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REGISTRATION RIGHTS AGREEMENT
Dated as of November 8, 1996
by and among
WATERFORD GAMING, L.L.C.
and
WATERFORD GAMING FINANCE CORP.
as Issuers
and
BEAR, XXXXXXX & CO. INC.
and
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
as Initial Purchasers
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is made and entered
into as of November 8, 1996, among WATERFORD GAMING, L.L.C., a Delaware limited
liability company (the "Company"), WATERFORD GAMING FINANCE CORP., a Delaware
corporation ("Finance" and, together with the Company, the "Issuers"), and BEAR
XXXXXXX & CO. INC. and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
(together, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated November
5, 1996, among the Issuers and the Initial Purchasers (the "Purchase
Agreement"), which provides for the sale by the Issuers to the Initial
Purchasers of $65,000,000 aggregate principal amount of 12 3/4% Senior Notes due
2003 (the "Notes"). In order to induce the Initial Purchasers to enter into the
Purchase Agreement, the Issuers have agreed to provide to the Initial Purchasers
and their respective direct and indirect transferees, among other things, the
registration rights for the Notes set forth in this Agreement. The execution of
this Agreement is a condition to the closing of the transactions contemplated by
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following
meanings (and, unless otherwise indicated, capitalized terms used herein without
definition shall have the respective meanings ascribed to them by the Purchase
Agreement):
Applicable Period: See Section 2(b) hereof.
Business Day: Any day except a Saturday, Sunday or other day in the City
of New York, or in the city of the corporate trust office of the Trustee, on
which banks are authorized to close.
Closing Date: The Closing Date as defined in the Purchase Agreement.
Effectiveness Period: See Section 3(a) hereof.
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Effectiveness Target Date: The 180th day following the Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See Section 2(a) hereof.
Filing Date: The 45th day after the Closing Date.
Holder: Any holder of Transfer Restricted Notes.
Indemnified Party: See Section 7 hereof.
Indemnified Person: See Section 7 hereof.
Indemnifying Person: See Section 7 hereof.
Indenture: The Indenture, dated as of November 8, 1996, by and among the
Issuers and Fleet National Bank, as Trustee, pursuant to which the Notes are
being issued, as amended or supplemented from time to time in accordance with
the terms thereof.
Initial Purchasers: See the introductory paragraph to this Agreement.
Inspectors: See Section 3(m) hereof.
Issuers: See the introductory paragraph of this Agreement.
Liquidated Damages: See Section 4(a) hereof.
Notes: See the introductory paragraphs to this Agreement.
Participating Broker-Dealer: See Section 2(b) hereof.
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Person or person: An individual, trustee, corporation, partnership, joint
stock company, trust, unincorporated association, union, business association,
limited liability company, limited liability partnership, firm or other legal
entity.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Exchange Notes and/or the Transfer Restricted Notes (as applicable),
covered by such Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
Records: See Section 4(m) hereof.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the Issuers,
including, but not limited to, the Exchange Offer Registration Statement, Shelf
Registration or a registration statement of the Issuers that otherwise covers
any of the Transfer Restricted Notes pursuant to the provisions of this
Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Rule 144: Rule 144 promulgated pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities Act, as
currently in effect, as such rule may be amended from time to time, or any
similar rule or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated pursuant to the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the rules and
regulations of the SEC promulgated thereunder.
Transfer Restricted Notes: The Notes upon original issuance thereof and at
all times subsequent thereto, until (i) a Registration Statement covering such
Notes has been declared effective by the SEC and such Notes have been disposed
of in accordance with such effective Registration Statement, (ii) such Notes are
sold in compliance with Rule 144 or (iii) such Notes cease to be outstanding.
Trustee: The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes.
Underwritten registration or underwritten offering: A registration in
which securities of the Issuers are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
(a) The Issuers agree to file with the SEC as soon as practicable after
the Closing Date, but in no event later than the Filing Date, an offer to
exchange (the "Exchange Offer"), any and all of the Transfer Restricted Notes
for a like aggregate principal amount of debt securities of the Issuers (the
"Exchange Notes"), which Exchange Notes will be (i) substantially identical in
all material respects to the Notes, except that such Exchange Notes will not
contain terms with respect to transfer restrictions, (ii) entitled to the
benefits of the Indenture or a trust indenture which is identical to the
Indenture (other than such changes to the Indenture or any such identical trust
indenture as are necessary to comply with any requirements of the SEC to effect
or maintain the qualification thereof under the TIA), and which, in either case,
has been qualified under the TIA, and (iii) registered pursuant to an effective
Registration Statement in compliance with the Securities Act. The Exchange Offer
will be registered pursuant to the Securities Act on an appropriate form of
Registration Statement (the "Exchange Offer Registration Statement"), and will
comply with all applicable tender offer rules and regulations promulgated
pursuant to the Exchange Act and shall be duly registered or qualified pursuant
to all applica-
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ble state securities or Blue Sky laws. The Exchange Offer shall not be subject
to any condition, other than that the Exchange Offer does not violate any
applicable law, policy or interpretation of the staff of the SEC. No securities
shall be included in the Exchange Offer Registration Statement other than the
Exchange Notes. The Issuers agree to use their best efforts to (x) cause the
Exchange Offer Registration Statement to become effective pursuant to the
Securities Act on or before the Effectiveness Target Date; and (y) keep the
Exchange Offer open for not less than 20 Business Days (or such longer period
required by applicable law), after the date that the notice of the Exchange
Offer referred to below is mailed to Holders. Each Holder who participates in
the Exchange Offer will be required to represent that any Exchange Notes
received by it will be acquired in the ordinary course of its business, that at
the time of the consummation of the Exchange Offer such Holder will have no
arrangement or understanding with any person to participate in the distribution
of the Exchange Notes, and that such Holder is not an "affiliate" of the Issuers
within the meaning of Rule 405 of the Securities Act (or that if it is such an
affiliate, it will comply with the registration and prospectus delivery
requirements of the Securities Act to the extent applicable). Each Holder that
is not a Participating Broker-Dealer will be required to represent that it is
not engaged in, and does not intend to engage in, the distribution of the
Exchange Notes. Each Holder that (i) is a Participating Broker-Dealer and (ii)
will receive Exchange Notes for its own account in exchange for the Transfer
Restricted Notes that it acquired as the result of market-making or other
trading activities will be required to acknowledge that it will deliver a
Prospectus as required by law in connection with any resale of such Exchange
Notes. Upon consummation of the Exchange Offer in accordance with this
Agreement, the Issuers shall have no further obligation to register Transfer
Restricted Notes pursuant to Section 3 of this Agreement.
(b) The Issuers shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution,"
acceptable to the Initial Purchasers, which shall contain a summary statement of
the positions taken or policies made by the staff of the SEC with respect to the
potential "underwriter" status of any broker-dealer that is the beneficial owner
(as defined in Rule 13d-3 under the Exchange Act), of Exchange Notes received by
such broker-dealer in the Exchange Offer (a "Participating Broker-Dealer"). Such
"Plan of Distribution" section shall also allow the use of the Prospectus by all
persons subject to the prospectus delivery requirements of the Securities Act,
including all Participating Broker-Dealers, and include a statement describing
the means by which Participating Broker-Dealers may resell the Exchange Notes.
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The Issuers shall use their best efforts to keep the Exchange Offer
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit such Prospectus to be lawfully delivered
by all persons subject to the prospectus delivery requirements of the Securities
Act for such period of time as such persons must comply with such requirements
in order to resell the Exchange Notes; provided that such period shall not
exceed 180 days after consummation of the Exchange Offer (or such longer period
if extended pursuant to the last paragraph of Section 5 hereof) (the "Applicable
Period").
In connection with the Exchange Offer, the Issuers shall:
(i) mail as promptly as practicable to each Holder a copy of the
Prospectus forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New York; and
(iii) permit Holders to withdraw tendered Notes at any time prior to
the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open 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
Transfer Restricted Securities delivered for exchange and a statement that
such Holder is withdrawing his or her election to have such Transfer
Restricted Securities exchanged.
As soon as practicable after the close of the Exchange Offer, the Issuers
shall:
(i) accept for exchange all Notes tendered and not validly with-
drawn pursuant to the Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee for cancella-
tion all Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes, Exchange Notes equal in principal amount to the Notes of
such Holder so accepted for exchange.
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(c) If (1) prior to the consummation of the Exchange Offer, applicable
interpretations of the staff of the SEC do not permit the Issuers to effect the
Exchange Offer, or (2) if for any other reason the Exchange Offer is not
consummated within 225 days of the Closing Date, then the Issuers shall promptly
deliver to the Holders and the Trustee written notice thereof (the "Shelf
Notice"), and the Issuers shall file a Registration Statement pursuant to
Section 3 hereof. Following the delivery of a Shelf Notice to the Holders of
Transfer Restricted Notes, the Issuers shall not have any further obligation to
conduct the Exchange Offer pursuant to this Section 2, provided, that the
Issuers shall have the right, nonetheless, to proceed to consummate the Exchange
Offer notwithstanding their obligations pursuant to this Section 2(c) (and, upon
such consummation, their obligations to consummate a Shelf Registration shall
terminate).
3. Shelf Registration
If the Issuers are required to deliver a Shelf Notice as contemplated by
Section 2(c) hereof, then:
(a) Shelf Registration. The Issuers shall prepare and file with the SEC,
as promptly as practicable following the Shelf Notice, a Registration Statement
for an offering to be made on a continuous basis pursuant to Rule 415 covering
all of the Transfer Restricted Notes (the "Shelf Registration"). The Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of the Transfer Restricted Notes for resale by the Holders in the
manner or manners reasonably designated by them (including, without limitation,
one or more underwritten offerings). The Issuers shall not permit any securities
other than the Transfer Restricted Notes to be included in the Shelf
Registration. The Issuers shall use their best efforts, as described in Section
5(b) hereof, to cause the Shelf Registration to be declared effective pursuant
to the Securities Act as promptly as practicable after the filing of such Shelf
Registration and to keep the Shelf Registration continuously effective under the
Securities Act until the earlier of (i) the date which is 36 months after the
Closing Date, (ii) the date that all Transfer Restricted Notes covered by the
Shelf Registration have been sold in the manner set forth and as contemplated in
the Shelf Registration or (iii) the date that there ceases to be outstanding any
Transfer Restricted Notes (the "Effectiveness Period").
(b) Supplements and Amendments. The Issuers shall use their best efforts
to keep the Shelf Registration continuously effective by supplementing and
amending the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities
7
Act, or if reasonably requested by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Notes covered by such Registration
Statement or by any underwriter of such Transfer Restricted Notes.
4. Liquidated Damages
(a) The Issuers and the Initial Purchasers agree that the Holders of
Transfer Restricted Notes will suffer damages if the Issuers fail to fulfill
their obligations pursuant to Section 2 or Section 3 hereof and that it would
not be possible to ascertain the extent of such damages. Accordingly, in the
event of such failure by the Issuers to fulfill such obligations, the Issuers
hereby agree to pay liquidated damages ("Liquidated Damages") to each Holder of
Transfer Restricted Notes under the circumstances and to the extent set forth
below:
(i) if neither the Exchange Offer Registration Statement nor the
Shelf Registration has been filed with the SEC on or prior to the Filing
Date; or
(ii) if neither the Exchange Offer Registration Statement nor the
Shelf Registration is declared effective by the SEC on or prior to the
Effectiveness Target Date; or
(iii) if an Exchange Offer Registration Statement is declared
effective by the SEC, and on or prior to 45 days following the earlier of
(A) the effectiveness thereof or (B) the Effectiveness Target Date, the
Issuers have not exchanged Exchange Notes for all Notes validly tendered
in accordance with the terms of the Exchange Offer; or
(iv) the Shelf Registration has been declared effective by the SEC
and such Shelf Registration ceases to be effective or usable at any time
during the Effectiveness Period, without being succeeded on the same day
immediately by a post-effective amendment to such Shelf Registration that
cures such failure and that is itself immediately declared effective on
the same day;
(any of the foregoing, a "Registration Default"), then, with respect
to the first 90-day period following such Registration Default, the Issuers
shall pay to each Holder of Transfer Restricted Notes Liquidated Damages in an
amount equal to $0.05 per week per $1,000 principal amount of Transfer
Restricted Notes held by such Holder for each week or portion thereof that the
Registration Default continues.
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The amount of such Liquidated Damages will increase by an additional $0.05 per
week per $1,000 principal amount of Transfer Restricted Notes with respect to
each subsequent 90-day period until all Registration Defaults have been cured;
provided, however, that Liquidated Damages shall not at any time exceed $0.50
per week per $1,000 principal amount of Transfer Restricted Notes (regardless of
whether one or more than one Registration Defaults has occurred and is
continuing). Following the cure of all Registration Defaults relating to any
Transfer Restricted Notes, the accrual of Liquidated Damages with respect to
such Transfer Restricted Notes will cease. A Registration Default under clause
(i) above shall be cured on the date that either the Exchange Offer Registration
Statement or the Shelf Registration is filed with the SEC; a Registration
Default under clause (ii) above shall be cured on the date that either the
Exchange Offer Registration Statement or the Shelf Registration is declared
effective by the SEC; a Registration Default under clause (iii) above shall be
cured on the earlier of the date (A) the Exchange Offer is consummated or (B) a
Shelf Registration is declared effective; and a Registration Default under
clause (iv) above shall be cured on the earlier of (A) the date that the
post-effective amendment curing the deficiency in the Shelf Registration is
declared effective or (B) the Effectiveness Period expires.
(b) The Issuers shall notify the Trustee within one Business Day after
each and every date on which a Registration Default first occurs. Liquidated
Damages shall be paid by the Issuers to the Holders by wire transfer of
immediately available funds to the accounts specified by them or by mailing
checks to their respective addresses as such addresses appear in the Security
Register if no such accounts have been specified on or before the semi-annual
interest payment date provided in the Indenture and on each payment date
provided in the Indenture including, without limitation, whether upon
redemption, maturity (by acceleration or otherwise) or purchase upon a Change of
Control. Each obligation to pay Liquidated Damages shall be deemed to commence
accruing on the date of the applicable Registration Default and to cease
accruing when all Registration Defaults have been cured. In no event shall the
Issuers pay Liquidated Damages in excess of the applicable maximum weekly amount
set forth above, regardless of whether one or multiple Registration Defaults
exist.
(c) The parties hereto agree that the Liquidated Damages provided for in
this Section 4 constitute a reasonable estimate of the damages that will be
suffered by Holders by reason of the failure to file the Exchange Offer
Registration Statement or the Shelf Registration Statement, the failure of the
Exchange Offer Registration Statement or the Shelf Registration Statement to be
declared effective, the failure to
9
consummate the Exchange Offer or the failure of the Shelf Registration Statement
to remain effective, as the case may be, in accordance with this Agreement.
5. Registration Procedures
In connection with the registration of any Exchange Notes or Transfer
Restricted Notes pursuant to Sections 2 or 3 hereof, the Issuers shall effect
such registration to permit the sale of such Exchange Notes or Transfer
Restricted Notes (as applicable), in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Issuers shall:
(a) prepare and file with the SEC a Registration Statement or Registration
Statements as prescribed by Section 2 or Section 3 hereof, and use their best
efforts to cause such Registration Statement to become effective and remain
effective as provided herein; provided that, if (1) such filing is pursuant to
Section 3 hereof, or (2) a Prospectus contained in an Exchange Offer
Registration Statement filed pursuant to Section 2 hereof is required to be
delivered under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Notes during the Applicable Period, before filing any
Registration Statement or Prospectus or any amendments or supplements thereto,
the Issuers shall furnish to and afford the Holders of the Transfer Restricted
Notes and each such Participating Broker-Dealer, as the case may be, covered by
such Registration Statement, their counsel and the managing underwriters, if
any, a reasonable opportunity to review copies of all such documents (including
copies of any documents to be incorporated by reference therein and all exhibits
thereto), proposed to be filed (at least 3 Business Days prior to such filing,
or such later date as is reasonable under the circumstances). The Issuers shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders, pursuant to this Agreement,
must be afforded an opportunity to review prior to the filing of such document,
if the Holders of a majority in aggregate principal amount of the Transfer
Restricted Notes covered by such Registration Statement, or such Participating
Broker-Dealer, as the case may be, their counsel, or the managing underwriters,
if any, shall reasonably object on a timely basis (except that documents filed
as exhibits that are incorporated by reference or deemed to be incorporated by
reference shall not be subject to such objections);
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Offer Registration Statement,
as the case may be, as may be necessary to keep such Registration Statement
continuously effective for the Effectiveness Period or the Applicable Period, as
the
10
case may be, or such shorter period as will terminate when all Transfer
Restricted Notes covered by such Registration Statement have been sold; cause
the related Prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force), under the Securities Act; and comply with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
of the SEC promulgated thereunder with respect to the disposition of all
securities covered by such Registration Statement, as so amended, or in such
Prospectus, as so supplemented, and with respect to the subsequent resale of any
Notes being sold by a Participating Broker-Dealer covered by any such
Prospectus; the Issuers shall be deemed not to have used their best efforts to
keep a Registration Statement effective during the Applicable Period if they
voluntarily take any action that would result in selling Holders of the Transfer
Restricted Notes covered thereby or Participating Broker-Dealers seeking to sell
Exchange Notes not being able to sell such Transfer Restricted Notes or such
Exchange Notes during that period, unless (i) such action is required by
applicable law, or (ii) such action is taken by either of them in good faith and
for valid business reasons (not including avoidance of their obligations
hereunder), including the acquisition or divestiture of assets;
(c) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, notify the selling Holders of Transfer Restricted Notes,
or each known Participating Broker-Dealer, as the case may be, their counsel and
the managing underwriters, if any, promptly and confirm such notice in writing,
(i) when a Prospectus, any prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such notice a
written statement that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the SEC
of any stop order suspending the effectiveness of a Registration Statement or of
any order preventing or suspending the use of any preliminary prospectus or the
initiation of any proceedings for that purpose, (iii) if at any time when a
Prospectus is required by the Securities Act to be delivered in connection with
sales of the Transfer Restricted Notes the representations and warranties of the
Issuers contained in any agreement (including any underwriting agreement),
contemplated by Section 5(l) hereof cease to be true and correct, (iv) of the
receipt by the Issuers of any notification with respect to the sus-
11
pension of the qualification or exemption from qualification of a Registration
Statement or any of the Transfer Restricted Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer for offer or sale in any jurisdiction,
or the initiation of any proceeding for such purpose, (v) of the happening of
any event or any information becoming known that makes any statement made in
such Registration Statement or related Prospectus or any document incorporated
or deemed to be incorporated therein by reference untrue in any material respect
or that requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement, it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading, and
(vi) of the Issuers' reasonable determination that a post-effective amendment to
a Registration Statement would be appropriate;
(d) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use their best efforts to prevent the issuance of any
order suspending the effectiveness of a Registration Statement or of any order
preventing or suspending the use of a Prospectus or suspending the qualification
(or exemption from qualification), of any of the Transfer Restricted Notes or
the Exchange Notes (as applicable), to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued,
to use their best efforts to obtain the withdrawal of any such order at the
earliest possible moment;
(e) if a Shelf Registration is filed pursuant to Section 3 hereof and if
requested by the managing underwriters, if any, or the Holders of a majority in
aggregate principal amount of the Transfer Restricted Notes being sold in
connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information relating to
underwriters, if any, any Holder of Transfer Restricted Notes or the plan of
distribution of the Transfer Restricted Notes as the managing underwriter, if
any, or such Holders may reasonably request to be included therein, (ii) make
all required filings of such prospectus supplement or such post-effective
amendment as soon as practicable after the Issuers have received notification of
the matters to be incorporated in such prospectus supplement or post-effective
amendment pursuant to clause (i), and (iii) supplement
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or make amendments to such Registration Statement with such information as is
required in connection with any request made pursuant to clause (i);
(f) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Transfer Restricted
Notes and to each such Participating Broker-Dealer who so requests and to
counsel and each managing underwriter, if any, without charge, one conformed
copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits;
(g) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Transfer Restricted
Notes, or each such Participating Broker-Dealer, as the case may be, its
counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of preliminary Prospectus), and
each amendment or supplement thereto and any documents incorporated by reference
therein, as such Persons may reasonably request; and, subject to the last
paragraph of this Section 5 hereof, the Issuers hereby consent to the use of
such Prospectus and each amendment or supplement thereto by each of the selling
Holders of Transfer Restricted Notes or each such Participating Broker-Dealer,
as the case may be, and their underwriters or agents, if any, and dealers, if
any, in connection with the offering and sale of the Transfer Restricted Notes
covered by or the sale by Participating Broker-Dealers of the Exchange Notes
pursuant to such Prospectus and any amendment or supplement thereto;
(h) prior to any public offering of Transfer Restricted Notes or any
delivery of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use their best efforts to register or qualify, and to
cooperate with the selling Holders of Transfer Restricted Notes or each such
Participating Broker-Dealer, as the case may be, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification), of such Transfer
Restricted Notes for offer and sale
13
under the securities or Blue Sky laws of such jurisdictions as any selling
Holder, Participating Broker-Dealer, or the managing underwriters reasonably
request in writing; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things reasonably
necessary or advisable to enable the disposition in such jurisdictions of the
Exchange Notes held by Participating Broker-Dealers or the Transfer Restricted
Notes covered by the applicable Registration Statement; provided that the
Issuers shall not be required to (A) qualify generally to do business in any
jurisdiction where they are not then so qualified, (B) take any action that
would subject them to general service of process in any such jurisdiction where
they are not then so subject or (C) subject them to taxation in any such
jurisdiction where they are not so subject;
(i) if a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Transfer Restricted Notes and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Transfer Restricted Notes to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company ("DTC"), and enable such
Transfer Restricted Notes to be in such denominations and registered in such
names as the managing underwriters, if any, or Holders may reasonably request at
least two Business Days prior to any sale of the Transfer Restricted Notes;
(j) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) above, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the expense of the
Issuers, a supplement or post-effective amendment to the Registration Statement
or a supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Transfer Restricted Notes
being sold thereunder or to the purchasers of the Exchange Notes to whom such
Prospectus will be delivered by a Participating Broker-Dealer, any such
Prospectus will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
14
(k) prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Notes, (i) provide the Trustee with
certificates for the Transfer Restricted Notes in a form eligible for deposit
with DTC and (ii) use their best efforts to provide a CUSIP number for the
Transfer Restricted Notes;
(l) in connection with an underwritten offering of Transfer Restricted
Notes pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriters in order to expedite or
facilitate the registration or the disposition of such Transfer Restricted
Notes, and in such connection, (i) make such representations and warranties to
the underwriters, with respect to the business of the Issuers, the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings, and confirm the same if and
when requested; (ii) obtain opinions of counsel to the Issuers and updates
thereof in form and substance reasonably satisfactory to the managing
underwriters, addressed to the underwriters covering the matters customarily
covered in opinions requested in underwritten offerings and such other matters
as may be reasonably requested by underwriters; (iii) obtain "cold comfort"
letters and updates thereof in form and substance reasonably satisfactory to the
managing underwriters from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public accountants
with respect to any business for which financial statements and financial data
are, or are required to be, included in the Registration Statement), addressed
to each of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as are reasonably requested
by underwriters as permitted by Statement on Auditing Standards No. 72; and (iv)
if an underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable than those set forth
in Section 7 hereof (or such other provisions and procedures acceptable to
Holders of a majority in aggregate principal amount of outstanding Transfer
Restricted Notes covered by such Registration Statement and the managing
underwriters or agents), with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder;
(m) if (1) a Shelf Registration is filed pursuant to Section 3 hereof, or
(2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable
15
Period, make available for inspection by any selling Holder of such Transfer
Restricted Notes being sold, or each such Participating Broker-Dealer, as the
case may be, any underwriter participating in any such disposition of Transfer
Restricted Notes, if any, and any attorney, accountant or other agent retained
by any such selling Holder or each such Participating Broker-Dealer, as the case
may be, or underwriter (collectively, the "Inspectors"), at the offices where
normally kept, during reasonable business hours, all financial and other
records, pertinent corporate documents and properties of the Issuers
(collectively, the "Records"), as shall be reasonably necessary to enable them
to exercise any applicable due diligence responsibilities, and cause the
officers, directors and employees of the Issuers and the Company's subsidiaries
to supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement;
(n) provide an indenture trustee for the Transfer Restricted Notes or the
Exchange Notes, as the case may be, and cause the Indenture to be qualified
under the TIA not later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Transfer Restricted Notes; and in
connection therewith, cooperate with the trustee under any such indenture and
the Holders of the Transfer Restricted Notes, to effect such changes to such
indenture as may be required for such indenture to be so qualified in accordance
with the terms of the TIA; and execute, and use their best efforts to cause such
trustee to execute, all customary documents as may be required to effect such
changes, and all other forms and documents required to be filed with the SEC to
enable such indenture to be so qualified in a timely manner;
(o) comply with all applicable rules and regulations of the SEC and, as
soon as reasonably practicable, make generally available to the holders of
Exchange Notes and the Holders, if any, consolidated earning statements of the
Issuers that satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder;
(p) If an Exchange Offer is to be consummated, upon delivery of the
Transfer Restricted Notes by Holders to the Issuers (or to such other Person as
directed by the Issuers), in exchange for the Exchange Notes, the Issuers shall
xxxx, or cause to be marked, on such Transfer Restricted Notes that such
Transfer Restricted Notes are being cancelled in exchange for the Exchange
Notes; in no event shall such Transfer Restricted Notes be marked as paid or
otherwise satisfied.
(q) cooperate with each seller of Transfer Restricted Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Transfer Restricted Notes and their respective counsel in
connection with any
16
filings required to be made with the National Association of Securities Dealers,
Inc. (the "NASD");
(r) use their best efforts to take all other steps necessary to effect the
registration of the Transfer Restricted Notes or the Exchange Notes covered by a
Registration Statement contemplated hereby; and
(s) use their best efforts to cause the Transfer Restricted Notes or the
Exchange Notes, as applicable, covered by an effective registration statement
required by Section 2 or Section 3 hereof to be rated with the appropriate
rating agencies, if so requested by the managing underwriters in connection
therewith, if any.
The Issuers may require each seller of Transfer Restricted Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Transfer Restricted Notes or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, as the
Issuers may, from time to time, reasonably request. The Issuers may exclude from
such registration the Transfer Restricted Notes or Exchange Notes of any seller
or Participating Broker-Dealer, as the case may be, who fails to furnish such
information within a reasonable time after receiving such request.
Each Holder of Transfer Restricted Notes and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Notes or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, that, upon receipt of any notice from the Issuers of the happening of any
event of the kind described in Section 5(c)(ii), 5(c)(iv), 5(c)(v) or 5(c)(vi)
hereof, such Holder shall forthwith discontinue disposition of such Transfer
Restricted Notes covered by such Registration Statement or Prospectus or such
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 5(j) hereof, or until it is advised in
writing by the Issuers that the use of the applicable Prospectus may be resumed,
and has received copies of any amendments or supplements thereto.
17
6. Registration Expenses
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne by the Issuers, whether or not
the Exchange Offer or a Shelf Registration is filed or becomes effective,
including, without limitation, (i) all registration and filing fees (including,
without limitation, (A) fees with respect to filings required to be made with
the NASD in connection with an underwritten offering and (B) fees and expenses
of compliance with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Transfer Restricted Notes or Exchange Notes and
determination of the eligibility of the Transfer Restricted Notes or Exchange
Notes for investment under the laws of such jurisdictions (x) where the Holders
of Transfer Restricted Notes are located, in the case of the Exchange Notes, or
(y) as provided in Section 5(h) hereof, in the case of Transfer Restricted Notes
or Exchange Notes to be sold by a Participating Broker-Dealer during the
Applicable Period)), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Transfer Restricted Notes or Exchange
Notes in a form eligible for deposit with DTC and of printing Prospectuses if
the printing of Prospectuses is requested by the managing underwriters, if any,
or, in respect of Transfer Restricted Notes or Exchange Notes to be sold by any
Participating Broker-Dealer during the Applicable Period, by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Notes included
in any Registration Statement or of such Exchange Notes, as the case may be),
(iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of
counsel for the Issuers, (v) fees and disbursements of all independent certified
public accountants referred to in Section 5(l)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) rating agency fees, (vii)
Securities Act liability insurance, if the Issuers desire such insurance, (viii)
fees and expenses of all other Persons retained by either of the Issuers, (ix)
internal expenses of the Issuers (including, without limitation, all salaries
and expenses of officers and employees of the Issuers performing legal or
accounting duties), (x) the expense of any annual audit and (xi) the fees and
expenses incurred in connection with the listing of the securities to be
registered on any securities exchange. Nothing contained in this Section 6 shall
create an obligation on the part of the Issuers to pay or reimburse any Holder
for any underwriting commission or discount attributable to any such Holder's
Transfer Restricted Notes included in an underwritten offering pursuant to a
Registration Statement filed in accordance with the terms of this Agreement, or
to guarantee such Holder any profit or proceeds from the sale of such Notes.
18
(b) In connection with any Shelf Registration hereunder, the Issuers shall
reimburse the Holders of the Transfer Restricted Notes being registered in such
registration for the reasonable fees and disbursements of not more than one
counsel (in addition to appropriate local counsel), chosen by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Notes to be
included in such Registration Statement.
7. Indemnification
The Issuers, jointly and severally, agree to indemnify and hold harmless
(i) each Initial Purchaser or each Holder of Transfer Restricted Notes, each
initial Holder of Exchange Notes and each Participating Broker-Dealer, (ii) each
person, if any, who controls (within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act), any such Person (any of the persons
referred to in this clause (ii) being hereinafter referred to as a "controlling
person"), and (iii) the respective officers, directors, partners, employees,
representatives and agents of any of such Person or any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter be referred to
as an "Indemnified Person"), to the fullest extent lawful, from and against any
and all losses, claims, damages, judgments, actions, out-of-pocket expenses, and
other liabilities (the "Liabilities"), including without limitation and as
incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Person, joint or
several, directly or indirectly related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement or Prospectus (as amended or
supplemented if the Issuers shall have furnished to such Indemnified Person any
amendments or supplements thereto), or any preliminary prospectus, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
Liabilities arise out of or are based upon (i) any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with information relating to any Indemnified Person furnished to the Issuers or
any underwriter in writing by such Indemnified Person expressly for use therein,
or (ii) any untrue statement contained in or omission from a preliminary
prospectus if a copy of the Prospectus (as then amended or supplemented, if the
Issuers shall have furnished to or on behalf of the Holder participating in the
distribution relating to the relevant Registration Statement any amendments or
supplements thereto) was not sent or given by or on behalf of such Holder to the
19
person asserting any such Liabilities who purchased Notes, if such Prospectus
(or Prospectus as amended or supplemented) is required by law to be sent or
given at or prior to the written confirmation of the sale of such Notes to such
person and the untrue statement contained in or omission from such preliminary
prospectus was completely corrected in the Prospectus (or the Prospectus as
amended or supplemented). The Issuers shall notify the Holders promptly of the
institution, threat or assertion of any claim, proceeding (including any
governmental investigation), or litigation of which it shall have become aware
in connection with the matters addressed by this Agreement which involves the
Issuers or an Indemnified Person.
In connection with any Registration Statement in which a Holder of
Transfer Restricted Notes or a Participating Broker-Dealer is participating,
such Holder of Transfer Restricted Notes or Participating Broker-Dealer agrees,
severally and not jointly, to indemnify and hold harmless each of the Issuers,
each person who controls either or both of the Issuers within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act and the
respective partners, directors, officers, members, representatives, employees
and agents of such person or controlling person to the same extent as the
foregoing indemnity from the Issuers to each Indemnified Person, but only with
reference to information relating to such Indemnified Person furnished to the
Issuers in writing by such Indemnified Person expressly for use in any
Registration Statement or Prospectus, any amendment or supplement thereto, or
any preliminary Prospectus. The liability of any Indemnified Person pursuant to
this paragraph shall in no event exceed the net proceeds received by such
Indemnified Person from sales of Transfer Restricted Notes giving rise to such
obligations.
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 indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (the "Indemnified Party"), shall promptly
notify the person against whom such indemnity may be sought (the "Indemnifying
Person"), in writing of the commencement thereof (but the failure to so notify
an Indemnifying Person shall not relieve it from any liability which it may have
under this Section 7), and the Indemnifying Person, upon request of the
Indemnified Party, shall retain counsel reasonably satisfactory to the
Indemnified Party to represent the Indemnified Party and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding. Notwithstanding the foregoing, in any such proceeding, any
Indemnified Party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such Indemnified Party,
unless
20
(i) the Indemnifying Person and the Indemnified Party shall have mutually agreed
in writing to the contrary, (ii) the Indemnifying Person failed within a
reasonable time after notice of commencement of the action to assume the defense
and employ counsel reasonably satisfactory to the Indemnified Party or (iii) the
named parties to any such action (including any impleaded parties), include both
such Indemnified Party and the Indemnifying Person, or any affiliate of the
Indemnifying Person, and such Indemnified Party shall have been reasonably
advised by counsel that, either (x) there may be one or more legal defenses
available to it which are different from or additional to those available to the
Indemnifying Person or such affiliate of the Indemnifying Person or (y) a
conflict may exist between such Indemnified Party and the Indemnifying Person or
such affiliate of the Indemnifying Person (in which case the Indemnifying Person
shall not have the right to assume the defense of such action on behalf of such
Indemnified Party, it being understood, however, that the Indemnifying Person
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel), for
all such indemnified parties, which firm shall be designated in writing by those
indemnified parties who sold a majority in outstanding aggregate principal
amount of Transfer Restricted Notes sold by all such indemnified parties and any
such separate firm for the Issuers, their directors, their officers and such
control persons of the Issuers as shall be designated in writing by the Issuers.
The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its written consent, which consent shall not be unreasonably
withheld, but if settled with such consent or if there be a final judgment for
the plaintiff, the Indemnifying Person agrees to indemnify any Indemnified Party
from and against any loss or liability by reason of such settlement or judgment.
No Indemnifying Person shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending or threatened proceeding
in respect of which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified Party, unless
such settlement includes an unconditional release of such Indemnified Party from
all liability on claims that are the subject matter of such proceeding.
If the indemnification provided for in the first and second paragraphs of
this Section 7 is for any reason held to be unavailable to an Indemnified Party
in respect of any Liabilities referred to therein (other than by reason of the
exceptions provided therein) or is insufficient to hold harmless a party
indemnified thereunder, then each Indemnifying Person under such paragraphs, in
lieu of indemnifying such Indemnified Party thereunder, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Liabilities
(i) in such proportion as is
21
appropriate to reflect the relative benefits of the Indemnified Party on the one
hand and the Indemnifying Person(s) on the other in connection with the
statements or omissions that resulted in such Liabilities, or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Indemnifying
Person(s) and the Indemnified Party, as well as any other relevant equitable
considerations. The relative fault of the Issuers on the one hand and any
Indemnified Persons 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 Issuers or by such Indemnified Persons and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by pro rata allocation (even if such
indemnified parties 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 the immediately preceding paragraph. The amount
paid or payable by an Indemnified Party as a result of any Liabilities referred
to in the immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, any reasonable legal or other expenses actually
incurred by such Indemnified Party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7, in
no event shall an Indemnified Person be required to contribute any amount in
excess of the amount by which proceeds received by such Indemnified Person from
sales of Transfer Restricted Notes or Exchange Notes exceeds the amount of any
damages that such Indemnified Person has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 7, each person, if any, who controls
(within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act) an Initial Purchaser, a Holder of Transfer Restricted Notes, an initial
Holder of Exchange Notes or a Participating Broker-Dealer shall have the same
rights to contribution as such Initial Purchaser, such Holder of Transfer
Restricted Notes, such initial Holder of Exchange Notes or such Participating
Broker-Dealer, as the case may be, and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act) the
Issuers, and each officer, director, partner, employee, representative, agent or
manager of the Issuers shall have the same rights to contribution as the
Issuers. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for
22
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 7 or
otherwise. 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.
The indemnity and contribution agreements contained in this Section 7 will
be in addition to any liability which the indemnifying parties may otherwise
have to the indemnified parties referred to above. The Indemnified Persons'
obligations to contribute pursuant to this Section 7 are several in proportion
to the respective principal amount of Notes sold by each of the Indemnified
Persons hereunder and not joint.
8. Rules 144 and 144A
The Issuers covenant that they will file the reports required to be filed
by them pursuant to the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and, if at any time
the Issuers are not required to file such reports, they will, upon the request
of any Holder of Transfer Restricted Notes, make available information required
by Rule 144 and Rule 144A under the Securities Act in order to permit sales
pursuant to Rule 144 and Rule 144A. The Issuers further covenant that they will
take such further action as any Holder of Transfer Restricted Notes may
reasonably request, all to the extent required from time to time to enable such
Holder to sell Transfer Restricted Notes without registration under the
Securities Act within the limitation of the exemptions provided by (a) Rule 144
and Rule 144A or (b) any similar rule or regulation hereafter adopted by the
SEC.
9. Underwritten Registrations
(a) If any of the Transfer Restricted Notes covered by any Shelf
Registration are to be sold in an underwritten offering, the investment banker
or investment bankers and manager or managers that will manage the offering will
be selected by the Holders of a majority in aggregate principal amount of such
Transfer Restricted Notes included in such offering and shall be reasonably
acceptable to the Issuers.
23
No Holder of Transfer Restricted Notes may participate in any underwritten
registration hereunder, unless such Holder (a) agrees to sell such Holder's
Transfer Restricted Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
(b) Each Holder of Transfer Restricted Notes agrees, if requested
(pursuant to a timely written notice), by the managing underwriters in an
underwritten offering or by a placement agent in a private offering of the
Issuers' debt securities, not to effect any private sale or distribution
(including a sale pursuant to Rule 144(k) or Rule 144A under the Securities Act,
but excluding non-public sales to any of its affiliates, officers, directors,
employees and controlling persons), of any of the Notes except pursuant to an
Exchange Offer, during the period beginning 10 days prior to, and ending 90 days
after, the closing date of the underwritten offering.
The foregoing provisions shall not apply to any Holder of Transfer
Restricted Notes if such Holder is prevented by applicable statute or regulation
from entering into any such agreement.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Issuers of any of their
obligations under this Agreement, each Holder of Transfer Restricted Notes and
each Participating Broker-Dealer holding Exchange Notes, in addition to being
entitled to exercise all rights provided herein, in the Indenture or, in the
case of the Initial Purchasers, in the Purchase Agreement, or granted by law,
including recovery of damages, will be entitled to specific performance of its
rights under this Agreement. Subject to Section 4, the Issuers agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by them of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific performance in
respect of such breach, they shall waive the defense that a remedy at law would
be adequate.
(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 or departures from the provisions hereof may not be
given, unless the Issuers have obtained the written consent of holders of at
least a majority of the then outstanding aggregate principal amount of Transfer
24
Restricted Notes and Exchange Notes held by Participating Broker-Dealers taken
as one class. Notwithstanding the foregoing, a waiver or consent to or departure
from the provisions hereof with respect to a matter that relates exclusively to
the rights of Holders and Participating Broker-Dealers holding Exchange Notes
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders and Participating Broker-Dealers holding Exchange Notes may be
given by holders of at least a majority in aggregate principal amount of the
Transfer Restricted Notes and Exchange Notes held by Participating
Broker-Dealers being sold by such Holders and Participating Broker-Dealers
pursuant to such Registration Statement; provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with
the provisions of the immediately preceding sentence.
(c) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee), provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Notes, at the most current
address given by the Trustee to the Issuers; and
(ii) if to the Issuers, c/o Waterford Gaming, L.L.C., 000 Xxxxxxxx
Xxxxxxxx, X.X. Xxx 000, Xxxxxxxxx, XX 00000 Attention: Xxx Xxxxxx, with a
copy to Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attn: Xxxxxxx Xxx.
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a nationally recognized next-day air courier, if made
by next-day air courier; and when receipt is acknowledged by the addressee, if
telecopied on a Business Day on such Business Day, if not on a Business Day, on
the first Business Day thereafter.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
25
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
including, without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Notes. The Issuers agree that the
Holders of Transfer Restricted Notes and Participating Broker-Dealers holding
Exchange Notes shall be third party beneficiaries to the agreements made
hereunder by the Initial Purchasers and the Issuers, and each Holder and
Participating Broker-Dealer shall have the right to enforce such agreements
directly to the extent it deems such enforcement necessary or advisable to
protect its rights hereunder.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
26
(h) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties hereto that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(i) Entire Agreement. This Agreement, together with the Purchase
Agreement, is intended by the parties hereto as a final expression of their
agreement, and is intended to be a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein and therein.
(j) Notes Held by the Issuers or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted Notes is
required hereunder, Transfer Restricted Notes held by the Issuers or their
affiliates (as such term is defined in Rule 405 under the Securities Act), shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(k) Survival. This Agreement is intended to survive the consummation of
the transactions contemplated by the Purchase Agreement. The indemnification and
contribution obligations under Section 7 of this Agreement shall survive the
termination of the Issuers' obligations under Sections 2 and 3 of this
Agreement.
27
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
WATERFORD GAMING, L.L.C.
By:/s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: Cheif Executive Officer
WATERFORD GAMING FINANCE CORP.
By: /s/ Xxx Xxxxxx
------------------------------------
Name: Xxx Xxxxxx
Title: President
The foregoing Registration Rights
Agreement is hereby confirmed and
accepted as of the date first
above written.
BEAR, XXXXXXX & CO. INC.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
By: Bear, Xxxxxxx & Co. Inc.
By:/s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Managing Director
