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EXHIBIT 4.02
REGISTRATION RIGHTS AGREEMENT
(Senior Notes)
Registration Rights Agreement, dated as of March 30, 2001,
among Jazz Casino Company, L.L.C. (the "Company"), JCC Holding Company ("JCC
Holding"), JCC Canal Development, L.L.C. ("JCC Canal"), JCC Xxxxxx Development,
L.L.C. ("JCC Xxxxxx") and JCC Development Company, L.L.C. ("JCC Development")
and Bankers Trust Company ("BTCo") and Xxxxxx'x Entertainment, Inc. ("HET").
WITNESSETH:
WHEREAS, the Company and the Guarantors are parties to that
certain Indenture dated as of March 30, 2001 pursuant to which the Company has
agreed to issue $124,520,000 in aggregate principal amount of the Company's
Notes due 2008 (including Series A Notes and Series B Notes) issued pursuant to
the Indenture, including all Secondary Securities from time to time issued
thereunder, (the "Notes") in connection with that certain Joint Plan of
Reorganization Under Chapter 11 of the Bankruptcy Code as modified through
February 8, 2001, and filed with the United States Bankruptcy Court for the
Eastern District of Louisiana by JCC Holding, the Company, JCC Canal, JCC Xxxxxx
and JCC Development Company (the "Plan"); and
WHEREAS, pursuant to the Plan and in order to induce the
Holders to accept the Notes to be issued to them, the Company and the Guarantors
have agreed to provide registration rights with respect thereto, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the promises and the
covenants hereinafter contained, the parties hereto hereby agree as follows:
1. Definitions. (a) The following terms shall have the
following respective meanings (such meanings being equally applicable to both
the singular and plural form of the terms defined):
"Additional Guarantors" has the meaning set forth in Section 13.
"Additional Selling Holders" has the meaning set forth in Section 2(a).
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"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person; provided, however, that no holder of Notes shall be deemed to be an
Affiliate of any other holder of Notes solely by reason of any investment in the
Company or JCC Holding. For the purpose of this definition, the term "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Registration Rights Agreement, including all
amendments, modifications and supplements and any exhibits or schedules to any
of the foregoing, and shall refer to the Agreement as the same may be in effect
at the time such reference becomes operative.
"BTCo Permitted Holders" shall mean (i) BTCo, (ii) any Affiliate of
BTCo which at any time holds any Registrable Securities and (iii) any Permitted
Transferee of a BTCo Permitted Holder; provided that any BTCo Permitted Holder
as described in clause (iii) above may only initiate a request for a Demand
Registration pursuant to Section 2 hereof if such BTCo Permitted Holder is
designated in writing by BTCo to JCC Holding as a potential Initiating Holder.
"Company" means Jazz Casino Company, L.L.C., a Louisiana limited
liability company.
"Company Parties" shall mean the Company and each Guarantor.
"Delay Periods" has the meaning set forth in Section 4(k).
"Demand Registration" has the meaning set forth in Section 2(a).
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the SEC
thereunder, all as the same shall be in effect from time to time.
"Guarantors" means each of JCC Holding, JCC Canal, JCC Xxxxxx, JCC
Development and each Additional Guarantor, if any; provided that from and after
that date, if any, upon which any of JCC Canal, JCC Development, JCC Xxxxxx or
any
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Additional Guarantor is released as a "Guarantor" pursuant to the Indenture,
such Person shall cease to constitute a Guarantor hereunder.
"HET Permitted Holder" shall mean (i) HET, (ii) any Affiliate of HET
which at any time holds any Registrable Securities and (iii) any Permitted
Transferee of an HET Permitted Holder; provided that any HET Permitted Holder as
described in clause (iii) above may only initiate a request for a Demand
Registration pursuant to Section 2 hereof if such HET Permitted Holder is
designated in writing by HET to JCC Holding as a potential Initiating Holder.
"Holders" shall mean all BTCo Permitted Holders and all HET Permitted
Holders.
"Indemnified Party" has the meaning set forth in Section 7.
"Indemnifying Party" has the meaning set forth in Section 7.
"Indenture" means that certain Indenture, as amended or supplemented
from time to time in accordance with the terms thereof, between the Company, JCC
Holding, JCC Canal, JCC Xxxxxx, JCC Development and HSBC Bank USA, as indenture
trustee, and dated as of March 30, 2001, as amended, modified or supplemented
from time to time.
"Initial Holder" has the meaning set forth in the first paragraph.
"Initiating Holder" has the meaning set forth in Section 2(a).
"Inspectors" has the meaning set forth in Section 4(g).
"Interruption Period" has the meaning set forth in Section 4(k).
"JCC Canal" means JCC Canal Development, L.L.C., a Louisiana limited
liability company.
"JCC Development" means JCC Development, L.L.C., a Louisiana limited
liability company.
"JCC Xxxxxx" means JCC Xxxxxx Development, L.L.C., a Louisiana limited
liability company.
"JCC Holding" means JCC Holding Company, a Delaware corporation.
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"Maximum Offering Size" has the meaning set forth in Section 2(d).
"NASD" means the National Association of Securities Dealers, Inc., or
any successor corporation thereto.
"Notes" has the meaning set forth in the second paragraph and shall
include all Securities as defined in the Indenture.
"Permitted Transferee" means any Person to whom any Registrable
Security is transferred provided that such transfer is permitted pursuant to the
terms of the Indenture.
"Person" means an individual, corporation, partnership, association,
trust or other entity or organization, including a government or political
subdivision or an agency or instrumentality thereof.
"Piggyback Registration" has the meaning set forth in Section 3.
"Piggyback Registration Offer" has the meaning set forth in Section 3.
"Plan" has the meaning set forth in the second paragraph.
"Public Offering" means an underwritten public offering of the
Registrable Securities pursuant to an effective registration statement under the
Securities Act.
"Records" has the meaning set forth in Section 4(g).
"Registrable Securities" means (i) the Notes and any Related
Registrable Securities. Once issued such Registrable Securities shall cease to
be Registrable Securities when (a) a registration statement with respect to the
sale of such securities shall have become effective under the Securities Act and
such securities shall have been disposed of in accordance with such registration
statement, (b) they shall have been sold publicly as permitted by Rule 144 (or
any successor provision) under the Securities Act or (c) they shall have ceased
to be outstanding.
"Registration Expenses" shall have the meaning set forth in Section 5.
"Related Registrable Securities" means any securities issued or
issuable with respect to any Notes (including any Secondary Securities), or in
connection with
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recapitalization, merger, consolidation or other reorganization or otherwise and
any obligations of the Guarantors to the extent they are separate securities.
"Requesting Holder" has the meaning set forth in Section 3.
"SEC" means the Securities and Exchange Commission.
"Secondary Securities" shall have the meaning set forth in the
Indenture.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the SEC thereunder,
all as the same shall be in effect from time to time.
"Series A Notes" has the meaning set forth in the Indenture.
"Series B Notes" has the meaning set forth in the Indenture.
(b) The words "herein," "hereof" and "hereunder" and
other words of similar import refer to this Agreement as a whole, including the
schedules and exhibits hereto, as the same may from time to time be amended or
supplemented, and not to any particular section, subsection or clause contained
in this Agreement.
(c) The sign "$" shall mean, unless otherwise
indicated, the lawful money of the United States.
2. Demand Registration. (a) Upon the written request of any
Holder, or group of Holders, (the "Initiating Holders"), requesting that the
Company effect the registration under the Securities Act of such Holder's
Registrable Securities (or a portion thereof), and specifying the intended
method of disposition thereof, the Company will promptly give notice of such
requested registration (the "Demand Registration") at least 30 days prior to the
anticipated filing date of the registration statement relating to such Demand
Registration to any other Holders who hold Registrable Securities at such time
(based on the books and records of the transfer agent or registrar with respect
to the Registrable Securities) and thereupon will use its best efforts to cause
the Registration Statement to become effective under the Securities Act as soon
as reasonably practicable, but in no event later than 180 days of its receipt of
such notice of demand, for:
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(1) the Registrable Securities that the Company has been so
requested to register by the Initiating Holders then held by the
Initiating Holders; and
(2) all Registrable Securities that any other Holder has
requested the Company to register by written request received by the
Company within 20 days after the delivery to such Holders of the
written notice given by the Company pursuant to Section 2(a) above
(such other Holders who have requested registration being referred to
herein as "Additional Selling Holders" and, together with the
Initiating Holder, as the "Requesting Holders"),
all to the extent necessary to permit the disposition in accordance with the
intended methods thereof as aforesaid of the Registrable Securities so to be
registered; provided that the Company shall not be obligated to effect more than
(x) two Demand Registrations pursuant to this Section 2 for the BTCo Permitted
Holders or (y) more than two Demand Registrations pursuant to this Section 2 for
the HET Permitted Holders.
Promptly after the expiration of the 20-day period referred to in
Section 2(a)(ii) hereof, the Company will notify the Initiating Holders of any
Additional Selling Holders and the amount of Registrable Securities requested to
be included in the Demand Registration by such Additional Selling Holders. The
Initiating Holders requesting a registration under this Section 2(a) may, at any
time prior to the effective date of the registration statement relating to such
registration, revoke such request, without liability to any of the other
Requesting Holders, by providing a written notice to the Company and such other
Requesting Holders revoking such request, in which case such request, so
revoked, shall not be considered a Demand Registration if, and only if, any fees
and expenses incurred by the Company as a result of such revoked request are
paid by the Initiating Holders.
(2) Except as provided in Section 2(a), the Company will pay
all Registration Expenses in connection with each Demand Registration.
(3) A registration requested pursuant to this Section 2 shall
not be deemed to have been effected (i) unless the registration statement
relating thereto (A) has become effective under the Securities Act and (B) has
remained effective for a period of at least 90 days (or such shorter period in
which all Registrable Securities of the Requesting Holders have actually been
sold thereunder), (ii) if, after it has become effective, such registration is
interfered with by any stop
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order, injunction or other order or requirement of the SEC or other governmental
agency or court for any reason not attributable to the Requesting Holders and
has not thereafter become effective, or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived, other than by reason of a failure
on the part of the Requesting Holders.
(4) If the managing underwriter of the underwritten offering
shall advise the Company in writing (with a copy to each Requesting Holder of
Registrable Securities requesting registration) that, in its opinion, the number
of securities requested to be included in such registration exceeds the number
which can be sold in such offering within a price range acceptable to the
Requesting Holders owning the majority of the Registrable Securities requested
to be included in such registration, the Company will include in such
registration, to the extent of the number which the Company is so advised can be
sold in such offering (the "Maximum Offering Size"), Registrable Securities
requested to be included in such registration allocated among the Requesting
Holders on a pro rata basis (based upon the amount of Registrable Securities
requested to be registered by each such Requesting Holder, as compared to the
aggregate amount of Registrable Securities requested so to be registered).
(5) The Company and the Guarantors will cooperate in the
performance of the obligations of the Company under this Section 2.
(6) The underwriter or underwriters of the underwritten
offering of the Registrable Securities so to be registered shall be selected by
the mutual agreement of the Company and the holders of a majority of the
Registrable Securities so to be registered.
(7) Whenever the Company shall effect a registration pursuant
to this Section 2 in connection with the underwritten offering by one or more
Requesting Holders of Registrable Securities, no securities other than
Registrable Securities shall be included among the securities covered by such
registration unless the managing underwriter of such offering shall have advised
each Requesting Holder of Registrable Securities to be covered by such
registration in writing that the inclusion of such other securities would not
adversely affect such offering.
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3. Piggyback Registration.
(1) If the Company at any time proposes to file a registration
statement under the Securities Act with respect to any underwritten offering by
the Company for its own account or for the account of holders of any debt
securities, securities convertible into or exchangeable for debt securities or
warrants, options or other rights to purchase debt securities, to be offered for
cash (other than on Form S-4 or S-8), then the Company shall in each case give
written notice of such proposed filing to the Holders at least twenty (20) days
before the anticipated filing date, and such notice shall offer (a "Piggyback
Registration Offer") such Holders the opportunity to include all of the
Registrable Securities held by them in such registration statement (a "Piggyback
Registration"). In such event the right of any Holder to registration pursuant
to this Section 3(a) may be conditioned upon such Holder's participation in such
underwriting and of the inclusion such Holder's Registrable Securities in the
underwriting to the extent provided herein. If any such Holder desires to have
Registrable Securities registered and included in such underwritten offering
under this Section 3(a) such Holder shall so notify the Company in writing
within ten days after the receipt by such Holder of the written notice provided
for in the preceding sentence (which notification shall set forth the amount of
Registrable Securities for which registration is requested), and the Company
will use its best efforts to cause all such Registrable Securities to be
registered under the Securities Act to the extent requisite to permit the
disposition in such underwritten offering; provided, however, that if the
managing underwriter or underwriters of such offering, as selected by the
Company, shall advise the Company in writing that in its or their opinion the
total amount or kind of securities that the Holders, the Company and any other
Persons or entities intend to include in such offering exceeds the amount that
can be sold in such offering without an adverse effect on the price, timing or
distribution of the securities offered by the Company, the Company shall be
required to include in such registration only the amount of Registrable
Securities and securities of other persons or entities, if any, that the
managing underwriter or underwriters determine, in its or their sole discretion,
can be sold without an adverse effect on the price, timing or distribution of
the securities offered. In such event, in cases initially involving the
registration for sale of securities for the Company's own account, securities
shall be registered in such offering in the following order of priority: (i)
first, the securities which the Company proposes to register, (ii) second, the
securities which may have been requested to be included in such registration
pursuant to this Agreement (pro rata based on the amount of securities sought to
be registered by such Persons) and (iii) third, the securities of other Persons
entitled to exercise "piggyback" registration rights pursuant to contractual
commitments of the Company (pro rata based on the amount of securities sought to
be registered by such Persons).
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(2) At any time prior to the date of printing preliminary
prospectuses in connection with an underwritten offering under Section 3(a), a
Holder that previously requested Piggyback Registration thereof may withdraw all
or part of its Registrable Securities from such offering by providing notice to
such effect to the Company.
(3) The Company will pay all Registration Expenses in
connection with the registration requested pursuant to this Section 3, except
that the Holders of Registrable Securities to be registered shall pay all
underwriting discounts and commissions or placement fees of such underwriters
with respect to the Registrable Securities sold by such Holders.
4. Registration Procedures. Whenever an Initiating Holder
requests that any Registrable Securities be registered pursuant to Section 2
hereof, the Company and the Guarantors will, subject to the provisions of such
Section, use their best efforts to effect the registration and the sale of such
Registrable Securities in accordance with the intended method of disposition
thereof as soon as practicable, but in no event later than 180 days of its
receipt of such notice of demand, and in connection with any such request:
(1) The Company Parties will as soon as reasonably practicable
prepare and file with the SEC a registration statement on any form for which the
Company (and, to the extent relevant, the Guarantors) then qualifies or which
counsel for the Company shall deem appropriate and which form shall be available
for the sale of the Registrable Securities to be registered thereunder in
accordance with the intended method of distribution thereof, and use its (and
their) best efforts to cause such filed registration statement to become and
remain effective for a period of not less than 90 days.
(2) The Company will, if requested, prior to filing a
registration statement or prospectus or any amendment or supplement thereto,
furnish to each Requesting Holder and each underwriter, if any, of the
Registrable Securities covered by such registration statement copies of such
registration statement as proposed to be filed, and thereafter the Company will
furnish to such Requesting Holder and underwriter, if any, such number of copies
of such registration statement, each amendment and supplement thereto (in each
case including all exhibits thereto and documents incorporated by reference
therein), the prospectus included in such registration statement (including each
preliminary prospectus) and such other documents as such Requesting Holder or
underwriter may reasonably request in order
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to facilitate the disposition of the Registrable Securities owned by such
Requesting Holder.
(3) After the filing of the registration statement, the
Company will promptly notify each Requesting Holder holding Registrable
Securities covered by such registration statement of (i) the receipt of any
comments or requests from the SEC and (ii) any stop order or cease trade order
issued by the SEC and take all reasonable actions required to prevent the entry
of such stop order or cease trade order or to remove or revoke it if entered.
(4) The Company and each Guarantor will use its best efforts
to (i) register or qualify the Registrable Securities covered by such
registration statement under such other securities or blue sky laws of such
jurisdictions in the United States as any Requesting Holder holding such
Registrable Securities reasonably (in light of such Requesting Holder's intended
plan of distribution) requests and (ii) cause such Registrable Securities to be
registered with or approved by such other governmental agencies or authorities
as may be necessary by virtue of the business and operations of the Company
Parties and do any and all other acts and things that may be reasonably
necessary or advisable to enable such Requesting Holder to consummate the
disposition of the Registrable Securities owned by such Requesting Holder;
provided that the Company will not be required to (A) qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this paragraph (d), (B) subject itself to taxation in any such
jurisdiction or (C) consent to general service of process in any such
jurisdiction.
(5) The Company will immediately notify each Requesting Holder
holding such Registrable Securities, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the occurrence
of an event requiring the preparation of a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will contain complete and accurate
disclosure of all material facts relating to the securities covered thereby and
will not contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were made
and promptly prepare and make available to each such Requesting Holder any such
supplement or amendment.
(6) The Company and the Guarantors will enter into customary
agreements (including an underwriting agreement in customary form, including,
without limitation, customary provisions for indemnification and
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contribution) and take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities in any such
Public Offering, including the engagement of a "qualified independent
underwriter" in connection with the qualification of the underwriting
arrangements with the NASD.
(7) Upon the execution of customary confidentiality agreements
in form and substance reasonably satisfactory to the Company, the Company
Parties will make available for inspection by any Requesting Holder and any
underwriter participating in any disposition pursuant to a registration
statement being filed by the Company pursuant to this Section 4 and any
attorney, accountant or other professional retained by any such Requesting
Holder or underwriter (collectively the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of the Company Parties
(collectively the "Records") as shall be reasonably necessary to enable them to
exercise their due diligence responsibility, and cause the Company's and the
Guarantors' officers, directors and employees to supply all information
reasonably requested by any Inspectors in connection with such registration
statement. Records that the Company determines to be confidential and that it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such registration statement or (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction. Each Requesting Holder agrees that information
obtained by it as a result of such inspections shall be deemed confidential and
shall not be used by it as the basis for any market transactions in the
securities of the Company Parties unless and until such information, to the
extent material, is made generally available to the public. Each Requesting
Holder further agrees that it will, upon learning that disclosure of such
Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company at its expense, to undertake appropriate action to
prevent disclosure of the Records deemed confidential.
(8) The Company Parties will furnish to each Requesting Holder
and to each such underwriter, if any, a signed counterpart, addressed to such
underwriter, of (i) an opinion or opinions of counsel to the Company and (ii) a
comfort letter or comfort letters from the Company Parties' independent public
accountants, each in customary form and covering such matters of the type
customarily covered by opinions or comfort letters, as the case may be, as the
owners of a majority of the amount of Registrable Securities being sold for the
account of the Requesting Holders or the managing underwriter therefor
reasonably requests.
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(9) The Company Parties will otherwise use all reasonable
efforts to comply with all applicable rules and regulations of the SEC,
including, without limitation, making available to its security holders, as soon
as reasonably practicable, an earnings statement covering a period of twelve
months, beginning within three months after the effective date of the
registration statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act.
(10) The Company may require each Requesting Holder to furnish
promptly in writing to the Company such information regarding the distribution
of the Registrable Securities as the Company may from time to time reasonably
request and such other information legally required in connection with such
registration.
(11) Each Requesting Holder agrees that, upon receipt of any
notice from the Company of the happening of any event of the kind described in
Section 4(e) hereof, such Requesting Holder will forthwith discontinue
disposition of Registrable Securities pursuant to the registration statement
covering such Registrable Securities until such Requesting Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
4(e) hereof (such period during which disposition is discontinued being an
"Interruption Period"), and, if so directed by the Company, such Requesting
Holder will deliver to the Company all copies, other than any permanent file
copies then in such Requesting Holder's possession, of the most recent
prospectus covering such Registrable Securities at the time of receipt of such
notice. The Company shall be entitled to postpone the filing of any registration
statement otherwise required to be prepared and filed by the Company pursuant to
Section 2, or suspend the use of any effective registration statement under
Section 2, for a reasonable period of time which shall be as short as
practicable, but in any event not in excess of 90 days (a "Delay Period"), if
the Company determines in good faith that the registration and distribution of
the Registrable Securities covered or to be covered by such registration
statement would materially interfere with any pending material financing,
acquisition or corporate reorganization or other material corporate development
involving the Company Parties or any of their subsidiaries or would require
premature disclosure thereof and promptly gives the Requesting Holders written
notice of such determination, containing a statement of the reasons for such
postponement and an approximation of the period of the anticipated delay. If the
Company shall so postpone the filing of a registration statement, Requesting
Holders shall have the right to withdraw the request for registration by giving
written notice from the holders of a majority of the Registrable Securities that
were to be registered to the Company within 45 days after receipt of the notice
of postponement or, if earlier, the termination of such Delay Period. The time
period for which the Company
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is required to maintain the effectiveness of any registration statement shall be
extended by the aggregate number of days of all Delay Periods, all Hold Back
Periods and all Interruption Periods occurring during such registration. No more
than one Delay Period may be invoked pursuant to this Section with respect to a
Demand Registration.
(12) The Company Parties shall make their employees and
personnel available and otherwise provide reasonable assistance to the
underwriters (taking into account the needs of their businesses and the
requirements of the marketing process including, without limitation, the
participation by such employees and personnel in "road shows") in the marketing
of Registrable Securities in any underwritten offering.
5. Registration Expenses
(1) All expenses incident to the Company Parties' performance
of or compliance with this Agreement will be paid by the Company Parties,
regardless of whether the Registration Statement becomes effective, including
without limitation:
(1) all registration and filing fees (including,
without limitation, with respect to filings required to be made with
the SEC and any securities exchange or NASDAQ-NMS);
(2) fees and expenses of compliance with securities or
blue sky laws (including, without limitation, fees and disbursements
of counsel for the underwriters or selling holders in connection with
blue sky qualifications of the Registrable Securities and
determination of their eligibility for investment under the laws of
such jurisdictions as the managing underwriters or holders of a
majority of the Registrable Securities being sold may designate);
(3) printing (including, without limitation, expenses
of printing or engraving certificates for the Registrable Securities
in a form eligible for deposit with The Depositary Trust Company and
of printing prospectuses), messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for (i) the
Company Parties, (ii) the underwriters, and (iii) the
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sellers of the Registrable Securities (subject to the provisions of
Section 5(b) hereof);
(5) fees and disbursements of all independent certified
public accountants of the Company Parties (including, without
limitation, the expenses of any special audit and "cold comfort"
letters required by or incident to such performance);
(6) fees and disbursements of underwriters, if any,
(excluding discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals
relating to the distribution of the Registrable Securities or legal
expenses of any Person other than the Company Parties, the
underwriters and the selling holders of Registrable Securities);
(7) securities acts liability insurance if any Company
Party so desires or if the underwriters or selling holders of a
majority of the Registrable Securities so require;
(8) transfer agent fees and expenses;
(9) "road show" expenses;
(10) fees and expenses of other Persons retained by any
Company Party; and
(11) fees and expenses associated with any NASD filing
required to be made in connection with the Registration Statement and
any underwriting agreement, 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 (all such expenses being herein called
"Registration Expenses").
Each Company Party will, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on each securities exchange on which similar
securities issued by JCC Holding are then
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listed, rating agency fees and the fees and expenses of any Person, including
special experts, retained by any Company Party.
(2) In connection with the Registration Statement required
hereunder, the Company will reimburse the holders of Registrable Securities
being registered pursuant to such Registration Statement for the reasonable fees
and disbursements of not more than one counsel (or more than one counsel if a
legal opinion is required from more than one counsel by the terms of any
underwriting agreement relating to an underwritten offering) chosen by the
Initiating Holder or, in cases where there is no Initiating Holder, the Holders
of a majority of the Registrable Securities to be included therein.
6. Indemnification by the Company Parties. The Company Parties
jointly and severally agree to indemnify and hold harmless each Requesting
Holder, its officers, directors, employees and agents, and each person, if any,
who controls such Requesting Holder within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act from and against any and all
losses, claims, damages and liabilities (including those resulting from any
order made or any inquiry, investigation or proceeding commenced by any
securities regulatory authority, stock exchange or by any other competent
authority) caused by any untrue statement or alleged untrue statement of a
material fact contained in any registration statement or prospectus relating to
the Registrable Securities (as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) or any preliminary prospectus,
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 not
misleading in light of the circumstances under which they were made, except
insofar as such losses, claims, damages or liabilities are based upon (i) any
such untrue statement or omission or alleged untrue statement or omission in any
such registration statement or prospectus made or omitted, as the case may be,
in reliance upon and in conformity with information furnished in writing to the
Company by such Requesting Holder or on such Requesting Holder's behalf
expressly for use therein or (ii) a Requesting Holder's failure to send or give
a copy of the final prospectus to the Persons asserting an untrue statement or
omission or alleged untrue statement or omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus, but only if such
Requesting Holder had a separate prospectus delivery requirement under
applicable regulations. The Company Parties also jointly and severally agree to
indemnify any underwriters of the Registrable Securities, their officers,
directors, employees and agents and each person who controls such underwriters
(other than in respect of loss of profit or information relating solely to the
underwriters) on
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substantially the same basis as that of the indemnification of the Requesting
Holders provided in this Section 5 and which indemnification shall provide, in
addition, an indemnity in respect of any breach of representation or warranty of
any Company Party contained in any underwriting agreement in respect of
Registrable Securities.
7. Indemnification by Requesting Holders. Each Requesting Holder
agrees, severally but not jointly, to indemnify and hold harmless the Company
Parties, their officers, directors and agents and each person, if any, who
controls any Company Party within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company Parties to such Requesting Holder, but only
with respect to information furnished in writing by such Requesting Holder or on
such Requesting Holder's behalf expressly for use in any registration statement
or prospectus relating to the Registrable Securities, or any amendment or
supplement thereto, or any preliminary prospectus. Each such Requesting Holder
also agrees to indemnify and hold harmless underwriters (other than in respect
of loss of profit or information relating to the underwriters) of the
Registrable Securities, their officers, directors, employees and agents and each
person who controls such underwriters on substantially the same basis as that of
the indemnification of the Company Party provided in this Section 7. As a
condition to including Registrable Securities in any registration statement
filed in accordance with Section 2 hereof, the Company may require that the
Company Parties shall have received an undertaking reasonably satisfactory to
the Company from any underwriter to indemnify and hold it harmless to the extent
customarily provided by underwriters with respect to similar securities.
8. Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Sections 6 and 7
hereof, such person (an "Indemnified Party") shall promptly notify the person
against whom such indemnity may be sought (the "Indemnifying Party") in writing,
and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to such Indemnified Party, and
shall assume the payment of all fees and expenses; provided that the failure of
any Indemnified Party so to notify the Indemnifying Party shall not relieve the
Indemnifying Party of its obligations hereunder except to the extent that the
Indemnifying Party is materially prejudiced by such failure to notify. In any
such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention of such counsel or (ii) in the
reasonable judgment of such Indemnified Party representation of
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both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
Indemnifying Party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel) at any time for all such Indemnified Parties, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Parties. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent (not
to be unreasonably withheld), but if settled with such consent, or if there be a
final judgment for the plaintiff, the Indemnifying Party shall indemnify and
hold harmless such Indemnified Parties from and against any loss or liability
(to the extent stated above) by reason of such settlement or judgment. No
Indemnifying Party shall, without the prior written consent of the Indemnified
Party, effect any settlement of any pending or threatened proceeding in respect
of which any Indemnified Party is or could have been a party and indemnity could
have been sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all liability
arising out of such proceeding.
9. Contribution. If the indemnification provided for in Sections
6 and 7 hereof is unavailable to the Indemnified Parties or insufficient in
respect of any losses, claims, damages or liabilities referred to herein, then
each such 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 or liabilities (i) as between the Company
Parties and the Requesting Holders, on the one hand, and the underwriters on the
other, in such proportion as is appropriate to reflect the relative benefits
received by the Company Parties and such Requesting Holders on the one hand, and
the underwriters on the other, from the offering of the Registrable Securities,
or if such allocation is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits but also the relative
fault of the Company Parties and such Requesting Holders, on the one hand, and
of such underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations and (ii) as between the Company Parties,
on the one hand, and each such Requesting Holder on the other, in such
proportion as is appropriate to reflect the relative fault of the Company
Parties and of each such Requesting Holder in connection with such statements or
omissions, as well as any other relevant equitable considerations. The relative
benefits received by the Company Parties and such Requesting Holders, on the one
hand, and such underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the
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offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company Parties and such Requesting Holders bear to
the total underwriting discounts and commissions received by such underwriters,
in each case as set forth in the table on the cover page of the prospectus. The
relative fault of the Company Parties and such Requesting Holders on the one
hand and of such underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company Parties and such Requesting Holders or by
such underwriters. The relative fault of the Company Parties on the one hand and
of each such Requesting Holder 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 such party, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company Parties and each of the Requesting Holders agree that it
would not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the underwriters 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 or liabilities 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 such
action or claim. Notwithstanding the provisions of this Section 9, no
underwriter shall be required to contribute any amount in excess of the amount
of the total fees, discounts and commissions received by it, and no Requesting
Holder shall be required to contribute any amount in excess of the amount of the
proceeds received by such Requesting Holder in respect of a sale of Registrable
Securities. 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. Each such
Requesting Holder's obligation to contribute pursuant to this Section 9 is
several in the proportion that the proceeds of the offering received by such
Requesting Holder bears to the total proceeds of the offering received by all
such Requesting Holders and not joint.
10. Participation in Public Offering. No Person may participate
in any Public Offering hereunder unless such Person (a) agrees to sell such
Person's securities on the basis provided in any underwriting arrangements
approved by the
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Persons entitled hereunder to approve such arrangements and (b) completes and
executes all questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements and the provisions of this Agreement.
11. Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give the holders of Registrable
Securities registered under such registration statement, their underwriters, if
any, each Requesting Holder and their respective counsel and accountants, the
opportunity to participate in the preparation of such registration statement,
each prospectus included therein or filed with the SEC, and each amendment
thereof or supplement thereto, and will give each of them such access to its
books and records and such opportunities to discuss the business of the Company
with its officers and the independent public accountants who have certified its
financial statements as shall be necessary, in the opinion of such holders' and
such underwriters' respective counsel, to conduct a reasonable investigation
within the meaning of the Securities Act.
12. Rule 144. The Company Parties shall take all actions
reasonably necessary to enable holders of Registrable Securities to sell such
Securities 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, or (b) any similar rule or regulation
hereafter adopted by the SEC including, without limiting the generality of the
foregoing, the Company Parties' filing on a timely basis all reports required to
be filed by the Exchange Act. Upon the request of any holder of Registrable
Securities, the Company Party will deliver to such holder a written statement as
to whether they have complied with such requirements.
13. Additional Guarantors. If any Affiliate of JCC Holding at
any time after the date hereof becomes a guarantor of Registrable Securities
(each such Affiliate, an "Additional Guarantor"), JCC Holding shall cause each
such Additional Guarantor to (x) execute and deliver a counterpart of this
Agreement, at which time such Additional Guarantor shall become a party hereto
as a Guarantor and (y) perform all obligations of a Guarantor and a Company
Party hereunder.
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14. Miscellaneous.
(1) No Inconsistent Agreements. No Company Party will
hereafter enter into any agreement with respect to its securities which is
inconsistent with the rights granted to the holders of Registrable Securities in
this Agreement.
(2) Remedies. Each Holder, in addition to being entitled to
exercise all rights granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
Parties agree that monetary damages would not be adequate compensation for any
loss incurred by reason of a breach by them of the provisions of this Agreement
and hereby agree to waive the defense in any action for specific performance
that a remedy at law would be adequate. In any action or proceeding brought to
enforce any provision of this Agreement or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
(3) Amendment; Waiver. Except as otherwise provided herein,
the provisions of this Agreement may not be amended, modified or supplemented,
and waivers or consents to departure from the provisions hereof may not be given
unless consented to in writing by the Company, each Guarantor, BTCo, HET and the
Holders owning at least a majority of the Registrable Securities then held by
all Holders.
(4) Notice Generally. Any notice, demand, request, consent,
approval, declaration, delivery or other communication hereunder to be made
pursuant to the provisions of this Agreement shall be sufficiently given or made
if in writing and either delivered in person with receipt acknowledged or sent
by registered or certified mail, return receipt requested, postage prepaid, or
by telecopy and confirmed by telecopy answerback, addressed as follows:
(i) if to the Company or any Guarantor, to:
One Canal Place
000 Xxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Corporate Secretary
(ii) if to any holder of Registrable Securities, at its
last known address appearing on the books of the
Company maintained for such purpose;
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or at such other address as may be substituted by notice given as herein
provided. The giving of any notice required hereunder may be waived in writing
by the party entitled to receive such notice. Every notice, demand, request,
consent, approval, declaration, delivery or other communication hereunder shall
be deemed to have been duly given or served on the date on which personally
delivered, with receipt acknowledged, telecopied and confirmed by telecopy
answerback or five days after the same shall have been deposited in the mail,
postage prepaid. Failure or delay in delivering copies of any notice, demand,
request, approval, declaration, delivery or other communication to the person
designated above to receive a copy shall in no way adversely affect the
effectiveness of such notice, demand, request, approval, declaration, delivery
or other communication.
(5) 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
holder of Registrable Securities.
(6) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(7) Governing Law. This Agreement shall be governed by the laws
of the State of New York.
(8) Severability. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
(9) Entire Agreement. This Agreement represents the complete
agreement and understanding of the parties hereto in respect of the subject
matter contained herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to the subject matter hereof.
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IN WITNESS WHEREOF, each of the parties hereto has executed
this Agreement as of the date first above written.
JAZZ CASINO COMPANY, L.L.C.
By: JCC Holding Company, its sole member
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
JCC HOLDING COMPANY
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
JCC CANAL DEVELOPMENT, L.L.C.
By: JCC Holding Company, its sole member
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
JCC DEVELOPMENT, L.L.C.
By: JCC Holding Company, its sole member
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
JCC XXXXXX DEVELOPMENT, L.L.C.
By: JCC Holding Company, its sole member
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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BANKERS TRUST COMPANY
By:
------------------------------------------
Name:
----------------------------------------
Title:
---------------------------------------
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XXXXXX'X ENTERTAINMENT, INC.
By:
------------------------------------------
Name:
----------------------------------------
Title:
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EXHIBIT A
Holders
Bankers Trust Company
Xxxxxx'x Entertainment, Inc.
