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 the
