Exhibit 4.2


 


EXECUTION COPY


 


REGISTRATION
RIGHTS AGREEMENT


 


This
REGISTRATION RIGHTS AGREEMENT dated December 19, 2005 (this “Agreement”)
is entered into by and among Kimball Hill, Inc., an Illinois corporation
(the “Company”), the guarantors listed in Schedule I hereto and J.P.
Morgan Securities Inc. (“JPMorgan”) and the several initial purchasers listed
in Schedule A hereto (the “Initial Purchasers”).


 


The Company,
the Guarantors and the Initial Purchasers are parties to the Purchase Agreement
dated December 14, 2005 (the “Purchase Agreement”), which provides for the
sale by the Company to the Initial Purchasers of $203,000,000 aggregate
principal amount of the Company’s 101⁄2% Senior Subordinated Notes due 2012 (the “Securities”)
which will be guaranteed on an unsecured senior subordinated basis by each of
the Guarantors. As an inducement to the Initial Purchasers to enter into the
Purchase Agreement, the Company and the Guarantors have agreed to provide to
the Initial Purchasers and their direct and indirect transferees the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the closing under the Purchase Agreement.


 


In
consideration of the foregoing, the parties hereto agree as follows:


 


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


 


“Business Day” shall mean any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed.


 


“Closing Date”
shall mean the Closing Date as defined in the Purchase Agreement.


 


“Company”
shall have the meaning set forth in the preamble and shall also include the Company’s
successors.


 


“Exchange Act”
shall mean the Securities Exchange Act of 1934, as amended from time to time.


 


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


 


“Exchange
Offer” shall mean the exchange offer by the Company and the Guarantors of Exchange
Securities for Registrable Securities pursuant to Section 2(a) hereof.


 


“Exchange
Offer Registration” shall mean a registration under the Securities Act effected
pursuant to Section 2(a) hereof.


 


“Exchange
Offer Registration Statement” shall mean a registration statement on Form S-4
(or, if applicable, on another appropriate form) relating to an offering of
Exchange Securities pursuant to an Exchange Offer) and all amendments and
supplements to such registration statement, in each case including the
Prospectus contained therein, all exhibits thereto and any document
incorporated by reference therein.


 


“Exchange
Securities” shall mean senior subordinated notes issued by the Company and
guaranteed by the Guarantors under the Indenture containing terms identical in
all material respects to the Securities (except that the Exchange Securities
will not be subject to restrictions on transfer or contain terms


 

















 


with respect
to the payment of liquidated damages) and to be offered to Holders of Securities
in exchange for Securities pursuant to the Exchange Offer.


 


“Guarantors”
shall have the meaning set forth in the preamble and shall also include any
Guarantor’s successors.


 


“Holders”
shall mean the Initial Purchasers, for so long as they own any Registrable
Securities, and each of their successors, assigns and direct and indirect
transferees who become owners of Registrable Securities under the Indenture; provided
that for purposes of Sections 4 and 5 of this Agreement, the term “Holders”
shall include Participating Broker-Dealers.


 


“Indemnified
Person” shall have the meaning set forth in Section 5(c) hereof.


 


“Indemnifying
Person” shall have the meaning set forth in Section 5(c) hereof.


 


“Indenture”
shall mean the Indenture relating to the Securities and the Exchange Securities
dated as of December 19, 2005 among the Company, the Guarantors and U.S.
Bank National Association, as trustee, and as the same may be amended from
time to time in accordance with the terms thereof.


 


“Initial
Purchasers” shall have the meaning set forth in the preamble.


 


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


 


“JPMorgan”
shall have the meaning set forth in the preamble.


 


“Liquidated
Damages” shall have the meaning set forth in Section 2(d) hereof.


 


“Majority
Holders” shall mean the Holders of a majority of the aggregate principal amount
of the outstanding Registrable Securities; provided that whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, any Registrable Securities owned directly or
indirectly by the Company or any of its affiliates shall not be considered
outstanding and shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage or amount; and provided,
further, that if the Company shall issue any additional Securities under
the Indenture prior to consummation of the Exchange Offer or, if applicable,
the effectiveness of any Shelf Registration Statement, such additional
Securities and the Registrable Securities to which this Agreement relates shall
be treated together as one class for purposes of determining whether the
consent or approval of Holders of a specified percentage of Registrable
Securities has been obtained.


 


“Participating
Broker-Dealers” shall have the meaning set forth in Section 4(a) hereof.


 


“Person” shall
mean an individual, partnership, limited liability company, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.


 


“Prospectus”
shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement or “free-writing prospectus” (as defined in Rule 405
under the Securities Act), including a prospectus supplement or free-writing
prospectus with respect to the terms of the offering of any portion of the
Registrable Securities covered by a Shelf Registration Statement, and by all
other amendments and supplements to such prospectus, and in each case including
any document incorporated by reference therein.


 


“Purchase
Agreement” shall have the meaning set forth in the preamble.


 


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“Registrable
Securities” shall mean the Securities; provided that the Securities
shall cease to be Registrable Securities (i) when a Registration Statement
with respect to such Securities has been declared effective under the
Securities Act and such Securities have been exchanged or disposed of pursuant
to such Registration Statement, (ii) when such Securities are eligible to
be sold pursuant to Rule 144(k) (or any similar provision then in force,
but not Rule 144A) under the Securities Act or (iii) when such Securities
cease to be outstanding.


 


“Registration
Default” shall have the meaning set forth in Section 2(d) hereof.


 


“Registration
Expenses” shall mean any and all expenses incident to performance of or compliance
by the Company and the Guarantors with this Agreement, including without
limitation: (i) all SEC, stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees, (ii) all fees
and expenses incurred in connection with compliance with state securities or
blue sky laws (including reasonable fees and disbursements of counsel for any
Underwriters or Holders in connection with blue sky qualification of any
Exchange Securities or Registrable Securities), (iii) all expenses of any
Persons in preparing or assisting in printing and distributing any Registration
Statement, any Prospectus and any amendments or supplements thereto, any
underwriting agreements, securities sales agreements or other similar
agreements and any other documents relating to the performance of and
compliance with this Agreement, (iv) all rating agency fees, (v) all
fees and disbursements relating to the qualification of the Indenture under
applicable securities laws, (vi) the fees and disbursements of the Trustee
and its counsel, (vii) the fees and disbursements of counsel for the
Company and the Guarantors and, in the case of a Shelf Registration Statement,
the reasonable fees and disbursements of one counsel for the Holders (which
counsel shall be selected by the Majority Holders and which counsel may also
be counsel for the Initial Purchasers) and (viii) the fees and disbursements
of the independent public accountants of the Company and the Guarantors,
including the expenses of any special audits or “comfort” letters required by
this Agreement, but excluding fees and expenses of counsel to the Underwriters
(other than fees and expenses set forth in clause (ii) above) or the
Holders and underwriting discounts and commissions, brokerage commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Securities by a Holder.


 


“Registration
Statement” shall mean any registration statement of the Company and the
Guarantors that covers any of the Exchange Securities or Registrable Securities
pursuant to the provisions of this Agreement and all amendments and supplements
to any such registration statement, including post-effective amendments, in
each case including the Prospectus contained therein, all exhibits thereto and
any document incorporated by reference therein.


 


“SEC” shall
mean the United States Securities and Exchange Commission.


 


“Securities” shall
have the meaning set forth in the Preamble.


 


“Securities
Act” shall mean the Securities Act of 1933, as amended from time to time.


 


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


 


“Shelf
Registration” shall mean a registration effected pursuant to Section 2(b) hereof.


 


“Shelf
Registration Default” shall have the meaning set forth in Section 2(d) hereof.


 


“Shelf
Registration Statement” shall mean a “shelf” registration statement of the
Company and the Guarantors that covers all or a portion of the Registrable
Securities (but no other securities (other than debt securities similar to the
Securities) unless approved by the Holders of a majority of the aggregate


 


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principal
amount of Registrable Securities that are to be covered by such Shelf
Registration Statement) on an appropriate form under Rule 415 under
the Securities Act, or any similar rule that may be adopted by the
SEC, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and any document incorporated by reference
therein.


 


“Staff” shall
mean the staff of the SEC.


 


“Target
Registration Date” shall have the meaning set forth in Section 2(d)(i) hereof.


 


“Trust
Indenture Act” shall mean the Trust Indenture Act of 1939, as amended from time
to time.


 


“Trustee”
shall mean the trustee with respect to the Securities under the Indenture.


 


“Underwriter”
shall have the meaning set forth in Section 3(e) hereof.


 


“Underwritten
Offering” shall mean an offering in which Registrable Securities are sold to an
Underwriter for reoffering to the public.


 


2.                                       Registration
Under the Securities Act.


 


(a)                                  To
the extent not prohibited by any applicable law or applicable interpretations
of the Staff, the Company and the Guarantors shall (i) cause to be filed
an Exchange Offer Registration Statement covering an offer to the Holders to
exchange all the Registrable Securities for like principal amount of Exchange
Securities and (ii) use their reasonable best efforts to have such
Registration Statement declared effective and upon written request from any
participating Broker-Dealer remain effective until the earlier of (A) such
time as the Registrable Securities have been disposed of by such Participating
Broker-Dealer or (B) 90 days after the closing of the Exchange Offer. The
Company and the Guarantors shall commence the Exchange Offer promptly after the
Exchange Offer Registration Statement is declared effective by the SEC and use
their commercially reasonable efforts to complete the Exchange Offer not later
than 60 days after such effective date.


 


The Company
and the Guarantors shall commence the Exchange Offer by mailing the related
Prospectus, appropriate letters of transmittal and other accompanying documents
to each Holder stating, in addition to such other disclosures as are required
by applicable law, substantially the following:


 


(i)                  that the Exchange Offer is being made
pursuant to this Agreement and that all Registrable Securities validly tendered and not properly withdrawn
will be accepted for exchange;


 


(ii)               the dates of acceptance for exchange
(which shall be a period of at least 20 Business Days from the date such notice
is mailed) (the “Exchange Dates”);


 


(iii)            that any Registrable Security not tendered
will remain outstanding and continue to accrue interest but will not retain any
rights under this Agreement;


 


(iv)           that any Holder electing to have a Registrable
Security exchanged pursuant to the Exchange Offer will be required to surrender
such Registrable Security, together with the appropriate letters of
transmittal, to the institution and at the address (located in the Borough of
Manhattan, The City of New York) and in the manner specified in the notice,
prior to the close of business on the last Exchange Date; and


 


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(v)              that any Holder will be entitled to
withdraw its election, not later than the close of business on the last
Exchange Date, by sending to the institution and at the address (located in the
Borough of Manhattan, The City of New York) specified in the notice, a
telegram, telex, facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities delivered for
exchange and a statement that such Holder is withdrawing its election to have
such Securities exchanged.


 


As a condition
to participating in the Exchange Offer, a Holder will be required to represent
to the Company and the Guarantors that (i) any Exchange Securities to be
received by it will be acquired in the ordinary course of its business, (ii) at
the time of the commencement of the Exchange Offer it has no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Securities in violation of the
provisions of the Securities Act, (iii) it is not an “affiliate” (within
the meaning of Rule 405 under the Securities Act) of the Company or any
Guarantor and (iv) if such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Registrable Securities
that were acquired as a result of market-making or other trading activities, then
such Holder will deliver a Prospectus in connection with any resale of such
Exchange Securities.


 


As soon as
practicable after the last Exchange Date, the Company and the Guarantors shall:


 


(i)                  accept for exchange Registrable
Securities or portions thereof validly tendered and not properly withdrawn
pursuant to the Exchange Offer; and


 


(ii)               deliver, or cause to be delivered, to
the Trustee for cancellation all Registrable Securities or portions thereof so
accepted for exchange by the Company and issue, and cause the Trustee to
promptly authenticate and deliver to each Holder, Exchange Securities equal in
aggregate principal amount to the aggregate principal amount of the Registrable
Securities surrendered by such Holder.


 


The Company
and the Guarantors shall use their commercially reasonable efforts to complete
the Exchange Offer as provided above and shall comply with the applicable
requirements of the Securities Act, the Exchange Act and other applicable laws
and regulations in connection with the Exchange Offer. The Exchange Offer shall
not be subject to any conditions, other than that the Exchange Offer does not
violate any applicable law or applicable interpretation of the Staff.


 


If, during the
period the Exchange Offer Registration Statement is effective, an event occurs
which makes any statement made in such Exchange Offer Registration Statement or
the related Prospectus untrue in any material respect or which requires the
making of any changes in such Exchange Offer Registration Statement in order to
make the statements therein not misleading or in such Prospectus in order to
make the statements therein,  in the
light of the circumstances under which they were made, not misleading, the
Company and the Guarantors shall use their commercially reasonable efforts to
prepare and file with the SEC a supplement or post-effective amendment to the
Exchange Offer Registration Statement or the related Prospectus or any document
incorporated therein by reference or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities, such
Prospectus will not contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The Company
agrees to notify the Holders to suspend the exchange of the Registrable
Securities as promptly as practicable after the occurrence of such an event,
and the Holders hereby agree to suspend such exchange until the Company and the
Guarantors have amended or supplemented the Prospectus to correct such misstatement
or omission.


 


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(b)                                 In
the event that (i) the Company and the Guarantors determine that the
Exchange Offer Registration provided for in Section 2(a) above is not
available or may not be completed as soon as practicable after the last
Exchange Date because it would violate any applicable law or applicable
interpretation of the Staff, (ii) the Exchange Offer is not for any other
reason completed on or prior to the 20th Business Day following the Target
Registration Date or (iii) the Exchange Offer has been completed and,
based upon the reasonable advice of counsel for the Initial Purchasers, a
Registration Statement must be filed and a Prospectus must be delivered by the
Initial Purchasers in connection with any offer or sale of Registrable
Securities originally purchased and still held by the Initial Purchasers, the
Company and the Guarantors shall cause to be filed as soon as practicable after
such determination, date or request, as the case may be, a Shelf Registration
Statement providing for the sale of all the Registrable Securities by the
Holders thereof and use their reasonable best efforts to have such Shelf
Registration Statement declared effective by the SEC. To the extent a Shelf
Registration Statement is required to be filed pursuant to clause (ii) and
the Exchange Offer is completed on a date which is later than 300 days after
the Closing Date, upon the completion of the Exchange Offer, the Company and
the Guarantors will no longer be required to make effective or continue the
effectiveness of the Shelf Registration Statement except as may be
required pursuant to clause (i) or (iii).


 


In the event
that the Company and the Guarantors are required to file a Shelf Registration
Statement pursuant to clause (iii) of the preceding sentence, the Company
and the Guarantors shall file and use their reasonable best efforts to have
declared effective by the SEC both an Exchange Offer Registration Statement
pursuant to Section 2(a) with respect to all Registrable Securities
and a Shelf Registration Statement (which may be a combined Registration
Statement with the Exchange Offer Registration Statement) with respect to
offers and sales of Registrable Securities held by the Initial Purchasers after
completion of the Exchange Offer.


 


The Company
and the Guarantors agree to use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective until the expiration of the
period referred to in Rule 144(k) (or any similar rule then in force,
but not Rule 144A) under the Securities Act with respect to the
Registrable Securities or such shorter period that will terminate when all the
Registrable Securities covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or are no longer outstanding
(the “Shelf Effectiveness Period”). The Company and the Guarantors further
agree to supplement or amend the Shelf Registration Statement and the related
Prospectus if required by the rules, regulations or instructions applicable to
the registration form used by the Company for such Shelf Registration
Statement or by the Securities Act or by any other rules and regulations
thereunder for shelf registration or if reasonably and timely requested by a
Holder to correct information relating to such Holder (provided the
Majority Holders do not object to such amendment and resulting limitation of
use of the Shelf Registration Statement), and to use their reasonable best
efforts to cause any such amendment to become effective and such Shelf
Registration Statement and Prospectus to become usable as soon as thereafter
practicable; provided, that in the case of amendments (but not supplements) to
the Shelf Registration Statement and the related Prospectus, the Company and
the Guarantors shall not be required to amend the Shelf Registration Statement
and the related Prospectus to add additional Holders more than three times per calendar
quarter. The Company and the Guarantors agree to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment promptly
after its being used or filed with the SEC.


 


(c)                                  The
Company and the Guarantors shall pay all Registration Expenses in connection
with any registration pursuant to Section 2(a) or Section 2(b) hereof.
Each Holder shall pay all underwriting discounts and commissions, brokerage
commissions and transfer taxes, if any, relating to the sale or disposition of
such Holder’s Registrable Securities pursuant to the Shelf Registration
Statement.


 


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(d)                                 An
Exchange Offer Registration Statement pursuant to Section 2(a) hereof
or a Shelf Registration Statement pursuant to Section 2(b) hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC.


 


The Company,
each Guarantor and the Initial Purchasers agree that the Holders will suffer
damages if the Company or the Guarantors fail to fulfill their respective
obligations under Section 2(a) or Section 2(b) hereof and
that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Company and each Guarantor agree that in the event
that:


 


(i)                  either the Exchange Offer
Registration Statement or the Shelf Registration Statement, if required hereby,
is not declared effective on or prior to the 270th day after the Closing Date
(the “Target Registration Date”) or the Exchange Offer is not completed (if no
Shelf Registration Statement has been declared effective) within 20 Business
Days of the Target Registration Date (each such event, a “Registration Default”);
or


 


(ii)               the Shelf Registration Statement, if
required hereby, has been declared effective and thereafter either ceases to be
effective or the Prospectus contained therein ceases to be usable at any time
during the Shelf Effectiveness Period, and such failure to remain effective or
usable continues for more than 60 days (whether or not consecutive) in any
12-month period (a “Shelf Registration Default”);


 


then the
Company and the Guarantors hereby agree to pay each Holder of Registrable
Securities affected thereby, liquidated damages (“Liquidated Damages”). Liquidated
Damages will accrue on the affected Registrable Securities and the affected
Exchange Securities, as applicable. The rate of Liquidated Damages will be
0.25% per annum of the principal amount of
Registrable Securities held by such Holder for the first 90-day period
immediately following the occurrence of a Registration Default or Shelf
Registration Default, as applicable, increasing by 0.25% per annum with respect to each subsequent 90-day period, up to a
maximum of 1.00% per annum, in each case
until (x) with respect to a Registration Default, the Exchange Offer is
completed or the Shelf Registration Statement, if required hereby, is declared
effective by the SEC or the Securities become freely tradeable under the
Securities Act (which shall include, without limitation, an effective Shelf Registration
Statement relating to the Securities) or (y) with respect to a Shelf
Registration Default, the Shelf Registration Statement has again been declared
effective or the Prospectus again becomes usable.


 


Notwithstanding
the foregoing, (1) the amount of Liquidated Damages payable shall not
increase because more than one Registration Default has occurred and is pending
and (2) a Holder of Registrable Securities or Exchange Securities who is
not entitled to the benefits of the Shelf Registration Statement (i.e.,
such Holder has not elected to furnish information to the Company in accordance
with Section 3(b) hereof) shall not be entitled to Liquidated Damages
with respect to a Shelf Registration Default.


 


Anything
herein to the contrary notwithstanding, no Holder who (x) was eligible to
exchange such Holder’s outstanding Securities at the time that the Exchange
Offer was pending and consummated and (y) failed to validly tender such
Securities for exchange pursuant to the Exchange Offer shall be entitled to
receive any Liquidated Damages that would otherwise accrue subsequent to the
date the Exchange Offer is consummated pursuant to this Section 2(d).


 


(e)                                  The
Company shall notify the Trustee within five Business Days after each date on
which an event occurs in respect of which Liquidated Damages are required to be
paid. Any amounts of Liquidated Damages due pursuant to this Section 2
will be payable in addition to any other interest payable from time to time
with respect to the Registrable Securities in cash semi-annually on the
interest payment dates specified in the Indenture (to the holders of record as
specified in the Indenture), commencing with


 


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the first such interest payment
date occurring after any such Liquidated Damages commence to accrue. The amount
of Liquidated Damages will be determined in a manner consistent with the
calculation of interest under the Indenture.


 


(f)                                    Without
limiting the remedies available to the Initial Purchasers and the Holders, the
Company and the Guarantors acknowledge that any failure by the Company or the
Guarantors to comply with their obligations under Section 2(a) and Section 2(b) hereof
may result in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it will not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company’s and the
Guarantors’ obligations under Section 2(a) and Section 2(b) hereof.


 


3.                                       Registration
Procedures.


 


(a)                                  In
connection with their obligations pursuant to Section 2(a) and Section 2(b) hereof,
the Company and the Guarantors shall:


 


(i)                  prepare and file with the SEC a
Registration Statement on the appropriate form under the Securities Act,
which form (x) shall be selected by the Company and the Guarantors, (y)
shall, in the case of a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and (z) shall comply as
to form in all material respects with the requirements of the applicable form and
include all financial statements required by the SEC to be filed therewith; and
use their commercially reasonable efforts to cause such Registration Statement
to become effective and remain effective for the applicable period in
accordance with Section 2 hereof;


 


(ii)               subject to section 3(a)(ix),
prepare and file with the SEC such amendments and post-effective amendments to
each Registration Statement as may be necessary to keep such Registration
Statement effective for the applicable period in accordance with Section 2
hereof and cause each Prospectus to be supplemented by any required prospectus
supplement and, as so supplemented, to be filed pursuant to Rule 424 under
the Securities Act; and keep each Prospectus current during the period
described in Section 4(3) of and Rule 174 under the Securities
Act that is applicable to transactions by brokers or dealers with respect to
the Registrable Securities or Exchange Securities;


 


(iii)            in the case of a Shelf Registration,
furnish to each Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for such Holders (if any had been identified by written
notice to the Company) and to each Underwriter of an Underwritten Offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or supplement
thereto, as such Holder or Underwriter may reasonably request, in order to
facilitate the sale or other disposition of the Registrable Securities
thereunder; and, subject to Section 3(a)(ix), the Company and the
Guarantors consent to the use of such Prospectus and any amendment or
supplement thereto in accordance with applicable law and this Agreement by each
of the selling Holders of Registrable Securities and any such Underwriters in
connection with the offering and sale of the Registrable Securities covered by
and in the manner described in such Prospectus or any amendment or supplement
thereto in accordance with applicable law and this Agreement;


 


(iv)           use their commercially reasonable efforts to
register or qualify the Registrable Securities under all applicable state
securities or blue sky laws of such jurisdictions as any Holder of Registrable
Securities covered by a Registration Statement shall reasonably request in
writing


 


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by the time the applicable Registration Statement is declared effective
by the SEC; cooperate with such Holders in connection with any filings required
to be made with the National Association of Securities Dealers, Inc.; and
do any and all other acts and things that may be reasonably necessary or
advisable to enable each Holder to complete the disposition in each such
jurisdiction of the Registrable Securities owned by such Holder; provided
that neither the Company nor any Guarantor shall be required to (1) qualify
as a foreign corporation or other entity or as a dealer in securities in any
such jurisdiction where it would not otherwise be required to so qualify, (2) file
any general consent to service of process in any such jurisdiction or (3) subject
itself to taxation in any such jurisdiction if it is not so subject;


 


(v)              in the case of a Shelf Registration,
notify each Holder of Registrable Securities, counsel for such Holders and
counsel for the Initial Purchasers promptly and, if requested by any such
Holder or counsel, confirm such advice in writing (1) when a Registration
Statement has become effective and when any post-effective amendment thereto
has been filed and becomes effective, (2) of any request by the SEC or any
state securities authority for amendments and supplements to a Registration
Statement and Prospectus or for additional information after the Registration
Statement has become effective, (3) of the issuance by the SEC or any
state securities authority of any stop order suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (4) if,
between the effective date of a Registration Statement and the closing of any
sale of Registrable Securities covered thereby, the representations and
warranties of the Company or any Guarantor contained in any underwriting
agreement, securities sales agreement or other similar agreement, if any,
relating to an offering of such Registrable Securities cease to be true and
correct in all material respects or if the Company or any Guarantor receives
any notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose, (5) of the happening of any event during the
period a Shelf Registration Statement is effective that makes any statement
made in such Registration Statement or the related Prospectus untrue in any
material respect or that requires the making of any changes in such
Registration Statement in order to make the statements therein not misleading
or in such Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading and (6) of
any determination by the Company or any Guarantor that a post-effective
amendment to a Registration Statement would be appropriate;


 


(vi)           use their reasonable best efforts to obtain
the withdrawal of any order suspending the effectiveness of a Registration
Statement as soon as practicable and promptly provide notice to each Holder of
the withdrawal of any such order;


 


(vii)        in the case of a Shelf Registration, if a Shelf
Registration is required, furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (without any documents incorporated therein by
reference or exhibits thereto, unless requested);


 


(viii)     in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold and not bearing any restrictive legends and enable such Registrable
Securities to be issued in such denominations and registered in such names
(consistent with the provisions of the Indenture) as such selling Holders may reasonably
request at least one Business Day prior to the closing of any sale of
Registrable Securities;


 


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(ix)             in the case of a Shelf Registration, upon
the occurrence of any event contemplated by Section 3(a)(v)(5) hereof,
use their commercially reasonable efforts to prepare and file with the SEC a
supplement or post-effective amendment to such Shelf Registration Statement or
the related Prospectus or any document incorporated therein by reference or
file any other required document so that, as thereafter delivered to purchasers
of the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; and the Company and the Guarantors shall notify the
Holders of Registrable Securities to suspend use of the Prospectus as promptly
as practicable after the occurrence of such an event, and such Holders hereby
agree to suspend use of the Prospectus until the Company and the Guarantors
have amended or supplemented the Prospectus to correct such misstatement or
omission or until the Company notifies the Holders that the sale of the
Registrable Securities may be resumed. Notwithstanding the foregoing (and
anything else to the contrary in this Agreement), the Company and the
Guarantors may suspend the use of the Shelf Registration Statement if the
board of directors of the Company determines in good faith that it is in the
best interests of the Company not to disclose the existence of facts
surrounding any proposed or pending material corporate transaction involving
the Company or the Guarantors, and the Company notifies the Holders of
Registrable Securities promptly after the board of directors makes such
determination; provided, however, that the period referred to in Section 2
during which the Company and the Guarantors agree to use their commercially
reasonable efforts to keep such Shelf Registration Statement effective shall be
extended by the number of days during which the use of such Shelf Registration
Statement was suspended pursuant to the foregoing provision; provided, however,
that the Company and the Guarantors may give any such notice only twice
during any 365-day period and any such suspensions shall not exceed 45 days for
each suspension and 75 days in the aggregate and there shall not be more
than two suspensions in effect during any 365-day period;


 


(x)                a reasonable time prior to the filing
of any Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or of any document that is
to be incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers and their counsel (and, in the case of a
Shelf Registration Statement, to the Holders of Registrable Securities and
their counsel) and make such of the representatives of the Company and the
Guarantors as shall be reasonably requested by the Initial Purchasers or their
counsel (and, in the case of a Shelf Registration Statement, the Holders of
Registrable Securities or their counsel) available for discussion of such
document; and the Company and the Guarantors shall not, at any time after
initial filing of a Registration Statement, file any Prospectus, any amendment
of or supplement to a Registration Statement or a Prospectus, or any document
that is to be incorporated by reference into a Registration Statement or a
Prospectus, of which the Initial Purchasers and their counsel (and, in the case
of a Shelf Registration Statement, the Holders of Registrable Securities and
their counsel) shall not have previously been advised and furnished a copy or
to which the Initial Purchasers or their counsel (and, in the case of a Shelf
Registration Statement, the Holders or their counsel) shall reasonably object
within five days of receipt;


 


(xi)             obtain a CUSIP number for all Exchange
Securities or Registrable Securities, as the case may be, not later than
the effective date of a Registration Statement;


 


(xii)          cause the Indenture to be qualified under the
Trust Indenture Act in connection with the registration of the Exchange
Securities or Registrable Securities, as the case may be; cooperate with
the Trustee and the Holders to effect such changes to the Indenture as may be
required


 


10

















 


for the Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and execute, and use their commercially reasonable
efforts to cause the Trustee to execute, all documents as may be required
to effect such changes and all other forms and documents required to be filed
with the SEC to enable the Indenture to be so qualified in a timely manner;


 


(xiii)                 in the case of a
Shelf Registration (including an Underwritten Offering thereunder), make
available for inspection by a representative of the Holders of a majority in
principal amount of the Registrable Securities (an “Inspector”), which
Inspector shall be reasonably acceptable to the Company and Guarantors, any
Underwriter participating in any disposition pursuant to such Shelf
Registration Statement, any attorneys and accountants designated by the Holders
of a majority in principal amount of Registrable Securities and any attorneys
and accountants designated by such Underwriter, at reasonable times and in a reasonable
manner, all pertinent financial and other records, documents and properties of
the Company and the Guarantors, and cause the respective officers, directors
and employees of the Company and the Guarantors to supply all information
reasonably requested by any such Inspector, Underwriter, attorney or accountant
in connection with a Shelf Registration Statement, in each case that would
customarily be reviewed or examined in connection with “due diligence” review
of the Company and the Guarantors; provided that the foregoing inspection and information
gathering (1) shall be coordinated on behalf of the selling Holders,
Underwriters and representatives thereof by one counsel, who shall be such
counsel as may be chosen by the Majority Holders or by the Underwriters,
as the case may be, and (2) if any such information is identified by
the Company or any Guarantor as being confidential or proprietary, shall not be
available for any such Holder or Underwriter who does not agree in writing
pursuant to a customary non-disclosure agreement to hold such information in
confidence;


 


(xiv)                [reserved];


 


(xv)                   if reasonably
requested by any Holder of Registrable Securities covered by a Shelf
Registration Statement, promptly include in a Prospectus supplement or post-effective
amendment such information with respect to such Holder as such Holder
reasonably requests to be included therein and make all required filings of
such Prospectus supplement or such post-effective amendment as soon as the
Company has received notification of the matters to be so included in such
filing; provided, that in the case of amendments (but not supplements) to the
Shelf Registration Statement and the related Prospectus, the Company and the
Guarantors shall not be required to amend the Shelf Registration Statement and
the related Prospectus to add additional Holders more than three times per
calendar quarter; and


 


(xvi)                in the case of a
Shelf Registration, enter into such customary agreements and take all such
other reasonable actions in connection therewith (including those requested by
the Holders of a majority in principal amount of the Registrable Securities
being sold) in order to expedite or facilitate the disposition of such
Registrable Securities including, but not limited to, if requested by the
Holders of a majority in principal amount of the Securities covered by a Shelf
Registration Statement, an Underwritten Offering and in such connection, (1) to
the extent possible, make such representations and warranties to the Holders
and any Underwriters of such Registrable Securities with respect to the
business of the Company and its subsidiaries and the Registration Statement,
Prospectus and documents incorporated by reference or deemed incorporated by
reference, if any, in each case, in form, substance and scope as are
customarily made by issuers to underwriters in underwritten offerings, (2) obtain
opinions of counsel to the Company and the Guarantors (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the
Holders and such Underwriters and their respective counsel) addressed to each


 


11

















 


selling Holder and Underwriter of Registrable
Securities, covering the matters customarily covered in opinions requested in
underwritten offerings of the type contemplated by this provision, (3) obtain
“comfort” letters from the independent certified public accountants of the
Company and the Guarantors (and, if necessary, any other certified public
accountant of any subsidiary of the Company or any Guarantor, or of any
business acquired by the Company or any Guarantor for which financial
statements and financial data are or are required to be included in the
Registration Statement) addressed to each selling Holder and Underwriter of
Registrable Securities (subject, in each case, to the policies and procedures
of the independent certified public accountants of the Company and the
Guarantors and such other independent certified public accountants regarding
the preparation and delivery of such letters), such letters to be in customary form and
covering matters of the type customarily covered in “comfort” letters in
connection with underwritten offerings of the type contemplated by this
provision and (4) deliver such documents and certificates as may be
reasonably requested by the Holders of a majority in principal amount of the
Registrable Securities being sold or the Underwriters, and which are
customarily delivered in underwritten offerings of the type contemplated by
this provision, to evidence the continued validity of the representations and
warranties of the Company and the Guarantors made pursuant to clause (1) above
and to evidence compliance with any customary conditions contained in an
underwriting agreement.


 


(b)                                 In
the case of a Shelf Registration Statement, the Company and the Guarantors may require
each Holder of Registrable Securities, as a condition to the inclusion of such
Holder’s Registrable Securities in a Shelf Registration Statement, to furnish
to the Company such information in writing within 10 Business Days after
receipt of a request therefor regarding such Holder and the proposed
disposition by such Holder of such Registrable Securities as the Company and
the Guarantors may from time to time reasonably request in writing. In
addition, each Selling Holder agrees to promptly furnish additional information
required to be disclosed in order to make the information previously furnished
to the Company not materially misleading. So long as any Holder fails to furnish
such information in a reasonably timely manner after receiving the request, the
Company and the Guarantors shall (i) have no obligation under this
Agreement to provide for the disposition of such Holder’s Registrable
Securities in the Shelf Registration Statement in respect to which such
information was requested, (ii) not be required to provide for the
disposition of such Holder’s Registrable Securities in any post-effective
amendment to such Shelf Registration Statement or any future Shelf Registration
Statement that is not otherwise required to be filed and (iii) not be
required to pay any liquidated damages to such Holder as provided in Section 2(d) hereof.
Each Holder including Registrable Securities in a Shelf Registration Statement
shall agree to furnish promptly to the Company all information regarding such
Holder and the proposed distribution by such Holder of such Registrable
Securities required to make the information previously furnished to the Company
by such Holder not materially misleading.


 


(c)                                  In
the case of a Shelf Registration Statement, each Holder of Registrable
Securities agrees that, upon receipt of any notice from the Company or any
Guarantor of the happening of any event of the kind described in Section 3(a)(v)(3) or
3(a)(v)(5) hereof or a notice pursuant to the last sentence of this
paragraph, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the Shelf Registration Statement until such Holder’s
receipt of the copies of the supplemented or amended Prospectus contemplated by
Section 3(a)(ix) hereof and, if so directed by the Company or any
Guarantor, such Holder will deliver to the Company and the Guarantors all
copies in its possession, other than permanent file copies then in such Holder’s
possession, of the Prospectus covering such Registrable Securities that is
current at the time of receipt of such notice. In addition, the Company may give
notice of suspension of offering and sale under the Shelf Registration
Statement in accordance with the last sentence of Section 3(a)(ix).


 


12

















 


(d)                                 If
the Company or any Guarantor shall give any notice pursuant to Section 3(c) hereof
to suspend the disposition of Registrable Securities pursuant to a Shelf Registration
Statement, the Company and the Guarantors shall extend the period during which
such Shelf Registration Statement shall be maintained effective pursuant to
this Agreement by the number of days during the period from and including the
date of the giving of such notice to and including the date when the Holders of
such Registrable Securities shall have received copies of the supplemented or
amended Prospectus necessary to resume such dispositions.


 


(e)                                  The
Holders of Registrable Securities covered by a Shelf Registration Statement who
desire to do so may sell such Registrable Securities in an Underwritten
Offering referred to in Section 3(a)(xv) above. In any such Underwritten
Offering, the investment bank or investment banks and manager or managers (each
an “Underwriter”) that will administer the offering will be selected by the
Holders of a majority in principal amount of the Registrable Securities
included in such offering.


 


4.                                       Participation
of Broker-Dealers in Exchange Offer.


 


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


 


The Company
and the Guarantors understand that it is the Staff’s position that if the
Prospectus contained in the Exchange Offer Registration Statement includes a
plan of distribution containing a statement to the above effect and the means
by which Participating Broker-Dealers may resell the Exchange Securities,
without naming the Participating Broker-Dealers or specifying the amount of
Exchange Securities owned by them, such Prospectus may be delivered by
Participating Broker-Dealers to satisfy their prospectus delivery obligation
under the Securities Act in connection with resales of Exchange Securities for
their own accounts, so long as the Prospectus otherwise meets the requirements
of the Securities Act.


 


(b)                                 In
light of the above, and notwithstanding the other provisions of this Agreement,
the Company and the Guarantors agree to amend or supplement the Prospectus
contained in the Exchange Offer Registration Statement until the earlier of (i) such
time as the Participating Broker-Dealer shall have disposed of the Registrable Securities
and (ii) 90 days after the closing of the Exchange Offer (as such period may be
extended pursuant to Section 3(d) of this Agreement), if requested by
one or more Participating Broker-Dealers, in order to expedite or facilitate
the disposition of any Exchange Securities by Participating Broker-Dealers
consistent with the positions of the Staff recited in Section 4(a) above.
The Company and the Guarantors further agree that Participating Broker-Dealers
shall be authorized to deliver such Prospectus during such period in connection
with the resales contemplated by this Section 4 in accordance with applicable
law and this Agreement.


 


(c)                                  The
Initial Purchasers shall have no liability to the Company, any Guarantor or any
Holder with respect to any request that they may make pursuant to Section 4(b) above.


 


5.                                       Indemnification
and Contribution.


 


(a)                                  The
Company and each Guarantor, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser and each Holder, their respective affiliates,
directors and officers and each Person, if any, who controls any Initial
Purchaser or any Holder within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages


 


13

















 


and liabilities (including,
without limitation, legal fees and other expenses incurred in connection with
any suit, action or proceeding or any claim asserted, as such fees and expenses
are incurred), joint or several, that arise out of, or are based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Prospectus or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except insofar as
such losses, claims, damages or liabilities arise out of, or are based upon,
any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with any information relating to any Initial
Purchaser, or information relating to any Holder furnished to the Company in
writing through JPMorgan or any selling Holder expressly for use therein;
provided, that with respect to any such untrue statement in or omission from
any preliminary prospectus, the indemnity agreement contained in this paragraph
(a) shall not inure to the benefit of any Initial Purchaser or Holder (or
any of their affiliates, directors and officers and each person, if any, who
controls such Initial Purchaser or Holder within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) in connection
with the sale of Securities or Exchange Securities by an Initial Purchaser or
Holder, to the extent that such untrue statement or omission was corrected in a
prospectus supplement or a free-writing prospectus delivered to the Person
asserting such loss, claim, damage or liability prior to the time of sale of
such Securities or Exchange Securities. In connection with any Underwritten
Offering permitted by Section 3, the Company and the Guarantors will also
agree to jointly and severally indemnify the Underwriters, if any, selling brokers,
dealers and similar securities industry professionals participating in such
Underwritten Offering, their respective affiliates and each Person who controls
such Persons (within the meaning of the Securities Act and the Exchange Act) to
the same extent as provided above with respect to the indemnification of the
Holders, if requested in connection with any Registration Statement for such
Underwritten Offering.


 


(b)                                 Each
Holder agrees, severally and not jointly, to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers and the other selling Holders,
the directors, officers, employees, managers, members and general partners of
the Company and the Guarantors, each officer of the Company and the Guarantors
who signed the Registration Statement and each Person, if any, who controls the
Company, the Guarantors, any Initial Purchaser and any other selling Holder
within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above,
but only with respect to any losses, claims, damages or liabilities that arise
out of, or are based upon, any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with any information
relating to such Holder furnished to the Company in writing by such Holder
expressly for use in any Registration Statement and any Prospectus.


 


(c)                                  If
any suit, action, proceeding (including any governmental or regulatory
investigation), claim or demand shall be brought or asserted against any Person
in respect of which indemnification may be sought pursuant to either
paragraph (a) or (b) above, such Person (the “Indemnified Person”)
shall promptly notify the Person against whom such indemnification may be
sought (the “Indemnifying Person”) in writing; provided that the failure
to notify the Indemnifying Person shall not relieve it from any liability that
it may have under this Section 5 except to the extent that it has
been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided, further, that the
failure to notify the Indemnifying Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under
this Section 5. If any such proceeding shall be brought or asserted
against an Indemnified Person and it shall have notified the Indemnifying
Person thereof, the Indemnifying Person shall retain counsel reasonably
satisfactory to the Indemnified Person (who shall not without the consent of
the Indemnified Person, be counsel to the Indemnifying Person) to represent the
Indemnified Person in such


 


14

















 


proceeding and shall pay the
reasonable fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right
to retain its own counsel, but the reasonable fees and expenses of such counsel
shall be at the expense of such Indemnified Person unless (i) the Indemnifying
Person and the Indemnified Person shall have mutually agreed to the contrary;
or (ii) the Indemnifying Person has failed within a reasonable time to
retain counsel reasonably satisfactory to the Indemnified Person. It is understood
and agreed that the Indemnifying Person shall not, in connection with any
proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all Indemnified Persons, and that all such fees and expenses
shall be reimbursed as they are incurred. Any such separate firm (x) for any
Initial Purchaser, its affiliates, directors and officers and any control
Persons of such Initial Purchaser shall be designated in writing by JPMorgan,
(y) for any Holder, its directors and officers and any control Persons of such
Holder shall be designated in writing by the Majority Holders and (z) in all
other cases shall be designated in writing by the Company. The Indemnifying
Person shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Indemnifying Person agrees to indemnify
each Indemnified Person from and against any loss or liability by reason of
such settlement or judgment. Notwithstanding the foregoing sentence, if at any
time an Indemnified Person shall have requested that an Indemnifying Person
reimburse the Indemnified Person for fees and expenses of counsel as
contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by the Indemnifying
Person of such request and (ii) the Indemnifying Person shall not have
reimbursed the Indemnified Person in accordance with such request prior to the
date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or
threatened proceeding in respect of which any Indemnified Person is or could
have been a party and indemnification could have been sought hereunder by such
Indemnified Person, unless such settlement (A) includes an unconditional
release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any
statement as to or any admission of fault, culpability or a failure to act by
or on behalf of any Indemnified Person.


 


(d)                                 If
the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each Indemnifying
Person under such paragraph, in lieu of indemnifying such Indemnified Person
thereunder, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company and the Guarantors from the offering of the Securities and the Exchange
Securities, on the one hand, and by the Holders from receiving Securities or
Exchange Securities registered under the Securities Act, on the other hand, or (ii) if
the allocation provided by clause (i) is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) but also the relative fault of the Company and
the Guarantors on the one hand and the Holders on the other in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The relative
fault of the Company and the Guarantors on the one hand and the Holders on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company and the Guarantors or by the Holders and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.


 


(e)                                  The
Company, the Guarantors and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 5 were determined by pro
rata allocation (even if the Holders


 


15

















 


were treated as one entity for
such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses incurred by such Indemnified Person in connection with any such
action or claim. Notwithstanding the provisions of this Section 5, in no
event shall a Holder be required to contribute any amount in excess of the
amount by which the total price at which the Securities or Exchange Securities
sold by such Holder exceeds the amount of any damages that such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.


 


(f)                                    The
remedies provided for in this Section 5 are not exclusive and shall not
limit any rights or remedies that may otherwise be available to any
Indemnified Person at law or in equity.


 


(g)                                 The
indemnity and contribution provisions contained in this Section 5 shall
remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf
of the Initial Purchasers or any Holder or any Person controlling any Initial
Purchaser or any Holder, or by or on behalf of the Company or the Guarantors or
the officers or directors of or any Person controlling the Company or the
Guarantors, (iii) acceptance of any of the Exchange Securities and (iv) any
sale of Registrable Securities pursuant to a Shelf Registration Statement.


 


6.                                       General.


 


(a)                                  No Inconsistent Agreements. The Company and the Guarantors
represent, warrant and agree that (i) the rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of any other outstanding securities issued or
guaranteed by the Company or any Guarantor under any other agreement and (ii) neither
the Company nor any Guarantor has entered into, or on or after the date of this
Agreement will enter into, any agreement that is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof.


 


(b)                                 Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof may not
be given unless the Company and the Guarantors have obtained the written
consent of Holders of at least a majority in aggregate principal amount of the
outstanding Registrable Securities affected by such amendment, modification,
supplement, waiver or consent; provided that no amendment, modification,
supplement, waiver or consent to any departure from the provisions of Section 5
hereof shall be effective as against any Holder of Registrable Securities
unless consented to in writing by such Holder. Any amendments, modifications,
supplements, waivers or consents pursuant to this Section 6(b) shall
be by a writing executed by each of the parties hereto.


 


(c)                                  Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such
Holder to the Company by means of a notice given in accordance with the
provisions of this Section 6(c), which address initially is, with respect
to the Initial Purchasers, the address set forth in the Purchase Agreement; (ii) if
to the Company or any Guarantor, initially at the Company’s address set forth
in the Purchase Agreement and thereafter at such other address, notice of which
is given in accordance with the provisions of


 


16

















 


this Section 6(c); and to
such other persons at their respective addresses as provided in the Purchase
Agreement and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(c). All such notices and
communications shall be deemed to have been duly given: at the time delivered
by hand, if personally delivered; five Business Days after being deposited in
the mail, postage prepaid, if mailed; when answered back, if telexed; when
receipt is acknowledged, if telecopied; and on the next Business Day if timely
delivered to an air courier guaranteeing overnight delivery. Copies of all such
notices, demands or other communications shall be concurrently delivered by the
Person giving the same to the Trustee, at the address specified in the
Indenture.


 


(d)                                 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of the Indenture and the
Purchase Agreement. If any transferee of any Holder shall acquire Registrable
Securities in any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all the terms of this
Agreement, and by taking and holding such Registrable Securities such Person
shall be conclusively deemed to have agreed to be bound by and to perform all
of the terms and provisions of this Agreement and such Person shall be entitled
to receive the benefits hereof. The Initial Purchasers (in their capacity as
Initial Purchasers) shall have no liability or obligation to the Company or the
Guarantors with respect to any failure by a Holder to comply with, or any
breach by any Holder of, any of the obligations of such Holder under this
Agreement.


 


(e)                                  Third Party Beneficiaries. Each Holder shall be a third
party beneficiary to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, and
shall have the right to enforce such agreements directly to the extent it deems
such enforcement necessary or advisable to protect its rights or the rights of
other Holders hereunder.


 


(f)                                    Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.


 


(g)                                 Headings. The headings in this Agreement are for convenience
of reference only, are not a part of this Agreement and shall not limit or
otherwise affect the meaning hereof.


 


(h)                                 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.


 


(i)                                     Miscellaneous. This Agreement contains the entire agreement
between the parties relating to the subject matter hereof and supersedes all
oral statements and prior writings with respect thereto. If any term,
provision, covenant or restriction contained in this Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable or against
public policy, the remainder of the terms, provisions, covenants and
restrictions contained herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. The Company, the Guarantors and
the Initial Purchasers shall endeavor in good faith negotiations to replace the
invalid, void or unenforceable provisions with valid provisions the economic
effect of which comes as close as possible to that of the invalid, void or
unenforceable provisions.


 


17

















 


IN WITNESS WHEREOF,
the parties have executed this Agreement as of the date first written above.


 


	
   

  	
  KIMBALL HILL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David K. Hill

  	
   

  
	
   

  	
   

  	
  Name:

  	
  David K. Hill

  
	
   

  	
   

  	
  Title:

  	
  Chairman, Chief Executive Officer

  
	
   

  	
   

  	
  and Director

  
					



 


18

















 


	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  CACTUS HILLS, LLC

  
	
   

  	
  KIMBALL HILL HOMES AUSTIN INVESTMENTS,
  L.L.C.

  
	
   

  	
  KIMBALL HILL HOMES AUSTIN OPERATIONS,
  L.L.C.

  
	
   

  	
  KIMBALL HILL HOMES DALLAS INVESTMENTS,
  L.L.C.

  
	
   

  	
  KIMBALL HILL HOMES DALLAS OPERATIONS,
  L.L.C.

  
	
   

  	
  KIMBALL HILL
  HOMES HOUSTON INVESTMENTS,

  L.L.C.

  
	
   

  	
  KIMBALL HILL HOMES HOUSTON OPERATIONS,
  L.L.C.

  
	
   

  	
  KIMBALL HILL TEXAS INVESTMENT COMPANY,
  L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ David K. Hill

  	
   

  
	
   

  	
  Name:

  	
  David K. Hill

  
	
   

  	
  Title:

  	
  Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  EAST LAKE PARK, INC.

  
	
   

  	
  KIMBALL HILL FAR EAST DETROIT, LLC

  
	
   

  	
  KIMBALL HILL STATEWAY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President and Treasurer

  
							



 

















 


	
   

  	
  KH FINANCIAL HOLDING COMPANY

  
	
   

  	
  KHH TEXAS TRADING COMPANY L.P.

  
	
   

  	
  KIMBALL HILL HOMES AUSTIN, L.P.

  
	
   

  	
  KIMBALL HILL HOMES CALIFORNIA, INC.

  
	
   

  	
  KIMBALL HILL HOMES DALLAS, L.P.

  
	
   

  	
  KIMBALL HILL HOMES FLORIDA, INC.

  
	
   

  	
  KIMBALL HILL HOMES HOUSTON, L.P.

  
	
   

  	
  KIMBALL HILL HOMES ILLINOIS, LLC

  
	
   

  	
  KIMBALL HILL HOMES NEVADA, INC.

  
	
   

  	
  KIMBALL HILL HOMES OHIO, INC.

  
	
   

  	
  KIMBALL HILL HOMES OREGON, INC.

  
	
   

  	
  KIMBALL HILL HOMES REALTY FLORIDA, INC.

  
	
   

  	
  KIMBALL HILL HOMES SAN ANTONIO, L.P.

  
	
   

  	
  KIMBALL HILL HOMES TEXAS, INC.

  
	
   

  	
  KIMBALL HILL HOMES WASHINGTON, INC.

  
	
   

  	
  KIMBALL HILL HOMES WISCONSIN, INC.

  
	
   

  	
  NATIONAL CREDIT AND GUARANTY CORPORATION

  
	
   

  	
  RIVER OAKS REALTY, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  18TH AND PEORIA, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Suburban Centers, L.L.C., its
  manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill, Inc., its manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Senior Vice President, Finance

  
							



 


2

















 


	
   

  	
  KIMBALL HILL SUBURBAN CENTERS, L.L.C.

  
	
   

  	
  KIMBALL HILL URBAN CENTERS, L.L.C.

  
	
   

  	
  THE GLENS AT WESTLAKE, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill, Inc., its manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Senior Vice President, Finance

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KIMBALL HILL URBAN CENTERS CHICAGO ONE,
  L.L.C.

  
	
   

  	
  KIMBALL HILL URBAN CENTERS CHICAGO TWO,
  L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Urban Centers, L.L.C., its manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill, Inc., its manager

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Senior Vice President, Finance

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRIDLE RIDGE LIMITED PARTNERSHIP

  
	
   

  	
  PARKVIEW LIMITED PARTNERSHIP

  
	
   

  	
  RIVER POINTE LIMITED PARTNERSHIP

  
	
   

  	
  SONATA AT MORADA RANCH LIMITED PARTNERSHIP

  
	
   

  	
  WINDMILL PARK LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes California, Inc.,
  its general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
										



 


3

















 


	
   

  	
  KIMBALL HILL BELLEVUE RANCH, LLC

  
	
   

  	
  KIMBALL HILL REFLECTIONS, LLC

  
	
   

  	
  KIMBALL HILL SHELDON LAKES, LLC

  
	
   

  	
  KIMBALL HILL VILLAGES, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes California, Inc.,
  its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMBALL HILL CHADWICK FARMS LIMITED PARTNERSHIP

  
	
   

  	
  KIMBALL WEST FRISCO LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Dallas, L.P., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMBALL HILL CALUSA PALMS LIMITED

  
	
   

  	
   

  	
  PARTNERSHIP

  
	
   

  	
  KIMBALL HILL MARBELLA ESTATES LIMITED

  
	
   

  	
   

  	
  PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Florida, Inc., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
									



 


4

















 


	
   

  	
  INDIAN TRAILS LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Houston, L.P., its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KIMBALL HILL TX PROPERTIES, LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Houston, L.P., its
  manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  ASTOR PLACE LIMITED PARTNERSHIP

  
	
   

  	
  BOLINGBROOK LIMITED PARTNERSHIP

  
	
   

  	
  EDGEWATER LIMITED PARTNERSHIP

  
	
   

  	
  HUNTINGTON CHASE LIMITED PARTNERSHIP

  
	
   

  	
  LEGEND LAKES LIMITED PARTNERSHIP

  
	
   

  	
  THE GLEN TOWNHOMES LIMITED PARTNERSHIP

  
	
   

  	
  THE HAMILTON PLACE PARTNERSHIP

  
	
   

  	
  WATERFORD LIMITED PARTNERSHIP

  
	
   

  	
  WHISPERING MEADOW LIMITED PARTNERSHIP

  
	
   

  	
  WHITE OAK LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Illinois, LLC, its
  general partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
							



 


5

















 


	
   

  	
  KH INGHAM PARK SOUTH, LLC

  
	
   

  	
  KH SRAV II, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Illinois, LLC, its
  manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMBALL HILL CENTENNIAL HEIGHTS LIMITED

  
	
   

  	
   

  	
  PARTNERSHIP

  
	
   

  	
  KIMBALL HILL HEATHERS/CAPAROLA LIMITED

  
	
   

  	
   

  	
  PARTNERSHIP

  
	
   

  	
  KIMBALL MOUNTAIN FIRST LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Nevada, Inc., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  KIMBALL COVE LIMITED PARTNERSHIP

  
	
   

  	
  KIMBALL HILL LYNDEN PARK II LIMITED PARTNERSHIP

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Texas, Inc., its
  general partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
							



 


6

















 


	
   

  	
  RIVER OAKS HOMES, L.L.P.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Texas, Inc., its
  manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  GABLES AT HIDDENBROOK LIMITED PARTNERSHIP

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Washington, Inc.,
  its general

  
	
   

  	
   

  	
  partner

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  PARK SHORE, L.L.C.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Kimball Hill Homes Wisconsin, Inc.,
  its manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Hal H. Barber

  	
   

  
	
   

  	
  Name:

  	
  Hal H. Barber

  
	
   

  	
  Title:

  	
  Vice President

  
								



 


7

















 


	
  Confirmed and accepted as of the

  
	
  date first above written:

  
	
   

  
	
  J.P. MORGAN SECURITIES INC.

  
	
   

  
	
  For itself and on behalf of the

  
	
  several Initial Purchasers

  
	
   

  
	
   

  
	
  By:

  	
  /s/ David Lynch

  	
   

  
	
   

  	
  Authorized Signatory

  



 


8

















 


Schedule I


 


Guarantors


 


18th and Peoria, LLC


Astor Place Limited
Partnership


Bolingbrook Limited
Partnership


Bridle Ridge Limited
Partnership


Cactus Hills, LLC


East Lake Park, Inc.


Edgewater Limited
Partnership


Gables at Hiddenbrook
Limited Partnership


Huntington Chase Limited
Partnership


Indian Trails Limited
Partnership


KH Financial Holding Company


KH Ingham Park South, LLC


KH SRAV II, LLC


KHH Texas Trading Company
L.P.


Kimball Cove Limited
Partnership


Kimball Hill Bellevue Ranch,
LLC


Kimball Hill Calusa Palms
Limited Partnership


Kimball Hill Centennial
Heights Limited Partnership


Kimball Hill Chadwick Farms
Limited Partnership


Kimball Hill Far East
Detroit, LLC


Kimball Hill
Heathers/Caparola Limited Partnership


Kimball Hill Homes Austin
Investments, L.L.C.


Kimball Hill Homes Austin
Operations, L.L.C.


Kimball Hill Homes Austin,
L.P.


Kimball Hill Homes
California, Inc.


Kimball Hill Homes Dallas
Investments, L.L.C.


Kimball Hill Homes Dallas
Operations, L.L.C.


Kimball Hill Homes Dallas,
L.P.


Kimball Hill Homes Florida, Inc.


Kimball Hill Homes Houston
Investments, L.L.C.


Kimball Hill Homes Houston
Operations, L.L.C.


Kimball Hill Homes Houston,
L.P.


Kimball Hill Homes Illinois,
LLC


Kimball Hill Homes Nevada, Inc.


Kimball Hill Homes Ohio, Inc.


Kimball Hill Homes Oregon, Inc.


Kimball Hill Homes Realty
Florida, Inc.


Kimball Hill Homes San
Antonio, L.P.


Kimball Hill Homes Texas, Inc.


Kimball Hill Homes
Washington, Inc.


Kimball Hill Homes Wisconsin, Inc.


Kimball Hill Lynden Park II
Limited Partnership


Kimball Hill Marbella
Estates Limited Partnership


Kimball Hill Reflections,
LLC


Kimball Hill Sheldon Lakes,
LLC


Kimball Hill Stateway, Inc.


Kimball Hill Suburban
Centers, L.L.C.


Kimball Hill Texas
Investment Company, L.L.C.


Kimball Hill TX Properties,
LLC


Kimball Hill Urban Centers
Chicago One, L.L.C.


Kimball Hill Urban Centers
Chicago Two, L.L.C.


Kimball Hill Urban Centers,
L.L.C.


Kimball Hill Villages, LLC


Kimball Mountain First
Limited Partnership


Kimball West Frisco Limited
Partnership


Legend Lakes Limited
Partnership


National Credit and Guaranty
Corporation


Park Shore, L.L.C.


Parkview Limited Partnership


River Oaks Homes, L.L.P.


River Oaks Realty, L.P.


River Pointe Limited
Partnership


Sonata at Morada Ranch
Limited Partnership


The Glen Townhomes Limited
Partnership


The Glens at Westlake, L.L.C.


The Hamilton Place
Partnership


Waterford Limited
Partnership


Whispering Meadow Limited
Partnership


White Oak Limited
Partnership


Windmill Park Limited
Partnership


 

















 


Schedule A


 


J.P. Morgan Securities Inc.


Harris Nesbitt Corp.