Exhibit 4.4
SENIOR SUBORDINATED 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 6% Series A Senior
Subordinated Notes due 2010 (the “ Subordinated 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 Subordinated 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 Subordinated Indenture, dated
November 30, 2004, among the Company, the Guarantors and
Wachovia Bank, National Association, as trustee (the “
Subordinated Trustee
”), relating to the Subordinated A Notes and the Subordinated
B Notes (as defined below) (the “ Subordinated 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
Subordinated Indenture.
Closing Date:
The date hereof.
Commission:
The Securities and Exchange Commission.
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Consummate:
An Exchange Offer shall be deemed “Consummated” for
purposes of this Agreement upon the occurrence of (a) the filing
and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Subordinated 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 Subordinated Trustee under the Subordinated
Indenture of Subordinated B Notes in the same aggregate principal
amount as the aggregate principal amount of Subordinated 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 Subordinated B Notes (which shall be registered pursuant
to the Exchange Offer Registration Statement) equal to the
outstanding principal amount of Subordinated 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.
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Regulation S:
Regulation S promulgated under the Act.
Rule 144:
Rule 144 promulgated under the Act.
Selling Holders:
As defined in Section 6(c)(xi).
Subordinated B
Notes: The Company’s 6% Series B Senior
Subordinated Notes due 2010 to be issued under the Subordinated
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 Subordinated Indenture.
Transfer Restricted
Securities: Each Subordinated A Note, until the
earliest to occur of (a) the date on which such Subordinated A Note
is exchanged in the Exchange Offer for a Subordinated 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 Subordinated A Note has been
disposed of in accordance with a Shelf Registration Statement (and
the purchasers thereof have been issued Subordinated B Notes) or
(c) the date on which such Subordinated A Note is distributed to
the public pursuant to Rule 144 or Regulation S under the Act (and
purchasers thereof have been issued Subordinated B Notes) and each
Subordinated B Note issued to a Broker Dealer until the date on
which such Subordinated 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
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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 ”), (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
Subordinated 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 Subordinated B Notes to be offered in exchange for the
Subordinated A Notes that are Transfer Restricted Securities and
(ii) resales of Subordinated B Notes by Broker-Dealers that
tendered into the Exchange Offer Subordinated A Notes that such
Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than
Subordinated 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 Subordinated 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 Subordinated A
Notes acquired
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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 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
Subordinated 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 Subordinated
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 Subordinated A
Notes acquired directly from the Company or any of its Affiliates,
then the Company and the Guarantors shall:
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(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 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
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Securities
shall be entitled to additional interest pursuant to Section 5
hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to promptly furnish
additional information required to be disclosed in order to make
the information previously furnished to the Company by such Holder
not materially misleading.
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.
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All
accrued additional interest shall be paid to the Holders entitled
thereto in the manner provided for the payment of interest in the
Subordinated Indenture on each Interest Payment Date as more fully
set forth in the Subordinated Indenture and the Notes.
Notwithstanding the fact that any securities for which additional
interest is 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 Subordinated B Notes by Broker-Dealers that tendered in
the Exchange Offer Subordinated 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 Subordinated 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
8
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
participate in, a distribution of the Subordinated B Notes to be
issued in the Exchange Offer and (C) it is acquiring the
Subordinated 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
Subordinated B Notes shall acknowledge and agree that, if the
resales are of Subordinated B Notes obtained by such Holder in
exchange for Subordinated 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 Subordinated 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 Subordinated B Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the
Subordinated 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.
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(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 Subordinated 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 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 Subordinated A Notes covered by any Shelf Registration
Statement contemplated by this Agreement, Subordinated B Notes
having an aggregate principal amount equal to the aggregate
principal amount of Subordinated A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Company for
cancellation; the Company shall register Subordinated B Notes on
the Shelf Registration Statement for this purpose and issue the
Subordinated 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
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financial statements for the period specified
in Section 3 or 4 of this Agreement, as applicable. Upon
the occurrence of any event that would cause any such Registration
Statement or the Prospectus contained therein (A) to contain an
untrue statement of material fact or omit to state any material
fact necessary to make the statements therein not misleading or (B)
not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the
Company and the Guarantors shall file promptly an appropriate
amendment to such Registration Statement curing such defect, and,
if Commission review is required, use their respective 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
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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 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
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