DEBT. The Shareholders are the beneficial holders of an aggregate principal amount of $65,553,000 of unsecured debt of KPI, in the amounts set forth in Schedule I hereto, free and clear of all liens, claims, charges and encumbrances (the "KPI Debt"). Other than the KPI Debt, neither TCW Special Credits nor the Shareholders have any right, directly or indirectly, to purchase or have any interest in any other indebtedness of KPI. There are no agreements relating to the transfer, assignment or encumbrance of or affecting the rights of TCW Special Credits or any Shareholder with respect to the KPI Debt. 3. VOTING AGREEMENT. TCW Special Credits has the power and authority to vote or direct the voting of all Shares held by the Shareholders and all KPI Debt. TCW Special Credits agrees to vote or direct the voting of all Shares held by Shareholders in favor of the Merger and Merger Agreement as provided in the Company's proxy statement, to be considered at the Company's 1993 Annual Meeting. TCW Special Credits agrees to vote or direct the Shareholders, as holders of KPI Debt, to vote in favor of the Plan as provided in the Disclosure Statement. 4. CERTIFICATE. TCW Special Credits, for itself and on behalf of the Shareholders, agrees to execute and deliver to KE, on or before the date of the closing of the Merger, a certificate, dated as of the closing, pursuant to which a duly authorized representative or officer of each of the Shareholders represents, warrants and certifies that neither TCW Special Credits nor the Shareholders have any present plan or intention to sell, exchange, or otherwise dispose of any of the Plan Shares. 5. NOTICES. 5.1 All notices, requests, demands and other communications which are required to be or may be given under this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person or upon receipt when transmitted by telecopy or telex or after dispatch by certified or registered first class mail, postage prepaid, return receipt requested, or Federal Express, to the party to whom the same is so given or made: If to KE, to: Irvin H. Davis, President Koger Equity, Inc. 4986 Boulevard Center Drive Suite 101 Jacksonville, Florida 32207 With copies to:William F. McCarthy, Esq. Ropes & Gray One International Place Boston, Massachusetts 02110-2624 and Harold F. McCart, Jr., Esq. Boling & McCart 76 South Laura Street Suite 700 Jacksonville, Florida 32202 If to the Shareholders, to: Thomas K. Smith, Jr. TCW Special Credits 865 South Figueroa Street Suite 1800 Los Angeles, California 90017 With copies to: Jesse H. Austin, Esq. Power, Goldstein, Frazer & Murphy Sixteenth Floor 191 Peachtree Street, N.E. Atlanta, Georgia 30303 5.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, representations, warranties, statements, promises and understandings, whether written or oral, with respect to the subject matter hereof, and cannot be changed or terminated orally. No party hereto shall be bound by or charged with any written or oral agreements, representations, warranties, statements, promises, or understandings not specifically set forth in this Agreement. 5.3 HEADINGS; CERTAIN TERMS. The section and other headings contained in this Agreement are for reference purposes only and shall not be deemed to be part of this Agreement or to affect the meaning or interpretation of this Agreement. 5.4 GOVERNING LAW. This Agreement shall be construed as to both validity and performance and enforced in accordance with and governed by the laws of the State of Florida. 5.5 SEVERABILITY. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby, and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. Upon the determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties shall negotiate in good faith to modify this Agreement so as to affect their original intent as closely as possible in an acceptable manner to the end that transactions contemplated hereby are fulfilled to the extent possible. 5.6 PUBLIC ANNOUNCEMENTS. KE and TCW Special Credits shall cooperate in connection with all actions to publicize, advertise, announce, or disclose to any governmental authority or other third person the execution or terms of this Agreement or the transactions contemplated hereby. Except as required by the Bankruptcy Code or the federal securities laws, neither party will make any public disclosure, release or announcement without the prior written consent of the other party. 5.7 AMENDMENTS. This Agreement may not be modified or changed except by an instrument or instruments in writing signed by each of KE and TCW Special Credits. 5.8 SECTION REFERENCES. All references contained in this Agreement to any section number are references to sections of this Agreement unless otherwise specifically stated. 5.9 COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. [The remainder of this page has been intentionally left blank.] IN WITNESS WHEREOF, the parties hereto have signed this Agreement, or have caused this Agreement to be signed on their behalf by an officer thereunto duly authorized, on the respective dates stated below. KOGER EQUITY, INC. By: Title: Senior Vice President, Chief Financial Officer TCW SPECIAL CREDITS, a California general partnership for itself and on behalf of the Shareholders (as defined herein) By: TCW ASSET MANAGEMENT COMPANY, Managing General Partner By: Name: Title: By: Name: Title: IN WITNESS WHEREOF, the parties hereto have signed this Agreement, or have caused this Agreement to be signed on their behalf by an officer thereunto duly authorized, on the respective dates stated below. KOGER EQUITY, INC. By: Title: Senior Vice President, Chief Financial Officer TCW SPECIAL CREDITS, a California general partnership for itself and on behalf of the Shareholders (as defined herein) By: TCW ASSET MANAGEMENT COMPANY, Managing General Partner By: Name: Title: By: Name: Title: EXHIBIT A AMENDMENT NO. 1 TO RIGHTS AGREEMENT This amendment, dated as of August __, 1993, amends the Common Stock Rights Agreement dated as of September 30, 1990 (the "Rights Agreement"), between Koger Equity, Inc., a Florida corporation (the "Company"), and First Union National Bank, as successor Rights agent (the "Rights Agent"). Terms defined in the Rights Agreement and not otherwise defined herein are used herein as so defined. W I T N E S S E T H: WHEREAS, on September 30, 1990, the Board of Directors of the Company authorized the issuance of Rights to purchase, on the terms and subject to the provisions of the Rights Agreement, one share of the Company's Common Stock; and WHEREAS, on September 30, 1990, the Board of Directors of the Company authorized and declared a dividend distribution of one Right for every share of Common Stock of the Company outstanding on the Dividend Record Date and authorized the issuance of one Right (subject to certain adjustments) for each share of Common Stock of the Company issued between the Dividend Record Date and the Distribution Date; and WHEREAS, pursuant to Section 27 of the Rights Agreement, the Continuing Directors now unanimously desire to further amend certain provisions of the Rights Agreement; NOW, THEREFORE, the Rights Agreement is hereby amended as follows: 1. Section 1(v) is amended by replacing Section (v) in its entirety with the following: (v) "Exempt Person" shall mean, collectively, TCW Special Credits, a California general partnership, The TCW Group, Inc. and their Affiliate, only so long as TCW Special Credits, a California general partnership, The TCW Group, Inc. and their Affiliates are, collectively, the Beneficial Owners of shares of Common Stock outstanding in an amount not in excess of and aggregate of the higher of (i) 23% of the shares of Common Stock then outstanding and (ii) 4,047,350 shares of Common Stock, as adjusted for any stock splits, stock dividends or other recapitalizations of the Company on or after August , 1993. IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to the Rights Agreement to be duly executed as of the day and year first above written. KOGER EQUITY, INC. By: Title: Attest: By:____________________________ Secretary FIRST UNION NATIONAL BANK By: Title: EX-4 5 EXHIBIT 4 COMMON STOCK PURCHASE AND SALE AGREEMENT This Common Stock Purchase and Sale Agreement (the "Agreement"), dated January 18, 1996, by and among TCW SPECIAL CREDITS, a California general partnership, for itself (in its individual capacity, "TCW") and as general partner or investment manager for the entities (other than TCW Trust (as defined below)) set forth on Schedule I attached hereto (each entity set forth on Schedule I (including TCW Trust), a "Selling Shareholder" and, collectively, the "Selling Shareholders"), TRUST COMPANY OF THE WEST, a California corporation, for itself (in its individual capacity, "Trust") and as trustee for TCW Special Credits Trust, a California collective investment trust ("TCW Trust"), and RESOURCE GROUP INTERNATIONAL, INC., a Washington corporation ("Purchaser"). WITNESSETH: WHEREAS, the Common Stock, par value $0.01 per share (including the common stock purchase rights associated therewith, the "Common Stock"), of Koger Equity, Inc., a Florida corporation (the "Company"), is publicly traded on the American Stock Exchange under the symbol "KE"; WHEREAS, the Selling Shareholders collectively own and desire to sell 2,449,571 shares of the Company's Common Stock as more particularly set forth on Schedule I attached hereto under the headings "Initial Shares" and "Secondary Shares" (as appropriately adjusted as necessary to reflect a stock split, stock dividend, merger, consolidation, reclassification, recapitalization or other similar transaction, the "Shares"), which Shares constitute approximately 13.8% of the total issued and outstanding shares of Common Stock; WHEREAS, TCW acts as general partner of, or investment manager to, each of the Selling Shareholders (other than TCW Trust) and, in such capacity, has the authority to take certain actions on behalf of the Selling Shareholders (other than TCW Trust) and has or shares the power to vote or dispose of, or to direct the voting or disposition of, the Shares (other than those owned by TCW Trust); WHEREAS, Trust acts as trustee of TCW Trust and, in such capacity, has the authority to take certain actions on behalf of TCW Trust and has or shares the power to vote or dispose of, or to direct the voting or disposition of, the Shares owned by TCW Trust; WHEREAS, Purchaser desires to purchase the Shares from the Selling Shareholders, and the Selling Shareholders desire to sell the Shares to Purchaser, upon the terms and conditions hereinafter set forth; WHEREAS, the Selling Shareholders require, and the Purchaser wishes to provide, certain assurance regarding the minimum consideration which each Selling Shareholder is entitled to receive with respect to the sale of the number of shares of Common Stock set forth opposite the name of such Selling Shareholder during the time period set forth in Section 12; NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants, agreements and conditions hereinafter set forth, and intending to be legally bound hereby, the parties hereto agree as follows: 1. PURCHASE AND SALE OF SHARES. Subject to the terms and conditions of this Agreement, (i) on the Initial Closing Date (as hereinafter defined) the Selling Shareholders shall sell to Purchaser, and Purchaser shall purchase from the Selling Shareholders, the Shares set forth on Schedule I hereto under the heading "Initial Shares" (the "Initial Shares") and (ii) on the Second Closing Date (as hereinafter defined), the Selling Shareholders shall sell to Purchaser, and Purchaser shall purchase from the Selling Shareholders, the Shares set forth on Schedule I hereto under the heading "Secondary Shares" (the "Secondary Shares"). 2. PURCHASE PRICE. (a) The purchase price (the "Purchase Price") payable per Share to be purchased by Purchaser hereunder shall be, as of any date, $12.00 (appropriately adjusted as necessary to reflect a stock split, stock dividend, merger, consolidation, reclassification, recapitalization or other similar transaction with respect to the Common Stock), PLUS interest on such amount from January 1, 1996 through the date on which the Closing (as hereinafter defined)) with respect to such Share occurs at a rate of 5% per annum, compounded monthly, based on a year of 366 days. (b) All amounts payable by Purchaser to the Selling Shareholders pursuant to this Section 2 shall be paid by wire transfer of immediately available funds in accordance with the wire transfer instructions set forth on Schedule I hereto. 3. REPRESENTATIONS AND WARRANTIES OF TCW, TRUST AND SELLING SHAREHOLDERS. TCW, Trust and the Selling Shareholders (each on behalf of and with respect to itself) make the following representations and warranties to Purchaser, each of which is true and correct on the date hereof, shall remain true and correct to and as of the Second Closing (as hereinafter defined) (except for representations and warranties with respect to the Initial Shares, which shall remain true and correct to and as of the Initial Closing (as hereinafter defined)) and shall survive the Closings: (a) Each of TCW and Trust is duly organized, validly existing and in good standing under the laws of the State of California. Each of TCW and Trust has all requisite entity power and authority to enter into this Agreement and the other documents and instruments to be executed and delivered by TCW and Trust, respectively, and to carry out the transactions contemplated hereby and thereby. All entity actions and proceedings necessary to be taken by or on the part of each of TCW and Trust in connection with the transactions contemplated by this Agreement have been duly and validly taken. (b) Each of TCW and Trust has the power and authority under the terms and provisions of a partnership, trust or other written agreement with, or concerning the governance of, each of the Selling Shareholders (other than TCW Trust) and TCW Trust, respectively, to enter into this Agreement on behalf of such Selling Shareholder and to make the representations and warranties set forth herein on such Selling Shareholder's behalf. (c) The execution and delivery of this Agreement and the other documents and instruments to be executed and delivered by (i) TCW for itself and on behalf of the Selling Shareholders (other than TCW Trust) and (ii) Trust for itself and on behalf of TCW Trust, and the consummation of the transactions contemplated hereby and thereby, have been duly authorized by TCW and Trust, respectively. (d) No other act or proceeding on behalf of TCW, Trust or any Selling Shareholder is necessary to authorize this Agreement or the other documents and instruments to be executed and delivered by TCW, Trust and the Selling Shareholders pursuant hereto or the consummation of the transactions contemplated hereby and thereby. This Agreement has been duly and validly executed and delivered by TCW, Trust and the Selling Shareholders and constitutes, and when executed and delivered, the other documents and instruments to be executed and delivered by TCW, Trust and the Selling Shareholders pursuant hereto will constitute, valid and binding agreements of each of TCW, Trust and the Selling Shareholders enforceable in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforceability of creditors' rights generally and by general equitable principles. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated herein will, with or without the giving of notice or the lapse of time, or both, (i) conflict with or result in any violation of or default under (a) any provision of the articles of incorporation, partnership agreement, bylaws, trust agreement or other governing document, of TCW, Trust or any Selling Shareholder, (b) any note, bond, mortgage, indenture, lease, agreement or other material instrument, permit, concession, grant, franchise or license to which TCW, Trust or any Selling Shareholder is a party or by which any of their properties or assets may be bound (provided that no representation or warranty is being made under this clause (b) as to the Amended and Restated Articles of Incorporation of the Company (as the same may be further amended from time to time, the "Articles")) or (c) any judgment, order, decree, injunction, statute, rule, permit, license or regulation applicable to TCW, Trust any Selling Shareholder or any of their respective properties, or (ii) result in the acceleration of any material obligation or the creation of any material lien, charge or encumbrance upon any of the assets of TCW, Trust or any Selling Shareholder. No authorization, consent or approval of, or declaration of, filing with or notice to any governmental body or authority is necessary for the execution, delivery and performance of this Agreement by TCW, Trust or any Selling Shareholder. (e) The Selling Shareholders are the owners of the Shares in the amounts set forth in Schedule I hereto, free and clear of all liens, claims, charges and other encumbrances (subject to any encumbrances imposed thereon or with respect thereto by the Articles or the restrictions on transfer contained in any applicable securities laws) and the Shares are held by Sanwa Bank & Trust, as custodian, through an account on the book entry system maintained by the Depositary Trust Corporation. Upon the Initial Closing and the Second Closing, the Selling Shareholders shall convey to Purchaser or its permitted designee or assignee good and marketable title to the Initial Shares and the Secondary Shares, respectively, in each case free and clear of all liens, claims, charges and other encumbrances (subject to any encumbrances imposed thereon or with respect thereto by the Articles or the restrictions on transfer contained in any applicable securities laws). None of the Selling Shareholders has any right, directly or indirectly, to purchase or has any interest in any shares of Common Stock other than the Shares and those shares of Common Stock described in filings on Schedule 13D (as it may be amended from time to time) made collectively by TCW and certain other parties. (f) Neither the Selling Shareholders nor any directors, partners, officers, employees or agents thereof has retained, employed or used any broker or finder in connection with the transactions provided for herein or in connection with the negotiation thereof. (g) None of the Selling Shareholders has offered, directly or indirectly, any Shares beneficially owned thereby for sale, nor solicited any offer to buy any such Shares, by means of any general advertising or by any other form of general solicitation. None of the Selling Shareholders has offered, directly or indirectly, any Shares beneficially owned thereby for sale, nor solicited any offer to buy any such Shares, in any other manner that would require the sale of the Shares to be subject to the registration requirements of the Securities Act of 1933, as amended. Each of the Selling Shareholders confirms that it did not acquire any Shares with a view to, or for, resale in connection with any distribution thereof within the meaning of the Securities Act of 1933, as amended, which would not be exempt from the registration requirements of such Act. 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser makes the following representations and warranties to TCW, Trust and the Selling Shareholders, each of which is true and correct on the date hereof, shall remain true and correct to and as of the Second Closing, and shall survive the Closings: (a) Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the State of Washington. Purchaser has all requisite corporate power to enter into this Agreement and the other documents and instruments to be executed and delivered by Purchaser pursuant hereto and to carry out the transactions contemplated hereby and thereby. (b) The execution and delivery of this Agreement and the other documents and instruments to be executed and delivered by Purchaser pursuant hereto and the consummation of the transactions contemplated hereby and thereby have been duly authorized by the Board of Directors of Purchaser. No other corporate act or proceeding on the part of Purchaser or its shareholders is necessary to authorize this Agreement or the other documents and instruments to be executed and delivered by Purchaser pursuant hereto or the consummation of the transactions contemplated hereby and thereby. This Agreement constitutes, and when executed and delivered, the other documents and instruments to be executed and delivered by Purchaser pursuant hereto will constitute, valid and binding agreements of Purchaser, enforceable in accordance with their respective terms, except as such may be limited by bankruptcy, insolvency, reorganization or other laws affecting creditors' rights generally, and by general equitable principles. (c) Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated herein will, with or without the giving of notice or the lapse of time, or both, (i) conflict with or result in any violation of or default under (a) any provision of the Articles of Incorporation or the bylaws of Purchaser, each as amended and/or restated to date, (b) any note, bond, mortgage, indenture, lease, agreement or other material instrument, permit, concession, grant, franchise or license to which Purchaser is a party or by which any of its properties or assets may be bound (provided that no representation or warranty is being made under this clause (b) as to the Articles) or (c) any judgment, order, decree, injunction, statute, rule, permit, license or regulation applicable to Purchaser or any of its properties, or (ii) which result in the acceleration of any material obligation or the creation of any material lien, charge or encumbrance upon any of the assets of Purchaser. Except as contemplated by Section 6(a), no authorization, consent or approval of, or declaration of, filing with or notice to any governmental body or authority is necessary for the execution, delivery and performance of this Agreement by Purchaser. (d) Neither Purchaser nor any of its directors, officers, employees or agents has retained, employed or used any broker or finder in connection with the transaction provided for herein or in connection with the negotiation thereof. (e) Purchaser is a sophisticated investor capable of evaluating the merits and risks of investment in the Shares and of making an informed investment decision with respect thereto. Purchaser acknowledges that it has conducted its own review of the documents filed by the Company with the Securities and Exchange Commission (including, without limitation, any exhibits or schedules) and that neither TCW, Trust nor any of the Selling Shareholders is making any representations or warranties with respect to such documents (other than agreements to which TCW, Trust or a Selling Shareholder is a party) or their applicability to any of the transactions contemplated hereby. Neither TCW, Trust nor any Selling Shareholder has made any representation or warranty to Purchaser other than those set forth in Section 3. The Shares are being acquired by Purchaser for investment only and not with a view to resale or other distribution. Purchaser acknowledges and understands that the Shares being acquired hereunder shall have the status of securities acquired in a transaction under Section 4(2) of the Securities Act of 1933, as amended, and cannot be resold without registration under such Act or an exemption therefrom. Purchaser acknowledges and understands that TCW and the Selling Shareholders have a representative serving on the Company's Board of Directors. (f) Purchaser has a tangible net worth in excess of $100 million and Purchaser has cash or cash equivalents available in an amount sufficient to consummate the transactions contemplated hereby. 5. COVENANTS OF TCW, TRUST AND THE SELLING SHAREHOLDERS. (a) From the date hereof until the later of (i) the forty- fifth day after the Initial Closing Date and (ii) the earlier of (x) the sixtieth day after the Initial Closing Date and (y) three (3) business days after the date on which the condition set forth in Section 7(b)(ii) shall have been satisfied (the "Blackout Period"), each of the Selling Shareholders covenants and agrees that it will not transfer any of the Shares, except to Purchaser pursuant hereto. (b) TCW, Trust and the Selling Shareholders covenant and agree to cooperate with Purchaser and the Company in causing the event in Section 7(b)(ii) to occur including, without limitation, responding to any inquiries from the Federal Trade Commission (the "FTC") or the United States Department of Justice ("DOJ"). (c) TCW, Trust and the Selling Shareholders covenant and agree to assign their respective rights under the Registration Rights Agreement, dated as of August 9, 1993, by and between the Company and TCW, with respect to any Shares purchased hereunder, but only if such assignment is consented to by the Company and otherwise constitutes a valid assignment in accordance with such agreement. 6. COVENANTS OF PURCHASER. (a) Purchaser covenants and agrees that, as soon as possible (but in no event later than five (5) business days) after the Initial Closing, Purchaser shall prepare and file all documents with the FTC and the DOJ as are required to be filed by Purchaser pursuant to the Hart- Scott-Rodino Act of 1976, as amended (the "HSR Act") with respect to the Second Closing and shall furnish promptly all materials thereafter requested by any of the regulatory agencies having jurisdiction over such filings by Purchaser. (b) Purchaser covenants and agrees that after the Initial Closing, Purchaser shall use commercially reasonable efforts to cause the condition set forth in Sections 7(b)(ii) to be satisfied. 7. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. (a) Each and every obligation of Purchaser to be performed on any Closing Date (as hereinafter defined) shall be subject to the satisfaction prior to or at the Closing on such date of each of the following conditions: (i) Each of the representations and warranties made by TCW, Trust and each Selling Shareholder in this Agreement shall be true and correct in all material respects when made and shall be true and correct in all material respects at and as of such Closing Date as though such representations and warranties were made or given on and as of such Closing Date, except for any representation or warranty that expressly indicates that it is being made as of a specific date. (ii) Each of TCW, Trust and the Selling Shareholders shall have in all material respects performed and complied with all of its agreements and obligations under this Agreement which are to be performed or complied with by it prior to or on such Closing Date, including the delivery of the closing documents specified in Section 10. (iii) No injunction or restraining order shall have been issued by any court of competent jurisdiction that enjoins consummation of the transactions contemplated hereby. (b) Each and every obligation of Purchaser to be performed on the Second Closing Date shall be subject to the satisfaction prior to or at the Second Closing of each of the following conditions: (i) The Initial Closing shall have been consummated in accordance with the terms of this Agreement. (ii) All applicable waiting periods shall have expired or early termination shall have been received under the HSR Act to consummate the Second Closing. (c) Each and every obligation of Purchaser under Section 12 shall be subject only to the satisfaction prior to the date on which such obligations mature of the following conditions: (i) Each of the representations and warranties made by TCW, Trust and each Selling Shareholder in this Agreement shall be true and correct in all material respects when made and shall be true and correct in all material respects at and as of the last day of the Blackout Period as though such representations and warranties were made or given on and as of such date, except for any representation or warranty that expressly indicates that it is being made as of a specific date. (ii) Each of TCW, Trust and the Selling Shareholders shall have in all material respects performed and complied with all of its agreements and obligations under this Agreement which are to be performed or complied with by it prior to or on such date. 8. CONDITIONS PRECEDENT TO SELLING SHAREHOLDERS' OBLIGATIONS. (a) Each and every obligation of the Selling Shareholders to be performed on any Closing Date shall be subject to the satisfaction prior to or at the Closing on such date of the following conditions: (i) Each of the representations and warranties made by Purchaser in this Agreement shall be true and correct in all material respects when made and shall be true and correct in all material respects at and as of such Closing Date as though such representations and warranties were made or given on and as of such Closing Date. (ii) Purchaser shall have in all material respects performed and complied with all of its agreements and obligations under this Agreement which are to be performed or complied with by it prior to or on such Closing Date, including the delivery of the closing documents specified in Section 11. (iii) No injunction or restraining order shall have been issued by a court of competent jurisdiction that enjoins consummation of the transactions contemplated hereby. (b) Each and every obligation of the Selling Shareholders to be performed on the Second Closing Date shall be subject to the satisfaction prior to or at the Second Closing of each of the following conditions: (i) The Initial Closing shall have been consummated in accordance with the terms of this Agreement. (ii) The Second Closing Date shall occur prior to the expiration of the Blackout Period. 9. CLOSINGS. The closing of (i) the purchase and sale of the Initial Shares (the "Initial Closing") and (ii) the purchase and sale of the Secondary Shares (the "Second Closing" and, together with the Initial Closing, the "Closings") shall take place on January 19, 1996, in the case of the Initial Closing, and on the third business day following satisfaction of the condition set forth in Section 7(b)(ii), in the case of the Second Closing, or at such other time and place as the parties hereto shall agree upon. The date on which the Initial Closing or the Second Closing occurs is referred to in this Agreement as the "Initial Closing Date" or the "Second Closing Date," respectively, and such dates shall be collectively referred to in this Agreement as the "Closing Dates." 10. DOCUMENTS TO BE DELIVERED BY TCW, TRUST AND THE SELLING SHAREHOLDERS AT THE CLOSINGS. At each of the Closings, TCW, Trust or the Selling Shareholders, as the case may be, shall deliver, or cause to be delivered, to Purchaser or its wholly-owned designee the following documents, in each case duly executed or otherwise in proper form: (a) Either (i) stock certificates duly endorsed for transfer or with duly executed stock powers attached thereto, representing the Initial Shares, in the case of the Initial Closing, and representing the Secondary Shares, in the case of the Second Closing, or (ii) other customary evidence of transfer of the Initial Shares, in the case of the Initial Closing, and of the Secondary Shares, in the case of the Second Closing. (b) A certificate signed by a duly authorized general partner of TCW on behalf of TCW and the Selling Shareholders (other than TCW Trust), and a duly authorized officer of Trust on behalf of Trust and TCW Trust, that each of the representations and warranties made by TCW and the Selling Shareholders (other than TCW Trust), and Trust and TCW Trust, respectively, in this Agreement is true and correct in all material respects on and as of the Closing Date on which such Closing occurs with the same effect as though such representations and warranties had been made or given on and as of such Closing Date, except for any representation or warranty that expressly indicates that it is being made as of a specific date, and that TCW and the Selling Shareholders (other than TCW Trust), and Trust and TCW Trust, respectively, have performed and complied with all of their respective obligations under this Agreement which are to be performed or complied with on or prior to such Closing Date. 11. DOCUMENTS TO BE DELIVERED BY PURCHASER AT THE CLOSINGS. At each of the Closings, Purchaser shall deliver to TCW, on behalf of the Selling Shareholders (other than TCW Trust), and Trust, on behalf of TCW Trust, the following documents, in each case duly executed or otherwise in proper form: (a) A wire transfer in payment of the Purchase Price for the Initial Shares, in the case of the Initial Closing and, the Secondary Shares, in the case of the Second Closing, in each case, as required by Section 2(b) hereof. (b) A certificate signed by a duly authorized officer of Purchaser that the representations and warranties made by Purchaser in this Agreement are true and correct on and as of the Closing Date on which such Closing occurs with the same effect as though such representations and warranties had been made or given on and as of such Closing Date, and that Purchaser has performed and complied with all of Purchaser's obligations under this Agreement which are to be performed or complied with on or prior to such Closing Date. 12. GROSS-UP. (a) If the Second Closing has not occurred prior to the expiration of the Blackout Period (and without limiting the rights and remedies of the Selling Shareholders hereunder in the event of a breach by Purchaser), the Selling Shareholders shall have the right from time to time to sell any Shares then beneficially owned by the Selling Shareholders pursuant to a Third Party Sale (as hereinafter defined). At any time and from time to time, the Selling Shareholders shall have the right to sell any of the shares of Common Stock set forth on Schedule I under the heading "Gross-Up Shares" (as appropriately adjusted as necessary to reflect a stock split, stock dividend, merger, consolidation, reclassification, recapitalization or other similar transaction, the "Gross-Up Shares") then beneficially owned by the Selling Shareholders pursuant to a Third Party Sale. For purposes of this Agreement, "Third Party Sale" shall mean a sale in accordance with the terms of this Agreement of any Shares or Gross-Up Shares to an unaffiliated third party or parties, including, without limitation, to an underwriter in connection with a public offering. Purchaser shall have no rights with respect to any Shares from and after the date on which such Shares are sold pursuant to a Third Party Sale in accordance with the terms of this Agreement. (b) If any Third Party Sales are entered into prior to the date that is six months after the last day of the Blackout Period (the "Gross-Up Period"), Purchaser shall pay to the Selling Shareholders, within five (5) business days after receipt of written demand and in accordance with Section 2(b), the product of (i) the number of Shares and/or Gross-Up Shares, as the case may be, subject to such Third Party Sale and (ii) the excess, if any, of (x) the Purchase Price that would have been payable to the Selling Shareholders by Purchaser pursuant to Section 2(a) had a Closing occurred on the date of the consummation of such Third Party Sale over (y) the greater of (1) 90% of the average closing price of a share of Common Stock on the American Stock Exchange for the period of ten (10) consecutive trading days (A) during which Purchaser and Purchaser's Affiliates (as hereinafter defined) shall not have purchased or offered to purchase any shares of Common Stock and (B) which most immediately precedes the date on which such Third Party Sale occurs and (2) the purchase price per Share and/or Gross-Up Share paid in connection with such Third Party Sale. The Selling Shareholders shall deliver to Purchaser all agreements regarding such Third Party Sale (or other documents evidencing such Third Party Sale (E.G., a window ticket evidencing the transfer of Shares or Gross-Up Shares pursuant to such Third Party Sale)) and a calculation of the amount due hereunder, which amount shall be paid within the time period set forth above. Purchaser agrees that to the extent it has notice of any pending Third Party Sale, it shall not, and shall cause each of the Purchaser's Affiliates not to, purchase or offer to purchase any shares of Common Stock during the ten (10) consecutive trading day period ending on the trading day which immediately precedes such Third Party Sale. (c) Notwithstanding the foregoing, if during the Gross-Up Period and prior to the giving by the Selling Shareholders of notice of a Third Party Sale pursuant to Section 12(b), Purchaser provides to the Selling Shareholders a Replacement Offer (as hereinafter defined), then Purchaser shall be released from its obligations to make any payments pursuant to Section 12(b); PROVIDED, HOWEVER, that Purchaser shall only be released if the closing of the Replacement Offer either occurs on the terms set forth in the Replacement Offer or fails to occur on such terms as a result of the rejection of such offer by the Selling Shareholders. For purposes hereof, "Replacement Offer" shall mean a legally binding written offer to purchase, which shall be irrevocable for at least five (5) business days after receipt by TCW, Trust and the Selling Shareholders of such Replacement Offer to TCW, Trust and the Selling Shareholders, all, but not less than all, of the Shares and Gross-Up Shares, to the extent then beneficially owned by the Selling Shareholders, from a potential purchaser that has the financial capacity to purchase such Shares and Gross-Up Shares and which offer (i) is not subject to any conditions other than the continued accuracy of TCW's, Trust's and the Selling Shareholders' representations and warranties herein and clearance under the HSR Act and (ii) provides for a purchase price for such Shares and Gross-Up Shares at least equal to the Purchase Price that would have been payable to the Selling Shareholders by Purchaser pursuant to Section 2(a) had a Closing occurred on the forty- fifth day after notice of such Replacement Offer is received by TCW, Trust and the Selling Shareholders. 13. INDEMNIFICATION. (a) Subject to the terms and conditions of this Section 13, TCW hereby agrees to indemnify, defend and hold harmless Purchaser and its directors, officers, employees and controlled and controlling persons (hereinafter Purchaser's Affiliates") from and against all Claims (as hereinafter defined) asserted against, resulting to, imposed upon, or incurred by Purchaser or Purchaser's Affiliates, directly or indirectly, by reason of, arising out of or resulting from (a) the inaccuracy or breach of any representation or warranty of TCW contained in this Agreement, or (b) the breach of any covenant of TCW contained in this Agreement. As used in this Section 13, the term "Claim" shall mean: (i) all debts, liabilities and obligations; (ii) all losses, damages (including, without limitation, consequential damages), judgments, awards, settlements, costs and expenses (including, without limitation, interest (including prejudgment interest in any litigated matter) penalties, court costs and attorneys' fees and expenses); and (iii) all demands, claims, suits, actions, costs of investigation, causes of action, proceedings and assessments, whether or not ultimately determined to be valid. (b) Subject to the terms and conditions of this Section 13, each Selling Shareholder hereby agrees to indemnify, defend and hold harmless Purchaser and Purchaser's Affiliates from and against all Claims asserted against, resulting to, imposed upon or incurred by Purchaser or Purchaser's Affiliates, directly or indirectly, by reason of or resulting from (a) the inaccuracy or breach of any representation or warranty of such Selling Shareholder contained in this Agreement, or (b) the breach of any covenant of such Selling Shareholder contained in this Agreement. (c) Subject to the terms and conditions of this Section 13, Trust hereby agrees to indemnify, defend and hold harmless Purchaser and Purchaser's Affiliates from and against all Claims asserted against, resulting to, imposed upon or incurred by Purchaser or Purchaser's Affiliates, directly or indirectly, by reason of or resulting from (a) the inaccuracy or breach of any representation or warranty of Trust contained in this Agreement, or (b) the breach of any covenant of Trust contained in this Agreement. (d) Subject to the terms and conditions of this Section 13, Purchaser hereby agrees to indemnify, defend and hold harmless TCW, Trust and the Selling Shareholders from and against all Claims asserted against, resulting to, imposed upon or incurred by any of TCW, Trust and the Selling Shareholders, directly or indirectly, by reason of or resulting from (a) the inaccuracy or breach of any representation or warranty of Purchaser contained in this Agreement, or (b) the breach of any covenant of Purchaser contained in this Agreement. (e) The obligations and liabilities of any party to indemnify any other person under this Section 13 with respect to Claims relating to third parties shall be subject to the following terms and conditions: (i) The party or parties to be indemnified (whether one or more, the "Indemnified Party") will give the party from whom indemnification is sought (the "Indemnifying Party") prompt written notice of any such Claim, and the Indemnifying Party will undertake the defense thereof by representatives chosen by it. Failure to give such notice shall not affect the Indemnifying Party's duty or obligations under this Section 13, except to the extent the Indemnifying Party is prejudiced thereby. So long as the Indemnifying Party is defending any such Claim actively and in good faith, the Indemnified Party shall not settle such Claim. The Indemnified Party shall make available to the Indemnifying Party or its representatives all records and other materials required by them and in the possession or under the control of the Indemnified Party, for the use of the Indemnifying Party and its representatives in defending any such Claim, and shall in other respects give reasonable cooperation in such defense. (ii) If the Indemnifying Party, within a reasonable time after notice of any such Claim, fails to defend such Claim actively and in good faith, the Indemnified Party will (upon further notice) have the right to undertake the defense, compromise or settlement of such Claim or consent to the entry of a judgment with respect to such Claim, on behalf of and for the account and risk of the Indemnifying Party, and the Indemnifying Party shall thereafter have no right to challenge the Indemnified Party's defense, compromise, settlement or consent to judgment therein. (iii) Anything in this subsection (e) to the contrary notwithstanding, (x) if there is a reasonable probability that a Claim may materially and adversely affect the Indemnified Party other than as a result of money damages or other money payments, the Indemnified Party shall have the right to defend, compromise or settle such Claim, and (y) the Indemnifying Party shall not, without the written consent of the Indemnified Party, settle or compromise any Claim or consent to the entry of any judgment which does not include as an unconditional term thereof the giving by the claimant or the plaintiff to the Indemnified party of a release from all liability in respect of such Claim. 14. TERMINATION. This Agreement may be terminated by either TCW, Trust and the Selling Shareholders, on one hand, or the Purchaser, on the other hand, if the Second Closing shall not have been consummated prior to the expiration of the Blackout Period; PROVIDED, HOWEVER, that the obligations of each of the parties hereto under Sections 12 (subject to the satisfaction of the conditions set forth in Sections 7(c)(i) and (ii)), 13 (solely with respect to events that shall have occurred prior to such termination) and 16 through 29 shall continue in full force and effect notwithstanding any such termination, and that no party shall be relieved from any liability of any kind or nature whatsoever resulting from or arising out of a breach thereby of this Agreement occurring prior to such termination. 15. FURTHER ASSURANCES. From time to time prior to, at and after any Closing, each party hereto shall execute all such instruments and take all such actions as any other party hereto shall reasonably request in connection with carrying out and effectuating the transactions contemplated by this Agreement. 16. NOTICES. Any notices required or allowed to be furnished pursuant to the terms hereof shall be provided to TCW, Trust, the Selling Shareholders and Purchaser at the addresses set forth with their signatures below. Notices hereunder shall be in writing and may be hand delivered, mailed, delivered by overnight courier service or, if facsimile numbers are provided below, transmitted by facsimile. If mailed, such notices shall be sent by certified mail, postage prepaid, return receipt requested. The date which is three (3) business days after the date of mailing shall be deemed to be the date on which the notice was given. The postmark affixed to such notice by the U.S. Post Office shall be conclusively presumed to be the date of mailing for purposes of this Section. In the case of notices given by hand delivery or overnight courier, such notices shall be deemed given on the date of the actual receipt. If transmitted by facsimile, such notices shall be deemed given on the date of the actual receipt of a complete, legible facsimile transmission, except that if a facsimile transmission is received after business hours or on a weekend or holiday, then the notice shall be deemed given on the next business day following the receipt of the facsimile transmission. 17. ATTORNEYS' FEES. In the event any party hereto finds it necessary to bring any suit, action, or other proceeding at law or equity to interpret, enforce or implement any of the terms, covenants or conditions hereof or of any instrument executed pursuant to this Agreement, or by reason of any breach or default hereunder or thereunder, the party prevailing in any such action or proceeding, including any bankruptcy proceeding and/or any appeal, shall be paid all costs and reasonable attorneys' fees by the non-prevailing party, and in the event any judgment is secured by such prevailing party, all such costs and attorneys' fees shall be included in any such judgment, attorneys' fees to be set by the court and not by the jury. No termination of this Agreement upon any grounds or in any circumstances addressed herein or otherwise will impair or limit a prevailing party's right to recover from the other party its attorneys' fees and costs in accordance with the provisions of this Section. 18. GOVERNING LAW. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Florida without regard to the conflicts of law provisions thereof. 19. ASSIGNMENT; PARTIES IN INTEREST. (a) Except as expressly provided herein, the rights and obligations of a party hereunder may not be assigned, transferred or encumbered without the prior written consent of the other parties. Notwithstanding the foregoing, TCW, Trust and the Selling Shareholders hereby consent to Purchaser assigning its rights hereunder to a corporation, partnership or limited liability company to be formed and in which Purchaser owns a majority interest. Purchaser agrees to notify TCW, Trust and the Selling Shareholders within five (5) days after said assignment or any other assignment of Purchaser's rights under this Agreement to which TCW, Trust and the Selling Shareholders may hereafter consent, and such notification shall be accompanied by a copy of the instrument of assignment. Notwithstanding the foregoing, TCW, Trust and the Selling Shareholders shall have no obligation to execute and deliver closing documents pursuant to this Agreement in favor of anyone other than the original Purchaser identified herein, unless TCW, Trust and the Selling Shareholders receive written notification at least (i) twenty- four (24) hours prior to the Initial Closing, in the case of the Initial Closing, and (ii) three (3) business days prior to the Second Closing, in the case of the Second Closing. An assignment by Purchaser of its rights under this Agreement shall not release Purchaser from its obligations and liabilities under this Agreement, including, without limitation, its obligation to close the purchase of Shares if its assignee fails to close this transaction or if Purchaser's notice of an assignment is not duly given to TCW, Trust and the Selling Shareholders within the time period provided for herein. (b) This Agreement shall be binding upon, inure to the benefit of, and be enforceable by the respective successors and permitted assigns of the parties hereto. Nothing contained herein shall be deemed to confer upon any other person any right or remedy under or by reason of this Agreement. 20. EXPENSES. Except as hereinafter set forth, each of the parties hereto shall bear its own expenses and the expenses of its counsel and other agents in connection with the transactions contemplated hereby. Notwithstanding the foregoing, the Selling Shareholders shall pay any sales, use, excise, transfer or other similar tax imposed with respect to the transactions provided for in this Agreement (and any interest or penalties related thereto). 21. SATURDAYS, SUNDAYS AND LEGAL HOLIDAYS. If the time for performance of any of the terms, conditions and provisions hereof shall fall on a Saturday, Sunday or legal holiday, then the time of such performance shall be extended to the next business day thereafter. 22. USAGE OF GENDER SPECIFIC TERMS. As used herein, each of the masculine, feminine and neuter genders shall include the other genders, the singular shall include the plural, and the plural shall include the singular, wherever appropriate to the context. 23. ENTIRE AGREEMENT; AMENDMENT. This Agreement embodies the entire agreement of the parties with respect to the transactions contemplated herein, including the purchase and sale of the Shares, and all prior understandings and agreements of the parties relating thereto are merged herein. This Agreement may not be modified in any manner whatsoever except by a written instrument signed by TCW and Purchaser. 24. WAIVER. No delay in exercising any right or remedy of any of the parties hereunder shall constitute a waiver thereof, and no waiver by TCW, Trust, the Selling Shareholders or Purchaser of the breach of any covenant of this Agreement shall be construed as a waiver of any preceding or succeeding breach of the same or any other covenant or condition of this Agreement. 25. HEADINGS. The headings in this Agreement are inserted for convenience only and shall not constitute a part hereof. 26. SEVERABILITY. If any term, covenant or condition of this Agreement is held to be invalid or unenforceable in any respect, such invalidity or unenforceability shall not affect any other provision hereof and this Agreement shall be construed as if such invalid or unenforceable provision had never been contained herein. 27. PUBLIC ANNOUNCEMENTS. The parties shall mutually agree on the content and timing of any public disclosure in relation to the transactions contemplated hereby, subject to applicable requirements of law. 28. LIMITATIONS ON LIABILITY. The parties hereto acknowledge and agree that in no event shall any of the partners, officers, directors, shareholders, employees, agents or investment managers (collectively "Representatives") of TCW, Trust or any Selling Shareholder, on one hand, or of Purchaser on the other hand, have any obligation or liability to Purchaser or TCW, Trust and the Selling Shareholders, respectively, for any action taken or omitted by or on behalf of any Selling Shareholder or Purchaser, respectively, hereunder or in connection herewith (such obligation and liability being the sole responsibility of such Selling Shareholder or Purchaser, respectively, hereunder). The parties hereto further acknowledge and agree that all obligations and liabilities of each Selling Shareholder, on one hand, and Purchaser, on the other hand, under this Agreement or in connection herewith are enforceable solely against such Selling Shareholder and its assets and not against the assets of TCW, Trust, any other Selling Shareholder or any Representatives of TCW, Trust or any Selling Shareholder, or Purchaser and its assets and not against the assets of any Representative of Purchaser, respectively; PROVIDED, HOWEVER, that if such obligations or liabilities of the Selling Shareholders are not specifically attributable to a particular Selling Shareholder, then the obligations and liabilities of each Selling Shareholder shall be several in the proportions of the aggregate Shares of each Selling Shareholder set forth on Schedule I hereto and not joint and several. The provisions of this Section 28 shall in no way limit or otherwise affect TCW's responsibility or Trust's responsibility to Purchaser for any breach by TCW on its own behalf, or Trust on its own behalf, respectively, hereunder. 29. TIME. Time is of the essence of this Agreement. 30. EXECUTION. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Any party may execute this Agreement by transmitting a copy of its signature by facsimile to the other parties. In such event the signing party shall deliver an original of the signature page to each of the other parties within one business day of signing, and failure to so deliver such originals shall result in the facsimile copy of that party's signature being treated as an original. IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of the date and year first above written. SELLING SHAREHOLDERS: TCW SPECIAL CREDITS, a California general partnership, as general partner or investment manager of the entities set forth on Schedule I attached hereto (other than TCW Special Credits Trust) By: TCW Asset Management Company, its managing general partner By: ________________________________ Bruce A. Karsh Authorized Signatory By: ________________________________ Kenneth Liang Authorized Signatory Address: c/o Oaktree Capital Management, LLC 550 South Hope Street, 22nd Floor Los Angeles, California 90071 Attn: Bruce A. Karsh, President Facsimile No.: (213) 694-1592 TRUST COMPANY OF THE WEST, a California corporation, as trustee of TCW Special Credits Trust, a California collective investment trust By: ________________________________ Bruce A. Karsh Authorized Signatory By: ________________________________ Kenneth Liang Authorized Signatory Address: c/o Oaktree Capital Management, LLC 550 South Hope Street, 22nd Floor Los Angeles, California 90071 Attn: Bruce A. Karsh, President Facsimile No.: (213) 694-1592 TCW: TCW SPECIAL CREDITS, a California general partnership By: TCW Asset Management Company, its managing general partner By: _________________________________ Bruce A. Karsh Authorized Signatory By: _________________________________ Kenneth Liang Authorized Signatory Address: c/o Oaktree Capital Management, LLC 550 South Hope Street, 22nd Floor Los Angeles, California 90071 Attn: Bruce A. Karsh, President Facsimile No.: (213) 694-1592 TRUST: TRUST COMPANY OF THE WEST, a Californiacorporation By: _________________________________ Bruce A. Karsh Authorized Signatory By: _________________________________ Kenneth Liang Authorized Signatory Address: c/o Oaktree Capital Management, LLC 550 South Hope Street, 22nd Floor Los Angeles, California 90071 Attn: Bruce A. Karsh, President Facsimile No.: (213) 694-1592 PURCHASER: RESOURCE GROUP INTERNATIONAL, INC., a Washington corporation By: /S/ DAVID A. HERRICK Print Name: DAVID A. HERRICK Its: TREASURER Address: 1420 Fifth Avenue Suite 4200 Seattle, Washington 98101 Facsimile No.: (206) 448-0404 SCHEDULE I KOGER EQUITY, INC. COMMON STOCK
ENTITY PERCENTAGE INITIAL SECONDARY GROSS-UP TOTAL SHARES SHARES SHARES Weyerhaeuser Company 18.5 222,000 231,171 36,122 489,293 Master Retirement Trust TCW Special Credits Fund 53.6 643,200 669,770 104,658 1,417,628 III The Common Fund for Bond 3.9 46,800 48,733 7,615 103,148 Investments TCW Special Credits Trust 24.0 288,000 299,897 46,861 634,758 ----- --------- --------- ------- --------- 100.0% 1,200,000 1,249,571 195,256 2,644,827
WIRING INSTRUCTIONS - TCW SPECIAL CREDITS Sanwa Bank of California/Trust Operations Monterey Park, California 91754 ABA Routing #122003516 Account: TCW Special Credits Escrow Account A/C #400-3500 Ref: TCW/Koger/RGI EX-5 6 EXHIBIT 5 AMENDMENT NO. 1 TO COMMON STOCK PURCHASE AND SALE AGREEMENT Amendment No. 1 dated as of March 5, 1996 (the "Amendment"), to the Common Stock Purchase and Sale Agreement, dated January 18, 1996, by and among TCW Special Credits, a California general partnership, for itself (in its individual capacity, "TCW") and as general partner or investment manager for the entities (other than TCW Trust (as defined below)) set forth on Schedule I attached thereto, Trust Company of the West, a California corporation, for itself and as trustee for TCW Special Credits Trust, a California collective investment trust ("TCW Trust"), and Resource Group International, Inc., a Washington corporation ("Purchaser"). Each of the parties to the Agreement have determined that it is necessary and desirable to amend the Agreement as provided herein, and, in consideration of the premises and the agreements set forth herein and in the Agreement, TCW and Purchaser have executed and delivered this Amendment in accordance with Section 23 of the Agreement. 1. The following is hereby added to the Agreement as Section 31 thereof: "The parties hereto (other than Purchaser) agree to execute and deliver to Purchaser an irrevocable proxy substantially in the form attached as Exhibit A." 2. Exhibit A hereto is hereby added to the Agreement as Exhibit A thereto. 3. This Amendment to the Agreement is irrevocable and shall be deemed to be a contract made under the laws of the State of Florida and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts to be made and performed entirely within such State. 4. This Amendment to the Agreement may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute one and the same instrument. Terms not defined herein shall, unless the context otherwise requires, have the meanings assigned to such terms in the Agreement. 5. In all respects not inconsistent with the terms and provisions of this Amendment, the Agreement is hereby ratified, adopted, approved and confirmed. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to the Agreement to be duly executed as of the date first above written. TCW SPECIAL CREDITS By: TCW ASSET MANAGEMENT COMPANY, its managing general partner By: Bruce A. Karsh Authorized Signatory By: Kenneth Liang Authorized Signatory RESOURCE GROUP INTERNATIONAL, INC. By Name: David A. Harrick Title: Treasurer EXHIBIT A IRREVOCABLE PROXY By its execution hereof, each of the undersigned hereby irrevocably constitutes and appoints RGI Realty, Inc., a Florida corporation ("RGI"), as its true and lawful proxy and attorney-in-fact, with respect to the portion of the 1,249,571 shares (the "Shares") of common stock, par value $.01 per share ("Common Stock"), of Koger Equity, Inc., a Florida corporation (the "Company"), beneficially owned by it as of the date hereof and identified on Schedule I hereto, to: (i) vote at any annual or special meeting of the stockholders of the Company, to take any action, including, without limitation, amending the Company's by- laws, removing one or more directors with or without cause, and electing directors or filling vacancies or newly-created directorships; (ii) to exercise written consent in lieu of voting with respect to the matters set forth in the preceding clause (i); and (iii) to execute, acknowledge, swear to and file in the name, place and stead of the undersigned any proxy, consent, approval, or other documents to be executed by the stockholders in connection with the items set forth in the preceding clauses (i) and (ii). The proxy granted hereby is irrevocable and is given in connection with the purchase by RGI of shares of Common Stock pursuant to the Common Stock Purchase and Sale Agreement dated January 18, 1996 (the "Purchase Agreement"), by and among TCW Special Credits, a California general partnership, for itself and as general partner or investment manager for the entities (other than TCW Trust (as defined below)) set forth on Schedule I attached thereto, Trust Company of the West, a California corporation, for itself and as trustee for TCW Special Credits Trust, a California collective investment trust ("TCW Trust"), and Resource Group International, Inc., a Washington corporation; provided, however, that this Irrevocable Proxy shall automatically terminate and be of no further force or effect with respect to any Shares at such time (after giving effect to the execution and delivery of this Irrevocable Proxy) as such Shares cease to be beneficially owned by RGI or any of its affiliates. IN WITNESS WHEREOF, each of the undersigned has executed this Irrevocable Proxy as of the 5th day of March, 1996. TCW SPECIAL CREDITS, a California general partnership, as general partner or investment manager of the entities set forth on Schedule I attached to the Purchase Agreement (other than TCW Special Credits Trust) By:TCW ASSET MANAGEMENT COMPANY, its managing general partner By: Bruce A. Karsh Authorized Signatory By: Kenneth Liang Authorized Signatory TRUST COMPANY OF THE WEST, a California corporation, as trustee of TCW Special Credits Trust, a California collective investment trust By:________________________________ Bruce A. Karsh Authorized Signatory By:________________________________ Kenneth Liang Authorized Signatory TCW SPECIAL CREDITS, a California general partnership By:TCW ASSET MANAGEMENT COMPANY, its managing general partner By: Bruce A. Karsh Authorized Signatory By: Kenneth Liang Authorized Signatory TRUST COMPANY OF THE WEST, a California corporation By:_________________________________ Bruce A. Karsh Authorized Signatory By: Kenneth Liang Authorized Signatory SCHEDULE I KOGER EQUITY, INC. COMMON STOCK HOLDER SECONDARY SHARES Weyerhaeuser Company 231,171 Master Retirement Trust TCW Special Credits Fund 669,770 III The Common Fund for Bond 48,733 Investments TCW Special Credits Trust 299,897 EX-6 7 EXHIBIT 6 IRREVOCABLE PROXY By its execution hereof, each of the undersigned parties hereby irrevocably constitutes and appoints RGI Realty, Inc., a Florida corporation ("RGI"), as its true and lawful proxy and attorney-in-fact, with respect to the portion of the 1,249,571 shares (the "Shares") of common stock, par value $.01 per share ("Common Stock"), of Koger Equity, Inc., a Florida corporation (the "Company"), beneficially owned by it as of the date hereof and identified on Schedule I hereto, to: (i) vote at any annual or special meeting of the stockholders of the Company, to take any action, including, without limitation, amending the Company's by- laws, removing one or more directors with or without cause, and electing directors or filling vacancies or newly-created directorships; (ii) to exercise written consent in lieu of voting with respect to the matters set forth in the preceding clause (i); and (iii) to execute, acknowledge, swear to and file in the name, place and stead of the undersigned any proxy, consent, approval, or other documents to be executed by the stockholders in connection with the items set forth in the preceding clauses (i) and (ii). The proxy granted hereby is irrevocable and is given in connection with the purchase by RGI of shares of Common Stock pursuant to the Common Stock Purchase and Sale Agreement dated January 18, 1996 (the "Purchase Agreement"), by and among TCW Special Credits, a California general partnership, for itself and as general partner or investment manager for the entities (other than TCW Trust (as defined below)) set forth on Schedule I attached thereto, Trust Company of the West, a California corporation, for itself and as trustee for TCW Special Credits Trust, a California collective investment trust ("TCW Trust"), and Resource Group International, Inc., a Washington corporation; provided, however, that this Irrevocable Proxy shall automatically terminate and be of no further force or effect with respect to any Shares at such time (after giving effect to the execution and delivery of this Irrevocable Proxy) as such Shares cease to be beneficially owned by RGI or any of its affiliates. IN WITNESS WHEREOF, each of the undersigned has executed this Irrevocable Proxy as of the 5th day of March, 1996. TCW SPECIAL CREDITS, a California general partnership, as general partner or investment manager of the entities set forth on Schedule I hereto (other than TCW Special Credits Trust) By:TCW ASSET MANAGEMENT COMPANY, its managing general partner By: Bruce A. Karsh Authorized Signatory By: Kenneth Liang Authorized Signatory TRUST COMPANY OF THE WEST, a California corporation, as trustee of TCW Special Credits Trust, a California collective investment trust By:________________________________ Bruce A. Karsh Authorized Signatory By:________________________________ Kenneth Liang Authorized Signatory TCW SPECIAL CREDITS, a California general partnership By:TCW ASSET MANAGEMENT COMPANY, its managing general partner By: Bruce A. Karsh Authorized Signatory By: Kenneth Liang Authorized Signatory TRUST COMPANY OF THE WEST, a California corporation By:_________________________________ Bruce A. Karsh Authorized Signatory By: Kenneth Liang Authorized Signatory SCHEDULE I KOGER EQUITY, INC. COMMON STOCK HOLDER SECONDARY SHARES Weyerhaeuser Company 231,171 Master Retirement Trust TCW Special Credits Fund 669,770 III The Common Fund for Bond 48,733 Investments TCW Special Credits Trust 299,897 -----END PRIVACY-ENHANCED MESSAGE-----