Exhibit 4.3
SENIOR NOTES A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
Dated as of November 30, 2004
by and among
K. Hovnanian Enterprises, Inc.
Hovnanian Enterprises, Inc.
And Certain of its Subsidiaries
and
CREDIT SUISSE FIRST BOSTON LLC
CITIGROUP GLOBAL MARKETS INC.
UBS SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
This Registration Rights Agreement
(this “ Agreement ”) is made and entered into as
of November 30, 2004 by and among K. Hovnanian Enterprises, Inc., a
California corporation (the “ Company ”),
Hovnanian Enterprises, Inc., a Delaware corporation (“
Hovnanian ”), and certain subsidiary guarantors of
Hovnanian party hereto (together with Hovnanian, the “
Guarantors ”) and Credit Suisse First Boston LLC,
Citigroup Global Markets Inc., UBS Securities LLC and Wachovia
Capital Markets, LLC, as Representatives of the several initial
purchasers listed in Schedule B to the Purchase Agreement (as
defined below) (each an “ Initial Purchaser ”
and, collectively, the “ Initial Purchasers ”),
each of whom has agreed to purchase the Company’s 6¼%
Series A Senior Notes due 2015 (the “ Senior A Notes
”) pursuant to the Purchase Agreement.
This Agreement is made pursuant to
the Purchase Agreement, dated November 15, 2004 (the “
Purchase Agreement ”), by and among the Company, the
Guarantors party thereto and the Initial Purchasers. In order
to induce the Initial Purchasers to purchase the Senior A Notes,
the Company has agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this
Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 9 of the Purchase Agreement.
Capitalized terms used herein and not otherwise defined shall have
the meaning assigned to them in the Senior Indenture, dated
November 30, 2004, among the Company, the Guarantors and Wachovia
Bank, National Association, as trustee (the “Senior
Trustee”), relating to the Senior A Notes and the Senior B
Notes (as defined below) (the “ Senior Indenture
”).
The parties hereby agree as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the
following capitalized terms shall have the following
meanings:
Act: The Securities Act of 1933, as
amended.
Affiliate:
As defined in Rule 144 of the
Act.
Broker-Dealer:
Any broker or dealer
registered under the Exchange Act.
Certificated
Securities:
Certificated Notes, as defined in the Senior Indenture.
Closing Date:
The date hereof.
Commission:
The Securities and Exchange
Commission.
Consummate:
An Exchange Offer shall be
deemed “Consummated” for purposes of this Agreement
upon the occurrence of (a) the filing and effectiveness
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under the Act of the Exchange Offer Registration
Statement relating to the Senior B Notes to be issued in the
Exchange Offer, (b) the maintenance of such Exchange Offer
Registration Statement as continuously effective and the keeping of
the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by
the Company to the Senior Trustee under the Senior Indenture of
Senior B Notes in the same aggregate principal amount as the
aggregate principal amount of Senior A Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Consummation Deadline:
As defined in Section 3(b)
hereof.
Effectiveness
Deadline: As
defined in Sections 3(a) or 4(a) hereof, as applicable.
Exchange Act:
The Securities Exchange Act
of 1934, as amended.
Exchange Offer:
The exchange and issuance by
the Company of a principal amount of Senior B Notes (which shall be
registered pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Senior A Notes that
are tendered by Holders in connection with such exchange and
issuance.
Exchange Offer Registration
Statement: The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Filing Deadline:
As defined in Sections 3(a)
or 4(a) hereof, as applicable.
Holders: As defined in Section 2
hereof.
Participating
Broker-Dealer: As
defined in Section 3(c) hereof.
Prospectus:
The prospectus included in a
Registration Statement at the time such Registration Statement is
declared effective, as amended or supplemented by any prospectus
supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by
reference into such Prospectus.
Recommencement Date:
As defined in Section 6(d)
hereof.
Registration Default:
As defined in Section 5
hereof.
Registration
Statement: The
Exchange Offer Registration Statement or the Shelf Registration
Statement, as applicable, and, in each case, including the
Prospectus and exhibits included therein.
Regulation S:
Regulation S promulgated
under the Act.
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Rule 144: Rule 144 promulgated under the
Act.
Selling Holders:
As defined in Section
6(c)(xi).
Senior B Notes:
The Company’s 6¼%
Series B Senior Notes due 2015 to be issued under the Senior
Indenture: (i) in the Exchange Offer or (ii) as contemplated
by Section 4 hereof.
Shelf Registration
Statement: As
defined in Section 4(a) hereof.
Shelf Underwriters:
As defined in Section
6(c)(xi)(A)(1).
Suspension Notice:
As defined in Section 6(d)
hereof.
TIA: The Trust Indenture Act of 1939 (15
U.S.C. Section 77aaa-77bbbb) as in effect on the date of the Senior
Indenture.
Transfer Restricted
Securities: Each
Senior A Note, until the earliest to occur of (a) the date on which
such Senior A Note is exchanged in the Exchange Offer for a Senior
B Note which is entitled to be resold to the public by the Holder
thereof without complying with the prospectus delivery requirements
of the Act, (b) the date on which such Senior A Note has been
disposed of in accordance with a Shelf Registration Statement (and
the purchasers thereof have been issued Senior B Notes) or (c) the
date on which such Senior A Note is distributed to the public
pursuant to Rule 144 or Regulation S under the Act (and purchasers
thereof have been issued Senior B Notes) and each Senior B Note
issued to a Broker Dealer until the date on which such Senior B
Note is disposed of by such Broker-Dealer pursuant to the
“Plan of Distribution” contemplated by the Exchange
Offer Registration Statement (including the delivery of the
Prospectus contained therein).
SECTION 2. HOLDERS
A person is deemed to be a holder of
Transfer Restricted Securities (a “ Holder ”)
whenever such person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE
OFFER
(a)
Unless the Exchange Offer shall not
be permitted by applicable federal law (after the procedures set
forth in Section 6(a)(i) below have been complied with), the
Company and the Guarantors shall (i) cause the Exchange Offer
Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date, but in no event later than 90
days after the Closing Date (such 90th day being the “
Filing Deadline ”), (ii) use their reasonable best
efforts to cause such Exchange Offer Registration Statement to
become effective at the earliest possible time, but in no event
later than 150 days after the Closing Date (such 150th day being
the “ Effectiveness Deadline ”),
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(iii) in connection with the foregoing, (A) file
all pre-effective amendments to such Exchange Offer Registration
Statement as may be necessary in order to cause it to become
effective, (B) file, if applicable, a post-effective amendment to
such Exchange Offer Registration Statement pursuant to Rule 430A
under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Senior B
Notes to be made under the Blue Sky laws of such jurisdictions as
are necessary to permit Consummation of the Exchange Offer,
provided , however , that neither the Company nor any
Guarantor shall be required to register or qualify as a foreign
corporation or other entity, as applicable, where it is not now so
qualified or to take any action that would subject it to the
service of process in suits or to taxation, other than as to
matters and transactions relating to the Registration Statement, in
any jurisdiction where it is not now so subject; (iv) upon the
effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting (i) registration
of the Senior B Notes to be offered in exchange for the Senior A
Notes that are Transfer Restricted Securities and (ii) resales of
Senior B Notes by Broker-Dealers that tendered into the Exchange
Offer Senior A Notes that such Broker-Dealer acquired for its own
account as a result of market making activities or other trading
activities (other than Senior A Notes acquired directly from the
Company, the Guarantors or any of their Affiliates) as contemplated
by Section 3(c) below.
(b)
The Company and the Guarantors shall
use their respective reasonable best efforts to cause the Exchange
Offer Registration Statement to be effective continuously for the
period specified in Section 3(c) below and shall keep the Exchange
Offer open for a period of not less than the minimum period
required under applicable federal and state securities laws to
Consummate the Exchange Offer; provided , however ,
that in no event shall such period be less than 20 Business
Days. The Company and the Guarantors shall cause the Exchange
Offer to comply with all applicable federal and state securities
laws. No securities other than the Senior B Notes and the
guarantees thereof shall be included in the Exchange Offer
Registration Statement. The Company and the Guarantors shall
use their reasonable best efforts to cause the Exchange Offer to be
Consummated on or prior to 30 Business Days after the Exchange
Offer Registration Statement has become effective, but in no event
later than 40 Business Days thereafter (such 40th day being the
“ Consummation Deadline ”).
(c)
The Company shall include a
“Plan of Distribution” section in the Prospectus
contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer
as a result of market-making activities or other trading activities
(other than Senior A Notes acquired directly from the Company, the
Guarantors or any of their Affiliates) (a “ Participating
Broker-Dealer ”) may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer. Such “Plan
of Distribution” section shall also contain all other
information with respect to such sales by such Participating
Broker-Dealers
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that the Commission may require in order to
permit such sales pursuant thereto, but such “Plan of
Distribution” shall not name any such Participating
Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Participating Broker-Dealer, except to
the extent required by the Commission as a result of a change in
policy, rules or regulations after the date of this
Agreement. See the Shearman & Sterling No-Action Letter
(available July 2, 1993).
Because such Participating
Broker-Dealer may be deemed to be an “underwriter”
within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with
its initial sale of any Senior B Notes received by such
Participating Broker-Dealer in the Exchange Offer, the Company and
Guarantors shall permit the use of the Prospectus contained in the
Exchange Offer Registration Statement by such Participating
Broker-Dealer to satisfy such prospectus delivery
requirement. In light of the foregoing, if requested by any
Participating Broker-Dealer and to the extent necessary to ensure
that the prospectus contained in the Exchange Offer Registration
Statement is available for sales of Senior B Notes by
Broker-Dealers, the Company and the Guarantors agree to use their
respective best efforts to keep the Exchange Offer Registration
Statement continuously effective, supplemented, amended and current
as required by and subject to the provisions of Sections 6(a) and
(c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time for a period of 180 days
from the Consummation Deadline or such shorter period as will
terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto. The
Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to such Broker-Dealers promptly
upon request and in no event later than one Business Day after such
request at any time during such period.
SECTION 4. SHELF
REGISTRATION
(a)
Shelf Registration
. If (i) the Exchange Offer is
not permitted by applicable law (after the Company and the
Guarantors have complied with the procedures set forth in Section
6(a)(i) below) or (ii) if any Holder of Transfer Restricted
Securities shall notify the Company within 20 Business Days
following the Consummation Deadline that (A) based on an opinion of
counsel, such Holder was prohibited by law or Commission policy
from participating in the Exchange Offer or (B) such Holder is a
Broker-Dealer and holds Senior A Notes acquired directly from the
Company or any of its Affiliates, then the Company and the
Guarantors shall:
(x) cause to be filed, on or prior
to 30 days after the earlier of (i) the date on which the Company
determines that the Exchange Offer Registration Statement cannot be
filed as a result of clause (a)(i) above and (ii) the date on which
the Company receives the notice specified in
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clause (a)(ii) above, (such earlier
date, the “ Filing Deadline ”), a shelf
registration statement pursuant to Rule 415 under the Act (which
may be an amendment to the Exchange Offer Registration Statement)
(the “ Shelf Registration Statement ”), relating
to all Transfer Restricted Securities, and
(y) shall use their respective
reasonable best efforts to cause such Shelf Registration Statement
to become effective on or prior to 60 days after the Filing
Deadline for the Shelf Registration Statement (such 60th day being
the “ Effectiveness Deadline ”).
If, after the Company has filed an
Exchange Offer Registration Statement that satisfies the
requirements of Section 3(a) above, the Company is required to file
and make effective a Shelf Registration Statement solely because
the Exchange Offer is not permitted under applicable federal law
(i.e., clause (a)(i) above), then the filing of the Exchange Offer
Registration Statement shall be deemed to satisfy the requirements
of clause (x) above; provided that , in such event, the
Company shall remain obligated to meet the Effectiveness Deadline
set forth in clause (y).
To the extent necessary to ensure
that the Shelf Registration Statement is available for sales of
Transfer Restricted Securities by the Holders thereof entitled to
the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the
Company and the Guarantors shall use their respective reasonable
best efforts to keep any Shelf Registration Statement required by
this Section 4(a) continuously effective, supplemented, amended and
current as required by and subject to the provisions of Sections
6(b) and (c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for a period of at least
two years (as extended pursuant to Section 6(d)) following the
Closing Date, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b)
Provision by Holders of Certain
Information in Connection with the Shelf Registration
Statement . No
Holder of Transfer Restricted Securities may include any of its
Transfer Restricted Securities in any Shelf Registration Statement
pursuant to this Agreement unless and until such Holder furnishes
to the Company in writing, within 20 days after receipt of a
request therefor, the information specified in Item 507 or 508 of
Regulation S-K, as applicable, of the Act for use in connection
with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted
Securities shall be entitled to additional interest pursuant to
Section 5 hereof unless and until such Holder shall have provided
all such information. Each selling Holder agrees to promptly
furnish additional information required to be
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disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
SECTION 5. ADDITIONAL
INTEREST
If (i) any Registration Statement
required by this Agreement is not filed with the Commission on or
prior to the applicable Filing Deadline, (ii) any such Registration
Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) the Exchange
Offer has not been Consummated on or prior to the Consummation
Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended purpose
without being succeeded immediately by a post-effective amendment
to such Registration Statement that cures such failure and that is
itself declared effective within 5 days of filing such
post-effective amendment to such Registration Statement (each such
event referred to in clauses (i) through (iv), a “
Registration Default ”), then the Company and the
Guarantors hereby jointly and severally agree to pay to each Holder
of Transfer Restricted Securities affected thereby additional
interest in an amount equal to $.05 per week per $1,000 in
principal amount of Transfer Restricted Securities held by such
Holder for each week or portion thereof that the Registration
Default continues for the first 90-day period immediately following
the occurrence of such Registration Default. The amount of
additional interest shall increase by an additional $.05 per week
per $1,000 in principal amount of Transfer Restricted Securities
with respect to each subsequent 90-day period until all
Registration Defaults have been cured, up to a maximum amount of
additional interest of $.25 per week per $1,000 in principal amount
of Transfer Restricted Securities; provided that the
Company and the Guarantors shall in no event be required to pay
additional interest for more than one Registration Default at any
given time. Notwithstanding anything to the contrary set
forth herein, (1) upon the filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf
Registration Statement), in the case of (i) above, (2) upon the
effectiveness of the Exchange Offer Registration Statement (and/or,
if applicable, the Shelf Registration Statement), in the case of
(ii) above, (3) upon Consummation of the Exchange Offer, in the
case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional
Registration Statement that causes the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv)
above, the additional interest payable with respect to the Transfer
Restricted Securities as a result of such clause (i), (ii), (iii)
or (iv), as applicable, shall cease.
All accrued additional interest
shall be paid to the Holders entitled thereto in the manner
provided for the payment of interest in the Senior Indenture on
each Interest Payment Date as more fully set forth in the Senior
Indenture and the Notes. Notwithstanding the fact that any
securities for which additional interest is
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due cease to be Transfer Restricted Securities,
all obligations of the Company and the Guarantors to pay additional
interest with respect to securities shall survive until such time
as such obligations with respect to such securities shall have been
satisfied in full.
SECTION 6. REGISTRATION
PROCEDURES
(a)
Exchange Offer Registration
Statement . In
connection with the Exchange Offer, the Company and the Guarantors
shall (x) comply with all applicable provisions of Section 6(c)
below, (y) use their respective reasonable best efforts to effect
such exchange and to permit the resale of Senior B Notes by
Broker-Dealers that tendered in the Exchange Offer Senior A Notes
that such Broker-Dealer acquired for its own account as a result of
its market making activities or other trading activities (other
than Senior A Notes acquired directly from the Company, the
Guarantors or any of their Affiliates) being sold in accordance
with the intended method or methods of distribution thereof and (z)
comply with all of the following provisions:
(i) If, following the date
hereof there has been announced a change in Commission policy with
respect to exchange offers such as the Exchange Offer that in the
reasonable opinion of counsel to the Company raises a substantial
question as to whether the Exchange Offer is permitted by
applicable federal law, the Company and the Guarantors hereby agree
to seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for Transfer Restricted Securities. The
Company and the Guarantors hereby agree to pursue the issuance of
such a decision to the Commission staff level. In connection
with the foregoing, the Company and the Guarantors hereby agree to
take all such other actions as may be requested by the Commission
or otherwise required in connection with the issuance of such
decision, including, without limitation, (A) participating in
telephonic conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by
the Commission staff.
(ii) As a condition to its
participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder
who is a Broker-Dealer) shall furnish, upon the request of the
Company, prior to the Consummation of the Exchange Offer, a written
representation to the Company and the Guarantors (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
Affiliate of the Company or the Guarantors, (B) it is not engaged
in, does not intend to engage in, and has no arrangement or
understanding with any person to
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participate in, a distribution of
the Senior B Notes to be issued in the Exchange Offer and (C) it is
acquiring the Senior B Notes in its ordinary course of
business. As a condition to its participation in the Exchange
Offer each Holder using the Exchange Offer to participate in a
distribution of the Senior B Notes shall acknowledge and agree
that, if the resales are of Senior B Notes obtained by such Holder
in exchange for Senior A Notes acquired directly from the Company,
the Guarantors or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement, rely
on the position of the Commission enunciated in the Morgan Stanley
and Company Incorporated (available June 5, 1991) and Exxon Capital
Holdings Corporation No-Action Letters (available May 13, 1988), as
interpreted in the Commission’s letter to Shearman &
Sterling (available July 2, 1993) and similar No-Action Letters
(including, if applicable, any No-Action Letter obtained pursuant
to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness
of the Exchange Offer Registration Statement, the Company and the
Guarantors shall provide a supplemental letter to the Commission
(A) stating that the Company and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available May 13,
1988), Morgan Stanley and Co., Inc. (available June 5, 1991) as
interpreted in the Commission’s letter to Shearman &
Sterling dated July 2, 1993, and, if applicable, any no-action
letter obtained pursuant to clause (i) above, (B) including a
representation that neither the Company nor any Guarantor has
entered into any arrangement or understanding with any Person to
distribute the Senior B Notes to be received in the Exchange Offer
and that, to the best of the Company’s and each
Guarantor’s information and belief, each Holder participating
in the Exchange Offer is acquiring the Senior B Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Senior B
Notes received in the Exchange Offer and (C) any other undertaking
or representation required by the Commission as set forth in any
no-action letter obtained pursuant to clause (i) above, if
applicable.
(iv) If requested by any
Participating Broker-Dealer delivering the Prospectus contained in
the Exchange Offer Registration Statement in connection with its
initial sale of any Senior B Notes received by it in the Exchange
Offer, the Company and the Guarantors shall use their best efforts
to furnish to each such Participating Broker-Dealer (i) an opinion
of counsel of the Company and the Guarantors addressed to
such
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Participating Broker-Dealer covering
the matters set forth in Section 6(c)(xi)(A)(2) herein with such
changes as are customary in connection with an Exchange Offer
Registration Statement and (ii) a comfort letter, addressed to such
Participating Broker-Dealer from the Company’s independent
public accountants, in the customary form, covering the matters set
forth in Section 6(c)(xi)(A)(3) herein, with appropriate date
changes.
(b)
Shelf Registration
Statement . In
connection with the Shelf Registration Statement, the Company and
the Guarantors shall:
(i) comply with all the provisions
of Section 6(c) below and use their respective reasonable best
efforts to effect such registration to permit the sale of the
Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in
the information furnished to the Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company and the Guarantors will
prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof.
(ii) issue, upon the request of any
Holder or purchaser of Senior A Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Senior B
Notes having an aggregate principal amount equal to the aggregate
principal amount of Senior A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for
cancellation; the Company shall register Senior B Notes on the
Shelf Registration Statement for this purpose and issue the Senior
B Notes to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall
designate.
(c)
General Provisions
. In connection with any
Registration Statement and any related Prospectus required by this
Agreement, the Company and the Guarantors shall:
(i) use their respective
reasonable best efforts to keep such Registration Statement
continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable. Upon the occurrence of any event
that would cause any such Registration Statement or the Prospectus
contained therein (A) to contain an untrue statement of material
fact or omit to state any material fact necessary to make the
statements therein not misleading or (B) not to be effective and
usable for resale of Transfer Restricted Securities during the
period required by this Agreement, the Company and
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the Guarantors shall file promptly
an appropriate amendment to such Registration Statement curing such
defect, and, if Commission review is required, use their respective
best efforts to cause such amendment to be declared effective as
soon as practicable.
(ii) prepare and file with the
Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus
supplement, and, as so supplemented, to be filed pursuant to Rule
424 under the Act, and to comply fully with Rules 424, 430A and
462, as applicable, under the Act in a timely manner; and comply
with the provisions of the Act with respect to the disposition of
all securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such
Registration Statement or Prospectus;
(iii) in the case of a Shelf
Registration Statement or if requested by a Participating
Broker-Dealer, advise each Holder promptly and, if requested by
such Holder, confirm such advice in writing, (A) when the
Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any applicable Registration
Statement or any post-effective amendment thereto, when the same
has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities
commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the
initiation of any proceeding for any of the preceding purposes, and
(D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto or
any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement in order to make the statements therein not
misleading, or that requires the making of any additions to or
changes in the Prospectus in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Company
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and the Guarantors shall use their
respective reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest possible time;
(iv) subject to Section
6(c)(i), if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or
post-effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered
to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading;
(v) in the case of a Shelf
Registration Statement, furnish to each Holder, before filing with
the Commission, copies of any Shelf Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Shelf Registration Statement or Prospectus (including all
documents incorporated by reference after the
