REGISTRATION RIGHTS AGREEMENT
Dated as of March 23, 1998
by and among
HARD ROCK HOTEL, INC.,
BEAR, XXXXXXX & CO. INC.,
BANCAMERICA XXXXXXXXX XXXXXXXX
and
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
This Registration Rights Agreement (this "AGREEMENT") is made
and entered into as of March 23, 1998 by and among Hard Rock Hotel, Inc., a
Nevada corporation (the "COMPANY"), Bear, Xxxxxxx & Co. Inc. ("BEAR
XXXXXXX"), BancAmerica Xxxxxxxxx Xxxxxxxx ("BANCAMERICA") and Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation ("DLJ"). Bear Xxxxxxx, BancAmerica
and DLJ are hereafter referred to collectively as the "INITIAL PURCHASERS."
Pursuant to the Purchase Agreement, dated March 17, 1998 (the
"PURCHASE AGREEMENT"), by and among the Company and the Initial Purchasers,
the Initial Purchasers have agreed to purchase $120,000,000 aggregate
principal amount of the Company's 9 1/4% Senior Subordinated Notes due 2005
(the "NOTES").
In order to induce the Initial Purchasers to enter into the
Purchase Agreement and purchase the Notes, the Company has agreed to provide
the registration rights set forth in this Agreement. The execution and
delivery of this Agreement is a condition to the obligations of the Initial
Purchasers set forth in Section 3 of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall
have the following meanings:
ACT: The Securities Act of 1933, as amended.
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
BUSINESS DAY: Any day except a Saturday, Sunday or other day in
the City of New York on which banks are authorized to close or a federal
holiday, consisting, in each case, of the time period from 12:00 a.m. through
11:59 p.m. Eastern time.
CLOSING DATE: The date of this Agreement.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by
the Company to the Trustee under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of the Notes
that were validly tendered by Holders thereof pursuant to the Exchange Offer.
DAMAGES PAYMENT DATE: With respect to the Notes, each Interest
Payment Date.
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EFFECTIVENESS TARGET DATE: As defined in Section 5 hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Company's 9 1/4% Senior Subordinated Notes
due 2005 to be issued pursuant to the Indenture in the Exchange Offer or
pursuant to a Shelf Registration Statement, in each case in exchange for
Notes.
EXCHANGE OFFER: The registration by the Company under the Act
of the Exchange Notes pursuant to the Exchange Offer Registration Statement
pursuant to which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Exchange Notes in an
aggregate principal amount equal to the aggregate principal amount of the
Transfer Restricted Securities validly tendered in such exchange offer by
such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial
Purchasers propose to sell the Notes to (i) certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act in reliance upon
the exemption from the registration requirements of the Act provided by Rule
144A under the Act or (ii) non-U.S. Persons in reliance upon Regulation S
under the Act.
HOLDER: As defined in Section 2(b) hereof.
INDENTURE: The Indenture, dated as of March 23, 1998, between
the Company and First Trust National Association, as trustee (the "TRUSTEE"),
pursuant to which the Securities are to be issued, as such Indenture is
amended or supplemented from time to time in accordance with the terms
thereof.
INITIAL PURCHASERS: As defined in the preamble hereto.
INTEREST PAYMENT DATE: As defined in the Indenture and the
Securities.
LIQUIDATED DAMAGES: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
NOTES: As defined in the preamble hereto.
PERSON: An individual, partnership, corporation, limited
liability company, joint venture, association, joint stock company, trust or
other organization whether or not a legal entity, or a government or agency
or political subdivision thereof.
PROSPECTUS: The prospectus included in a Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective Registration Statement in reliance
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upon Rule 430A promulgated under the Act), as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including
post-effective amendments, and all material incorporated by reference into
such Prospectus.
PURCHASE AGREEMENT: As defined in the preamble hereto.
RECORD HOLDER: With respect to any Damages Payment Date
relating to the Securities, each Person who is a Holder of the Securities on
the record date with respect to the Interest Payment Date on which such
Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the
Company relating to (a) an offering of Exchange Notes pursuant to an Exchange
Offer or (b) the registration for resale of Transfer Restricted Securities
pursuant to the Shelf Registration Statement, which is filed pursuant to the
provisions of this Agreement, in each case, including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
SECURITIES: The Notes and the Exchange Notes.
SHELF FILING DEADLINE: As defined in Section 4 hereof.
SHELF REGISTRATION: A registration effected by the filing of a
Shelf Registration Statement pursuant to Section 4 hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
TIA: The Trust Indenture Act of 1939, as amended (15 U.S.C.
Section 77aaa-77bbbb) as in effect on the date of the Indenture.
TRANSFER RESTRICTED SECURITIES: Each of the Securities, upon
original issuance thereof, until the earliest to occur, with respect to a
particular Security, of (a) the date on which such Security is exchanged by a
Holder other than a Broker-Dealer in the Exchange Offer and entitled to be
resold to the public by the Holder thereof without complying with the
prospectus delivery requirements of the Act, (b) following the exchange by a
Broker-Dealer in the Exchange Offer of a Note for an Exchange Note, the date
on which the Exchange Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (c) the date on which
such Security has been effectively registered under the Act and disposed of
in accordance with a Shelf Registration Statement, (d) the date on which such
Security may be distributed to the public pursuant to Rule 144 under the Act
or by a Broker-Dealer pursuant to the "Plan of Distribution" contemplated by
the Exchange Offer Registration Statement (including delivery of the
Prospectus contained therein) or (e) the date on which such Security ceases
to be outstanding.
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UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A
registration on a Shelf Registration Statement in which securities of the
Company are sold to an underwriter for re-offering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The Securities entitled
to the benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is
deemed to be a holder of Transfer Restricted Securities (each, a "HOLDER")
whenever such Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under
applicable law or Commission policy (so long as the procedures set forth in
Section 6(a) below are being or have been complied with), the Company shall
(i) use its reasonable best efforts to cause to be filed with the Commission,
on or prior to 60 days after the Closing Date, the Exchange Offer
Registration Statement, (ii) use its reasonable best efforts to cause such
Exchange Offer Registration Statement to be declared effective by the
Commission on or prior to 180 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause
such Exchange Offer Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act, (C) cause all necessary
filings in connection with the registration and qualification of the Exchange
Notes to be made under the Blue Sky laws of such jurisdictions as are
necessary to permit Consummation of the Exchange Offer, except as would
subject the Company to service of process or general taxation where it is not
currently subject, and (D) obtain all necessary approvals of the Nevada
Gaming Commission in connection with the issuance of the Exchange Notes, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer.
The Exchange Offer shall be on an appropriate form permitting
registration of the Exchange Notes to be offered in exchange for the Notes
and to permit resales of Securities held by Broker-Dealers as contemplated by
Section 3(c) below. If, after such Exchange Offer Registration Statement
initially is declared effective by the Commission, the Exchange Offer or the
issuance of Exchange Notes thereunder or the sale of Transfer Restricted
Securities pursuant thereto as contemplated by Section 3(c) below is
interfered with by any stop order, injunction or other order or requirement
of the Commission or any other governmental agency or court, such Exchange
Offer Registration Statement shall be deemed not to have become effective for
purposes of this Agreement during the period that such stop order, injunction
or other similar order or requirement shall remain in effect.
(b) The Company shall use its reasonable best efforts to cause
the Exchange Offer Registration Statement to be effective continuously and
shall keep the Exchange Offer open for a
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period of not less than the minimum period required under applicable federal
and state securities laws to Consummate the Exchange Offer; PROVIDED,
HOWEVER, that in no event shall such period be less than 20 Business Days.
The Company shall cause the Exchange Offer to comply with all applicable
federal and state securities laws. The Company shall use its reasonable best
efforts to cause the Exchange Offer to be Consummated on or prior to 30
Business days after the Exchange Offer Registration Statement has become
effective.
(c) The Company shall indicate in a "Plan of Distribution"
section contained in the Prospectus included in the Exchange Offer
Registration Statement that any Broker-Dealer who holds Notes that are
Transfer Restricted Securities and that were acquired for its own account as
a result of market-making activities or other trading activities (other than
Transfer Restricted Securities acquired directly from the Company), may
exchange such Notes pursuant to the Exchange Offer; PROVIDED, HOWEVER, such
Broker-Dealer may be deemed to be an "underwriter" within the meaning of the
Act and must, therefore, deliver a prospectus meeting the requirements of the
Act in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement
may be satisfied by the delivery by such Broker-Dealer of the Prospectus
contained in the Exchange Offer Registration Statement. Such "Plan of
Distribution" section shall also contain all other information with respect
to such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such "Plan of Distribution" shall
not name any such Broker-Dealer or disclose the amount of Securities held by
any such Broker-Dealer except to the extent required by the Commission.
The Company shall use its reasonable best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented
and amended as required by the provisions of Section 6(c) below to the extent
necessary to ensure that it is available for resales of Securities acquired
by Broker-Dealers for their own accounts as a result of market-making
activities or other trading activities, and to ensure that it conforms with
the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission as announced from time to time, for a period of
twelve months from the date on which the Exchange Offer Registration
Statement is declared effective or such longer period, if extended pursuant
to the provisions of Section 6(d) hereof.
The Company shall provide sufficient copies of the latest
version of such Prospectus to Broker-Dealers promptly upon request at any
time during such period in order to facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company is not permitted
to file an Exchange Offer Registration Statement or consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with) or (ii) any Holder of Transfer Restricted Securities
shall notify the Company on or prior to the 20th Business Day following the
consummation of the Exchange Offer that (A) such Holder is prohibited by a
change in applicable law or Commission policy from participating in the
Exchange Offer, or (B) such Holder may not resell the Exchange Notes to be
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the
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Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder, or (C) that such
Holder is a Broker-Dealer and holds Notes acquired directly from the Company
or an affiliate of the Company, then the Company shall:
(x) use its reasonable best efforts to cause to be
filed a shelf registration statement pursuant to Rule 415
under the Act, which may be an amendment to the Exchange
Offer Registration Statement (in either event, the "SHELF
REGISTRATION STATEMENT"), on or prior to the 60th day after
the obligation to file such Shelf Registration Statement
arises (the "SHELF FILING DEADLINE"), which Shelf
Registration Statement shall provide for resales of all
Transfer Restricted Securities, the Holders of which shall
have provided the information required pursuant to
Section 4(b) hereof; and
(y) use its reasonable best efforts to cause such
Shelf Registration Statement to be declared effective by the
Commission on or before the 90th day after the obligation to
file such Shelf Registration Statement arises (or, if later,
180 days after the Closing Date).
The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Securities by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period of two years following the
Closing Date (or such longer period, if extended pursuant to the provisions
of Section 6(d) hereof), or such shorter period ending when either (1) all
Transfer Restricted Securities covered by the Shelf Registration Statement
have been sold in the manner set forth and as contemplated in the Shelf
Registration Statement or (2) there cease to be outstanding any Transfer
Restricted Securities.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION
WITH THE SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such
Holder furnishes to the Company in writing, within 10 Business Days after
receipt of a written request therefor, such information specified in Item 507
and Item 508, as applicable, of Regulation S-K under the Act or any other
information required by the Act or applicable state securities laws for use
in connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. Each Holder as to which any Shelf
Registration Statement is being effected agrees to furnish promptly to the
Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading. No Holder of Transfer Restricted Securities shall be entitled to
Liquidated Damages pursuant to Section 5 hereof unless and until such Holder
shall have used its best efforts to provide all such reasonably requested
information.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this
Agreement is not filed with the Commission on or prior to the date specified
for such filing in this Agreement, (ii) any of such Registration Statements
has not been declared effective by the Commission on or prior to the date
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specified for such effectiveness in this Agreement (the "EFFECTIVENESS TARGET
DATE"), (iii) the Company fails to commence, accept tenders and, in the case
of accepted tenders, issue Exchange Notes, under the Exchange Offer within 30
Business Days after the Effectiveness Target Date with respect to the
Exchange Offer Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but thereafter
ceases to be effective or fails to be usable for its intended purpose without
being succeeded immediately by a post-effective amendment to such
Registration Statement that cures such failure and that is itself immediately
declared effective (each such event referred to in clauses (i) through (iv),
a "REGISTRATION DEFAULT"), the Company hereby agrees to pay liquidated
damages ("LIQUIDATED DAMAGES") to each Holder of Transfer Restricted
Securities on each Interest Payment Date following the occurrence of a
Registration Default. Liquidated Damages shall accrue from and after the
date of each Registration Default, and continuing thereafter until such
Registration Default has been cured or waived, in an amount equal to $.05 per
week per $1,000 principal amount of the Transfer Restricted Securities during
the first 90-day period immediately following the occurrence of the first
such Registration Default, which amount shall increase by an additional $.05
per week per $1,000 principal amount of the Transfer Restricted Securities
during each subsequent 90-day period until all Registration Defaults have
been cured, up to a maximum amount of Liquidated Damages of $.40 per week per
$1,000 principal amount of the Transfer Restricted Securities. The Company
shall notify the Trustee within five Business Days after (i) each and every
Registration Default and (ii) the date such Registration Default has been so
cured. All accrued Liquidated Damages shall be paid to Record Holders by the
Company in New York, New York by wire transfer of immediately available funds
or by federal funds check on each Interest Payment Date following the
occurrence of a Registration Default as provided in the Indenture. Following
the cure or waiver of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of Liquidated Damages with
respect to such Transfer Restricted Securities will cease.
All obligations of the Company set forth in the preceding
paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted
Security shall survive until such time as all such obligations with respect
to such security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with
the Exchange Offer, the Company shall comply with all of the provisions of
Section 6(c) below, shall use its reasonable best efforts to effect such
Exchange Offer to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution
thereof, and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company
there is a question as to whether the Exchange Offer is permitted by
applicable law, the Company hereby agrees to seek a no-action letter
or other favorable decision from the Commission, including oral advice
from the staff of the Commission, allowing the Company to Consummate
an Exchange Offer for such Notes. The Company hereby agrees to pursue
the issuance of such a decision to the Commission staff level but
shall not be required to take commercially unreasonable action to
effect a change of Commission policy. In connection with the
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foregoing, the Company hereby agrees, however, to (A) participate in
telephonic conferences with the Commission, (B) deliver to the
Commission staff an analysis prepared by counsel to the Company
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a resolution of such submission (which need not be
favorable) by the Commission staff.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer
Restricted Securities shall furnish, upon the request of the Company,
prior to the Consummation thereof, a written representation to the
Company (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the
effect that (A) it is not an affiliate of the Company, (B) it is not
engaged in, and does not intend to engage in, and has no arrangement
or understanding with any Person to participate in, a distribution of
the Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. Each
Holder hereby acknowledges and agrees that any Broker-Dealer who
acquired Notes directly from the Company or any affiliate of the
Company and any such Holder intending to use the Exchange Offer to
participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on
the date of this Agreement rely on the position of the Commission
enunciated in XXXXXX XXXXXXX AND CO., INC. (available June 5, 1991)
and EXXON CAPITAL HOLDINGS CORPORATION (available May 13, 1988), as
interpreted in the Commission's letter to Shearman & Sterling, dated
July 2, 1993, and similar no-action letters (including any no-action
letter obtained pursuant to clause (i) above), and (2) must comply
with the registration and prospectus delivery requirements of the Act
in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K or any other information required by the Act or applicable state
securities laws if the resales are of Exchange Notes obtained by such
Holder in exchange for Notes acquired by such Holders directly from
the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement and if requested by the Commission, the Company shall
provide a supplemental letter to the Commission (A) stating that the
Company is registering the Exchange Offer in reliance on the position
of the Commission enunciated in EXXON CAPITAL HOLDINGS CORPORATION
(available May 13, 1988), XXXXXX XXXXXXX AND CO., INC. (available June
5, 1991) and, if applicable, any no-action letter obtained pursuant to
clause (i) above, (B) including a representation that the Company has
not entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of the Company's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of
the Exchange Notes received in the Exchange Offer.
(b) SHELF REGISTRATION STATEMENT. In connection with the
Shelf Registration Statement, the Company shall comply with all the
provisions of Section 6(c) below and shall use its reasonable best efforts to
effect such registration to permit the sale of the Transfer Restricted
Securities being sold in accordance with the intended method or methods of
distribution thereof, and pursuant thereto the Company will as expeditiously
as practicable prepare and file with the Commission a Registration Statement
relating to the registration on any appropriate form under the Act, which
form shall be
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available for the sale of the Transfer Restricted Securities in accordance
with the intended method or methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Securities by Broker-Dealers), the Company shall:
(i) prepare and file with the Commission such Registration
Statement and use its reasonable best efforts to cause such
Registration Statement to become effective and keep such Registration
Statement continuously effective and provide all requisite financial
statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained
therein (A) to contain a material misstatement or omission or (B) not
to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company
shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such material
misstatement or omission, and, in the case of either clause (A) or
(B), use its reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement and the related
Prospectus to become usable for their intended purpose(s) as soon as
reasonably practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be
necessary to keep the Registration Statement continuously effective
for the applicable period set forth in Section 3 or 4 of the
Agreement, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration
Statement have been exchanged or sold or until such Transfer
Restricted Securities no longer constitute Transfer Restricted
Securities or are no longer outstanding; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act (or any
similar provisions then in force), and to comply fully with the
applicable provisions of Rules 424 and 430A under the Act (or any
similar provisions then in force) in a timely manner; and comply with
the provisions of the Act, the Exchange Act and the rules and
regulations of the Commission promulgated thereunder applicable to it
with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with
the intended method or methods of distribution by the sellers thereof
set forth in such Registration Statement or supplement to the
Prospectus;
(iii) promptly advise the underwriter(s), if any, and selling
Holders and, if requested by such Persons, to confirm such advice in
writing, (A) when the Prospectus or any Prospectus supplement or post-
effective amendment has been filed, and, with respect to any
Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission
for amendments to the Registration Statement or amendments or
supplements to the Prospectus or for additional information relating
thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the
Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or
sale in any jurisdiction, or the initiation of any proceeding for any
of the preceding purposes or (D) of the existence of any fact or the
happening of any event
9
that makes any statement of a material fact made in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or
any document incorporated by reference therein untrue, or that
requires the making of any additions to or changes in the
Registration Statement or the Prospectus in order to make the
statements therein not misleading (in the case of the Prospectus, in
the light of the circumstances under which they were made). If at any
time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky
laws, the Company shall use its reasonable best efforts to obtain the
withdrawal or lifting of such order at the earliest practicable time;
(iv) furnish to the Initial Purchasers, each selling Holder
named in any Registration Statement or Prospectus and each of the
underwriter(s) in connection with such sale, if any, before filing
with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any
such Registration Statement or Prospectus if requested by such Person,
which documents will be subject to the review and comments of such
underwriter(s) in connection with such sale, if any, and the Company
will not file any such Registration Statement or Prospectus or any
amendment or supplement to any such Registration Statement or
Prospectus if requested by such Person to which a selling Holder of
Transfer Restricted Securities covered by such Registration Statement
or the underwriter(s) in connection with such sale, if any, shall
reasonably object within five Business Days after the receipt
thereof. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains a material misstatement or omission
or fails to comply with the applicable requirements of the Act;
(v) make available at reasonable times for inspection by the
selling Holders, any underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or
accountant retained by such selling Holders or any underwriter, all
financial and other records, pertinent corporate documents and
properties of the Company and cause the Company's officers, directors
and employees to supply all information reasonably requested by any
such Holder, underwriter, attorney or accountant in connection with
such Registration Statement subsequent to the filing thereof and prior
to its effectiveness;
(vi) if requested by any selling Holders or any underwriter in
connection with such sale, if any, promptly include in any
Registration Statement or Prospectus, pursuant to a supplement or
post-effective amendment if necessary, such information as such
selling Holders and such underwriter, if any, may reasonably request
to have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities, information with respect to the principal amount of
Transfer Restricted Securities being sold to such underwriter(s), the
purchase price being paid therefor and any other terms of the offering
of the Transfer Restricted Securities to be sold in such offering; and
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is
notified of the matters to be included in such Prospectus supplement
or post-effective amendment;
(vii) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
rated with the appropriate rating agencies, if so requested by
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the Holders of a majority in aggregate principal amount of Notes
covered thereby or the underwriter(s), if any;
(viii) furnish to each selling Holder and each underwriter, if
any, without charge, at least one copy of the Registration Statement,
as first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all
exhibits thereto, if so requested by such Person;
(ix) deliver to each selling Holder and each of the
underwriter(s) in connection with such sale, if any, without charge,
as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the
selling Holders and each of the underwriter(s), if any, in connection
with the offering and the sale of the Transfer Restricted Securities
covered by the Prospectus or any amendment or supplement thereto;
(x) in the case of the Shelf Registration Statement, enter
into such agreements (including an underwriting agreement), and make
such representations and warranties, and take all such other actions
in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to such
Shelf Registration Statement contemplated by this Agreement, all to
such extent as may be reasonably acceptable to the Company and
reasonably requested by the Initial Purchasers or by the Holders of a
majority in aggregate principal amount of Transfer Restricted
Securities or the managing underwriter in connection with any sale or
resale pursuant to such Shelf Registration Statement contemplated by
this Agreement; and whether or not an underwriting agreement is
entered into and whether or not the registration is an Underwritten
Registration, the Company shall:
(A) use its reasonable best efforts to furnish to each selling
Holder and each underwriter, if applicable, in such substance and
scope as they may reasonably request and as are customarily made by
issuers to underwriters in primary underwritten offerings, upon the
effectiveness of the Shelf Registration Statement or, in the case
of an Underwritten Registration, on the closing date of any
underwriting (and, in the case of clause (3) below, on the date of
execution of the underwriting agreement):
(1) certificates, dated the delivery date thereof, signed by
the president, chief operating officer and principal financial
officer of the Company, confirming, as the date thereof, (x) the
matters set forth in paragraphs (a), (b) and (c) of Section 8 of
the Purchase Agreement and (y) that since the dates as of which
information is given in the Registration Statement and other
than as set forth in the Registration Statement, (i) there shall
not have been any material and adverse change or any development
that is reasonably likely to result in a material nd adverse
change in the long-term debt, or material increase in the short-
term debt, of the Company from that set forth in the
Registration Statement, (ii) no dividend or distribution of any
kind shall have been declared, paid or made by the Company on
any class of its capital stock, and (iii) the Company shall not
have incurred any liabilities or obligations other than
contracts entered into in the ordinary course of business,
direct or contingent, that individually or in the aggregate
could have a Material Adverse Effect and that are required to be
11
disclosed on a balance sheet or notes thereto in accordance with
generally accepted accounting principles and are not disclosed
on the latest balance sheet or notes thereto included in the
Registration Statement. Since the date hereof and since the
dates as of which information is given in the Registration
Statement, there shall not have occurred any material adverse
change in the properties, business, results of operations,
condition (financial or otherwise), affairs or prospects of the
Company;
(2) opinions, dated the delivery date thereof, of counsel
for the Company, covering the matters customarily covered in
opinions requested in primary underwritten offerings; and
(3) a customary comfort letter or letters, dated the
delivery date or dates thereof, from the Company's independent
auditors, in the customary form and covering matters of the type
customarily covered in comfort letters by underwriters in
connection with primary underwritten offerings;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section;
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company pursuant to this clause (xi), if any; and
if at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the
Company shall so advise the underwriter(s), if any, and each Holder
promptly and, if requested by such Persons, shall confirm such advice
in writing;
(xi) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if
any, and their respective counsel in connection with the registration
and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling
Holders or underwriter(s), if any, may reasonably request and do any
and all other acts or things necessary or advisable (including,
without limitation, the imposition of such restrictions on offers or
sales of the Securities as are referred to in paragraph 3(b) of this
Agreement) to enable the disposition in such jurisdictions of the
Transfer Restricted Securities covered by the applicable Registration
Statement; PROVIDED, HOWEVER, that the Company shall not be required
to register or qualify as a foreign corporation in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to general consent to service of process in any
jurisdiction where it is not now so subject or to subject itself to
general taxation in any such jurisdiction;
(xii) upon the request of any Holder of Notes covered by the
Shelf Registration Statement, the Company shall issue Exchange Notes
having an aggregate principal amount equal to the aggregate principal
amount of Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Exchange Notes to be
registered in the name
12
of such Holder or in the name of the purchaser(s) of such Exchange
Notes, as the case may be; in return, the Notes held by such
Holder shall be surrendered to the Company for cancellation;
(xiii) cooperate with the selling Holders and the
underwriter(s), if any, to facilitate the timely preparation and
delivery of certificates representing Transfer Restricted Securities
to be sold and not bearing any restrictive legends; and to register
such Transfer Restricted Securities in such denominations (which
denominations shall be in a minimum of $1,000 and integral multiples
thereof) and such names as the Holders or the underwriter(s), if any,
may request at least two Business Days prior to such sale of Transfer
Restricted Securities made by such underwriter(s);
(xiv) use its reasonable best efforts to cause the Transfer
Restricted Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers
thereof or the underwriter(s), if any, to consummate the disposition
of such Transfer Restricted Securities;
(xv) if any fact or event contemplated by Section 6(c)(iii)(D)
above shall exist or have occurred, prepare a supplement or post-
effective amendment to the Registration Statement or related
Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the
purchasers of Transfer Restricted Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(xvi) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of the Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee with printed certificates for the Transfer Restricted
Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvii) 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, and use its reasonable best efforts
to cause such Registration Statement to become effective and approved
by such governmental agencies or authorities as may be necessary to
enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted Securities;
(xviii) otherwise use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to Holders, as soon as reasonably practicable, a
consolidated earnings statement meeting the requirements of Rule 158
under the Act (which need not be audited) covering a twelve-month
period beginning after the effective date of the applicable
Registration Statement;
(xix) use its reasonable best efforts to cause the Indenture to
be qualified under the TIA not later than the effective date of the
first Registration Statement required by this Agreement, and, in
connection therewith, cooperate, with the Trustee and the Holders of
Securities to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of
the TIA; and execute, and use its reasonable best efforts to cause the
13
Trustee to execute, all documents that may be required to effect such
changes and all other forms and documents required to be filed with
the Commission to enable such Indenture to be so qualified in a timely
manner; and
(xx) provide promptly to each Holder, upon request, each
document filed with the Commission pursuant to the requirements of
Section 13 or Section 15 of the Exchange Act.
(d) RESTRICTIONS ON HOLDERS. Each Holder agrees by its
acquisition of a Transfer Restricted Security that, upon receipt of any
notice from the Company of the existence of any fact of the kind described in
Section 6(c)(iii)(D) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Securities pursuant to the applicable
Registration Statement until such Holder's receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof,
or until it is advised in writing (the "ADVICE") by the Company that the use
of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus.
If so directed by the Company, each Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in
such Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4
hereof, as applicable, shall be extended by the number of days during the
period from and including the date of the giving of such notice pursuant to
Section 6(c)(iii)(D) hereof to and including the date when each selling
Holder covered by such Registration Statement shall have received the copies
of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof or shall have received the Advice.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or
compliance with this Agreement will be borne by the Company, regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses; (ii) all fees
and expenses incurred in connection with compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing
(including printing certificates for the Exchange Notes to be issued in the
Exchange Offer and printing of prospectuses), messenger and delivery services
and telephone incurred by the Company; (iv) all fees and disbursements of
counsel for the Company, and in accordance with Section 7(b) below, counsel
to the Holders of Transfer Restricted Securities; (v) if applicable, all
application and filing fees in connection with listing Securities on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
auditors of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).
The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expenses of any annual audit and
the fees and expenses of any Person, including special experts, retained by
the Company.
14
(b) In connection with any Registration Statement required by
this Agreement (excluding the Exchange Offer Registration Statement), the
Company will reimburse the Initial Purchasers and the Holders of Transfer
Restricted Securities being tendered in the Exchange Offer and/or resold
pursuant to the "Plan of Distribution" contained in the Exchange Offer
Registration Statement or registered pursuant to the Shelf Registration
Statement, as applicable, for the reasonable fees and disbursements of not more
than one U.S. counsel, which shall be Xxxxxxx Xxxxxxx & Xxxxxxxx (a partnership
which includes professional corporations) or such other counsel as may be chosen
by the Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being prepared.
SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each of the
Holders, each Person, if any, who controls any Holder within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act and the respective
officers, directors, partners, employees, representatives and agents of each
Holder or any controlling Person, against any and all losses, liabilities,
claims, damages and expenses whatsoever (including but not limited to reasonable
attorneys' fees and expenses and all other expenses whatsoever incurred in
investigating, preparing or defending against any investigation or litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation) (collectively, "LOSSES"), joint or
several, to which they or any of them may become subject under the Act, the
Exchange Act or otherwise, insofar as such Losses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement or related
Prospectus, or in any supplement thereto or amendment thereof, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
PROVIDED, HOWEVER, that the Company will not be liable in any such case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any (i) untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Holders expressly
for use in the Registration Statement and related Prospectus or in any
supplement or amendment thereto or (ii) any untrue statement or alleged untrue
statement or omission or alleged omission from any related preliminary
prospectus if a copy of the related Prospectus (as then amended or supplemented)
was not delivered by or on behalf of any Holder seeking indemnification to the
Person asserting the claim or action, if required by law to have been so
delivered by such Holder and the untrue statement or alleged omission from such
preliminary prospectus was corrected in the related Prospectus. This indemnity
will be in addition to any liability which the Company may otherwise have,
including, under this Agreement.
15
(b) Each of the Holders agrees, severally and not jointly, to
indemnify and hold harmless the Company, each Person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act and the respective officers, directors, partners, employees,
representatives and agents of the Company or any controlling Person, against any
and all Losses, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, in each case to the extent, but only to the extent, that
any such Loss arises out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of such Holder expressly for use therein; PROVIDED, HOWEVER, that in no
case shall any Holder be liable or responsible for any amount in excess of the
dollar amount of the proceeds received by such Holder upon the sale of the
Securities giving rise to such indemnification obligation. This indemnity will
be in addition to any liability which any Holder may otherwise have, including
under this Agreement.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve such indemnifying
party from any liability which it may have under this Section 8 except to the
extent that it has been prejudiced in any material respect by such failure, or
from any liability which it may otherwise have). In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent it may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. Notwithstanding the foregoing, the
indemnified party or parties shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by the indemnifying parties
in connection with the defense of such action and the indemnifying party has
agreed in writing to pay the fees and expenses of such counsel, (ii) the
indemnifying parties shall not have employed counsel to take charge of the
defense of such action within a reasonable time after notice of commencement of
the action, or (iii) such indemnified party or parties shall have reasonably
concluded, upon the advice of counsel, that there may be defenses available to
it or them which are different from or additional to those available to one or
all of the indemnifying parties (in which case the indemnifying parties shall
not have the right to direct the defense of such action on behalf of the
indemnified party or parties), in any of which events such fees and expenses of
counsel shall be borne by the indemnifying parties; PROVIDED, HOWEVER, that the
indemnifying party under subsection (a) or (b) above, shall only be liable for
the legal expenses of one counsel (in addition to any local counsel) for all
indemnified parties in each jurisdiction in which any claim or action is
brought. Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or action
effected without its written consent; PROVIDED, HOWEVER, that such consent was
not unreasonably withheld. In addition, the indemnifying party will not,
without the prior written consent of the indemnified party, which consent may
not be unreasonably withheld, settle or compromise or consent to entry of any
judgment in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action, or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
16
(d) In order to provide for contribution in circumstances in which
the indemnification provided for in this Section 8 is for any reason held to be
unavailable or is insufficient to hold harmless a party indemnified hereunder,
the Company, on the one hand, and each Holder, on the other hand, shall
contribute to the aggregate Losses of the nature contemplated by such
indemnification provision (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
Losses suffered by the Company any contribution received by the Company from
Persons, other than the Holders, who may also be liable for contribution,
including Persons who control the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act) to which the Company and such
Holder may be subject, in such proportion as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and any such Holder,
on the other hand, or, if such allocation is not permitted by applicable law or
if indemnification is not available as a result of the indemnifying party not
having received notice as provided in this Section 8, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, on the one hand, and the Holders, on the
other hand, in connection with the statements or omissions which resulted in
such Losses, as well as any other relevant equitable considerations. The
relative benefits received by the Company, on the one hand, and any Holder, on
the other hand, shall be deemed to be in the same proportion as (x) the total
proceeds from the offering of the Securities (net of discounts and commissions
but before deducting expenses) received by the Company and (y) the total
proceeds received by such Holder upon its sale of Securities which would
otherwise give rise to the indemnification obligation, respectively. The
relative fault of the Company, on the one hand, and of the Holders, on the other
hand, shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company, on the one hand, or the Holders, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and each Holder agree that it
would not be just and equitable if contribution pursuant to this Section 8 were
determined by PRO RATA allocation (even if all Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take into account the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, (i) no Holder shall be
required to contribute, in the aggregate, any amount in excess of the U.S.
dollar amount by which the proceeds received by such Holder with respect to the
sale of its Securities exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and (ii) no Person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each Person, if
any, who controls a Holder within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of a Holder or any controlling
Person shall have the same rights to contribution as such Holder, and each
Person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act and the respective officers, directors,
partners, employees, representatives and agents of the Company or any
controlling Person shall have the same rights to contribution as the Company,
subject in each case to clauses (i) and (ii) of this Section 8(d). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties under this Section
8, notify such party or parties from whom contribution may be sought, but the
failure to so notify such party or parties shall not relieve the
17
party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 8 or otherwise. No party shall be liable
for contribution with respect to any action or claim settled without its
prior written consent; PROVIDED, HOWEVER, that such written consent was not
unreasonably withheld.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection
with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule 144A(d)(4) under the Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration
hereunder unless such Holder (a) agrees to sell such Holder's Transfer
Restricted Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and
(b) completes and executes all reasonable questionnaires, powers of attorney,
indemnities, underwriting agreements, lock-up letters and other documents
required under the terms of such underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the
Shelf Registration Statement who desire to do so may sell such Transfer
Restricted Securities in an Underwritten Offering. In any such Underwritten
Offering, the investment banker or investment bankers and manager or managers
that will administer the offering will be selected by the Holders of a
majority in aggregate principal amount of the Transfer Restricted Securities
included in such offering; PROVIDED, that such investment bankers and
managers must be reasonably satisfactory to the Company (it being understood
that Bear Xxxxxxx, BancAmerica and DLJ are reasonably satisfactory); such
investment banker or investment bankers and manager or managers are referred
to herein as the "underwriters".
SECTION 12. MISCELLANEOUS
(a) REMEDIES. Each Holder, in addition to being entitled to
exercise all rights provided herein, in the Indenture, in the Purchase
Agreement or granted by law, including recovery of Liquidated Damages or
other damages, will be entitled to specific performance of its rights under
this Agreement. The Company agrees that monetary damages (including the
Liquidated Damages contemplated hereby) would not be adequate compensation
for any loss incurred by reason of a
18
breach by it 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.
(b) NO INCONSISTENT AGREEMENTS. The Company will not, on or
after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. The
Company has not previously entered into any agreement granting any
registration rights with respect to the Securities to any Person. The rights
granted to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to holders of the Company's securities
under any agreement in effect on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless the Company has
obtained the written consent of Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders whose Securities are being
tendered pursuant to the Exchange Offer or registered pursuant to the Shelf
Registration and that does not affect directly or indirectly the rights of
other Holders whose Securities are not being tendered pursuant to such
Exchange Offer or registered pursuant to the Shelf Registration may be given
by the Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities being tendered or registered, as applicable.
(d) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(ii) if to the Company:
Hard Rock Hotel, Inc.
000 Xxxxx Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, XX 00000
Phone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxx Xxxx
With copies to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Phone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
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All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; ten
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and
on the second Business Day, if timely delivered to an air courier
guaranteeing two day 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.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders of Transfer Restricted Securities; PROVIDED,
HOWEVER, that this Agreement shall not inure to the benefit of or be binding
upon a successor or assign of a Holder unless and to the extent such
successor or assign acquired Transfer Restricted Securities from such Holder.
(f) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
(g) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) SUBMISSION TO JURISDICTION. To the fullest extent
permitted by applicable law, the Company irrevocably submits to the
jurisdiction of any Federal or State court in the City, County and State of
New York, United States of America, in any suit or proceeding based on or
arising under this Agreement (solely in connection with any such suit or
proceeding), and irrevocably agree that all claims in respect of such suit or
proceeding may be determined in any such court. The Company irrevocably and
fully waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding. To the extent that the Company has or hereafter may
acquire any immunity from jurisdiction of any court or from any legal process
(whether through service of note, attachment prior to judgment, attachment in
aid of execution, executor or otherwise) with respect to itself or its
property, the Company hereby irrevocably waives such immunity in respect of
its obligations under this Agreement, to the extent permitted by law.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance,
is held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.
(k) NO PIGGYBACK ON REGISTRATIONS. Neither the Company nor
any of its security holders (other than the Holders of Transfer Restricted
Securities in such capacity) has any right (other than a right which has been
irrevocably waived) to include any securities of the Company in any
Registration Statement other than Transfer Restricted Securities. The
Company covenants that it will not enter into any instrument, agreement or
understanding which will grant to any person piggyback registration rights
which are
20
exercisable with respect to any Exchange Offer Registration Statement or
otherwise confer a right to include securities in any Exchange Offer
Registration Statement other than Transfer Restricted Securities.
(l) ENTIRE AGREEMENT. This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties hereto 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 the
Company with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings among the parties with
respect to the subject matter hereof.
21
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
HARD ROCK HOTEL, INC.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: CEO
BEAR, XXXXXXX & CO. INC.
By: /s/ J. Xxxxxx Xxxxx
-------------------------------
Name: J. Xxxxxx Xxxxx
Title: Senior Managing Director
BANCAMERICA XXXXXXXXX XXXXXXXX
By: /s/ Zed Xxxxxxx III
-------------------------------
Name: Zed Xxxxxxx III
Title: Executive Vice President
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: /s/ [Illegible]
-------------------------------
Name: [Illegible]
Title: Vice President
22
