Exhibit 4.2.1
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 25, 2003
Among
XXXXX CASINO HOLDINGS, LLC,
XXXXX CASINO FUNDING, INC.
and
THE GUARANTORS NAMED HEREIN
as Issuers,
and
XXXXXX X. XXXXX,
as Purchaser
17-5/8% Second Priority Mortgage Notes due 2010
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TABLE OF CONTENTS
Page
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1. DEFINITIONS ........................................................... 1
2. [INTENTIONALLY OMITTED] ............................................... 4
3. SHELF REGISTRATION .................................................... 4
4. ADDITIONAL INTEREST ................................................... 5
5. REGISTRATION PROCEDURES ............................................... 7
6. REGISTRATION EXPENSES ................................................. 14
7. INDEMNIFICATION AND CONTRIBUTION ...................................... 15
8. RULE 144; EXCHANGE OFFER .............................................. 19
9. UNDERWRITTEN REGISTRATIONS ............................................ 19
10. MISCELLANEOUS ......................................................... 20
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is dated as of
March 25, 2003, among XXXXX CASINO HOLDINGS, LLC, a Delaware corporation (the
"Company"), Xxxxx Casino Funding, Inc., a Delaware corporation ("TC Funding"),
the subsidiaries of the Company that are listed on the signature pages hereto
(excluding TC Funding) (collectively, and together with any entity that in the
future executes a supplemental indenture pursuant to which such entity agrees to
guarantee the Notes (as hereinafter defined) the "Guarantors", and, together
with the Company and TC Funding, the "Issuers"), and XXXXXX X. XXXXX as
purchaser (the "Purchaser").
This Agreement is entered into in connection with the Purchase
Agreement by and among the Issuers and the Purchaser, dated as of March 13, 2003
(the "Purchase Agreement"), which provides for, among other things, the sale by
the Company and TC Funding to the Purchaser of $15,000,000 aggregate principal
amount of the Company's and TC Funding's 17-5/8% Second Priority Mortgage Notes
due 2010 (the "Notes"), guaranteed by the Guarantors (the "Guarantees"). The
Notes and the Guarantees are collectively referenced to herein as the
"Securities". In order to induce the Purchaser to enter into the Purchase
Agreement, the Issuers have agreed to provide the registration rights set forth
in this Agreement for the benefit of the Purchaser and any subsequent holder or
holders of the Securities. The execution and delivery of this Agreement is a
condition to the Purchaser' obligation to purchase the Securities under the
Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4(a) hereof.
Advice: See the last paragraph of Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Business Day: Any day that is not a Saturday, Sunday or a day on which
banking institutions in New York are authorized or required by law to be closed.
Company: See the introductory paragraphs hereto.
Effectiveness Date: With respect to any Shelf Registration Statement,
the 120th day after the Filing Date thereto; provided, however, that if the
Effectiveness Date
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would otherwise fall on a day that is not a Business Day, then the Effectiveness
Date shall be the next succeeding Business Day.
Effectiveness Period: See Section 3(a) hereof.
Event Date: See Section 4(b) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Filing Date: The 90th day after the Issue Date; provided, however,
that if the Filing Date would otherwise fall on a day that is not a Business
Day, then the Filing Date shall be the next succeeding Business Day.
Guarantees: See the introductory paragraphs hereto.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Security or Registrable
Securities.
Indenture: The Indenture, dated as of March [ ], 2003, by and among
the Issuers and U.S. Bank National Association, as Trustee, pursuant to which
the Securities are being issued, as amended or supplemented from time to time in
accordance with the terms thereof.
Information: See Section 5(o) hereof.
Initial Shelf Registration: See Section 3(a) hereof.
Inspectors: See Section 5(o) hereof.
Issue Date: March 25, 2003, the date of original issuance of the
Securities.
Issuers: See the introductory paragraphs hereto.
NASD: See Section 5(s) hereof.
Notes: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Person: An individual, trustee, corporation, partnership, limited
liability company, joint stock company, trust, unincorporated association,
union, business association, firm or other legal entity.
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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
under the Securities Act and any term sheet filed pursuant to Rule 434 under the
Securities Act), as amended or supplemented by any prospectus supplement, 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.
Purchase Agreement: See the introductory paragraphs hereof.
Purchaser: See the introductory paragraphs hereto.
Records: See Section 5(o) hereof.
Registrable Securities: Each Security upon its original issuance and
at all times subsequent thereto, until, the earliest to occur of (i) a
Registration Statement covering such Security has been declared effective by the
SEC and such Security has been disposed of in accordance with such effective
Registration Statement, (ii) such Security ceases to be outstanding for purposes
of the Indenture or (iii) such Security may be resold without restriction
pursuant to Rule 144(k) (as amended or replaced) under the Securities Act.
Registration Statement: Any registration statement of the Issuers that
covers any of the Securities (and the related guarantees) filed with the SEC
under the Securities Act, 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 under the Securities Act.
Rule 144A: Rule 144A under the Securities Act.
Rule 405: Rule 405 under the Securities Act.
Rule 415: Rule 415 under the Securities Act.
Rule 424: Rule 424 under the Securities Act.
SEC: The U.S. Securities and Exchange Commission.
Securities: See the introductory paragraphs hereto.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
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Shelf Registration: See Section 3(b) hereof.
Shelf Registration Statement: Any Registration Statement relating to a
Shelf Registration.
Subsequent Shelf Registration: See Section 3(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture.
Underwritten registration or underwritten offering: A registration in
which securities of one or more of the Issuers are sold to an underwriter for
reoffering to the public.
Except as otherwise specifically provided, all references in this
Agreement to acts, laws, statutes, rules, regulations, releases, forms,
no-action letters and other regulatory requirements (collectively, "Regulatory
Requirements") shall be deemed to refer also to any amendments thereto and all
subsequent Regulatory Requirements adopted as a replacement thereto having
substantially the same effect therewith; provided that Rule 144 shall not be
deemed to amend or replace Rule 144A.
2. [Intentionally Omitted]
3. Shelf Registration
(a) Shelf Registration. The Issuers shall as promptly as practicable
file with the SEC a Registration Statement for an offering to be made on a
continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "Initial Shelf Registration"). The Issuers shall use their
reasonable best efforts to file with the SEC the Initial Shelf Registration
on or prior to the applicable Filing Date. The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of
such Registrable Securities for resale by Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Issuers shall not permit any securities other than the
Registrable Securities to be included in the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below).
The Issuers shall use their reasonable best efforts to cause the Shelf
Registration to be declared effective under the Securities Act on or prior
to the Effectiveness Date and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date that is four
years from the Issue Date or such shorter period ending when all
Registrable Securities covered by the Initial Shelf Registration have been
sold in the manner set forth and as contemplated in the Initial
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Shelf Registration or, if applicable, a Subsequent Shelf Registration
(the "Effectiveness Period"); provided, however, that the Effectiveness
Period in respect of the Initial Shelf Registration shall be extended to
the extent required to permit dealers to comply with the applicable
prospectus delivery requirements of Rule 174 under the Securities Act and
as otherwise provided herein and shall be subject to reduction to the
extent that the applicable provisions of Rule 144(k) are amended or revised
to reduce the two year holding period set forth therein.
(b) Withdrawal of Stop Orders; Subsequent Shelf Registrations. If the
Initial Shelf Registration or any Subsequent Shelf Registration ceases to
be effective for any reason at any time during the Effectiveness Period
(other than because of the sale of all of the Securities registered
thereunder), the Issuers shall use their reasonable best efforts to obtain
the prompt withdrawal of any order suspending the effectiveness thereof,
and in any event shall within 30 days of such cessation of effectiveness
amend such Shelf Registration Statement in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional Shelf Registration Statement pursuant to Rule 415 covering all
of the Registrable Securities covered by and not sold under the Initial
Shelf Registration or an earlier Subsequent Shelf Registration (each, a
"Subsequent Shelf Registration"). If a Subsequent Shelf Registration is
filed, the Issuers shall use their reasonable best efforts to cause the
Subsequent Shelf Registration to be declared effective under the Securities
Act as soon as practicable after such filing and to keep such Subsequent
Shelf Registration continuously effective for a period equal to the number
of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration or any Subsequent Shelf
Registration was previously continuously effective. As used herein the term
"Shelf Registration" means the Initial Shelf Registration and any
Subsequent Shelf Registration.
(c) Supplements and Amendments. The Issuers shall promptly supplement
and amend 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 Act, or if reasonably requested
by the Holders of a majority in aggregate principal amount of the
Registrable Securities (or their counsel) covered by such Registration
Statement with respect to the information included therein with respect to
one or more of such Holders, or by any underwriter of such Registrable
Securities with respect to the information included therein with respect to
such underwriter.
4. Additional Interest
(a) The Issuers and the Purchaser agree that the Holders will suffer
damages if the Issuers fail to fulfill their obligations under Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers agree to pay, jointly and severally, as
liquidated damages, additional interest on the
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Securities ("Additional Interest") under the circumstances and to the extent set
forth below (each of which shall be given independent effect):
(i) if the Initial Shelf Registration has not been filed on or
prior to the Filing Date applicable thereto, then, commencing on the
day after any such Filing Date, Additional Interest shall accrue on
the principal amount of the Securities at a rate of 0.50% per annum
for the first 90 days immediately following such applicable Filing
Date, and such Additional Interest rate shall increase by an
additional 0.50% per annum at the beginning of each subsequent 90-day
period; or
(ii) if the Initial Shelf Registration is not declared effective
by the SEC on or prior to the Effectiveness Date applicable thereto,
then, commencing on the day after such Effectiveness Date, Additional
Interest shall accrue on the principal amount of the Securities at a
rate of 0.50% per annum for the first 90 days immediately following
the day after such Effectiveness Date, and such Additional Interest
rate shall increase by an additional 0.50% per annum at the beginning
of each subsequent 90-day period; or
(iii) if a Shelf Registration has been declared effective and
such Shelf Registration ceases to be effective at any time during the
Effectiveness Period, then Additional Interest shall accrue on the
principal amount of the Securities at a rate of 0.50% per annum for
the first 90 days commencing on the day such Shelf Registration ceases
to be effective, and such Additional Interest rate shall increase by
an additional 0.50% per annum at the beginning of each such subsequent
90-day period;
provided, however, that the Additional Interest rate on the Securities may not
accrue under more than one of the foregoing clauses (i) - (iii) at any one time
and at no time shall the aggregate amount of additional interest accruing exceed
in the aggregate 2.0% per annum; provided, further, however, that (1) upon the
filing of the Shelf Registration as required hereunder (in the case of clause
(i) above of this Section 4), (2) upon the effectiveness of the applicable Shelf
Registration Statement as required hereunder (in the case of clause (ii) of this
Section 4), or (3) upon the effectiveness of the applicable Shelf Registration
Statement which had ceased to remain effective (in the case of (iii)(B) of this
Section 4), Additional Interest on the Securities in respect of which such
events relate as a result of such clause (or the relevant subclause thereof), as
the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Any amounts of Additional
Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be
payable in cash semiannually on each June 15 and December 15 (to the holders of
record on the June 1 and December 1 immediately preceding
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such dates), commencing with the first such date occurring after any such
Additional Interest commences to accrue. The amount of Additional Interest will
be determined by multiplying the applicable Additional Interest rate by the
principal amount of the Registrable Securities, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360 day year
comprised of twelve 30 day months and, in the case of a partial month, the
actual number of days elapsed), and the denominator of which is 360.
5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Section 3 hereof, the Issuers shall effect such registrations to permit the
sale of the securities covered thereby in accordance with the intended method or
methods of disposition thereof, and pursuant thereto and in connection with any
Registration Statement filed by the Issuers hereunder each of the Issuers shall:
(a) Prepare and file with the SEC prior to the applicable Filing Date
a Registration Statement or Registration Statements as prescribed by
Section 3 hereof, and use its reasonable best efforts to cause each such
Registration Statement to become effective and remain effective as provided
herein; provided, however, the Issuers shall furnish to and afford the
Holders of the Registrable Securities 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 five business days prior to
such filing. The Issuers shall not file any Registration Statement or
Prospectus or any amendments or supplements thereto if the Holders of a
majority in aggregate principal amount of the Registrable Securities
covered by such Registration Statement, their counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to Shelf Registration Statement, as may be necessary to keep
such Registration Statement continuously effective for the Effectiveness
Period; cause the related Prospectus to be supplemented by any Prospectus
supplement required by applicable law, and as so supplemented to be filed
pursuant to Rule 424; and comply with the provisions of the Securities Act
and the Exchange Act applicable to it with respect to the disposition of
all securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented. The Issuers shall be deemed not to have
used their reasonable best efforts to keep a Registration Statement
effective if any Issuer voluntarily takes any action that would result in
selling Holders of the Registrable Securities covered thereby not being
able to sell such Registrable Securities during that period unless such
action is required by applicable law or permitted by this Agreement.
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(c) If a Shelf Registration is filed pursuant to Section 3 hereof,
notify the selling Holders of Registrable Securities, their counsel and the
managing underwriters, if any, promptly (but in any event within one
business day), and confirm such notice in writing, (i) when a Prospectus or
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 under the Securities Act (including in
such notice a written statement that any Holder may, upon request, obtain,
at the sole expense of the Issuers, 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 Registrable Securities the representations and warranties of the
Issuers contained in any agreement (including any underwriting agreement)
contemplated by Section 5(n) hereof cease to be true and correct, (iv) of
the receipt by any Issuer of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities, or the
initiation or threatening of any proceeding for such purpose, (v) of the
happening of any event, the existence of any condition 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 or amendments or supplements to 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 the light
of the circumstances under which they were made, not misleading, and (vi)
of the Issuers' determination that a post-effective amendment to a
Registration Statement would be appropriate.
(d) Use its reasonable 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 Registrable
Securities, for sale in any jurisdiction, and, if any such order is issued,
to use its reasonable best efforts to obtain the withdrawal of any such
order at the earliest practicable moment.
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(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested during the Effectiveness Period by the managing underwriter or
underwriters (if any) or the Holders of a majority in aggregate principal
amount of the Registrable Securities being sold in connection with an
underwritten offering, (i) as promptly as practicable incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriter or underwriters (if any), such Holders, or counsel for
any of them 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 Company has received
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement.
(f) If a Shelf Registration is filed pursuant to Section 3 hereof,
furnish to each selling Holder of Registrable Securities and to their
respective counsel and each managing underwriter, if any, at the sole
expense of the Issuers, 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 a Shelf Registration is filed pursuant to Section 3 hereof,
deliver to each selling Holder of Registrable Securities their respective
counsel, and the underwriters, if any, at the sole expense of the Issuers,
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, the Issuers
hereby consent to the use of such Prospectus and each amendment or
supplement thereto by each of the selling Holders of Registrable
Securities, and the underwriters or agents, if any, and dealers, if any, in
connection with the offering and sale of the Registrable Securities covered
by such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify, and to cooperate with the
selling Holders of Registrable Securities, the managing underwriter or
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States
as any selling Holder, or the managing underwriter or underwriters
reasonably request in writing; provided, however, that where Registrable
Securities are offered other than through an underwritten offering, the
Issuers agree to cause their counsel to perform Blue Sky investigations and
file registrations and qualifications required to be
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filed pursuant to this Section 5(h), 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 necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that no Issuer shall be required
to (A) qualify generally to do business in any jurisdiction where it is not
then so qualified, (B) take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject
or (C) subject itself to taxation in excess of a nominal dollar amount in
any such jurisdiction where it is not then so subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
cooperate with the selling Holders of Registrable Securities and the
managing underwriter or underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities 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; and enable such Registrable Securities to be in such
denominations (subject to applicable requirements contained in the
Indenture) and registered in such names as the managing underwriter or
underwriters, if any, or Holders may request.
(j) Use its reasonable best efforts to cause the Registrable
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof or the underwriter or
underwriters, if any, to consummate the disposition of such Registrable
Securities, except as may be required solely as a consequence of the nature
of such selling Holder's business, in which case the Issuers will cooperate
in all respects with the filing of such Registration Statement and the
granting of such approvals.
(k) If a Shelf Registration is filed pursuant to Section 3 hereof,
upon the occurrence of any event contemplated by paragraph 5(c)(v) or
5(c)(vi) hereof, as promptly as practicable prepare and (subject to Section
5(a) hereof) file with the SEC, at the sole 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
Registrable Securities being sold thereunder 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 the light of the circumstances under which they were made, not
misleading.
(l) Use its reasonable best efforts to cause the Registrable
Securities covered by a Registration Statement to be rated with the
appropriate rating agencies, if
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so requested by the Holders of a majority in aggregate principal
amount of Registrable Securities covered by such Registration Statement or
the Exchange Securities, as the case may be, or the managing underwriter or
underwriters, if any.
(m) Prior to the effective date of the first Registration Statement
relating to the Registrable Securities, (i) provide the Trustee with
certificates for the Registrable Securities in a form eligible for deposit
with The Depository Trust Company and (ii) provide a CUSIP number for the
Registrable Securities.
(n) In connection with any offering of Registrable Securities pursuant
to a Shelf Registration, enter into an underwriting agreement as is
customary in underwritten offerings of debt securities similar to the
Securities, and take all such other actions as are reasonably requested by
the managing underwriter or underwriters in order to expedite or facilitate
the registration or the disposition of such Registrable Securities and, in
such connection, (i) make such representations and warranties to, and
covenants with, the underwriters with respect to the business of the
Issuers (including any acquired business, properties or entity, if
applicable), and 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 of debt securities similar to the Securities, and
confirm the same in writing if and when requested; (ii) obtain the written
opinions of counsel to the Issuers, and written updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters, addressed to the underwriters covering the matters
customarily covered in opinions reasonably requested in underwritten
offerings; (iii) obtain "cold comfort" letters and updates thereof in form,
scope and substance reasonably satisfactory to the managing underwriter or
underwriters from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public
accountants of the Issuers, or of any business acquired by the Issuers, for
which financial statements and financial data are, or are required to be,
included or incorporated by reference 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 of debt securities
similar to the Securities; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no
less favorable to the sellers and underwriters, if any, than those set
forth in Section 7 hereof (or such other provisions and procedures
reasonably acceptable to Holders of a majority in aggregate principal
amount of Registrable Securities covered by such Registration Statement and
the managing underwriter or underwriters or agents, if any). The above
shall be done at each closing under such underwriting agreement, or as and
to the extent required thereunder.
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(o) If a Shelf Registration is filed pursuant to Section 3 hereof,
make available for inspection by the Purchaser, any selling Holder of such
Registrable Securities being sold any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, accountant
or other agent retained by any such selling Holder (with respect to any
such Registration Statement), as the case may be, or underwriter (any such
Initial Purchaser, Holders, underwriters, attorneys, accountants or agents,
collectively, the "Inspectors"), upon written request, at the offices where
normally kept, during reasonable business hours, all pertinent financial
and other records, pertinent corporate documents and instruments of the
Issuers and subsidiaries 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 any of their respective subsidiaries to supply all
information ("Information") reasonably requested by any such Inspector in
connection with such due diligence responsibilities. Each Inspector shall
agree in writing that it will keep the Records and Information confidential
and that it will not disclose any of the Records or Information that any
Issuer determines, in good faith, to be confidential and notifies the
Inspectors in writing are confidential unless (i) the disclosure of such
Records or Information is necessary to avoid or correct a misstatement or
omission in such Registration Statement or Prospectus, (ii) the release of
such Records or Information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, (iii) disclosure of such
Records or Information is necessary or advisable, in the opinion of counsel
for any Inspector, in connection with any action, claim, suit or
proceeding, directly or indirectly, involving or potentially involving such
Inspector and arising out of, based upon, relating to, or involving this
Agreement or the Purchase Agreement, or any transactions contemplated
hereby or thereby or arising hereunder or thereunder, or (iv) the
information in such Records or Information has been made generally
available to the public other than by an Inspector or an "affiliate" (as
defined in Rule 405) thereof; provided, however, that prior notice shall be
provided as soon as practicable to any Issuer of the potential disclosure
of any information by such Inspector pursuant to clauses (i) or (ii) of
this sentence to permit the Issuers to obtain a protective order (or waive
the provisions of this paragraph (o)) and that such Inspector shall take
such actions as are reasonably necessary to protect the confidentiality of
such information (if practicable) to the extent such action is otherwise
not inconsistent with, an impairment of or in derogation of the rights and
interests of the Holder or any Inspector.
(p) Provide an indenture trustee for the Registrable Securities and
cause the Indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement relating to the
Registrable Securities; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the Registrable
Securities, to effect such changes (if any) to such indenture as may be
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required for such indenture to be so qualified in accordance with the
terms of the TIA; and execute, and use its reasonable best efforts to cause
such 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 such indenture to be so qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to its securityholders with regard to any
applicable Registration Statement, a consolidated earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any fiscal quarter (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities
are sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company,
after the effective date of a Registration Statement, which statements
shall cover said 12-month periods.
(r) [intentionally omitted]
(s) Cooperate with each seller of Registrable Securities covered by
any Registration Statement and each underwriter, if any, participating in
the disposition of such Registrable Securities and their respective counsel
in connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(t) Use its reasonable best efforts to take all other steps necessary
to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Securities as to
which any registration is being effected to furnish to the Issuers such
information regarding such seller and the distribution of such Registrable
Securities as the Issuers may, from time to time, reasonably request. The
Issuers may exclude from such registration the Registrable Securities of any
seller so long as such seller fails to furnish such information within a
reasonable time after receiving such request. Each seller as to which any Shelf
Registration is being effected agrees to furnish promptly to the Issuers all
information required to be disclosed in order to make the information previously
furnished to the Issuers by such seller not materially misleading.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Company or TC Funding, then
such Holder shall have the right to require (i) the insertion therein of
language, in form and substance reasonably
-14-
satisfactory to such Holder, to the effect that the holding by such Holder of
such securities is not to be construed as a recommendation by such Holder of the
investment quality of the securities covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial
requirements of the Company and TC Funding, or (ii) in the event that such
reference to such Holder by name or otherwise is not required by the Securities
Act or any similar federal statute then in force, the deletion of the reference
to such Holder in any amendment or supplement to the Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Securities agrees by its acquisition of
such Registrable Securities that, upon actual receipt of any notice from the
Company 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 will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement or Prospectus, as the case may be, until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof, or until it is advised in writing (the "Advice") by the Issuers that the
use of the applicable Prospectus may be resumed, and has received copies of any
amendments or supplements thereto. In the event that the Issuers shall give any
such notice, the Effectiveness Period shall be extended by the number of days
during such periods from and including the date of the giving of such notice to
and including the date when each seller of Registrable Securities covered by
such Registration Statement shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(k) hereof or (y)
the Advice.
6. Registration Expenses
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
any Shelf Registration Statement 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, fees and disbursements of counsel in connection with Blue Sky
qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions (x) where the holders of Registrable Securities are located, or
(y) as provided in Section 5(h) hereof), (ii) printing expenses, including,
without limitation, expenses of printing certificates for Registrable Securities
or Exchange Securities in a form eligible for deposit with The Depository Trust
Company and of printing prospectuses if the printing of prospectuses is
requested by the managing underwriter or underwriters, if any, by the Holders of
a majority in aggregate principal amount of the Registrable Securities included
in any Registration Statement, (iii) messenger, telephone and delivery expenses,
(iv) fees and disbursements of counsel for the Issuers and reasonable fees and
disbursements of one special counsel for all of the sellers of Registrable
Securities
-15-
(exclusive of any counsel retained pursuant to Section 7 hereof), (v) fees and
disbursements of all independent certified public accountants referred to in
Section 5(n)(iii) hereof (including, without limitation, the expenses of any
"cold comfort" letters required by or incident to such performance), (vi)
Securities Act liability insurance, if the Issuers desire such insurance, (vii)
fees and expenses of all other Persons retained by the Issuers, (viii) internal
expenses of the Issuers (including, without limitation, all salaries and
expenses of officers and employees of the Issuers performing legal or accounting
duties), (ix) the expense of any annual audit, (x) any fees and expenses
incurred in connection with the listing of the securities to be registered on
any securities exchange, and the obtaining of a rating of the securities, in
each case, if applicable, and (xi) the expenses relating to printing, word
processing and distributing all Registration Statements, underwriting
agreements, indentures and any other documents necessary in order to comply with
this Agreement.
7. Indemnification and Contribution
(a) Each of the Issuers agree, jointly and severally, to indemnify and
hold harmless each Holder of Registrable Securities, and each Person, if any,
who controls such Person or its affiliates within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act (each, a "Participant") against any
losses, claims, damages or liabilities to which any Participant may become
subject under the Act, the Exchange Act or otherwise, insofar as any such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
(i) any untrue statement or alleged untrue statement made by any
Issuer contained in any application or any other document or any amendment
or supplement thereto executed by any Issuer based upon written information
furnished by or on behalf of any Issuer filed in any jurisdiction in order
to qualify the Securities under the securities or "Blue Sky" laws thereof
or filed with the SEC or any securities association or securities exchange
(each, an "Application");
(ii) any untrue statement or alleged untrue statement of any material
fact contained in any Registration Statement (or any amendment thereto) or
Prospectus (as amended or supplemented if any of the Issuers shall have
furnished any amendments or supplements thereto) or any preliminary
prospectus; or
(iii) the omission or alleged omission to state, in any Registration
Statement (or any amendment thereto) or Prospectus (as amended or
supplemented if any of the Issuers shall have furnished any amendments or
supplements thereto) or any preliminary prospectus or any Application or
any other document or any amendment or supplement thereto, a material fact
required to be stated therein or necessary to make the statements therein
not misleading;
-16-
and will reimburse, as incurred, the Participant for any legal or other expenses
incurred by the Participant in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, the Issuers will not be liable
in any such case to the extent that any such loss, claim, damage, or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in any Registration Statement (or any
amendment thereto) or Prospectus (as amended or supplemented if any of the
Issuers shall have furnished any amendments or supplements thereto) or any
preliminary prospectus or Application or any amendment or supplement thereto in
reliance upon and in conformity with information relating to any Participant
furnished to the Issuers by such Participant specifically for use therein. The
indemnity provided for in this Section 7 will be in addition to any liability
that the Issuers may otherwise have to the indemnified parties. The Issuers
shall not be liable under this Section 7 for any settlement of any claim or
action effected without its prior written consent, which shall not be
unreasonably withheld.
(b) Each Participant, severally and not jointly, agrees to indemnify
and hold harmless the Issuers, their directors, their officers and each person,
if any, who controls the Issuers within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Issuers or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus,
or (ii) the omission or the alleged omission to state therein a material fact
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning such Participant, furnished to
the Issuers by the Participant, specifically for use therein; and subject to the
limitation set forth immediately preceding this clause, will reimburse, as
incurred, any legal or other expenses incurred by the Issuers or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. The indemnity
provided for in this Section 7 will be in addition to any liability that the
Participants may otherwise have to the indemnified parties. The Participants
shall not be liable under this Section 7 for any settlement of any claim or
action effected without their consent, which shall not be unreasonably withheld.
The Issuers shall not, without the prior written consent of such Participant,
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any Participant is or could have been a party, or indemnity
could have been sought hereunder by any Participant, unless such settlement (A)
includes an unconditional written release of the Participants, in form and
substance reasonably satisfactory to the Participants, from all liability on
claims that
-17-
are the subject matter of such proceeding and (B) does not include any statement
as to an admission of fault, culpability or failure to act by or on behalf of
any Participant.
(c) Promptly after receipt by an indemnified party under this Section
7 of notice of the commencement of any action for which such indemnified party
is entitled to indemnification under this Section 7, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party of the commencement thereof
in writing; but the omission to so notify the indemnifying party (i) will not
relieve it from any liability under paragraph (a) or (b) above unless and to the
extent such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than the
indemnification obligation provided in paragraphs (a) and (b) above. In case any
such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if (i) the use of counsel chosen by the indemnifying
party to represent the indemnified party would present such counsel with a
conflict of interest, (ii) the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 7 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by Participants who sold a majority in
interest of the Registrable Securities and Exchange Securities sold by all such
Participants in the case of paragraph (a) of this Section 7 or the Issuers in
the case of paragraph (b) of this Section 7, representing the indemnified
parties under such paragraph (a) or paragraph (b), as the case
-18-
may be, who are parties to such action or actions) or (ii) the indemnifying
party has authorized in writing the employment of counsel for the indemnified
party at the expense of the indemnifying party. All fees and expenses reimbursed
pursuant to this paragraph (c) shall be reimbursed as they are incurred. After
such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the prior
written consent of the indemnifying party (which consent shall not be
unreasonably withheld), unless such indemnified party waived in writing its
rights under this Section 7, in which case the indemnified party may effect such
a settlement without such consent.
(d) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 7 is unavailable to, or insufficient to
hold harmless, an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (i) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Securities or (ii) if the allocation provided by the foregoing
clause (i) is not permitted by applicable law, not only such relative benefits
but also the relative fault of the indemnifying party or parties on the one hand
and the indemnified party on the other in connection with the statements or
omissions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof). The relative
benefits received by the Issuers on the one hand and such Participant on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (before deducting expenses) of the Securities received by the
Issuers bear to the total net profit received by such Participant in connection
with the sale of the Securities. The relative fault of the parties 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 on the one hand,
or the Participants on the other, the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or alleged statement or omission, and any other equitable
considerations appropriate in the circumstances. The parties agree that it would
not be equitable if the amount of such contribution were determined by pro rata
or per capita allocation or by any other method of allocation that does not take
into account the equitable considerations referred to in the first sentence of
this paragraph (d). Notwithstanding any other provision of this paragraph (d),
no Participant shall be obligated to make contributions hereunder that in the
aggregate exceed the total net profit received by such Participant in connection
with the sale of the Securities, less the aggregate amount of any damages that
such Participant has otherwise been required to pay by reason of the untrue or
alleged untrue statements or the omissions or alleged omissions to state a
material fact, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not
-19-
guilty of such fraudulent misrepresentation. For purposes of this paragraph (d),
each person, if any, who controls a Participant within the meaning of Section 15
of the Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Participants, and each director of any Issuer, each officer
of any Issuer and each person, if any, who controls any Issuer within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall have
the same rights to contribution as the Issuers.
8. Rule 144; Exchange Offer
(a) Each of the Issuers covenants and agrees that it will file the
reports required to be filed by it under the Securities Act and the Exchange Act
and the rules and regulations adopted by the SEC thereunder in a timely manner
in accordance with the requirements of the Securities Act and the Exchange Act
and, if at any time such Issuer is not required to file such reports, such
Issuer will, upon the request of any Holder or beneficial owner of Registrable
Securities, make available such information necessary to permit sales pursuant
to Rule 144. Each of the Issuers further covenants and agrees, for so long as
any Registrable Securities remain outstanding that it will take such further
action as any Holder of Registrable Securities may reasonably request, all to
the extent required from time to time to enable such holder to sell Registrable
Securities without registration under the Securities Act within the limitation
of the exemptions provided by Rule 144(k) under the Securities Act.
(b) If Purchaser shall have transferred Registrable Securities to a
Holder in a transaction that is exempt from the registration requirements of the
Securities Act and such transferee Holder is eligible in the opinion of
securities counsel to the Issuers to participate in an exchange offer by the
Issuers for the Securities in exchange for identical securities that are freely
transferable without registration under the Securities Act, then Issuer and
Purchase agree that any such transferee Holder shall be offered the opportunity
to participate in any such exchange offer commenced by Issuers for Second
Priority Mortgages Notes, if reasonably practicable.
9. Underwritten Registrations
If any of the Registrable Securities 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 Registrable
Securities included in such offering and shall be reasonably acceptable to the
Issuers.
No Holder of Registrable Securities may participate in any
underwritten registration hereunder unless such Holder (a) agrees to sell such
Holder's Registrable Securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all
-20-
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting arrangements.
10. Miscellaneous
(a) No Inconsistent Agreements. The Issuers have not, as of the date
hereof, and the Issuers shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent with
the rights granted to the Holders of Registrable Securities in this Agreement or
otherwise conflicts with the provisions hereof. 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 the Issuers' other issued and outstanding
securities under any such agreements. The Issuers will not enter into any
agreement with respect to any of their securities which will grant to any Person
piggy-back registration rights with respect to any Registration Statement.
(b) Adjustments Affecting Registrable Securities. The Issuers shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (I) the Company, and (II) the Holders of not less than a majority in
aggregate principal amount of the then outstanding Registrable Securities;
provided, however, that Section 7 and this Section 10(c) may not be amended,
modified or supplemented without the prior written consent of each Holder
(including any person who was a Holder of Registrable Securities, disposed of
pursuant to any Registration Statement) affected by any such amendment,
modification or supplement. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities 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 of
Registrable Securities may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold pursuant to
such Registration Statement.
(d) 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 facsimile:
(i) if to a Holder of the Registrable Securities, at the most current
address of such Holder, set forth on the records of the registrar under the
Indenture.
-21-
(ii) if to the Purchaser, at the address as follows:
c/o The Xxxxx Organization
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx Xxxxxxx, Esq.
c/o The Xxxxx Organization
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
(iii) if to the Issuers, at the address as follows:
Xxxxx Casino Holdings, LLC
Xxxxx Casino Funding, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
with a copy to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx L.L.P.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx XxXxxx
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 next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
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 and in the manner specified in such Indenture.
(e) 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
and the Holders; provided, however, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms of the Purchase Agreement or the Indenture.
-22-
(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 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, AS APPLIED TO CONTRACTS
MADE AND PERFORMED ENTIRELY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THAT WOULD REQUIRE THE APPLICATION OF ANY OTHER
LAW.
(i) 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 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.
(j) Securities Held by the Issuers or Their Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable
Securities is required hereunder, Registrable Securities held by the Issuers or
their affiliates (as such term is defined in Rule 405 under the Securities Act)
other than Purchaser shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
(k) Third-Party Beneficiaries. Holders of Registrable Securities are
intended third-party beneficiaries of this Agreement, and this Agreement may be
enforced by such Persons.
(l) Entire Agreement. This Agreement, together with the Purchase
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, or warranties, contracts, understandings,
correspondence, conversations and memoranda between the Holders on the one hand
and the Issuers on the other, or between or among any agents, representatives,
parents, subsidiaries, affiliates, predecessors in interest or successors
-23-
in interest with respect to the subject matter hereof and thereof are merged
herein and replaced hereby.
S-1
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXX CASINO HOLDINGS, LLC
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and Secretary
XXXXX CASINO FUNDING, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and Secretary
XXXXX INDIANA, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Executive Vice President and Treasurer
S-2
XXXXX INDIANA REALTY, LLC
By: Xxxxx Hotels & Casino Resorts Holdings, L.P.,
its member
By: Xxxxx Hotels & Casino Resorts, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President
Corporate Treasurer and Secretary
TRUMP'S CASTLE HOTEL & CASINO, INC.
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
TRUMP'S CASTLE ASSOCIATES, L.P.
By: Trump's Castle Hotel & Casino, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
S-3
THCR MANAGEMENT HOLDINGS, LLC
By: Xxxxx Hotels & Casino Resorts Holdings, L.P.,
its member
By: Xxxxx Hotels & Casino Resorts, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
------------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and Secretary
THCR MANAGEMENT SERVICES, LLC
By: THCR Management Holdings, LLC, its member
By: Xxxxx Hotels & Casino Resorts Holdings, L.P.,
its member
By: Xxxxx Hotels & Casino Resorts, Inc.,
its general partner
By: /s/ Xxxx X. Xxxxx
-------------------------------------------
Name: Xxxx X. Xxxxx
Title: CFO, Executive Vice President,
Corporate Treasurer and Secretary
S-4
The foregoing Agreement is hereby confirmed and accepted by the Purchaser as of
the date first above written.
/s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
as Purchaser
