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Exhibit 4.32
REGISTRATION RIGHTS AGREEMENT
Dated as of December 10, 1997
by and among
XXXXX ATLANTIC CITY ASSOCIATES
XXXXX ATLANTIC CITY FUNDING II, INC.
THE GUARANTORS NAMED HEREIN
and
XXXXXXXXX, XXXXXX & XXXXXXXX SECURITIES CORPORATION
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This Registration Rights Agreement (this "Agreement") is made and
entered into as of December 10, 1997, by and among Xxxxx Atlantic City
Associates, a New Jersey general partnership (the "Company"), Xxxxx Atlantic
City Funding II, Inc., a Delaware corporation and a wholly owned subsidiary
of the Company ("Funding II" and, together with the Company, the "Issuers"),
the Guarantors named herein and Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation (the "Initial Purchaser"), who has agreed to purchase the
Issuers' 11 1/4% Series A First Mortgage Notes (TAC II) due 2006 (the "Series
A Notes") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated
December 10, 1997 (the "Purchase Agreement"), by and among the Issuers, the
Guarantors named therein, Xxxxx Atlantic City Funding III, Inc. and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Series A
Notes, the Issuers and the Guarantors named herein have agreed to provide the
registration rights set forth in this Agreement. The execution and delivery of
this Agreement is a condition to the obligations of the Initial Purchaser set
forth in Sections 2 and 4 of the Purchase Agreement. Capitalized terms used
herein and not otherwise defined shall have the meaning assigned to them in the
Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Broker-Dealer: Any broker or dealer registered under the Exchange
Act.
Closing Date: The date hereof.
Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness
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under the Act of the Exchange Offer Registration Statement relating to the
Series B Notes to be issued in the Exchange Offer, (b) the maintenance of such
Exchange Offer Registration Statement effective and the keeping of the Exchange
Offer open for a period not less than the period required pursuant to Section
3(b) hereof, (c) the delivery by the Issuers and the Guarantors to the Trustee
under the Indenture of Series B Notes in the same aggregate principal amount as
the aggregate principal amount of Series A Notes tendered by Holders thereof
pursuant to the Exchange Offer, and (d) the authentication and delivery by the
Trustee of such Series B Notes to such tendering Holders pursuant to the
Exchange Offer.
Effectiveness Deadline: As defined in Section 3(a) and 4(a) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The exchange and issuance by the Issuers and the
Guarantors of a principal amount of Series B Notes (which shall be registered
pursuant to the Exchange Offer Registration Statement) equal to the outstanding
principal amount of Series A Notes that are tendered by Holders in connection
with such exchange and issuance.
Exchange Offer Registration Statement: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Guarantors: The Guarantors, as defined in the Indenture.
Holders: As defined in Section 2 hereof.
Indenture: The Indenture, dated as of the date hereof, by and among
the Issuers, the Guarantors named therein and U.S. Bank National Association, as
trustee, pursuant to which the Series A Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
Prospectus: The prospectus included in a Registration Statement at
the time such Registration Statement is declared effective, as amended or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and including all material incorporated by
reference into such Prospectus.
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Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the Issuers and
the Guarantors relating to (a) an offering of Series B Notes pursuant to the
Exchange Offer or (b) the registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, in each case, (i) that
is filed pursuant to the provisions of this Agreement and (ii) including the
Prospectus included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material incorporated by
reference therein.
Regulation S: Regulation S promulgated under the Act.
Restricted Broker-Dealer: Any Broker-Dealer that holds Series B Notes
that were acquired in the Exchange Offer in exchange for Series A Notes that
such Broker-Dealer acquired for its own account as a result of market making
activities or other trading activities (other than Series A Notes acquired
directly from the Issuers or any of their affiliates).
Rule 144: Rule 144 promulgated under the Act.
Series B Notes: The 11 1/4% Series B First Mortgage Notes (TAC II)
due 2006 of the Issuers and guaranteed by the Guarantors to be issued
pursuant to the Indenture: (i) in the Exchange Offer or (ii) as contemplated
by Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
Transfer Restricted Securities: Each Series A Note, until the earliest
to occur of (a) the date on which such Series A Note is exchanged in the
Exchange Offer and entitled to be resold to the public by the Holder thereof
without complying with the prospectus delivery requirements of the Act, (b) the
date on which such Series A Note has been disposed of in accordance with a Shelf
Registration Statement, (c) the date on which such Series A Note is disposed of
by a Broker-Dealer
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pursuant to the "Plan of Distribution" contemplated by the Exchange Offer
Registration Statement (including delivery of the Prospectus contained therein)
or (d) the date on which such Series A Note is sold pursuant to Rule 144 or is
eligible for sale under Rule 144(k).
SECTION 2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "Holder") whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permitted by applicable
federal law (after the procedures set forth in Section 6(a)(i) below have been
complied with), the Issuers and the Guarantors shall (i) cause the Exchange
Offer Registration Statement to be filed with the Commission as soon as
practicable after the Closing Date (the "Exchange Offer Filing Date"), but in no
event later than 45 days after the Closing Date (such 45th day being the "Filing
Deadline"), (ii) use their respective best efforts to cause such Exchange Offer
Registration Statement to become effective at the earliest possible time, but in
no event later than 150 days after the Closing Date (such 150th day being the
"Effectiveness Deadline"), (iii) in connection with the foregoing, (A) file all
pre-effective amendments to such Exchange Offer Registration Statement as may be
necessary in order to cause it to become effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement pursuant
to Rule 430A under the Act and (C) cause all necessary filings, if any, in
connection with the registration and qualification of the Series B Notes to be
made under the Blue Sky laws of such jurisdictions as are necessary to permit
Consummation of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the Exchange
Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Series B Notes to be offered in exchange for the Series A
Notes that are Transfer Restricted Securities and to permit resales of Series B
Notes by each Broker-Dealer that tendered into the Exchange Offer Series A Notes
that such Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A Notes
acquired directly from the Issuers or any of their Affiliates) as contemplated
by Section 3(c) below.
(b) The Issuers and the Guarantors shall use their respective best
efforts to cause the Exchange Offer Registration Statement to be effective
continuously, and shall keep the Exchange Offer open for a period of not less
than the minimum period
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required under applicable federal and state securities laws to Consummate the
Exchange Offer; provided, however, that in no event shall such period be less
than 30 days. The Issuers and the Guarantors shall cause the Exchange Offer to
comply with all applicable federal and state securities laws. No securities
other than the Series B Notes shall be included in the Exchange Offer
Registration Statement. The Issuers and the Guarantors shall use their
respective best efforts to cause the Exchange Offer to be Consummated on the
earliest practicable date after the Exchange Offer Registration Statement has
become effective, but in no event later than 45 days after the Effectiveness
Deadline.
(c) The Issuers and the Guarantors shall include a "Plan of
Distribution" section in the Prospectus contained in the Exchange Offer
Registration Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of such
Broker-Dealer as a result of market-making activities or other trading
activities (other than Transfer Restricted Securities acquired directly from the
Issuers or any Affiliate of the Issuers), may exchange such Transfer Restricted
Securities pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Act and must, therefore,
deliver a prospectus meeting the requirements of the Act in connection with its
initial sale of any Series B Notes received by such Broker-Dealer in the
Exchange Offer and that the Prospectus contained in the Exchange Offer
Registration Statement may be used to satisfy such prospectus delivery
requirement. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales by such Broker-Dealers that the
Commission may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Broker-Dealer or disclose the
amount of Transfer Restricted Securities held by any such Broker-Dealer, except
to the extent required by the Commission as a result of a change in policy,
rules or regulations after the date of this Agreement. See the Shearman &
Sterling no-action letter (available July 2, 1993).
To the extent necessary to ensure that the Exchange Offer Registration
Statement is available for sales of Series B Notes by Broker-Dealers, the
Issuers and the Guarantors agree to use their respective best efforts to keep
the Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) hereof and in
conformity with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of 180 days from the date on which the Exchange Offer is Consummated, or
such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold pursuant thereto. The
Issuers and the Guarantors shall promptly provide sufficient
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copies of the latest version of such Prospectus to such Broker-Dealers promptly
upon request, and in no event later than one business day after such request, at
any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i)(A) the Exchange Offer is not
permitted by applicable law (after the Issuers and the Guarantors have complied
with the procedures set forth in Section 6(a)(i) below) or (B) for any other
reason the Exchange Offer is not Consummated within 210 days after the Closing
Date or (ii) if any Holder of Transfer Restricted Securities shall notify the
Company within 10 Business Days following the Consummation of the Exchange Offer
that (A) such Holder was prohibited by law or Commission policy from
participating in the Exchange Offer or (B) such Holder may not resell the Series
B Notes acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder or (C)
such Holder is a Broker-Dealer and holds Series A Notes acquired directly from
the Issuers or any of their Affiliates, then the Company shall as promptly as
practicable deliver to the Holders and the Trustee written notice thereof (the
"Shelf Notice"), and the Issuers and the Guarantors shall:
(x) cause to be filed, on or prior to 45 days after such filing obligation
arises (the "Filing Deadline"), a shelf registration statement pursuant to Rule
415 under the Act (which may be an amendment to the Exchange Offer Registration
Statement (the "Shelf Registration Statement")), relating to all Transfer
Restricted Securities, and
(y) shall use their respective best efforts to cause such Shelf
Registration Statement to become effective on or prior to 150 days after such
filing obligation arises (such 150th day, the "Effectiveness Deadline").
If, after the Issuers and the Guarantors have filed an Exchange Offer
Registration Statement that satisfies the requirements of Section 3(a) above,
the Issuers and the Guarantors are required to file and make effective a Shelf
Registration Statement solely because the Exchange Offer is not permitted under
applicable federal law, then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above;
provided that, in such event, the Issuers and the Guarantors shall remain
obligated to meet the Effectiveness Deadline set forth in clause (y).
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The Issuers and the Guarantors shall use their respective best efforts
to keep any Shelf Registration Statement required by this Section 4(a)
continuously effective, supplemented and amended as required by and subject to
the provisions of Sections 6(b) and (c) hereof to the extent necessary to ensure
that it is available for sales of Transfer Restricted Securities by the Holders
thereof entitled to the benefit of this Section 4(a), and to ensure that it
conforms with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years (as extended pursuant to Section 6(c)(i)) following
the date on which such Shelf Registration Statement first became effective under
the Act, or such shorter period as will terminate when all Transfer Restricted
Securities covered by such Shelf Registration Statement have been sold pursuant
thereto (the "Effectiveness Period"). No securities other than Transfer
Restricted Securities shall be included in any Shelf Registration Statement.
(b) Provision by Holders of Certain Information in Connection with
the Shelf Registration Statement. No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 Business Days after receipt of a request
therefor, the information specified in Item 507 or 508 of Regulation S-K, as
applicable, of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein. No Holder
of Transfer Restricted Securities shall be entitled to Liquidated Damages
pursuant to Section 5 hereof unless and until such Holder shall have provided
all such information. Each selling Holder agrees to promptly furnish additional
information required to be disclosed in order to make the information previously
furnished to the Company by such Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
The Issuers, the Guarantors and the Initial Purchaser agree that the
Holders of Transfer Restricted Securities will suffer damages if the Issuers and
the Guarantors fail to fulfill their obligations pursuant to Section 3 or
Section 4 hereof and that it would not be possible to ascertain the extent of
such damages. Accordingly, (i) if either the Exchange Offer Registration
Statement or, if applicable, the Shelf Registration Statement has not been filed
with the Commission on or prior to the applicable Filing Deadline; or (ii) if
either the Exchange Offer Registration Statement or, if applicable, the Shelf
Registration Statement is not declared effective by the Commission on or prior
to the applicable Effectiveness Deadline; or (iii) if an Exchange Offer
Registration Statement becomes effective, but the Issuers and the Guarantors
fail to
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Consummate the Exchange Offer within 45 days of the earlier of the effectiveness
of such registration statement or the Effectiveness Deadline for such
registration statement; or (iv) the Shelf Registration Statement is declared
effective by the Commission but thereafter such Shelf Registration Statement
ceases to be effective or usable in connection with resales of Series A Notes
during the Effectiveness Period (each such event referred to in clauses (i)
through (iv), a "Registration Default"), then the Issuers and the Guarantors
hereby jointly and severally agree to pay to each Holder of Transfer Restricted
Securities affected thereby liquidated damages ("Liquidated Damages") in an
amount equal to $.05 per week per $1,000 in principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of Liquidated
Damages shall increase by an additional $.05 per week per $1,000 in principal
amount of Transfer Restricted Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of liquidated damages of $.30 per week per $1,000 in principal amount of
Transfer Restricted Securities; provided that the Issuers and the Guarantors
shall in no event be required to pay Liquidated Damages for more than one
Registration Default at any given time. Following the cure of any Registration
Default relating to any Transfer Restricted Securities, the accrual of
Liquidated Damages with respect to such Registration Default will cease. A
Registration Default under clause (i) above shall be cured on the date that the
Exchange Offer Registration Statement or the Shelf Registration Statement, as
applicable, is filed with the Commission; a Registration Default under clause
(ii) above shall be cured on the date that the Exchange Offer Registration
Statement or the Shelf Registration Statement, as applicable, is declared
effective by the Commission; a Registration Default under clause (iii) above
shall be cured on the earlier of the date (A) the Exchange Offer is Consummated
or (B) the Company delivers a Shelf Notice to the Holders of Transfer Restricted
Securities; and a Registration Default under clause (iv) above shall be cured on
the earlier of (A) the date the Shelf Registration Statement is declared
effective and is usable or (B) the Effectiveness Period expires.
Notwithstanding anything to the contrary in this Section 5, no Liquidated
Damages shall accrue in connection with a Registration Default under clause (iv)
above if such Registration Default is cured within 7 days after its occurrence,
provided that such cure right may not be exercised more than once each fiscal
quarter.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date as more fully set forth in the Indenture and the
Series A Notes (whether or not any interest is then payable on the Series A
Notes) and on each
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payment date provided in the Indenture, including, without limitation,
whether upon redemption, maturity (by acceleration or otherwise), purchase
upon a change of control or purchase upon a sale of assets. Each obligation
to pay Liquidated Damages with respect to any Registration Default shall be
deemed to commence accruing on the date of such Registration Default and to
cease accruing when such Registration Default has been cured as provided in
the preceding paragraph. All obligations of the Issuers and the Guarantors
set forth in the preceding paragraph that are outstanding with respect to any
Transfer Restricted Security at the time such security ceases to be a
Transfer Restricted Security shall survive until such time as all such
obligations with respect to such security shall have been satisfied in full.
The parties hereto agree that the Liquidated Damages provided for in
this Section 5 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 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. Such Liquidated Damages shall be the sole
remedy available to Holders of such Transfer Restricted Securities with respect
to a Registration Default.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Issuers and the Guarantors shall comply with all applicable
provisions of Section 6(c) below, shall use their respective best efforts to
effect such exchange and to permit the resale of Series B Notes by each
Broker-Dealer that tendered in the Exchange Offer Series A Notes that such
Broker-Dealer acquired for its own account as a result of its market making
activities or other trading activities (other than Series A Notes acquired
directly from the Issuers or any of their Affiliates) being sold in accordance
with the intended method or methods of distribution thereof, and shall comply
with all of the following provisions:
(i) If, following the date hereof there has been announced a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the Company
raises a substantial question as to whether the Exchange Offer is permitted
by applicable federal law, the Issuers and the Guarantors hereby agree to
seek a no-action letter or other favorable decision from the Commission
allowing the Issuers and the Guarantors to Consummate an Exchange Offer for
the Transfer Restricted Securities. The
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Issuers and the Guarantors hereby agree to pursue the issuance of such a
decision to the Commission staff level. In connection with the foregoing, the
Issuers and the Guarantors hereby agree to take all such other actions as may be
reasonably requested by the Commission or otherwise required in connection with
the issuance of such decision, including without limitation (A) participating in
telephonic conferences with the Commission, (B) delivering to the Commission
staff an analysis prepared by counsel to the Company setting forth the legal
bases, if any, upon which such counsel has concluded that such an Exchange Offer
should be permitted and (C) diligently pursuing a resolution (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer,
each Holder of Transfer Restricted Securities (including, without
limitation, any Holder who is a Broker Dealer) shall furnish, upon the
request of the Company, prior to the Consummation of the Exchange Offer, a
written representation to the Company (which may be contained in the letter
of transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an Affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of the
Series B Notes to be issued in the Exchange Offer and (C) it is acquiring
the Series B Notes in its ordinary course of business. Each Holder using
the Exchange Offer to participate in a distribution of the Series B Notes
hereby acknowledges and agrees that, if the resales are of Series B Notes
obtained by such Holder in exchange for Series A Notes acquired directly
from the Company or an Affiliate thereof, it (1) could not, under
Commission policy as in effect on the date of this Agreement, rely on the
position of the Commission enunciated in Xxxxxx Xxxxxxx and Co., Inc.
(available June 5, 1991) and Exxon Capital Holdings Corporation (available
May 13, 1988), as interpreted in the Commission's letter to Shearman &
Sterling dated July 2, 1993, and similar no-action letters (including, if
applicable, any no-action letter obtained pursuant to clause (i) above),
and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction
and that such a secondary resale transaction must be covered by an
effective registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Issuers and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Issuers and the Guarantors
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in
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Exxon Capital Holdings Corporation (available May 13, 1988) and Xxxxxx
Xxxxxxx and Co., Inc. (available June 5, 1991), as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above, (B)
including a representation that neither of the Issuers nor any Guarantor
has entered into any arrangement or understanding with any Person to
distribute the Series B Notes to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Series B Notes in its
ordinary course of business and has no arrangement or understanding with
any Person to participate in the distribution of the Series B Notes
received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuers and the Guarantors shall comply with all the
provisions of Section 6(c) below and shall use their respective best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof (as indicated in the information furnished to the Company
pursuant to Section 4(b) hereof), and pursuant thereto the Issuers and the
Guarantors will prepare and file with the Commission a Shelf Registration
Statement relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer Restricted Securities
in accordance with the intended method or methods of distribution thereof within
the time periods and otherwise in accordance with the provisions hereof.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Issuers and
the Guarantors shall:
(i) use their respective best efforts to keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to contain a
material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Issuers and the Guarantors shall file promptly an
appropriate amendment to such Registration Statement curing such defect,
and, if Commission review is required, use their respective best efforts to
cause such amendment to be declared effective as soon as practicable;
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(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as may
be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may be;
cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under
the Act, and to comply with Rules 424, 430A and 462, as applicable, under
the Act in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
method or methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise each selling Holder known to the Company and the
Initial Purchaser promptly and, if requested by such Persons, confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
applicable Registration Statement or any post-effective amendment thereto,
when the same has become effective, (B) of any request by the Commission
for amendments to the Registration Statement or amendments or supplements
to the Prospectus or for additional information relating thereto, (C) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement under the Act or of the
suspension by any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any jurisdiction, or
(to the extent known by the Company) the initiation of any proceeding for
any of the preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact made in
the Registration Statement, the Prospectus, any amendment or supplement
thereto or any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the Registration
Statement in order to make the statements therein not misleading, or that
requires the making of any additions to or changes in the Prospectus in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Transfer Restricted Securities under state securities
or Blue Sky laws, the Issuers and the Guarantors shall use their respective
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
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(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post-effective amendment to the Registration
Statement or related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the
Prospectus will not contain an untrue statement of a material fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(v) furnish to the Initial Purchaser and each selling Holder
named in any Registration Statement or Prospectus in connection with such
exchange or sale, if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments
or supplements to any such Registration Statement or Prospectus (including
all documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Persons in connection with such sale, if any, for a period
of at least five Business Days, and the Issuers and the Guarantors will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all
such documents incorporated by reference) to which such Persons shall
reasonably object within five Business Days after the receipt thereof.
Such Person shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains a material misstatement or
omission or fails to comply with the applicable requirements of the Act
(except with respect to information provided by such Person for use
therein);
(vi) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to the selling Holders and the Initial
Purchaser in connection with such exchange or sale, if any, make the
Issuers' and the Guarantors' representatives reasonably available for
discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as
such Persons may reasonably request;
(vii) make available at reasonable times for inspection by the
selling Holders participating in any disposition pursuant to such
Registration Statement, and by the Initial Purchaser and any attorney or
accountant retained by such Persons, all financial and other records,
pertinent corporate documents of the Issuers and the Guarantors and cause
the Issuers' and the Guarantors' officers,
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directors and employees to supply all information reasonably requested by
any such Persons, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto subsequent
to the filing thereof and prior to its effectiveness;
(viii) if requested by any selling Holders in connection with
such exchange or sale, or the Initial Purchaser, in connection with market
making activities, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment, if
necessary, such information as such selling Holders and the Initial
Purchaser may reasonably request to have included therein, including,
without limitation, information relating to the "Plan of Distribution" of
the Transfer Restricted Securities and the use of the Registration
Statement or Prospectus for market making activities; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the Company is notified of the matters to be included
in such Prospectus supplement or post-effective amendment;
(ix) furnish to each selling Holder named in any Registration
Statement or Prospectus in connection with such exchange or sale, and the
Initial Purchaser, for the purposes of making a market, without charge, at
least one copy of the Registration Statement, as first filed with the
Commission, and of each amendment thereto, including all documents
incorporated by reference therein and all exhibits (including exhibits
incorporated therein by reference);
(x) deliver to each selling Holder named in any Registration
Statement or Prospectus, and the Initial Purchaser, for the purposes of
market making, without charge, as many copies of the Prospectus (including
each preliminary prospectus) and any amendment or supplement thereto as
such Persons reasonably may request; the Issuers and the Guarantors hereby
consent to the use (in accordance with law) of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and such
Initial Purchasers in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment
or supplement thereto and the market making activities of such Initial
Purchaser, as the case may be;
(xi) upon the request of any selling Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition of
the Transfer Restricted Securities pursuant to any Shelf Registration
Statement contemplated by this Agreement as may be reason-
15
ably requested by any Holder of Transfer Restricted Securities in connection
with any sale or resale pursuant to any Shelf Registration Statement. In
such connection (and in connection with market making activities by the
Initial Purchaser) the Issuers and the Guarantors shall:
(A) upon request of any such Person, furnish (or in the case of
paragraphs (2) and (3), use their respective best efforts to cause to
be furnished) to each such Person, upon the effectiveness of the Shelf
Registration Statement:
(1) certificates, dated the date of effectiveness of the
Shelf Registration Statement, of officers of the Issuers and the
Guarantors in form and substance reasonably satisfactory to such
Person, covering matters customarily covered in officers'
certificates requested in underwritten offerings and such other
similar matters as such Person may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement, of counsel for the Issuers and the
Guarantors covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as
such Person may reasonably request, and in any event including a
statement to the effect that such counsel has participated in
conferences with officers and other representatives of the
Issuers and the Guarantors, representatives of the independent
public accountants for the Issuers and the Guarantors and have
considered the matters required to be stated therein and the
statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of
such statements; and that such counsel advises that, on the basis
of the foregoing, no facts came to such counsel's attention that
caused such counsel to believe that the Shelf Registration
Statement, at the time such Shelf Registration Statement or any
post-effective amendment thereto became effective, contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date,
contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes no
16
responsibility for, and has not independently verified, the
accuracy, completeness or fairness of the financial statements,
notes and schedules and other financial and statistical data
included in any Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the date of
effectiveness of the Shelf Registration Statement, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort
letters to underwriters in connection with underwritten
offerings, and affirming the matters set forth in the comfort
letters delivered pursuant to Section 9(j) of the Purchase
Agreement; and
(B) deliver such other documents and certificates as may be
reasonably requested by such Persons to evidence compliance with
clause (A) above and with any customary conditions contained in any
agreement entered into by the Issuers and the Guarantors pursuant to
this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all other
acts or things necessary or advisable to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the
applicable Registration Statement; provided, however, that neither Issuer
nor any Guarantor shall be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation in any
jurisdiction where it is not now so subject;
(xiii) issue, upon the request of any Holder of Series A Notes
covered by any Shelf Registration Statement contemplated by this Agreement,
Series B Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes surrendered to the Company by such
Holder in exchange therefor or being sold by such Holder; such Series B
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Series B Notes, as the case may be; in return, the
Series A Notes held by such Holder shall be surrendered to the Company for
cancellation;
17
(xiv) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the selling Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive legends;
and to register such Transfer Restricted Securities in such denominations
and such names as the selling Holders may request at least two Business
Days prior to such sale of Transfer Restricted Securities;
(xv) use their respective best efforts to cause the disposition
of the Transfer Restricted 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 to
consummate the disposition of such Transfer Restricted Securities, subject
to the proviso contained in clause (xii) above;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration Statement
covering such Transfer Restricted Securities and provide the Trustee under
the Indenture with printed certificates, if so requested, for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvii) otherwise use their respective best efforts to comply
with all applicable rules and regulations of the Commission, and make
generally available to their security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
covering a twelve-month period beginning after the effective date of the
Registration Statement (as such term is defined in paragraph (c) of Rule
158 under the Act);
(xviii) make appropriate officers of the Issuers and the
Guarantors reasonably available to the selling Holders for meetings with
prospective purchasers of the Transfer Restricted Securities and prepare
and present to potential investors customary "road show" material in a
manner consistent with other new issuances of other securities similar to
the Transfer Restricted Securities;
(xix) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement required
by this Agreement and, in connection therewith, cooperate with the Trustee
and the Holders to effect such changes to the 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
18
respective best efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xx) use their respective best efforts to cause the Transfer
Restricted Securities or the Series B Notes, as applicable, covered by an
effective registration statement required by Section 3 or Section 4 hereof
to be rated by one or two rating agencies, if and as so requested by the
Holders of a majority in aggregate principal amount of Transfer Restricted
Securities relating to such registration statement or the managing underwriters
in connection therewith, if any;
(xxi) provide promptly to each Holder and the Initial Purchaser
upon request each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15(d) of the Exchange Act; and
(xxii) use their respective best efforts to take all other steps
necessary to effect the registration of the Transfer Restricted Securities
covered by a Registration Statement contemplated hereby.
(d) Restrictions on Holders. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) or any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof (in each case, a
"Suspension Notice"), such Holder will forthwith discontinue disposition of
Transfer Restricted Securities pursuant to the applicable Registration Statement
until (i) such Holder has received copies of the supplemented or amended
Prospectus contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is
advised in writing by the Company that the use of the Prospectus may be resumed,
and has received copies of any additional or supplemental filings that are
incorporated by reference in the Prospectus (in each case, the "Recommencement
Date"). Each Holder receiving a Suspension Notice hereby agrees that it will
either (i) destroy any Prospectuses, other than permanent file copies, then in
such Holder's possession which have been replaced by the Company with more
recently dated Prospectuses or (ii) deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in such Holder's
possession of the Prospectus covering such Transfer Restricted Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
3 or 4 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the
19
period from and including the date of delivery of the Suspension Notice to the
date of delivery of the Recommencement Date.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuers' and the Guarantors'
performance of or compliance with this Agreement will be borne by the Issuers
and the Guarantors, regardless of whether a Registration Statement becomes
effective, including, without limitation: (i) all registration and filing fees
and expenses; (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws (including, without limitation, reasonable
fees and disbursements of counsel in connection with Blue Sky qualifications of
the Transfer Restricted Securities or Series B Notes); (iii) all expenses of
printing (including printing certificates for the Series B Notes to be issued in
the Exchange Offer and printing of Prospectuses (whether for exchanges,
expenses, sales, market making or otherwise), messenger and delivery services
and telephone expenses; (iv) as provided in Section 7(b) hereof, all fees and
disbursements of counsel for the Issuers and the Guarantors and the Holders of
Transfer Restricted Securities; (v) the fees and expenses of any "qualified
independent underwriter" or other independent appraiser participating in an
offering pursuant to the NASD's Rules of Fair Practice; (vi) any rating agency
fees; and (vii) all fees and disbursements of independent certified public
accountants of the Issuers and the Guarantors (including the expenses of any
special audit and comfort letters required by or incident to such performance).
Notwithstanding the foregoing or anything in this Agreement to the contrary,
each Holder of Transfer Restricted Securities being registered as provided
herein shall pay all commissions, placement agent fees and underwriting
discounts and commissions with respect to any Transfer Restricted Securities
sold by it and the fees and disbursements of any counsel, other than as set
forth in Section 7(b) hereof.
The Issuers will, in any event, bear their and the Guarantors'
internal expenses (including, without limitation, all salaries and expenses of
their officers and employees performing legal or accounting duties), the
expenses of any annual audit and the fees and expenses of any Person, including
special experts, retained by any Issuer or Guarantor.
(b) In connection with any Shelf Registration Statement required by
this Agreement, the Issuers and the Guarantors will reimburse the Initial
Purchaser and the Holders of Transfer Restricted Securities registered pursuant
to the Shelf Registration Statement for the reasonable fees and disbursements of
not more than one counsel, who shall be chosen by the Holders of a majority in
principal amount of the
20
Transfer Restricted Securities for whose benefit such Registration Statement is
being prepared.
SECTION 8. INDEMNIFICATION
(a) The Issuers and the Guarantors each agree, jointly and severally,
to indemnify and hold harmless each Holder, its directors, its officers and each
Person, if any, who controls such Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) (any such person may hereinafter be
referred to as an "Indemnified Holder"), from and against any and all losses,
claims, damages, liabilities, judgments, (including without limitation, any
legal or other expenses incurred in connection with investigating or defending
any matter, including any action that could give rise to any such losses,
claims, damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement, preliminary prospectus or Prospectus (or any amendment or supplement
thereto) provided by any Issuer or Guarantor to any holder or any prospective
purchaser of Series B Notes, or caused by 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 losses, claims, damages,
liabilities or judgments are caused by an untrue statement or omission or
alleged untrue statement or omission that is based upon information relating to
any Holder furnished in writing to the Company by such Holder expressly for use
in any Registration Statement, preliminary prospectus or Prospectus. The
foregoing indemnity with respect to a specific untrue statement or omission or
alleged untrue statement or omission of a material fact in any preliminary
Prospectus shall not inure to the benefit of any Indemnified Holder on account
of any losses, claims, damages, liabilities or judgments arising from the sale
of Series A Notes by such Indemnified Holder to any person if a copy of the
applicable Prospectus (as supplemented or amended) shall not have been delivered
or sent to such person at or prior to the written confirmation of the sale of
such Series A Notes to such person and the untrue statement or omission
contained in the applicable preliminary Prospectus was corrected in the
applicable Prospectus (as supplemented or amended), provided that the Issuers
have delivered such Prospectus (as supplemented or amended) to such Indemnified
Holder in requisite quantity on a timely basis to permit such delivery or
sending.
(b) Each Holder of Transfer Restricted Securities agrees, severally
and not jointly, to indemnify and hold harmless the Issuers and the Guarantors,
and their respective directors and officers, and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any Issuer or
21
Guarantor to the same extent as the foregoing indemnity from the Issuers and the
Guarantors to each of the Indemnified Holders, but only with reference to
information relating to such Indemnified Holder furnished in writing to the
Company by such Indemnified Holder expressly for use in any Registration
Statement, preliminary prospectus or Prospectus. In no event shall any
Indemnified Holder be liable or responsible for any amount in excess of the
amount by which the total amount received by such Indemnified Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Indemnified Holder for such
Transfer Restricted Securities and (ii) the amount of any damages that such
Indemnified Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 8(a) or 8(b) (the
"indemnified party"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "indemnifying party") in writing
(provided that the failure to give such notice shall not relieve the
indemnifying party of its obligations under Section 8 (a) or (b) unless and only
to the extent that the indemnifying party is materially prejudiced by the
failure to notify) and the indemnifying party shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to the
indemnified party and the payment of all fees and expenses of such counsel, as
incurred (except that in the case of any action in respect of which indemnity
may be sought pursuant to both Sections 8(a) and 8(b), an Indemnified Holder
shall not be required to assume the defense of such action pursuant to this
Section 8(c), but may employ separate counsel and participate in the defense
thereof, but the fees and expenses of such counsel, except as provided below,
shall be at the expense of the Indemnified Holder). Any indemnified party shall
have the right to employ separate counsel in any such action and participate in
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of the indemnified party unless (i) the employment of such counsel shall
have been specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to promptly assume the defense of such
action or employ counsel reasonably satisfactory to the indemnified party or
(iii) the named parties to any such action (including any impleaded parties)
include both the indemnified party and the indemnifying party, and the
indemnified party shall have been advised by such separate counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction
22
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 indemnified parties and all such fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated in
writing by those indemnified parties who sold a majority in outstanding
principal amount of Transfer Restricted Securities sold by all such indemnified
parties, in the case of the parties indemnified pursuant to Section 8(a), and by
the Company, in the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall indemnify and hold harmless the indemnified party from
and against any and all losses, claims, damages, liabilities and judgments by
reason of any settlement of any action (i) effected with the written consent of
the indemnifying party or (ii) effected without the written consent of the
indemnifying party if the settlement is entered into more than twenty business
days after the indemnifying party shall have received a request from the
indemnified party for reimbursement for the fees and expenses of counsel (in any
case where such fees and expenses are at the expense of the indemnifying party)
and, prior to the date of such settlement, the indemnifying party shall have
failed to comply with such reimbursement request. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in this
Section 8 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Issuers and
the Guarantors, on the one hand, and each Indemnified Holder, on the other hand,
from their sale of Transfer Restricted Securities or (ii) if the allocation
provided by clause 8(d)(i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Issuers and the
Guarantors, on the one hand, and such Indemnified Holder, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative fault of the Issuers and
23
the Guarantors, on the one hand, and of such Indemnified Holder, on the other
hand, 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 any Issuer
or Guarantor, on the one hand, or by such Indemnified Holder, on the other hand,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and judgments referred to above shall be deemed to include, subject to the
limitations set forth in Section 8(c), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
The Issuers, the Guarantors and each Holder agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which 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 the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder or
its related Indemnified Holders shall be required to contribute, in the
aggregate, any amount in excess of the amount by which the total received by
such Holder with respect to the sale of its Transfer Restricted Securities
pursuant to a Registration Statement exceeds the sum of (A) the amount paid by
such Holder for such Transfer Restricted Securities plus (B) the amount of any
damages which such Holder has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Holders' obligations to contribute
pursuant to this Section 8(d) are several in proportion to the respective
principal amount of Transfer Restricted Securities held by each of the Holders
hereunder and not joint.
SECTION 9. RULE 144 and RULE 144A
The Issuers and the Guarantors each agree with each Holder, for so
long as any Transfer Restricted Securities remain outstanding and during any
period in which
24
the Issuers and the Guarantors (i) are not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder of Transfer
Restricted Securities, to any Holder or beneficial owner of Transfer Restricted
Securities in connection with any sale thereof and any prospective purchaser of
such Transfer Restricted Securities designated by such Holder or beneficial
owner, the information required by Rule 144A(d)(4) under the Act in order to
permit resales of such Transfer Restricted Securities pursuant to Rule 144A, and
(ii) are subject to Section 13 or 15(d) of the Exchange Act, to make all filings
required thereby in a timely manner in order to permit resales of such Transfer
Restricted Securities pursuant to Rule 144.
SECTION 10. MISCELLANEOUS
(a) Remedies. The Issuers and the Guarantors acknowledge and agree
that any failure by any of them to comply with their respective obligations
under Sections 3 and 4 hereof may result in material irreparable injury to the
Initial Purchaser or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, but subject to the last sentence of the
third paragraph of Section 5 hereof, the Initial Purchaser or any Holder may
obtain such relief as may be required to specifically enforce the Issuers' and
the Guarantors' obligations under Sections 3 and 4 hereof. The Issuers and the
Guarantors further agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. Neither Issuer nor any Guarantor
will, on or after the date of this Agreement, enter into any agreement with
respect to its securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
Neither Issuer nor any Guarantor has previously entered into any agreement
granting any registration rights with respect to its securities to any Person.
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' and
the Guarantors' securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not
be amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Company has obtained the written consent
of Holders of
25
all outstanding Transfer Restricted Securities and (ii) in the case of all other
provisions hereof, the Company has obtained the written consent of Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
(excluding Transfer Restricted Securities held by the Company or its
Affiliates). Notwithstanding the foregoing, a waiver or consent to departure
from the provisions hereof that relates exclusively to the rights of Holders
whose securities are being tendered pursuant to the Exchange Offer and that does
not affect directly or indirectly the rights of other Holders whose securities
are not being tendered pursuant to such Exchange Offer may be given by the
Holders of a majority of the outstanding principal amount of Transfer Restricted
Securities subject to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuers and the
Guarantors, on the one hand, and the Initial Purchaser, on the other hand, and
shall have the right to enforce such agreements directly to the extent they may
deem such enforcement necessary or advisable to protect its rights or the rights
of Holders hereunder.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to any Issuer or Guarantor, to it at Mississippi Avenue
and Xxx Xxxxxxxxx, Xxxxxxxx Xxxx, Xxx Xxxxxx 00000, Attention: Xxxxxx X.
Xxxxxx, Esq., with a copy to Xxxxxxx Xxxx & Xxxxxxxxx at One Citicorp
Center, 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
26
Upon the date of filing of the Exchange Offer or a Shelf Registration
Statement, as the case may be, notice shall be delivered to Xxxxxxxxx, Xxxxxx &
Xxxxxxxx Securities Corporation (in the form attached hereto as Exhibit A) and
shall be addressed to: Attention: Xxxxxx Xxxxxxxx (Compliance Department), 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; provided, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Transfer Restricted Securities in violation of the terms hereof
or of the Purchase Agreement or the Indenture. If any transferee of any Holder
shall acquire Transfer Restricted Securities in any manner, whether by operation
of law or otherwise, such Transfer Restricted Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such Transfer
Restricted Securities such Person shall be conclusively deemed to have agreed to
be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(g) 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.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
27
(k) Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and 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. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
28
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXX ATLANTIC CITY ASSOCIATES
By: XXXXX ATLANTIC CITY HOLDING, INC.,
its general partner
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXX ATLANTIC CITY FUNDING II, INC.
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Chief Executive Officer and
President
XXXXX ATLANTIC CITY CORPORATION
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXX PLAZA ASSOCIATES
By: XXXXX ATLANTIC CITY CORPORATION,
its general partner
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXX XXX XXXXX ASSOCIATES
By: XXXXX ATLANTIC CITY CORPORATION,
its general partner
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXX ATLANTIC CITY CORPORATION
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXX CASINO SERVICES, L.L.C.
By: XXXXX ATLANTIC CITY CORPORATION,
member
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXX COMMUNICATIONS, L.L.C.
By: XXXXX ATLANTIC CITY CORPORATION,
member
Attest: /s/ Xxxx X. Xxxxx By: /s/ Xxxxxxxx X. Xxxxx
------------------------- -----------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxx X. Xxxxx
Title: Vice President
XXXXXXXXX, LUFKIN & XXXXXXXX SECURITIES CORPORATION
By: /s/ Xxxx Xxxx
----------------------------------
Name: Xxxx Xxxx
Title: Senior Vice President
EXHIBIT A
NOTICE OF FILING OF
EXCHANGE OFFER REGISTRATION STATEMENT
To: Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx (Compliance Department)
Fax: (000) 000-0000
From: XXXXX ATLANTIC CITY ASSOCIATES
11 1/4% Series A First Mortgage Notes (TAC II) Due 2006
Date: ___, 199_
For your information only (NO ACTION REQUIRED):
Today, ______, 199_, we filed [an Exchange Offer Registration Statement/a
Shelf Registration Statement] with the Securities and Exchange Commission. We
currently expect this registration statement to be declared effective within 150
days of the date hereof.
