REGISTRATION RIGHTS AGREEMENT

Exhibit 4.7

 

 

REGISTRATION RIGHTS AGREEMENT

 

Dated as of December 23, 2004

 

By and Among

 

GOODMAN GLOBAL HOLDINGS, INC.,

 

the GUARANTORS named herein

 

and

 

UBS SECURITIES LLC,

 

J.P. MORGAN SECURITIES INC.,

 

CREDIT SUISSE FIRST BOSTON LLC,

 

DEUTSCHE BANK SECURITIES INC.

 

and

 

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED

 

as Initial Purchasers

 

$250,000,000 Senior Floating Rate Notes due 2012

 

$400,000,000 7-7/8% Senior Subordinated Notes due 2012

 

TABLE OF CONTENTS

 

 

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REGISTRATION RIGHTS AGREEMENT

 

This Registration Rights Agreement (this “ Agreement ”) is dated as of December 23, 2004, by and among GOODMAN GLOBAL HOLDINGS, INC., a Delaware corporation (the “ Company ”), and each of the Guarantors (as defined herein) (the Company and the Guarantors are referred to collectively herein as the “ Issuers ”), on the one hand, and UBS SECURITIES LLC (the “ Representative ”), J.P. MORGAN SECURITIES INC., CREDIT SUISSE FIRST BOSTON LLC, DEUTSCHE BANK SECURITIES INC. and MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (together with the Representative, the “ Initial Purchasers ”), on the other hand.

 

This Agreement is entered into in connection with the Purchase Agreement, dated as of December 15, 2004, by and among the Issuers and the Initial Purchasers (the “ Purchase Agreement ”), relating to the offering of $250,000,000 aggregate principal amount of Senior Floating Rate Notes due 2012 (the “ Floating Rate Notes ”) and $400,000,000 aggregate principal amount of 7-7/8% Senior Subordinated Notes due 2012 of the Company (the “Fixed Rate Notes” and, together with the Floating Rate Notes, including the guarantees of each such notes by the Guarantors, the “ Notes ”). The execution and delivery of this Agreement is a condition to the Initial Purchasers’ obligation to purchase the Notes under the Purchase Agreement.

 

The parties hereby agree as follows:

 

Section 1. Definitions

 

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

 

“ action ” shall have the meaning set forth in Section 7(c) hereof.

 

“ Additional Interest ” shall have the meaning set forth in Section 4(a) hereof.

 

“ Advice ” shall have the meaning set forth in Section 5 hereof.

 

“ Additional Interest Payment Date ” shall have the meaning set forth in Section 4(b) hereof.

 

“ Agreement ” shall have the meaning set forth in the first introductory paragraph hereto.

 

“ Applicable Period ” shall have the meaning set forth in Section 2(b) hereof.

 

“ Board of Directors ” shall have the meaning set forth in Section 5 hereof.

 

“ Business Day ” shall mean a day that is not a Legal Holiday.

 

“ Company ” shall have the meaning set forth in the introductory paragraph hereto and shall also include the Company’s permitted successors and assigns.

“ Commission ” shall mean the Securities and Exchange Commission.

 

“ day ” shall mean a calendar day.

 

“ Delay Period ” shall have the meaning set forth in Section 5 hereof.

 

“ Effectiveness Period ” shall have the meaning set forth in Section 3(b) hereof.

 

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“ Exchange Notes ” shall have the meaning set forth in Section 2(a) hereof.

 

“ Exchange Offer ” shall have the meaning set forth in Section 2(a) hereof.

 

“ Exchange Offer Registration Statement ” shall have the meaning set forth in Section 2(a) hereof.

 

“ Fixed Rate Indenture ” shall mean the Indenture, dated as of December 23, 2004, by and among the Issuers and Wells Fargo Bank, National Association, as trustee for $400,000,000 7-7/8% Senior Subordinated Notes due 2012, pursuant to which the Fixed Rate Notes are being issued as amended or supplemented from time to time in accordance with the terms thereof.

 

“ Fixed Rate Notes ” shall have the meaning set forth in the second introductory paragraph hereto.

 

“ Floating Rate Indenture ” shall mean the Indenture, dated as of December 23, 2004, by and among the Issuers and Wells Fargo Bank, National Association, as trustee, for $250,000,000 Senior Floating Rate Notes due 2012, pursuant to which the Floating Rate Notes are being issued as amended or supplemented from time to time in accordance with the terms thereof.

 

“ Floating Rate Notes ” shall have the meaning set forth in the second introductory paragraph hereto.

 

“ Guarantors ” means each subsidiary of the Company listed on the signature page to this Agreement and each Person who executes and delivers a counterpart of this Agreement after the date hereof pursuant to Section 10(e) hereof.

 

“ Holder ” shall mean any holder of a Registrable Note or Registrable Notes.

 

“ Indentures ” shall mean collectively the Floating Rate Indenture and the Fixed Rate Indenture.

 

“ Initial Purchasers ” shall have the meaning set forth in the first introductory paragraph hereof.

 

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“ Inspectors ” shall have the meaning set forth in Section 5(l) hereof.

 

“ Issue Date ” shall mean December 23, 2004, the date of original issuance of the Notes.

 

“ Issuers ” shall have the meaning set forth in the first introductory paragraph hereto.

 

“ Legal Holiday ” shall mean a Saturday, a Sunday or a day on which banking institutions in New York, New York are required by law, regulation or executive order to remain closed.

 

“ Losses ” shall have the meaning set forth in Section 7(a) hereof.

 

“ NASD ” shall have the meaning set forth in Section 5(p) hereof.

 

“ Notes ” shall have the meaning set forth in the second introductory paragraph hereto.

 

“ Participant ” shall have the meaning set forth in Section 7(a) hereof.

 

“ Participating Broker-Dealer ” shall have the meaning set forth in Section 2(b) hereof.

 

“ Person ” shall mean an individual, corporation, partnership, joint venture association, joint stock company, trust, unincorporated limited liability company, government or any agency or political subdivision thereof or any other entity.

 

“ Private Exchange ” shall have the meaning set forth in Section 2(b) hereof.

 

“ Private Exchange Notes ” shall have the meaning set forth in Section 2(b) hereof.

 

“ Prospectus ” shall mean the prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, and all other amendments and supplements to the Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

 

“ Purchase Agreement ” shall have the meaning set forth in the second introductory paragraph hereof.

 

“ Records ” shall have the meaning set forth in Section 5(l) hereof.

 

“ Registrable Notes ” shall mean each Note upon its original issuance and at all times subsequent thereto, each Exchange Note as to which Section 2(c)(v) hereof is applicable upon original issuance and at all times subsequent thereto and each Private Exchange Note upon original issuance thereof and at all times subsequent thereto, in each case until (i) a Registration Statement (other than, with respect to any Exchange Note as to which Section 2(c)(v)

 

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hereof is applicable, the Exchange Offer Registration Statement) covering such Note, Exchange Note or Private Exchange Note has been declared effective by the Commission and such Note, Exchange Note or such Private Exchange Note, as the case may be, has been disposed of in accordance with such effective Registration Statement, (ii) such Note has been exchanged pursuant to the Exchange Offer for an Exchange Note or Exchange Notes that may be resold without restriction under state and federal securities laws, (iii) such Note, Exchange Note or Private Exchange Note, as the case may be, ceases to be outstanding for purposes of the Indentures or (iv) such Note, Exchange Note or Private Exchange Note has been sold in compliance with Rule 144 or is salable pursuant to Rule 144(k).

 

“ Registration Default ” shall have the meaning set forth in Section 4(a) hereof.

 

“ Registration Statement ” shall mean any appropriate registration statement of the Issuers covering any of the Registrable Notes filed with the Commission under the Securities Act, and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.

 

“ Representative ” shall have the meaning set forth in the introductory paragraph hereto.

 

“ Requesting Participating Broker-Dealer ” shall have the meaning set forth in Section 2(b) hereof.

 

“ Rule 144 ” shall mean Rule 144 promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule (other than Rule 144A) or regulation hereafter adopted by the Commission providing for offers and sales of securities made in compliance therewith resulting in offers and sales by subsequent holders that are not affiliates of an issuer of such securities being free of the registration and prospectus delivery requirements of the Securities Act.

 

“ Rule 144A ” shall mean Rule 144A promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule (other than Rule 144) or regulation hereafter adopted by the Commission.

 

“ Rule 415 ” shall mean Rule 415 promulgated under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the Commission.

 

“ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.

 

“ Shelf Filing Event ” shall have the meaning set forth in Section 2(c) hereof.

 

“ Shelf Registration ” shall have the meaning set forth in Section 3(a) hereof.

 

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“ TIA ” shall mean the Trust Indenture Act of 1939, as amended.

 

“ Trustee ” shall mean the trustee under the Senior Floating Rate Indenture and the Senior Subordinated Indenture (as applicable) and the trustee (if any) under any indenture governing the Exchange Notes and Private Exchange Notes.

 

“ underwritten registration ” or “ underwritten offering ” shall mean a registration in which securities of the Issuers are sold to an underwriter for reoffering to the public.

 

Section 2. Exchange Offer

 

(a) Unless the Exchange Offer would violate applicable law or interpretation of the staff of the Commission, the Issuers shall (i) file a Registration Statement (the “ Exchange Offer Registration Statement ”) with the Commission on an appropriate registration form with respect to a registered offer (the “ Exchange Offer ”) to exchange any and all of the Registrable Notes for a like aggregate principal amount of notes (including the guarantees with respect thereto, the “ Exchange Notes ”) that are identical in all material respects to the applicable Notes (except that the Exchange Notes shall not contain restrictive legends, terms with respect to transfer restrictions or Additional Interest upon a Registration Default), (ii) use their commercially reasonable efforts to cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 375 days of the Issue Date and (iii) use their commercially reasonable efforts to consummate the Exchange Offer within 30 days after the effectiveness date of such Registration Statement. Upon the Exchange Offer Registration Statement being declared effective by the Commission, the Issuers will offer the Exchange Notes in exchange for surrender of the Notes. The Issuers shall keep the Exchange Offer open for not less than 30 days (or longer if required by applicable law) after the date notice of the Exchange Offer is mailed to Holders.

 

Each Holder that participates in the Exchange Offer will be required to represent to the Issuers in writing that (i) any Exchange Notes to be received by it will be acquired in the ordinary course of its business, (ii) it has no arrangement or understanding with any Person to participate in the distribution (within the meaning of the Securities Act) of the Exchange Notes in violation of the provisions of the Securities Act, (iii) it is not an affiliate of the Issuers as defined by Rule 405 of the Securities Act, (iv) if such Holder is not a broker-dealer, it is not engaged in, and does not intend to engage in, a distribution of Exchange Notes and (v) if such Holder is a broker-dealer that will receive Exchange Notes for its own account in exchange for Notes that were acquired as a result of market-making or other trading activities, it will deliver a prospectus in connection with any resale of such Exchange Notes.

 

(b) The Issuers and the Initial Purchasers acknowledge that the staff of the Commission has taken the position that any broker-dealer that elects to exchange Notes that were acquired by such broker-dealer for its own account as a result of market-making or other trading activities for Exchange Notes in the Exchange Offer (a “ Participating Broker-Dealer ”) may be deemed to be an “underwriter” within the meaning of the Securities Act and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Notes.

 

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The Issuers and the Initial Purchasers also acknowledge that the staff of the Commission has taken the position that if the Prospectus contained in the Exchange Offer Registration Statement includes a plan of distribution containing a statement to the above effect and the means by which Participating Broker-Dealers may resell the Exchange Notes, without naming the Participating Broker-Dealers or specifying the amount of Exchange Notes owned by them, such Prospectus may be delivered by Participating Broker-Dealers to satisfy their prospectus delivery obligations under the Securities Act in connection with resales of Exchange Notes for their own accounts (other than a resale of an unsold allotment resulting from the original offering of the Notes), so long as the Prospectus otherwise meets the requirements of the Securities Act.

 

In light of the foregoing, if requested by a Participating Broker-Dealer (a “ Requesting Participating Broker-Dealer ”), the Issuers agree to use their commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective for a period necessary to comply with applicable law in connection with such resales but in no event more than 180 days after the date on which the Exchange Registration Statement is declared effective, or such longer period if extended pursuant to any Delay Period in accordance with the last paragraph of Section 5 hereof (such period, the “ Applicable Period ”), or such earlier date as each Requesting Participating Broker-Dealer shall have notified the Company in writing that such Requesting Participating Broker-Dealer has resold all Exchange Notes acquired by it in the Exchange Offer. The Issuers shall include a plan of distribution in such Exchange Offer Registration Statement that meets the requirements set forth in the preceding paragraph.

 

If, prior to consummation of the Exchange Offer, any Initial Purchaser holds any Notes acquired by it that have, or that are reasonably likely to be determined to have, the status of an unsold allotment in an initial distribution or if any Holder is prohibited by law or SEC policy from participating in the Exchange Offer, the Issuers upon the request of the Initial Purchasers or any such Holder, as the case may be, shall simultaneously with the delivery of the Exchange Notes in the Exchange Offer, issue and deliver to the Initial Purchasers or any such Holder, as the case may be, in exchange (the “ Private Exchange ”) for such Notes held by such Initial Purchaser or any such Holder a like principal amount of notes (the “ Private Exchange Notes ”) of the Issuers that are identical in all material respects to the Exchange Notes except that the Private Exchange Notes may be subject to restrictions on transfer and bear a legend to such effect. The Private Exchange Notes shall be issued pursuant to the same indenture as the Exchange Notes and bear the same CUSIP number as the Exchange Notes (if permitted by the CUSIP Service Bureau).

 

Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further registration obligations other than the Issuers’ continuing registration obligations pursuant to Section 3 with respect to (i) Private Exchange Notes, (ii) Exchange Notes held by Participating Broker-Dealers and (iii) Notes or Exchange Notes as to which clause (c)(v) of this Section 2 applies.

 

In connection with the Exchange Offer, the Issuers shall:

 

(1) mail or cause to be mailed to each Holder entitled to participate in the Exchange Offer a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

 

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(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York;

 

(3) permit Holders to withdraw tendered Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and

 

(4) otherwise comply in all material respects with all applicable laws, rules and regulations.

 

As soon as practicable after the close of the Exchange Offer and the Private Exchange, if any, the Issuers shall:

 

(1) accept for exchange all Notes validly tendered and not validly withdrawn by the Holders pursuant to the Exchange Offer and the Private Exchange, if any;

 

(2) deliver or cause to be delivered to the Trustee for cancellation all Registrable Notes so accepted for exchange; and

 

(3) cause the Trustee to authenticate and deliver promptly to each such Holder of Notes, Exchange Notes or Private Exchange Notes, as the case may be, equal in principal amount to the Registrable Notes of such Holder so accepted for exchange.

 

The Exchange Offer and the Private Exchange shall only be subject to customary conditions that the Company and the Initial Purchasers deem necessary for the consummation of the Exchange Offer or Private Exchange.

 

The Exchange Notes and the Private Exchange Notes shall be issued under (i) the applicable Indenture or (ii) an indenture identical in all material respects to (a) in the case of the Floating Rate Notes, the Floating Rate Indenture or (b) in the case of the Fixed Rate Notes, the Fixed Rate Indenture (in each case, with such changes as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA) and which, in either case, has been qualified under the TIA and shall provide that (a) the Exchange Notes shall not be subject to the transfer restrictions set forth in the Indentures and (b) the Private Exchange Notes shall be subject to the transfer restrictions set forth in the Indentures. The Indentures or such indentures shall provide that the Exchange Notes, the Private Exchange Notes and the Notes shall vote and consent together on all matters as one class and that none of the Exchange Notes, the Private Exchange Notes or the Notes will have the right to vote or consent as a separate class on any matter.

 

(c) In the event that (i) any changes in law or the applicable interpretations of the staff of the Commission do not permit the Issuers to effect the Exchange Offer, (ii) the Exchange Offer Registration Statement does not become effective within 375 days of the Issue Date, (iii) for any reason the Registered Exchange Offer is not consumated within 30 days of the effectiveness date of the Exchange Offer Registration Statement, (iv) any Holder notifies the Company prior to the 30th day following consummation of the Exchange Offer that it is prohibited by law or the applicable interpretations of the staff of the Commission from participating in the Exchange Offer, (v) in the case of any

 

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Holder who participates in the Exchange Offer, such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under state and federal securities laws (other than due solely to the status of such Holder as an affiliate of any Issuer within the meaning of the Securities Act) or (vi) any Initial Purchaser so requests with respect to Notes or Private Exchange Notes that have, or that are reasonably likely to be determined to have, the status of unsold allotments in an initial distribution (each such event referred to in clauses (i) through (vi) of this sentence, a “ Shelf Filing Event ”), then the Issuers shall file a Shelf Registration pursuant to Section 3 hereof.

 

Section 3. Shelf Registration

 

If at any time a Shelf Filing Event shall occur, then:

 

(a) Shelf Registration . The Issuers shall file with the Commission a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Registrable Notes not exchanged in the Exchange Offer, Private Exchange Notes and Exchange Notes as to which Section 2(c)(v) is applicable (the “ Shelf Registration ”). The Shelf Registration shall be on Form S-1 or another appropriate form permitting registration of such Registrable Notes for resale by Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings). The Issuers shall not permit any securities other than the Registrable Notes to be included in the Shelf Registration.

 

(b) The Issuers shall use their commercially reasonable efforts (x) to cause the Shelf Registration to be declared effective under the Securities Act on or prior to the 180th day after the occurrence of the applicable Shelf Filing Event and (y) to keep the Shelf Registration continuously effective under the Securities Act for the period ending on the date which is two years from the Issue Date, subject to extension pursuant to any Delay Period in accordance with Section 5 hereof (the “ Effectiveness Period ”), or such shorter period ending when all Registrable Notes covered by the Shelf Registration have been sold in the manner set forth and as contemplated in the Shelf Registration; provided , however , that (i) the Effectiveness Period in respect of the Shelf Registration shall be extended to the extent required to permit dealers to comply with the applicable prospectus delivery requirements of Rule 174 under the Securities Act and as otherwise provided herein and (ii) the Company may suspend the effectiveness of the Shelf Registration by written notice to the Holders solely (A) as a result of the filing of a post-effective amendment to the Shelf Registration to incorporate annual audited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared effective to permit Holders to use the related Prospectus or (B) to the extent and for so long as permitted by the penultimate paragraph of Section 5.

 

(c) Supplements and Amendments . The Issuers agree to supplement or make amendments to the Shelf Registration as and when required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration or by the Securities Act or rules and regulations thereunder for shelf registration.

 

Section 4. Additional Interest

 

(a) The Issuers and the Initial Purchasers agree that the Holders will suffer damages if the Issuers fail to fulfill their obligations under Section 2 or Section 3 hereof and that it would

 

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not be feasible to ascertain the extent of such damages with precision. Accordingly, the Issuers agree that if:

 

(i) the Exchange Offer Registration Statement does not become effective on or prior to the 375th day following the Issue Date, or, if that day is not a Business Day, the next day that is a Business Day; or

 

(ii) the Exchange Offer is not consumated on or prior to the 30th day after the effectiveness date of the Exchange Offer Registration Statement; or

 

(iii) the Shelf Registration is required to be filed but is not declared effective within the time period specified in Section 3(b)(x), or is declared effective by such date but thereafter ceases to be effective or usable (unless the Shelf Registration ceases to be effective or usable as specifically permitted by the penultimate paragraph of Section 5 hereof),

 

(each such event referred to in clauses (i), (ii) and (iii) a “ Registration Default ”), additional interest in the form of additional cash interest (“ Additional Interest ”) will accrue on the affected Registrable Notes. The rate of Additional Interest will be 0.25% per annum for the first 90-day period immediately following the occurrence of a Registration Default, increasing by an additional 0.25% per annum with respect to each subsequent 90-day period up to a maximum amount of Additional Interest of 1.00% per annum, from and including the date on which any such Registration Default shall occur to, but excluding, the earliest of (1) the date on which all Registration Defaults have been cured, (2) the date on which such Registrable Note ceases to be a Registrable Note or otherwise become freely transferable by Holders other than affiliates of the Issuers without further registration under the Securities Act or (3) the end of the Effectiveness Period. If, after the cure of all Registration Defaults then in effect, there is a subsequent Registration Default, the rate of Additional Interest for such subsequent Registration Default shall initially be 0.25% regardless of the rate in effect with respect to any prior Registration Default at the time of cure of such Registration Default and shall increase in the manner and be subject to the maximum Additional Interest rate contained in the preceding sentence.

 

Notwithstanding the foregoing, (1) the amount of Additional Interest payable shall not increase because more than one Registration Default has occurred and is pending and (2) a Holder of Registrable Notes that is not entitled to the benefits of the Shelf Registration ( e.g. , such Holder has not elected to include information or has not timely delivered such information to the Issuers pursuant to Section 5) shall not be entitled to Additional Interest with respect to a Registration Default that pertains to the Shelf Registration.

 

(b) So long as Notes remain outstanding, the Company shall notify the Trustee within five Business Days after each and every date on which an event occurs in respect of which Additional Interest is required to be paid. Any amounts of Additional Interest due pursuant to clauses (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable in cash semi-annually on each June 15 and December 15 (each a “ Additional Interest Payment Date ”), commencing with the first such date occurring after any such Additional Interest commences to accrue, to Holders to whom regular interest is payable on such Additional Interest Payment Date with respect to Notes that are Registrable Notes. The amount of Additional Interest for each Registrable Note will be determined by multiplying the applicable rate of Additional Interest by the aggregate principal amount of such Registrable Note

 

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outstanding on the Additional Interest Payment Date following such Registration Default in the case of the first such payment of Additional Interest with respect to a Registration Default (and thereafter at the next succeeding Additional Interest Payment Date until the cure of such Registration Default), and multiplying the product of the foregoing by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months and, in the case of a partial month, the actual number of days elapsed), and the denominator of which is 360.

 

Section 5. Registration Procedures

 

In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof, the Issuers shall effect such registrations to permit the sale of the securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by the Issuers hereunder, the Issuers shall:

 

(a) Prepare and file with the Commission the Registration Statement or Registration Statements prescribed by Section 2 or 3 hereof, and use their commercially reasonable efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided , however , that, if (1) such filing is pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Issuers shall furnish to and afford the Initial Purchasers and their counsel (if requested) and the managing underwriters, if any, a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five Business Days prior to such filing). The Issuers will include comments to any Shelf Registration Statement or Prospectus contained therein and any amendments or supplements thereto from Holders of a majority in aggregate principal amount of the Registrable Notes covered by such Registration Statement, or their counsel, or the managing underwriters, if any, shall reasonably request on a timely basis.

 

(b) Prepare and file with the Commission such amendments and post-effective amendments to each Shelf Registration or Exchange Offer Registration Statement, as the case may be, as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be; cause the related Prospectus to be supplemented by any Prospectus supplement required by applicable law, and as so supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) promulgated under the Securities Act; and comply with the applicable provisions of the Securities Act and the Exchange Act with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented and with respect to the subsequent resale of any securities being sold by a Participating Broker-Dealer covered by any such Prospectus, in each case, in accordance with the intended methods of distribution set forth in such Registration Statement or Prospectus, as so amended or supplemented.

 

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(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof, or (2) a Prospectus contained in the Exchange Offer Registration Statement filed pursuant to Section 2 hereof is required to be delivered under the Securities Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during the Applicable Period relating thereto from whom the Company has received written notice that such Broker-Dealer will be a Participating Broker-Dealer in the applicable Exchange Offer, notify the selling Holders of Registrable Notes, or each such Participating Broker-Dealer, as the case may be, and the managing underwriters, if any, as promptly as possible, and, if requested by any such Person, confirm such notice in writing, (i) when a Prospectus or any Prospectus supplemen