Execution Copy
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REGISTRATION RIGHTS AGREEMENT
Dated as of April 17, 1998
by and among
TRUMP'S CASTLE FUNDING, INC.,
TRUMP'S CASTLE HOTEL & CASINO, INC.
TRUMP'S CASTLE ASSOCIATES, L.P.
and
THE FUNDS AND ACCOUNTS LISTED
ON EXHIBITS A, B, C AND D HERETO
10 1/4 Series A Senior Secured Notes due 2003 of Trump's Castle Funding,Inc.
10 1/4 Series A Senior Secured Notes due 2003 of Trump's Castle Hotel &
Casino, Inc.
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TABLE OF CONTENTS
1. Definitions....................................................1
2. Registered Exchange Offer......................................7
3. Shelf Registration.............................................8
(a) Initial Shelf Registration..........................8
(b) Subsequent Shelf Registrations......................9
(c) Supplements and Amendments..........................9
(d) Required Subsequent Registration....................10
(i) Required Subsequent Registration.......10
(ii) Expenses...............................10
(iii) Priority in Required Registrations.....10
4. Liquidated Damages.............................................11
5. Hold-Back Agreements...........................................12
(a) Restrictions on Public Sale by Holders.............12
(b) Restrictions on Public Sale by Funding and TCHI....13
6. Registration Procedures........................................13
7. Indemnification; Contribution..................................19
(a) Indemnification by Funding, TCHI and the
Partnership .......................................19
(b) Indemnification by Holders, Underwriters, Etc......20
(c) Conduct of Indemnification Proceedings.............21
(d) Contribution.......................................22
8. Rule 144 and Rule 144A.........................................23
9. Miscellaneous..................................................24
(a) No Inconsistent Agreements.........................24
(b) Amendments and Waivers.............................24
(c) Notices............................................24
(d) Successors and Assigns.............................25
(e) Counterparts.......................................25
(f) Headings...........................................25
(g) Governing Law......................................25
(h) Severability.......................................25
(i) Specific Performance...............................25
(j) Entire Agreement...................................26
(k) Securities Held by Funding or Its Respective
Affiliates.......................................26
-i-
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and entered into
as of April 17, 1998, by and among Trump's Castle Funding, Inc., a New Jersey
corporation ("Funding"), Trump's Castle Hotel & Casino, Inc., a New Jersey
corporation ("TCHI"), Trump's Castle Associates, L.P. a New Jersey limited
partnership (the "Partnership"), and the purchasers listed on Exhibits A, B, C
and D hereto (herein referred to collectively as the "Funds" and each
individually as a "Fund").
This Agreement is made pursuant to the Note Purchase Agreement, dated the
date hereof, among Funding, TCHI, the Partnership and the Funds (the "Purchase
Agreement") which provides for the sale to the Funds of (i) Funding's 10 1/4%
Series A Senior Secured Notes due 2003, in an aggregate principal amount of
$62,000,000 unconditionally guaranteed by the Partnership, and (ii) the TCHI's
10 1/4% Series A Senior Secured Notes due 2003, in an aggregate principal amount
of $5,000,000 unconditionally guaranteed by the Partnership. In order to induce
the Funds to enter into the Purchase Agreement, Funding, TCHI and the
Partnership have agreed to provide the Funds with the registration and other
rights set forth in this Agreement. The execution of this Agreement is a
condition to the Funds' obligation to purchase the TCHI Notes and the Funding
Notes under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as follows:
1. Definitions.
As used in this Agreement, the following capitalized terms shall have the
meanings indicated below:
"Affiliate" shall have the meaning specified in the Funding Note
Indenture.
"Closing Date" shall have the meaning specified in the Purchase Agreement.
"Consummate" means, with respect to a Registered Exchange Offer hereunder,
(a) the filing and causing to become effective under the Securities Act of a
Registration Statement covering the Registered Exchange Offer, (b) the
maintenance of such Registration Statement continuously effective for the period
required by Section 2 hereof, (c) the delivery by Funding to the Registrar under
the Funding Note Indenture of the Series B Funding Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Funding Notes
tendered by Holders pursuant to such Registered Exchange Offer, and (d) the
delivery by TCHI to the Registrar under the TCHI Note Indenture of the Series B
TCHI Notes in same aggregate principal amount as the aggregate principal amount
of the Series A TCHI Notes tendered by Holders pursuant to such Registered
Exchange Offer.
"Consummation Date" means October 19, 1998.
"Effectiveness Date" means September 21, 1998, provided that if a Shelf
Notice is given fewer than 30 days prior to the Effectiveness Date, then the
Effectiveness Date shall be 90 days after the date of receipt of such notice.
"Event Date" shall have the meaning specified in Section 4(a) of this
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time.
"Exchange Registration Statement" means the registration statement (or
registration statements) registering the Registered Exchange Offer.
"Filing Date" means July 17, 1998; provided that if a Shelf Notice is
given fewer than 30 days prior to the Filing Date, the Filing Date shall be 30
days after the date of receipt of such notice.
"Funding" shall have the meaning specified in the preamble to this
Agreement and shall include Funding's successors.
"Funding Note Indenture" means the Indenture, dated as of the date hereof,
by and among Funding, the Partnership, and U.S. Bank National Association, as
trustee, governing the Series A Funding Notes and the Series B Funding Notes, as
the same may be amended and supplemented from time to time in accordance with
the terms thereof.
"Funding Notes" means the Series A Funding Notes and the Series B Funding
Notes.
"Funds" shall have the meaning specified in the preamble of this Agreement
and shall include the Funds' successors as holders of TCHI Notes and Funding
Notes.
"Guarantee" means the Partnership's senior guarantee of payment in respect
of the Funding Notes set forth in Article 14 of the Funding Note Indenture
and/or the Partnership's senior guarantee of payment in respect of the TCHI
Notes set forth in Article 14 of the TCHI Note Indenture.
"Holder" shall mean any holder of Registrable Series A TCHI Notes, Series
B TCHI Notes, Registrable Series A Funding Notes or Series B Funding Notes.
"Initial Shelf Registration" shall have the meaning specified in Section
3(a) hereof.
"Majority Holders" means Holders representing a majority of the aggregate
principal amount of outstanding Registrable Series A Funding Notes and Holders
of a majority of the aggregate principal amount of outstanding Registrable
Series A TCHI Notes, as applicable.
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"NASD" means the National Association of Securities Dealers, Inc.
"Notes" means the Series A Notes and Series B Notes and any other debt
securities issued in exchange or substitution for the Series A Notes or the
Series B Notes.
"Partnership" shall have the meaning specified in the preamble to this
Agreement and shall include the Partnership's successors.
"Person" means any individual, corporation, limited or general
partnership, joint venture, association, joint stock company, limited liability
company, trust, or unincorporated organization, or a government or agency or
political subdivision thereof.
"Prospectus" shall mean the prospectus included in a Registration
Statement, including any Prospectus subject to completion, and any such
Prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of (a) the Registrable Series A
Notes or (b) the Series B Notes pursuant to a Registered Exchange Offer, and, in
each case, by all other amendments and supplements to such Prospectus, including
post-effective amendments and all materials incorporated by reference therein.
"Purchase Agreement" shall have the meaning specified in the preamble of
this Agreement.
"Registered Exchange Offer" means the registration by (i) Funding and the
Partnership under the Securities Act of all the Series B Funding Notes and the
Guarantee thereof pursuant to a Registration Statement under which Funding
offers each Holder eligible to participate in such exchange offer the
opportunity to exchange all outstanding Registrable Series A Funding Notes held
by such Holder for Series B Funding Notes in an aggregate principal amount equal
to the aggregate principal amount of Registrable Series A Funding Notes held by
such Holder and (ii) by TCHI and the Partnership under the Securities Act of all
the Series B TCHI Notes and the Guarantee thereof pursuant to a Registration
Statement under which TCHI offers each Holder eligible to participate in such
exchange offer the opportunity to exchange all outstanding Registrable Series A
TCHI Notes held by such Holder for Series B TCHI Notes in an aggregate principal
amount equal to the aggregate principal amount of Registrable Series A TCHI
Notes held by such Holder.
"Registrable Series A Funding Notes" means the Series A Funding Notes upon
original issuance thereof, and at all times subsequent thereto, until, in the
case of any such Series A Funding Note, (i) a Registration Statement with
respect to such Series A Funding Note has been declared effective under the
Securities Act and such Series A Funding Note has been disposed of in accordance
with such Registration Statement; (ii) such Series A Funding Note is distributed
to the public pursuant to Rule 144 (or any successor provisions) promulgated
under the Securities Act; (iii) such Series A Funding Note has been otherwise
transferred and new
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certificates for them not bearing a legend restricting further transfer shall
have been delivered by Funding; or (iv) such Series A Funding Note ceases to be
outstanding.
"Registrable Series A Notes" means the Registrable Series A Funding Notes
and the Registrable Series A TCHI Notes.
"Registrable Series A TCHI Notes" means the Series A TCHI Notes upon
original issuance thereof, and at all times subsequent thereto, until, in the
case of any such Series A TCHI Note, (i) a Registration Statement with respect
to such Series A Note has been declared effective under the Securities Act and
such Series A TCHI Note has been disposed of in accordance with such
Registration Statement; (ii) such Series A TCHI Note is distributed to the
public pursuant to Rule 144 (or any successor provisions) promulgated under the
Securities Act; (iii) such Series A TCHI Note has been otherwise transferred and
new certificates for them not bearing a legend restricting further transfer
shall have been delivered by TCHI; or (iv) such Series A TCHI Note ceases to be
outstanding.
"Registration Expenses" means any and all expenses incident to performance
of or compliance with this Agreement, including without limitation: (i) all SEC,
stock exchange or NASD registration and filing fees, including, if applicable,
the fees and expenses of any "qualified independent underwriter" (and its
counsel) that is required to be retained in accordance with the rules and
regulations of the NASD, (ii) all fees and expenses incurred in connection with
compliance with state securities or "blue sky" laws and compliance with the
rules of the NASD (including reasonable fees and disbursements of counsel in
connection with the NASD and "blue sky" qualification of any of the Registrable
Series A Notes and the preparation of a "blue sky" memorandum), (iii) all
expenses of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, transmittal
letters, securities sales agreements, Note certificates and other documents
relating to the performance of and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing, if any, of any of the TCHI
Notes or Funding Notes on any securities exchange or exchanges pursuant to
Section 6 hereof, (v) the fees and disbursements of counsel for Funding, TCHI
and the Partnership and of the independent public accountants of Funding, TCHI,
the Partnership and the subsidiaries, including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance and
compliance, (vi) the reasonable fees and disbursements of special counsel
representing the Holders (the "special counsel") that is reasonably acceptable
to the Partnership, Funding and TCHI, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, and (viii) any fees and
disbursements of the Underwriters customarily required to be paid by issuers or
sellers of securities and the reasonable fees and expenses of any special
experts retained by Funding, TCHI and the Partnership in connection with any
Registration Statement, but excluding underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of Registrable
Series A Notes by a Holder. In connection with any Registration Statement
hereunder, Funding, TCHI and the Partnership shall reimburse the Holders of the
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Registrable Series A Notes being registered in such registration for the
reasonable fees and disbursements of special counsel chosen by the Majority
Holders.
"Registration Statement" means any registration statement of Funding, TCHI
and/or the Partnership on an appropriate form pursuant to the Securities Act
which covers any of the Registrable Series A Notes or the Series B Notes, as the
case may be, and all amendments and supplements to any such Registration
Statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Required Registration" shall have the meaning specified in Section 3(d)
of this Agreement.
"Required Registration Date" shall have the meaning specified in Section
3(d) of this Agreement.
"Required Registration Statement" means a Registration Statement which
covers any of the Registrable Series A Notes pursuant to the provisions of
Section 3(d) of this Agreement.
"SEC" means the Securities and Exchange Commission.
"Section 3(d) Notice" shall have the meaning specified in Section 3(d) of
this Agreement.
"Securities" means the Series A Notes and the Series B Notes.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Series A Funding Notes" means Funding's 10 1/4% Series A Senior Secured
Notes due 2003, sold pursuant to the Purchase Agreement and issued in accordance
with the Funding Note Indenture in the original aggregate principal amount of
$62,000,000.
"Series A Notes" means the Series A Funding Notes and/or the Series A TCHI
Notes, as applicable.
"Series A TCHI Notes" means TCHI's 10 1/4% Series A Senior Secured Notes
due 2003, sold pursuant to the Purchase Agreement and issued in accordance with
the TCHI Note Indenture in the original aggregate principal amount of
$5,000,000.
"Series B Funding Notes" means Funding's 10 1/4% Series B Senior Secured
Notes due 2003, issued in accordance with the Funding Note Indenture.
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"Series B Notes" means the Series B Funding Notes and/or the Series B TCHI
Notes, as applicable.
"Series B TCHI Notes" means TCHI's 10 1/4% Series B Senior Secured Notes
due 2003, issued in accordance with the TCHI Note Indenture.
"Shelf Effectiveness Period" shall have the meaning specified in Section
3(a) of this Agreement.
"Shelf Notice" shall have the meaning specified in Section 2(e) of this
Agreement.
"Shelf Registration" shall have the meaning specified in section 3(b) of
this Agreement.
"Shelf Registration Statement" shall have the meaning specified in Section
3(a) of this Agreement.
"Subsequent Shelf Registration" shall have the meaning specified in
Section 3(b) of this Agreement.
"TIA" shall have the meaning specified in Section 6(o) of this Agreement.
"TCHI" shall have the meaning specified in the preamble of this Agreement
and shall include TCHI's successors.
"TCHI Note Indenture" means the Indenture, dated as of the date hereof, by
and among TCHI, the Partnership and U.S. Bank National Association, as trustee,
governing the Series A TCHI Notes and the Series B TCHI Notes, as the same may
be amended and supplemented from time to time in accordance with the terms
thereof.
"TCHI Notes" means the Series A TCHI Notes and the Series B TCHI Notes.
"Trustee" means U.S. Bank National Association, in its capacity as the
trustee under the Funding Note Indenture and/or in its capacity as the trustee
under the TCHI Note Indenture, as applicable.
"Underwritten Offering" means a sale of securities of Funding and/or TCHI
to an Underwriter or Underwriters for reoffering to the public.
"Weekly Liquidated Damages Amount" shall have the meaning specified in
Section 4(a) of this Agreement.
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2. Registered Exchange Offer.
(a) The Partnership and each of Funding and TCHI shall cause to be filed,
as soon as reasonably practicable after the Closing Date but in no event later
than the Filing Date, a Registration Statement (or Registration Statements) with
respect to the Registered Exchange Offer and shall use its reasonable best
efforts to cause (A) such Registration Statement (or Registration Statements) to
be declared effective on or prior to the Effectiveness Date; (B) Series B Notes
to be delivered to the Registrar under the Funding Note Indenture (in the case
of the Series B Funding Notes) and the Registrar under the TCHI Note Indenture
(in the case of the Series B TCHI Notes) for delivery to all Holders who have
tendered Registrable Series A Notes pursuant to the Registered Exchange Offer
and (C) the Registered Exchange Offer to be consummated by the Consummation
Date.
(b) Funding, in the case of the Funding Notes, and TCHI, in the case of
the TCHI Notes, shall deliver written notice that a Registration Statement filed
in connection with a Registered Exchange Offer is effective to each Fund and
each other Holder known to it (after due inquiry) promptly after receiving
notice of effectiveness from the SEC. Neither Funding, TCHI nor the Partnership
shall permit any securities other than the Series B Notes to be included in such
Registration Statement (or Registration Statements). Funding, TCHI and the
Partnership shall use their best efforts to cause the Registration Statement (or
Registration Statements) relating to the Registered Exchange Offer to be
continuously effective for a period of not less than twenty (20) consecutive
Business Days; provided, however, that the Registered Exchange Offer shall
remain open and the Registration Statement (or Registration Statements) relating
to the Registered Exchange Offer shall remain effective, for a period not less
than the period required under applicable federal and state securities laws.
Funding, TCHI and the Partnership shall supplement or amend the Registration
Statement (or Registration Statements) filed in respect of the Registered
Exchange Offer to the extent required by applicable law, rules or regulations,
or by the instructions applicable to the registration form used by Funding, TCHI
and the Partnership for such Registration Statement (or Registration
Statements).
(c) Each Holder who participates in the Registered Exchange Offer will be
deemed to represent that at the time of the Consummation of the Registered
Exchange Offer (i) such Holder will not be an Affiliate of Funding, TCHI or the
Partnership, (ii) any Series B Notes received by such Holder will be acquired in
the ordinary course of its business, and (iii) such Holder will have no
agreement or understanding with any person to participate in the distribution
within the meaning of the Securities Act or the resale of the Series B Notes
received by such Holder in violation of the Securities Act or the Exchange Act.
Upon the consummation of the Registered Exchange Offer in accordance with this
Section 2 and the delivery of the Series B Notes such that they are freely
tradeable by the Holders thereof under state and Federal securities laws, the
provisions of this Agreement shall continue to apply mutatis mutandis, provided
that (i) solely with respect to Registrable Series A Notes, Funding, TCHI and
the Partnership may omit to comply with such of the procedures set forth in
Section 6 hereof as are required to be complied with only in connection with a
Shelf Registration or as
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would not adversely affect the interests of the Funds under this Agreement, and
(ii) neither Funding, TCHI nor the Partnership shall have any further obligation
to register Registerable Series A Notes pursuant to Section 3 of this Agreement.
(d) Expenses. Funding, TCHI and the Partnership shall pay all Registration
Expenses in connection with the Registered Exchange Offer.
(e) If (1) prior to the Consummation of the Registered Exchange Offer,
Funding (in the case of the Funding Notes) or TCHI (in the case of the TCHI
Notes), on the one hand, or the relevant Majority Holders, on the other hand,
reasonably determine in good faith that (i) the Series B Notes received by such
Holders of Registrable Series A Notes in the Registered Exchange Offer would
not, upon receipt, be tradeable by each such Holder (other than a Holder which
is an Affiliate of Funding or the Partnership) without restriction under the
Securities Act and the Exchange Act and without material restrictions under the
blue sky or securities laws of substantially all of the states of the United
States of America (except with respect to the prospectus delivery requirement of
a participating broker-dealer), or (ii) the Consummation of a Registered
Exchange Offer would have a material adverse effect on the Holders of
Registrable Series A Notes, taken as a whole, or (iii) after conferring with
counsel, the SEC would not permit Consummation of the Registered Exchange Offer
prior to the Effectiveness Date or (2) the Registered Exchange Offer is
commenced but not consummated within 120 days after commencement thereof for any
reason, then Funding and/or TCHI, as applicable, and the Partnership shall
promptly deliver to the Holders and to the applicable Trustee or Trustees notice
thereof (the "Shelf Notice") and withdraw the Registered Exchange Offer with
respect to the Funding Notes and/or the TCHI Notes, as the case may be, and
shall thereafter file a Shelf Registration pursuant to Section 3.
3. Shelf Registration.
If a Shelf Notice is delivered as provided in Section 2(e) hereof, then:
(a) Initial Shelf Registration. Funding and/or TCHI, as applicable, and
the Partnership shall file a "shelf" Registration Statement (or "Shelf"
Registration Statements) for offerings to be made on a continuous basis pursuant
to Rule 415 under the Securities Act (as such Rule may be amended from time to
time, or any similar rule or regulation adopted by the SEC) covering all of the
Registrable Series A Notes (or if the Shelf Notice is delivered only with
respect to the Funding Notes or the TCHI Notes, covering all Registrable Series
A Funding Notes or all Registrable Series A TCHI Notes, as the case may be)
prior to the Filing Date (the "Initial Shelf Registration"). If Funding and/or
TCHI, as applicable, and the Partnership shall not yet have filed a Registration
Statement for the Registered Exchange Offer, Funding and/or TCHI, as applicable,
and the Partnership shall use their respective best efforts to file with the SEC
the Initial Shelf Registration on or prior to the Filing Date. Neither Funding,
TCHI nor the Partnership shall permit any securities other than the Registrable
Series A Notes to be included in the Initial Shelf Registration or any
Subsequent
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Shelf Registration. Funding and/or TCHI, as applicable, and the Partnership
shall use their respective best efforts to cause the Initial 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 until the date which is 24 months from the date upon which the Shelf
Registration is declared effective (the "Shelf Effectiveness Period") or, if
earlier, until all of the Registrable Series A Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration (as defined below) ceases to be effective for
any reason at any time during the Shelf Effectiveness Period (other than because
of the sale of all of the securities registered thereunder or as a result of a
post-effective amendment to such Registration Statement being declared
effective), Funding and/or TCHI, as applicable and the Partnership shall use
their respective best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 45 days of
such cessation of effectiveness amend the Shelf Registration in a manner
reasonably expected 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 Series A Notes (or, if the
order suspending effectiveness applies only with respect to a Shelf Registration
Statement covering only the Registrable Series A Funding Notes or only the
Registrable Series A TCHI Notes, covering all Registrable Series A Funding Notes
or all Registrable Series A TCHI Notes, as the case may be) (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, Funding and/or
TCHI, as applicable, and the Partnership shall use their respective best efforts
to cause the Subsequent Shelf Registration to be declared effective as soon as
practicable after such filing and to keep such Registration Statement
continuously effective for a period equal to the number of days in the Shelf
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 Statement and any Subsequent Shelf Registration.
(c) Supplements and Amendments. Funding and/or TCHI, as applicable, and
the Partnership 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 requested by the holders of a majority in aggregate
principal amount of the Registerable Series A Notes covered by such Registration
Statement or by any underwriter of such Registrable Series A Notes (except to
the extent any such supplement or amendment so requested would in the judgment
of the Funding and/or TCHI, as applicable, and the Partnership make the
statements therein misleading).
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(d) Required Subsequent Registration.
(i) Required Subsequent Registration. If, after the termination of
the Shelf Effectiveness Period, for any reason Rule 144(k) or any successor rule
under the Securities Act shall not be available to permit the resale of the
Registrable Series A Notes by any Holder without registration under the
Securities Act, then, within 90 days after termination of the Shelf
Effectiveness Period (the "Required Registration Date"), Funding and/or TCHI, as
applicable, and the Partnership will give written notice (a "Section 3(d)
Notice") to all Holders of Registrable Series A Notes of its intention to effect
the registration under the Securities Act of any Registrable Series A Notes
which Holders wish to have so registered (a "Required Registration"). The
Section 3(d) Notice shall specify the procedures which a Holder shall follow to
request inclusion of the Holder's Registrable Series A Notes. For a period of 30
calendar days after the date the Section 3(d) Notice is given, Holders shall
have the right to request in writing that Funding and/or TCHI, as applicable,
and the Partnership include such Holders' Registrable Series A Notes in the
Required Registration Statement. If the Majority Holders have requested
inclusion of such Holders' Registerable Series A Notes in a registration
statement, then not later than 90 calendar days after giving the Section 3(d)
Notice, Funding and/or TCHI, as applicable, and the Partnership shall file a
Required Registration Statement covering all of the Registrable Series A Notes
requested by the Holders thereof to be included therein and have such Required
Registration Statement declared effective as promptly as practicable (but in no
event later than 180 calendar days after the giving of the request by the
Holders described above) and use their best efforts to keep such Required
Registration Statement continuously effective for a period of at least 180
calendar days following the date on which such Required Registration Statement
is declared effective or, if earlier, until all of the Registrable Series A
Notes covered by such Required Registration Statement have been sold pursuant
thereto. In lieu of filing the Required Registration Statement, Funding and/or
TCHI, as applicable, and the Partnership may, in their sole discretion and if
permitted by applicable law, keep a Shelf Registration continuously effective
for an additional period of at least 180 calendar days after termination of the
Shelf Effectiveness Period or, if earlier, until all of the Registrable Series A
Notes which would otherwise have been covered by such Required Registration
Statement have been sold pursuant to such Shelf Registration Statement.
(ii) Expenses. Funding, TCHI and the Partnership shall pay all
Registration Expenses in connection with the Required Registration. Each Holder
requesting a Required Registration pursuant to Section 3(d)(i) of this Agreement
shall pay all underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holders' Registrable Series A Notes
pursuant to such Required Registration.
(iii) Priority in Required Registrations. If a Required Registration
involves an Underwritten offering of the securities so being registered, which
securities are to be distributed on a firm commitment basis by or through one or
more Underwriters of recognized standing pursuant to underwriting terms
appropriate for such transaction, and the sole or managing Underwriter, as the
case may be, of such Underwritten Offering shall advise
10
Funding and/or TCHI, as applicable in writing (with a copy to each Holder
requesting registration) that, in its opinion, the amount of securities
requested to be included in such Required Registration exceeds the amount which
can be sold in (or during the time of) such offering within a price range
acceptable to the Holders who have requested that their Registrable Series A
Funding Notes or Registrable Series A TCHI Notes, as the case may be, be
included in such registration, then the amount of Registrable Series A Notes to
be offered for the accounts of Holders thereof shall be reduced pro rata based
upon the relative aggregate amount of gross proceeds to be received by such
Holders in the offering of Registrable Series A Funding Notes or Registrable
Series A TCHI Notes, as the case may be, to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount that
Funding and/or TCHI is so advised can be sold in (or during the time of) such
offering.
4. Liquidated Damages.
(a) Funding, TCHI, the Partnership and the Funds agree that the Holders of
Registrable Series A Notes will suffer damages if Funding, TCHI and the
Partnership fail to fulfill their obligations under Section 2 or Section 3
hereof and that it would not be feasible to ascertain the extent of such damages
with precision. Accordingly, if with respect to the Funding Notes and/or the
TCHI Notes (i) the Exchange Registration Statement and/or the Initial Shelf
Registration has not been filed on or prior to the Filing Date, (ii) (x) the
Initial Shelf Registration has not become effective on or prior to the
Effectiveness Date and/or (y) (A) the Registration Statement with respect to the
Registered Exchange Offer has not been declared effective on or prior to the
Effectiveness Date or (B) the Registered Exchange Offer has not been Consummated
on or prior to the Consummation Date, (iii) prior to the end of the Shelf
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Initial Shelf Registration or any Subsequent Shelf
Registration or (iv) a notice under Section 6(e)(vi) hereof is effective or
required to be effective at a time when the aggregate number of days for which
all such notices issued or required to be issued pursuant to Section 6(e)(vi)
hereof have been, or were required to be, in effect exceeds 60 days, whether or
not consecutive (the Filing Date in the case of clause (i), the Effectiveness
Date and the Consummation Date in the case of clause (ii), the date on which the
Registration Statement ceases to be effective in the case of clause (iii), and
the date on which the 60-day limit is exceeded in the case of clause (iv), each
being referred to herein as an "Event Date"), then in the case of the Funding
Notes, Funding and the Partnership jointly and severally, and in the case of the
TCHI Notes, TCHI and the Partnership, jointly and severally, agree to pay, or
cause to be paid, in addition to amounts otherwise due under the Funding Note
Indenture (in the case of Registrable Series A Funding Notes), the TCHI Note
Indenture (in the case of Registrable Series A TCHI Notes) and the applicable
Registrable Series A Notes, as liquidated damages, and not as a penalty, to each
Holder of Registrable Series A Funding Notes (in the case of any such
registration default relating to the Funding Notes) and/or Registrable Series A
TCHI Notes (in the case of any such registration default relating to the TCHI
Notes), as the case may be, an additional amount (the "Weekly Liquidated Damages
Amount") equal to (a) for each weekly period (or part thereof) from and
including the Event Date, $0.05 per week
11
per $1,000 principal amount of the applicable Registrable Series A Notes held by
such Holder, and (b) beginning the 61st day after the Event Date, the Weekly
Liquidated Damages Amount shall be increased by an additional $0.05 per week (or
part thereof) per $1,000 principal amount of Registrable Series A Notes held by
such Holder; provided that such liquidated damages will, in each case, cease to
accrue on the date on which (w) the applicable Exchange Registration Statement
or the Initial Shelf Registration, as the case may be, is filed or the Initial
Shelf Registration or the Registered Exchange Offer, as the case may be, is
declared effective, with respect to liquidated damages for failure to be filed
by the Filing Date or declared effective by the Effectiveness Date, as the case
may be, (x) the Consummation of the Exchange Offer with respect to liquidated
damages for failure to Consummate the Registered Exchange Offer on or prior to
the Effective Date, (y) the applicable Shelf Registration is no longer subject
to an order suspending the effectiveness thereof or a new Subsequent Shelf
Registration is declared effective, with respect to liquidated damages for the
failure to remain effective or (z) a notice issued, or required to be issued,
pursuant to Section 6(e)(vi) is no longer effective or required to be effective,
with respect to liquidated damages payable pursuant to clause (iv) above.
(b) Funding and/or TCHI, as applicable, and the Partnership shall notify
the applicable Trustee or Trustees within five Business Days after each and
every Event Date. In the case of the Funding Notes, Funding and the Partnership
jointly and severally, and, in the case of the TCHI Notes, TCHI and the
Partnership, jointly and severally, shall pay the liquidated damages due on the
Registrable Series A Notes by depositing with the Trustee, in trust, for the
benefit of the Holders thereof, on or before the applicable semi-annual interest
payment date, immediately available funds in sums sufficient to pay the
liquidated damages then due to Holders of Registrable Series A Notes with
respect to which the Trustee serves. The liquidated damages amount due shall be
payable on each interest payment date to the record Holder of Registrable Series
A Notes entitled to receive the interest payment to be made on such date as set
forth in the Indenture. Each obligation to pay liquidated damages shall be
deemed to accrue on the applicable Event Date. The parties hereto agree that the
liquidated damages provided for in this Section 4 constitute a reasonable
estimate of the damages that may be incurred by Holders of Registrable Series A
Notes by reason of the failure of a Shelf Registration and/or Exchange Offer to
be filed or declared effective, or a Shelf Registration to remain effective, as
the case may be in accordance with this Section 4.
5. Hold-Back Agreements.
(a) Restrictions on Public Sale by Holders. Each Holder whose Registrable
Series A Notes are covered by a Registration Statement filed pursuant to Section
2 or 3 hereof agrees not to effect any public sale or distribution of any
securities of Funding or the Partnership of the same or similar class or classes
as the securities included in the Registration Statement or any securities
convertible into or exchangeable or exercisable for such securities, including a
sale pursuant to Rule 144 or Rule 144A under the Securities Act, during the
15-day period prior to, and during the 90-day period beginning on, the effective
date of such Registration
12
Statement (except pursuant to such Registration Statement) if and to the extent
requested in writing (with reasonable prior notice) by Funding or TCHI, as
applicable, and the Partnership, in the case of a public offering that is not an
Underwritten Offering, or by the sole or managing Underwriter, in the case of an
Underwritten Offering.
(b) Restrictions on Public Sale by Funding and TCHI. Funding, TCHI and the
Partnership agree not to effect any public sale or distribution of any
securities which are the same as or substantially similar to those Registrable
Series A Notes being registered pursuant to a Registration Statement filed
pursuant to Section 3 hereof, including a sale pursuant to Regulation D under
the Securities Act, or any securities convertible into or exchangeable or
exercisable for such securities during the 15-day period prior to, and during
the 90-day period beginning on, the effective date of such Registration
Statement (except pursuant to such Registration Statement on Form S-4 or any
successor to such Form).
6. Registration Procedures.
Whenever any Registrable Series A Notes are to be registered pursuant to
Sections 2 or 3 of this Agreement, Funding, TCHI and the Partnership shall use
their reasonable best efforts to effect or cause to be effected such
registration in a manner which will permit the exchange or sale of such
Registrable Series A Notes by the Holders thereof in accordance with their
intended method or methods of distribution, and Funding, TCHI and the
Partnership shall (to the extent applicable), as expeditiously as possible:
(a) prepare and file a Registration Statement with the SEC and cause each
such Registration Statement to become and remain effective, within the
applicable time periods specified herein, which Registration Statement (x) shall
be on an appropriate registration form under the Securities Act, selected by
Funding and/or TCHI, as applicable, and the Partnership and shall be reasonably
acceptable to the special counsel for the Holders, (y) shall be available for
the sale or exchange of the Registrable Series A Notes in accordance with the
intended method or methods of distribution by the selling or exchanging Holders
thereof, and (z) shall comply as to form in all material respects with the
requirements of the applicable form under the Securities Act and include all
financial statements required by the SEC to be filed therewith;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each such Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable time period hereunder; cause
each related Prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 (or any
similar provision then in force) under the Securities Act; and comply with the
provisions of the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder with respect to the disposition of all securities covered
by each Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the selling holders thereof;
13
(c) if a Registration Statement is filed pursuant to Section 3, furnish to
each Holder and to each Underwriter of an Underwritten offering of Registrable
Series A Notes, if any, without charge, as many copies of each Prospectus,
including each Prospectus subject to completion, and any amendment or supplement
thereto and such other documents as such Holder or Underwriter may reasonably
request, in order to facilitate the public sale or other disposition of the
Registrable Series A Notes; Funding, TCHI and the Partnership consent to the use
of the Prospectus, including each Prospectus subject to completion, by each
Holder and each Underwriter of an Underwritten Offering of Registrable Series A
Notes, if any, in connection with the offering and sale of the Registrable
Series A Notes covered by such Prospectus or Prospectus subject to completion;
(d) on or prior to the date on which such Registration Statement is
declared effective, register or qualify, and cooperate with each Holder of
Registrable Series A Notes covered by such Registration Statement, each
Underwriter, if any, and their respective counsel in registering or qualifying
the Registrable Series A Notes under all applicable state securities or "blue
sky" laws of such jurisdictions as each such Underwriter, if any, or any such
Holder shall reasonably request in writing (provided that neither Funding, TCHI
or the Partnership shall be required to register or qualify as a foreign
corporation or foreign limited partnership where it is not now so qualified or
take any action that would subject it to service of process in suits or to
taxation in any jurisdiction where it is not now so subject), keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective and do any and all other acts and
things which may be reasonably necessary or advisable to enable such
Underwriter, if any, and such Holders to consummate the disposition in each such
jurisdiction of Registrable Series A Notes covered by such Registration
Statement;
(e) notify each Holder of Registrable Series A Notes covered by such
Registration Statement (to the extent known after due inquiry), each
Underwriter, if any, and their respective counsel promptly, and confirm such
notice in writing (i) when such Registration Statement has become effective and
when any post-effective amendments and supplements thereto become effective or
any supplement to the Prospectus or amendment Prospectus shall have been filed,
(ii) of the issuance by the SEC or any state securities authority of any stop
order suspending the effectiveness of such Registration Statement or preventing
or prohibiting the use of any Prospectus (including any Prospectus subject to
completion) or the initiation of any proceedings for any such purpose, (iii) of
the receipt of comments from the SEC with respect to such Registration
Statement, (iv) if, between the effective date of such Registration Statement
and the closing of any sale of securities covered thereby, the representations
and warranties of Funding or the Partnership contained in the underwriting
agreement or other agreement contemplated by Section 6(k) hereof, if any,
relating to the offering cease to be true and correct in all material respects,
(v) if Funding or the Partnership receives any notification with respect to the
suspension of the qualification of the Registrable Series A Notes for sale in
any jurisdiction or the initiation of any proceeding for such purpose, and (vi)
of the happening of any event during the period such Registration Statement is
effective as a result of which
14
such Registration Statement or the related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or, in Funding's or the
Partnership's reasonable determination, a post-effective amendment to such
Registration Statement would be appropriate;
(f) furnish special counsel for the Holders of Registrable Series A Notes
covered by such Registration Statement and each Underwriter, if any, with copies
of any request by the SEC or any state securities authority for amendments or
supplements to such Registration Statement or any Prospectus or for additional
information;
(g) make every reasonable effort 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 Series A Notes for
sale in any jurisdiction, and, if any such order is issued, to obtain promptly
the withdrawal of any such order;
(h) upon request, furnish to the Underwriter or managing Underwriter of
any Underwritten Offering of Registrable Series A Notes, if any, without charge,
with at least one signed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits; and furnish to
each Holder, without charge, one conformed copy of each Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules, (but not including documents incorporated therein by reference or
exhibits thereto, unless requested);
(i) if a Registration Statement is filed pursuant to Section 3, cooperate
with the selling Holders and the Underwriter or managing Underwriter of an
Underwritten Offering of Registrable Series A Notes, if any, to facilitate the
timely preparation and delivery of certificates (not bearing any restrictive
legends) representing Registrable Series A Notes to be sold; and issue such
Registrable Series A Notes to be sold in such denominations (consistent with the
provisions of the Funding Note Indenture or the TCHI Note Indenture, as the case
may be) and registered in such names as the selling Holders or the Underwriter
or managing Underwriter of an underwritten offering of Registrable Series A
Notes, if any, may reasonably request at least three business days prior to any
sale of Registrable Series A Notes;
(j) upon the occurrence of any event contemplated by Section 6(e)(vi)
hereof, prepare a supplement or post-effective amendment to a Registration
Statement or the related Prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the Registrable Series A Notes, such Registration Statement
will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading and in Funding's
15
and/or TCHI's, as applicable, and the Partnership's reasonable determination a
post-effective amendment to such Registration Statement is no longer
appropriate;
(k) if a Registration Statement is filed pursuant to Section 3, enter into
customary agreements (including underwriting agreements) and take all other
customary and appropriate actions in order to expedite or facilitate the
disposition of such Registrable Series A Notes and in such connection whether or
not an underwriting agreement is entered into and whether or not the
registration is an Underwritten offering:
(1) to the extent Funding, TCHI and the Partnership is able, make
such representations and warranties to the Holders and the Underwriters,
if any, in form, substance and scope as are customarily made by issuers to
underwriters in similar primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(2) obtain opinions of counsel to Funding, TCHI and the Partnership
and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the managing Underwriters,
if any, and the special counsel for the Holders of the Registrable Series
A Notes being sold) addressed to each selling Holder and the Underwriters,
if any, covering the matters customarily covered in opinions requested in
similar sales of securities or underwritten offerings and such other
matters as may be reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of Funding, TCHI, the Partnership
and each of their Subsidiaries addressed to the selling Holders of
Registrable Series A Notes and the Underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered
in "cold comfort" letters to underwriters in connection with primary
underwritten offerings;
(4) enter into a securities sales agreement with the Holders
relating to such registration and providing for, among other things, the
appointment of the Underwriter as agent for the selling Holders for the
purpose of soliciting purchases of Registrable Series A Notes, which
agreement shall be customary in form, substance and scope and shall
contain customary representations, warranties and covenants;
(5) if an underwriting agreement is entered into, cause the same to
set forth indemnification provisions and procedures substantially
equivalent to the indemnification provisions and procedures set forth in
Section 7 hereof with respect to all parties to be indemnified pursuant to
said Section; and
16
(6) deliver such other documents and certificates as may be
reasonably requested by the Holders of a majority in principal amount of
the Registrable Series A Notes being sold and the managing Underwriters,
if any.
The above shall be done at (i) the effectiveness of such Registration Statement
(and each post-effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent required thereunder;
(l) make available for inspection by representatives of the Holders of the
Registrable Series A Notes and any Underwriters participating in any disposition
pursuant to a Registration Statement, and any special counsel or accountant
retained by such Holders or Underwriters, at the offices where normally kept
during normal business hours, all financial and other records, pertinent
corporate documents and properties of Funding, TCHI, the Partnership and their
Subsidiaries, and cause their officers, directors and employees to supply all
information reasonably requested by any such representative, Underwriter,
special counsel or accountant in connection with a Registration Statement;
provided, however, that such records, documents or information which Funding,
TCHI and the Partnership determine, in good faith, to be confidential and
notifies such representatives, Underwriters, special counsel or accountants in
writing are confidential shall not be disclosed by the representatives,
Underwriters, special counsel or accountants unless (i) the disclosure of such
records, documents or information is necessary to avoid or correct a
misstatement or omission in a Registration Statement, (ii) the release of such
records, documents or information is ordered pursuant to a subpoena or other
order from a court of competent jurisdiction, or (iii) such records, documents
or information have been generally made available to the public other than as a
result of a disclosure or failure to safeguard by such person;
(m) (i) a reasonable time prior to the filing of any Registration
Statement, any Prospectus, any amendment to a Registration Statement or
amendment or supplement to a Prospectus, provide copies of such document to the
Holders, to the special counsel on behalf of the Holders and to the Underwriter
or Underwriters of an Underwritten offering of Registrable Series A Notes, if
any, make such changes in any such document prior to the filing thereof as the
special counsel to the Holders or the Underwriter or Underwriters, may
reasonably request and not file any such document in a form to which the
Holders, or any Underwriter shall reasonably object, and make such of the
representatives of Funding, TCHI, and the Partnership available for discussion
of such document as shall be reasonably requested by the Holders, or any
Underwriter;
(ii) a reasonable time prior to the filing of any document which is
to be incorporated by reference into a Registration Statement or a Prospectus,
provide copies of such document to special counsel for the Holders, and make
such changes in such document prior to the filing thereof as such counsel or
counsel for any Underwriter shall reasonably request; and make such of the
representatives of Funding, TCHI, and the Partnership as shall be reasonably
requested by such special counsel available for discussion of such document;
17
(n) provide a CUSIP number for all Registrable Series A Notes, not later
than the effective date of a Registration Statement;
(o) cause the Funding Note Indenture and the TCHI Note Indenture to be
qualified under the Trust Indenture Act of 1939, as amended from time to time
(the "TIA"), in connection with the registration of the Registrable Series A
Notes, cooperate with the Trustee under the Funding Note Indenture and the
Trustee under the TCHI Note Indenture and the holders of the Securities to
effect such changes to the respective indenture as may be required for such
indentures to be so qualified in accordance with the terms of the TIA and
execute, and cause the applicable Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable the respective indentures to be so qualified in
a timely manner;
(p) comply with all applicable rules and regulations of the SEC and make
available to its security holders, as soon as reasonably practicable an earnings
statement covering at least 12 months which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(q) if a registration statement is filed pursuant to Section 3, file and
keep continuously effective a "market making prospectus" with respect to the
outstanding Securities and deliver to the Underwriter such number of copies of
such prospectus as the Underwriter may reasonably request in the course of its
market making activities with respect to the Securities; and
(r) cooperate and assist in any filings required to be made with the NASD
and in the performance of any due diligence investigation by any Underwriter
(including any "qualified independent Underwriter" that is required to be
retained in accordance with the rules and regulations of the NASD).
Each selling Holder of Registrable Series A Notes as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations of TCHI, Funding and the Partnership provided
herein, to furnish to Funding, TCHI and the Partnership such information
regarding the proposed distribution by such Holder as Funding, TCHI and the
Partnership may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from Funding or TCHI
of the happening of any event of the kind described in Section 6(e)(vi) hereof,
such Holder will forthwith discontinue disposition of Registrable Series A Notes
pursuant to a Registration Statement until such Holder's receipt of the copies
of the supplemented or amended Prospectus contemplated by Section 6(j) hereof,
and, if so directed by Funding or TCHI such Holder will deliver to Funding or
TCHI as applicable (at the expense of Funding or TCHI, as applicable, or the
Partnership), all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such Registrable
Series A Notes current at the
18
time of receipt of such notice. If Funding, TCHI or the Partnership shall give
any such notice to suspend the disposition of Registrable Series A Notes
pursuant to a Registration Statement, Funding and/or TCHI, as applicable, and
the Partnership shall extend the period during which the Registration Statement
shall be maintained effective pursuant to this Agreement by the number of days
in the period from and including the date of the giving of such notice to and
including the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such dispositions.
In connection with the filing of a Registration Statement under this
Agreement, Funding or TCHI, as applicable, and the Partnership may elect to have
all Registrable Series A Funding Notes or all Registrable Series A TCHI Notes or
all Series B Funding Notes or all Series B TCHI Notes, as the case may be, in
definitive form or book-entry form, and each Holder will be required to convert
its Security into a definitive form Security or a book-entry form Security, as
the case may be, in accordance with the provisions set forth in the Funding Note
Indenture (in the case of Funding Notes) and the TCHI Note Indenture (in the
case of the TCHI Notes).
If the Majority Holders request at any time, in connection with the filing
of a Registration Statement under this Agreement or otherwise, that the Series B
Notes or Registrable Series A Notes be listed on the American Stock Exchange or
another securities exchange, TCHI, Funding and the Partnership shall as
expeditiously as possible take all reasonable steps to cause such Notes to be so
listed.
7. Indemnification; Contribution.
(a) Indemnification by Funding, TCHI and the Partnership. Funding, TCHI
and the Partnership, jointly and severally, shall without limitation as to time
indemnify and hold harmless each Holder and each of their respective Affiliates
(including any director, officer, trustee, employee agent or attorney of such
Holder or Person, if any, who controls any Holder within the meaning of Section
15 of the Securities Act and any director, officer, trustee, employee, agent or
attorney for such controlling person) (each an "Indemnified Party"):
(i) against any and all loss, claim, damage, liability and expense
whatsoever, as incurred, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment thereto), or arising out of or based upon any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus or including any Prospectus subject to completion
(or any amendment or supplement thereto), or arising out of or based upon any
omission or alleged omission of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
19
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of Funding, TCHI or the Partnership; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to the provisions of Section 7(c) below, reasonable
fees and disbursements of counsel), reasonably incurred in investigating,
preparing or defending against any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened, in
each case whether or not a party, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that Funding, TCHI and the Partnership shall not be liable in
any such case to any Indemnified Party to the extent that any such loss, claim,
damage, liability or expense arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission in a Prospectus
subject to completion, if (A) such untrue statement or alleged untrue statement,
omission or alleged omission is corrected in an amendment or supplement to such
Prospectus; (B) Funding, TCHI or the Partnership had furnished such Indemnified
Party with the number of copies of such amended or supplemented Prospectus
requested by such Indemnified Party a reasonable period of time prior to such
sale; and (C) thereafter such Indemnified Party fails to deliver such Prospectus
as so amended or supplemented prior to or concurrently with the sale by such
Indemnified Party of the Registrable Series A Notes to the Person asserting such
loss, claim, damage, liability or expense; and provided, further, that this
indemnity agreement does not apply to any Indemnified Party with respect to any
loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission contained
in any Registration Statement (or any amendment thereto) or Prospectus (or any
amendment or supplement thereto) made in reliance upon and in conformity with
written information furnished to Funding or the Partnership by such Indemnified
Party expressly for use in such Registration Statement (or such amendment
thereto) or such Prospectus (or such amendment or supplement thereto).
(b) Indemnification by Holders, Underwriters, Etc. (i) In connection with
any Registration Statement in which a Holder is participating, such Holder
severally agrees to indemnify and hold harmless Funding, TCHI the Partnership
and the other selling Holders, and each of their respective Affiliates
(including any director, officer, trustee, employee, agent, attorney or Person,
if any, who controls Funding, TCHI, the Partnership or any other selling Holder
within the meaning of Section 15 of the Securities Act), against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in Section 7(a)
20
hereof; provided however, that any settlement of the type described in Section
7(a)(ii) is effected with the written consent of such Holder, as incurred, but
only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to Funding, TCHI or
the Partnership by such selling Holder expressly for use in such Registration
Statement (or any amendment thereto) or such Prospectus (or any amendment or
supplement thereto); and provided further, however, that an indemnifying Holder
shall not be required to provide indemnification in any amount in excess of the
amount by which (A) the total price at which the Registrable Series A Notes sold
by such indemnifying Holder and its affiliated indemnifying Holders and
distributed to the public were offered to the public exceeds (B) the amount of
any damages which such indemnifying Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission.
(ii) Funding, TCHI and the Partnership shall be entitled to receive
indemnities from underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, to the same
extent as provided above with respect to information so furnished in writing by
such Persons specifically for inclusion in any Prospectus or Registration
Statement.
(c) Conduct of Indemnification Proceedings. Each indemnified party or
parties under this Section 7 shall give reasonably prompt notice to each
indemnifying party or parties of any action or proceeding commenced against it
or them in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party or parties shall not relieve it or them from any
liability which it or they may have under this indemnity agreement, except to
the extent that the indemnifying party or parties have been prejudiced
materially by such failure. If the indemnifying party or parties so elect,
within a reasonable time after receipt of such notice, the indemnifying party or
parties may assume the defense of such action or proceeding at such indemnifying
party's or parties' expense with counsel chosen by the indemnifying party or
parties and approved by the indemnified parties defendant in such action or
proceeding, which approval shall not be unreasonably withheld; provided,
however, that if such indemnified party or parties reasonably determine that a
conflict of interest exists where it is advisable for such indemnified party or
parties to be represented by separate counsel or that, upon advice of counsel,
there may be legal defenses available to them which are different from or in
addition to those available to the indemnifying party, then the indemnifying
party or parties shall not be entitled to assume such defense and the
indemnified party or parties shall be entitled to separate counsel at the
indemnifying party's or parties' expense. If an indemnifying party is not so
entitled to assume the defense of such action or does not assume such defense,
after having received the notice referred to in the first sentence of this
paragraph, the indemnifying party will pay the reasonable fees and expenses of
one lead counsel and one local counsel for the indemnified party or parties. In
such event, however, no indemnifying party or parties will be liable under this
Section 7 for any settlement effected without the written consent of such
indemnifying party or parties (which shall not be unreasonably withheld)
21
unless a complete release of such indemnifying party or parties is obtained as
part of such settlement. If an indemnifying party is entitled to assume, and
promptly assumes, the defense of such action or proceeding in accordance with
this Section 7(c), such indemnifying party shall not be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action or proceeding.
(d) Contribution. (i) If the indemnification provided for in this Section
7 is held to be unenforceable although applicable in accordance with its terms
in respect of any losses, claims, damages, liabilities or expenses suffered by
an indemnified party referred to therein, then each applicable 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 expenses in such proportion as is appropriate to
reflect the relative fault of Funding, TCHI and the Partnership on the one hand
and of the selling Holders (including, in each case, that of their officers,
directors, employees and agents) on the other in connection with the statements
or omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
fault of Funding, TCHI and/or the Partnership on the one hand and of the selling
Holders (including, in each case, that of their officers, directors, employees
and agents) on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by Funding, TCHI or the Partnership, on the one hand, or by or on
behalf of the selling Holders, on the other, 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 expenses referred to above shall be
deemed to include, subject to the limitations set forth in Section 7(c), any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
(ii) Funding, TCHI, the Partnership and each Holder of Registrable
Series A Notes agree that it would not be just and equitable if contribution
pursuant to this Section 7(d) were determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to in paragraph (i) above. Notwithstanding the
provisions of this Section 7(d), in the case of distributions to the public an
indemnifying Holder shall not be required to contribute any amount in excess of
the amount by which the total price at which the Registrable Series A Notes sold
by such indemnifying Holder or its affiliated indemnifying Holders and
distributed to the public were offered to the public exceeds the amount of any
damages which such indemnifying Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
22
8. Rule 144 and Rule 144A.
(a) Each of Funding and the Partnership covenants that (A) for so long as
Funding is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act it will file the reports required to be filed by it under the
Securities Act and Section 13(a) or 15(e) of the Exchange Act and the rules and
regulations adopted by the SEC thereunder and (B) that if it ceases to be so
required to file such reports, it will upon the request of any Holder (i) make
publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the Securities Act, (ii) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the Securities Act and it will take such further action as any Holder may
reasonably request, and (iii) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Series A Notes without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, (b)
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder, Funding and the Partnership will deliver to such
Holder a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8(a) shall be deemed to
require Funding or the Partnership to register any Securities under the Exchange
Act.
(b) Each of TCHI and the Partnership covenants that (A) if and whenever
TCHI is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act, that it will file the reports required to be filed by it under the
Securities Act and Section 13(a) or 15(e) of the Exchange Act and the rules and
regulations adopted by the SEC thereunder and (B) that whenever it is not
required to file such reports, it will upon the request of any Holder (i) make
publicly available such information as is necessary to permit sales pursuant to
Rule 144 under the Securities Act, (ii) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the Securities Act and it will take such further action as any Holder may
reasonably request, and (iii) take such further action that is reasonable in the
circumstances, in each case, to the extent required from time to time to enable
such Holder to sell its Registrable Series A Notes without registration under
the Securities Act within the limitation of the exemptions provided by (a) Rule
144 under the Securities Act, as such Rule may be amended from time to time, (b)
Rule 144A under the Securities Act, as such Rule may be amended from time to
time, or (c) any similar rules or regulations hereafter adopted by the SEC. Upon
the request of any Holder, TCHI and the Partnership will deliver to such Holder
a written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 8(b) shall be deemed to
require TCHI or the Partnership to register any Securities under the Exchange
Act.
23
9. Miscellaneous.
(a) No Inconsistent Agreements. Neither Funding, TCHI nor the Partnership
has entered into nor will Funding or the Partnership on or after the date of
this Agreement enter into any agreement which is inconsistent with the rights
granted to the Holders in this Agreement or otherwise conflicts with the
provisions hereof. Neither TCHI, Funding nor the Partnership has entered or will
enter into any other agreement with respect to its securities granting any
piggy-back registration rights with respect to a Registration Statement.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless TCHI, Funding and the Partnership obtained the written consent of
the Majority Holders; provided, however, that no amendment, modification or
supplement or waiver or consent to the departure with respect to the provisions
of Section 7 hereof shall be effective as against any Holder unless consented to
in writing by such Holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (i) if to a Holder, at the most current address given by such Holder to
TCHI, Funding or the Partnership by means of a notice given in accordance with
the provisions of this Section 9(c), which address initially is, with respect to
each Fund, the address set forth next to such Fund's name on the signature pages
of the Purchase Agreement, with a copy to Ropes & Xxxx, Xxx Xxxxxxxxxxxxx Xxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxx, Esq., or (ii) if to
Funding or the Partnership, at Xxxxxxxxxx Xxxxxxxxx xxx Xxxxx Xxxxxx, Xxxxxxxx
Xxxx, Xxx Xxxxxx 00000, Attention: Chief Financial Officer, or such other
address, notice of which is given in accordance with the provisions of this
Section 9(c), with a copy to the attention of Xxxxxx X. Xxxxxx, Esq., at, (A) if
prior to May 26, 1998, Xxxxxxx Xxxx & Xxxxxxxxx, One Citicorp Center, 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or (B) if on or after May 26, 1998,
Xxxxxxx Xxxx & Xxxxxxxxx, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
24
(d) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders. If any successor, assignee or transferee of any
Holder shall acquire Registrable Series A Notes, in any manner, whether by
operation of law or otherwise, such Registrable Series A Notes shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Series A Notes such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement and such Person shall be entitled to receive the benefits hereof.
(e) Counterparts. This Agreement may be executed in any number of
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF TCHI, FUNDING AND THE PARTNERSHIP HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN, CITY OF NEW YORK, OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF
MANHATTAN, CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF THE
AFORESAID COURTS. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PERSON TO SERVE
PROCESS IN ANY MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR
OTHERWISE PROCEED AGAINST TCHI, FUNDING AND THE PARTNERSHIP IN ANY OTHER
JURISDICTION.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provisions in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(i) Specific Performance. The parties hereto acknowledge that there would
be no adequate remedy at law if any party fails to perform any of its
obligations hereunder, and accordingly agree that each party, in addition to any
other remedy to which it may be entitled at law or in equity, shall be entitled
to compel specific performance of the obligations of any
25
other party under this Agreement in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof having
jurisdiction.
(j) 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 by Funding with respect to the
Securities sold pursuant to the Purchase Agreement. This Agreement supersedes
all prior agreements and understandings between the parties with respect to such
subject matter.
(k) Securities Held by Funding or Its Respective Affiliates. Whenever the
consent or approval of Holders of a specified percentage of Registrable Series A
Notes is required hereunder, Registrable Series A Notes held by TCHI, Funding,
the Partnership or their respective Affiliates (other than any Holders that are
deemed to be such Affiliates solely by reason of their holdings of such
Registrable Series A Notes) shall not be counted in determining whether such
consent or approval was given by the Holders of such required percentage.
26
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
The Partnership TRUMP'S CASTLE ASSOCIATES, L.P.
By TRUMP'S CASTLE HOTEL & CASINO, INC.,
its general partner
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
XXXX XXXXX'X CASTLE HOTEL & CASINO, INC.
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
Funding TRUMP'S CASTLE FUNDING, INC.
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------
Name: Xxxxxxxx X. Xxxxx
Title: President and Chief Executive Officer
The Funds THE FUNDS LISTED ON EXHIBIT A HERETO
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX INVESTMENT MANAGEMENT, INC.
ON BEHALF OF THE FUNDS AND ACCOUNTS
LISTED ON EXHIBIT B HERETO
By: /s/ Xxxx X. Xxxxxx
-------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXXX FIDUCIARY TRUST COMPANY ON
BEHALF OF THE FUNDS AND ACCOUNTS
LISTED ON EXHIBIT C HERETO
By: /s/ Xxxx X. Xxxxxx
----------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
THE XXXXXX ADVISORY COMPANY, INC. ON BEHALF
OF THE FUNDS AND ACCOUNTS LISTED ON EXHIBIT
D HERETO
By: /s/ Xxxx X. Xxxxxx
----------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
EXHIBIT A
Xxxxxx Variable Trust - PVT High Yield Fund
Xxxxxx Funds Trust - Xxxxxx High Yield Trust II
Putnam Managed High Yield Trust
Xxxxxx High Yield Trust
Xxxxxx High Yield Advantage Fund
Putnam Strategic Income Fund
Xxxxxx Diversified Income Trust
Putnam Variable Trust -PVT Diversified Income Fund
Xxxxxx Master Income Trust
Xxxxxx Premier Income Trust
Xxxxxx Master Intermediate Income Trust
Xxxxxx Asset Allocation Funds - Balanced Portfolio
Xxxxxx Variable Trust - PVT Global Asset Allocation Fund
Xxxxxx Asset Allocation Funds - Conservative Portfolio
Xxxxxx Asset Allocation Funds - Growth Portfolio
Xxxxxx The Xxxxxx Xxxxxx Fund of Boston
Xxxxxx Income Fund
Xxxxxx Equity Income Fund
Xxxxxx Balanced Retirement Fund
Xxxxxx Funds Trust - Xxxxxx High Yield Total Return Fund
Putnam High Income Convertible and Bond Fund
Xxxxxx Convertible Opportunities and Income Trust
EXHIBIT B
Travelers Series Fund Inc. - Xxxxxx Diversified Income Portfolio
EXHIBIT C
Xxxxxx High Yield Managed Trust
Xxxxxx High Yield Fixed Income Fund, LLC
EXHIBIT D
Ameritech Corporation Pension Plan
Xxxx Xxxxxx Cancer Institute
Xxxxxx Laboratories Annuity Retirement Plan
Mobil Oil Corporation Retirement Plans
Strategic Global Fund - High Yield Fixed Income (Xxxxxx) Fund
Ameritech Corporation Pension Plan
29
