Exhibit 10(8)
XXXXXX'X OPERATING COMPANY, INC.
$500,000,000
8.00% Senior Notes due 2011
REGISTRATION RIGHTS AGREEMENT
New York, New York
January 29, 2001
Xxxxxxx Xxxxx Xxxxxx Inc.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
Deutsche Banc Xxxx. Xxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx
Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Bear, Xxxxxxx & Co. Inc.
BNY Capital Markets, Inc.
CIBC World Markets Corp.
Commerzbank Capital Markets Corp.
Credit Lyonnais Securities (USA) Inc
Fleet Securities, Inc.
XX Xxxxx Securities Corporation
Xxxxxxxxxxx Xxxxxxx Securities, Inc.
Xxxxx Fargo Brokerage Services, LLC
As Representatives of the Initial Purchasers
c/o Xxxxxxx Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxx'x Operating Company, Inc., a corporation organized under the
laws of Delaware (the "Company"), proposes to issue and sell to certain
purchasers (the "Initial Purchasers"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), its 8.00% Senior
Notes due 2011 relating to the initial placement of the Notes (the "Initial
Placement"), which Notes are to be guaranteed by Xxxxxx'x Entertainment, Inc., a
corporation
organized under the laws of Delaware (the "Guarantor"). The notes are to the
issued under an indenture (the "Indenture") to be dated as of January 29, 2001,
between the Company, the Guarantor and Bank One Trust Company, N.A., as trustee
(the "Trustee"). To induce the Initial Purchasers to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
and the Guarantor agree with you for your benefit and the benefit of the holders
from time to time of the Notes (including the Initial Purchasers) (each a
"Holder" and, together, the "Holders"), as follows:
1. DEFINITIONS. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Additional Interest" shall have the meaning set forth in Section 5
hereto.
"Affiliate" of any specified Person shall mean any other Person
that, directly or indirectly, is in control of, is controlled by, or is under
common control with, such specified Person. For purposes of this definition,
control of a Person shall mean the power, direct or indirect, to direct or cause
the direction of the management and policies of such Person whether by contract
or otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the one-year period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop
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order shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Securities Act with
respect to the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" shall mean any Holder (which may include any
Initial Purchaser) that is a Broker-Dealer and elects to exchange for New Notes
any Notes that it acquired for its own account as a result of market-making
activities or other trading activities (but not directly from the Company or any
Affiliate of the Company) for New Notes.
"Final Memorandum" shall have the meaning set forth in the Purchase
Agreement.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Notes, dated as
of January 29, 2001, between the Company, the Guarantor and Bank One Trust
Company, N.A., as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Losses" shall have the meaning set forth in Section 7(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Notes registered under a Registration Statement.
"Managing Underwriters" shall mean the investment banker or
investment bankers and manager or managers that shall administer an underwritten
offering.
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"New Notes" shall mean debt securities of the Company, guaranteed by
the Guarantor, identical in all material respects to the Notes (except that the
cash interest and interest rate step-up provisions and the transfer restrictions
shall be modified or eliminated, as appropriate) and to be issued under the
Indenture or the New Notes Indenture.
"New Notes Indenture" shall mean an indenture between the Company
and the New Notes Trustee, identical in all material respects to the Indenture
(except that the cash interest and interest rate step-up provisions will be
modified or eliminated, as appropriate).
"New Notes Trustee" shall mean a bank or trust company reasonably
satisfactory to the Initial Purchasers, as trustee with respect to the New Notes
under the New Notes Indenture.
"Notes" shall have the meaning set forth in the preamble hereto.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Securities Act), as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Notes or the New Notes covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
preamble hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Notes that are not prohibited
by any law or policy of the Commission from participating in such offer, in
exchange for the Notes, a like aggregate principal amount of the New Notes.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Notes or the
New Notes pursuant to the provisions of this Agreement, any amendments and
supplements to such registration statement, including post-effective amendments
(in each case including the Prospectus contained therein), all exhibits thereto
and all material incorporated by reference therein.
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"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section
3(b) hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Notes or New Notes, as applicable, on an appropriate
form under Rule 415 under the Securities Act, or any similar rule that may be
adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Trustee" shall mean the trustee with respect to the Notes under the
Indenture.
"underwriter" shall mean any underwriter of Notes in connection with
an offering thereof under a Shelf Registration Statement.
2. REGISTERED EXCHANGE OFFER. (a) The Company and the Guarantor
shall prepare and, not later than 90 days following the date of the original
issuance of the Notes (or if such 90th day is not a Business Day, the next
succeeding Business Day), shall file with the Commission the Exchange Offer
Registration Statement with respect to the Registered Exchange Offer. The
Company shall use its best efforts to cause the Exchange Offer Registration
Statement to become effective under the Securities Act within 180 days of the
date of the original issuance of the Notes (or if such 180th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantor shall promptly commence the Registered
Exchange Offer, it being the objective of such Registered Exchange Offer to
enable each Holder electing to exchange Notes for New Notes (assuming that such
Holder is not an Affiliate of the Company, acquires the New Notes in the
ordinary course of such Xxxxxx's business, has no arrangements with any Person
to participate in the distribution
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of the New Notes and is not prohibited by any law or policy of the Commission
from participating in the Registered Exchange Offer) to trade such New Notes
from and after their receipt without any limitations or restrictions under the
Securities Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company
and the Guarantor shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
20 Business Days and not more than 30 Business Days after the date notice
thereof is mailed to the Holders (or, in each case, longer if required by
applicable law);
(iii) use their best efforts to keep the Exchange Offer
Registration Statement continuously effective under the Securities Act,
supplemented and amended as required, under the Securities Act to ensure
that it is available for sales of New Notes by Exchanging Dealers during
the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the New Notes Trustee or an Affiliate of
either of them;
(v) permit Holders to withdraw tendered Notes at any time prior
to the close of business, New York time, on the last Business Day on which
the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration
Statement, provide a supplemental letter to the Commission (A) stating
that the Company and the Guarantor, are conducting the Registered Exchange
Offer in reliance on the position of the Commission in EXXON CAPITAL
HOLDINGS CORPORATION (pub. avail. May 13, 1988), XXXXXX XXXXXXX AND CO.,
INC. (pub. avail. June 5, 1991); and (B) including a representation that
the Company and the Guarantor have not entered into any arrangement or
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understanding with any Person to distribute the New Notes to be received
in the Registered Exchange Offer and that, to the best of the Company's
and the Guarantor's information and belief, each Holder participating in
the Registered Exchange Offer is acquiring the New Notes in the ordinary
course of business and has no arrangement or understanding with any Person
to participate in the distribution of the New Notes; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered
Exchange Offer, the Company and the Guarantor shall:
(i) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with
Section 4(s) all Notes so accepted for exchange; and
(iii) cause the New Notes Trustee promptly to authenticate and
deliver to each Holder of Notes a principal amount of New Notes equal to
the principal amount of the Notes of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any
Broker-Dealer and any such Holder using the Registered Exchange Offer to
participate in a distribution of the New Notes (x) could not under Commission
policy as in effect on the date of this Agreement rely on the position of the
Commission in XXXXXX XXXXXXX AND CO., INC. (pub. avail. June 5, 1991) and EXXON
CAPITAL HOLDINGS CORPORATION (pub. avail. May 13, 1988), as interpreted in the
Commission's letter to Xxxxxxxx & Sterling dated July 2, 1993 and similar
no-action letters; and (y) must comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any secondary
resale transaction and (z) that secondary resale transactions by such Holder
must be covered by an effective registration statement containing the selling
note holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Securities Act if the resales are of New Notes obtained
by such Holder in exchange for Notes acquired by such Holder directly from the
Company or one of its Affiliates. Accordingly, each Holder participating in the
Registered Exchange Offer shall be required to represent to the
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Company and the Guarantor that, at the time of the consummation of the
Registered Exchange Offer:
(i) any New Notes received by such Holder will be acquired in
the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Notes or the New
Notes within the meaning of the Securities Act; and
(iii) such Holder is not an Affiliate of the Company.
(f) If any Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange of
Notes constituting any portion of an unsold allotment, at the request of such
Initial Purchaser within 20 days after the consummation of the Exchange Offer,
the Company shall issue and deliver to the Person purchasing Notes registered
under a Shelf Registration Statement as contemplated by Section 3 hereof from
such Initial Purchaser, in exchange for such Notes, a like principal amount of
New Notes. The Company and the Guarantor shall use their best efforts to cause
the CUSIP Service Bureau to issue the same CUSIP number for such New Notes as
for New Notes issued pursuant to the Registered Exchange Offer.
3. SHELF REGISTRATION. (a) If (i) due to any change in law or
applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for
any other reason the Registered Exchange Offer is not consummated within 210
days of the date hereof; (iii) any Initial Purchaser so requests, within 20 days
after the consumation of the Registered Exchange Offer, with respect to Notes
that are not eligible to be exchanged for New Notes in the Registered Exchange
Offer and that are held by it following consummation of the Registered Exchange
Offer; (iv) any Holder (other than an Initial Purchaser) who notifies the
Company within 20 days after the consummation of the Registered Exchange Offer
that it is not eligible to participate in the Registered Exchange Offer; or (v)
in the case of any Initial Purchaser that participates in the Registered
Exchange Offer, such Initial Purchaser does not receive freely tradeable New
Notes in exchange for Notes constituting any portion of an unsold allotment (it
being understood that (x) the requirement that an Initial Purchaser
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deliver a Prospectus containing the information required by Item 507 or 508 of
Regulation S-K under the Securities Act in connection with sales of New Notes
acquired in exchange for such Notes shall result in such New Notes being not
"freely tradeable"; and (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of New Notes acquired in the Registered
Exchange Offer in exchange for Notes acquired as a result of market-making
activities or other trading activities shall not result in such New Notes being
not "freely tradeable"), the Company and the Guarantor shall effect a Shelf
Registration Statement in accordance with subsection (b) below.
(b) (i) The Company and the Guarantor shall as promptly as
practicable (but in no event more than 30 days after so required or requested
pursuant to this Section 3), file with the Commission and thereafter shall use
its best efforts to cause to be declared effective under the Securities Act a
Shelf Registration Statement relating to the offer and sale of the Notes or the
New Notes, as applicable, by the Holders thereof from time to time in accordance
with the methods of distribution elected by such Holders and set forth in such
Shelf Registration Statement; provided, however, that no Holder (other than an
Initial Purchaser) shall be entitled to have the Notes held by it covered by
such Shelf Registration Statement unless such Holder agrees in writing to be
bound by all of the provisions of this Agreement applicable to such Holder; and
provided further, that with respect to New Notes received by an Initial
Purchaser in exchange for Notes constituting any portion of an unsold allotment,
the Company and the Guarantor may, if permitted by current interpretations by
the Commission's staff, file a post-effective amendment to the Exchange Offer
Registration Statement containing the information required by Item 507 or 508 of
Regulation S-K, as applicable, in satisfaction of its obligations under this
subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company and the Guarantor shall use their best efforts
to keep the Shelf Registration Statement continuously effective,
supplemented and amended as required by the Securities Act, in order to
permit the Prospectus forming part thereof to be usable by Holders for a
period of two years from the date the Shelf Registration Statement is
declared effective by the Commission or such shorter period that will
terminate when all the Notes or
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New Notes, as applicable, covered by the Shelf Registration Statement have
been sold pursuant to the Shelf Registration Statement (in any such case,
such period being called the "Shelf Registration Period"). The Company and
the Guarantor shall be deemed not to have used their best efforts to keep
the Shelf Registration Statement effective during the requisite period if
it voluntarily takes any action that would result in Holders of Notes
covered thereby not being able to offer and sell such Notes during that
period, unless (A) such action is required by applicable law; or (B) such
action is taken by the Company and the Guarantor in good faith and for
valid business reasons (not including avoidance of the Company's and the
Guarantor's obligations hereunder), including the acquisition or
divestiture of assets, so long as the Company and the Guarantor promptly
thereafter comply with the requirements of Section 4(k) hereof, if
applicable.
(iii) The Company shall cause the Shelf Registration Statement
and the related Prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement or such amendment
or supplement, (A) to comply in all material respects with the applicable
requirements of the Securities Act and the rules and regulations of the
Commission; and (B) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
4. ADDITIONAL REGISTRATION PROCEDURES. In connection with any Shelf
Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company and the Guarantor shall:
(i) furnish to you, not less than five Business Days prior to
the filing thereof with the Commission, a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) and shall use their best
efforts to reflect in each such document, when so filed with the
Commission, such comments as you reasonably propose;
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(ii) include the information set forth in Annex A hereto on the
facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in a
section setting forth details of the Exchange Offer, in Annex C hereto in
the underwriting or plan of distribution section of the Prospectus
contained in the Exchange Offer Registration Statement, and in Annex D
hereto in the letter of transmittal delivered pursuant to the Registered
Exchange Offer;
(iii) if requested by an Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as applicable,
in the Prospectus contained in the Exchange Offer Registration Statement;
and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Notes pursuant to the Shelf
Registration Statement as selling note holders.
(b) The Company and the Guarantor shall ensure that:
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any amendment or supplement thereto
complies in all material respects with the Securities Act and the rules
and regulations thereunder; and
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
(c) The Company and the Guarantor shall advise you, the Holders of
Notes covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to
the Company or the Guarantor a telephone or facsimile number and address for
notices, and, if requested by you or any such Holder or Exchanging Dealer, shall
confirm such advice in writing (which notice pursuant to clauses (ii)-(v) hereof
shall be accompanied by an instruction to suspend the use of the Prospectus
until the Company and the Guarantor shall have remedied the basis for such
suspension):
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(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or any
post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
(iv) of the receipt by the Company and the Guarantor of any
notification with respect to the suspension of the qualification of the
notes included therein for sale in any jurisdiction or the initiation of
any proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date, the
statements therein are not misleading and do not omit to state a material
fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances
under which they were made) not misleading.
(d) The Company and the Guarantor shall use their best efforts to
obtain the withdrawal of any order suspending the effectiveness of any
Registration Statement or the qualification of the notes therein for sale in any
jurisdiction at the earliest possible time.
(e) The Company and the Guarantor shall furnish to each Holder of
Notes covered by any Shelf Registration Statement, without charge, at least one
copy of such Shelf Registration Statement and any post-effective amendment
thereto, including all material incorporated therein by reference, and, if the
Holder so requests in writing, all exhibits thereto (including exhibits
incorporated by reference therein).
(f) The Company and the Guarantor shall, during the Shelf
Registration Period, deliver to each Holder of Notes covered by any Shelf
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf Registration
Statement and
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any amendment or supplement thereto as such Holder may reasonably request. The
Company and the Guarantor consent to the use of the Prospectus or any amendment
or supplement thereto by each of the selling Holders of Notes in connection with
the offering and sale of the Notes covered by the Prospectus, or any amendment
or supplement thereto, included in the Shelf Registration Statement.
(g) The Company and the Guarantor shall furnish to each Exchanging
Dealer which so requests, without charge, at least one copy of the Exchange
Offer Registration Statement and any post-effective amendment thereto, including
all material incorporated by reference therein, and, if the Exchanging Dealer so
requests in writing, all exhibits thereto (including exhibits incorporated by
reference therein).
(h) The Company and the Guarantor shall promptly deliver to each
Initial Purchaser, each Exchanging Dealer and each other Person required to
deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as any such
Person may reasonably request. The Company and the Guarantor consent to the use
of the Prospectus or any amendment or supplement thereto by any Initial
Purchaser, any Exchanging Dealer and any such other Person that may be required
to deliver a Prospectus following the Registered Exchange Offer in connection
with the offering and sale of the New Notes covered by the Prospectus, or any
amendment or supplement thereto, included in the Exchange Offer Registration
Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Notes pursuant to any Registration Statement, the Company and the Guarantor
shall arrange, if necessary, for the qualification of the Notes or the New Notes
for sale under the laws of such jurisdictions as any Holder shall reasonably
request and will maintain such qualification in effect so long as required;
provided that in no event shall the Company and the Guarantor be obligated to
qualify to do business in any jurisdiction where it is not then so qualified or
to take any action that would subject it to service of process in suits, other
than those arising out of the Initial Placement, the Registered Exchange Offer
or any offering pursuant to a Shelf Registration Statement, in any such
jurisdiction where it is not then so subject.
(j) The Company and the Guarantor shall cooperate with the Holders
of Notes to facilitate the timely preparation
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and delivery of certificates representing New Notes or Notes to be issued or
sold pursuant to any Registration Statement free of any restrictive legends and
in such denominations and registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company and the Guarantor shall promptly prepare
a post-effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to Initial Purchasers of the notes
included therein, the Prospectus will not include 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. In such circumstances, the period of effectiveness of the
Exchange Offer Registration Statement provided for in Section 2 and the Shelf
Registration Statement provided for in Section 3(b) shall each be extended by
the number of days from and including the date of the giving of a notice of
suspension pursuant to Section 4(c) to and including the date when the Initial
Purchasers, the Holders of the Notes and any known Exchanging Dealer shall have
received such amended or supplemented Prospectus pursuant to this Section.
(l) Not later than the effective date of any Registration Statement,
the Company and the Guarantor shall provide a CUSIP number for the Notes or the
New Notes, as the case may be, registered under such Registration Statement and
provide the Trustee with printed certificates for such Notes or New Notes, in a
form eligible for deposit with The Depository Trust Company.
(m) The Company and the Guarantor shall comply with all applicable
rules and regulations of the Commission and shall make generally available to
its note holders as soon as practicable after the effective date of the
applicable Registration Statement an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act.
(n) The Company and the Guarantor shall cause the Indenture or the
New Notes Indenture, as the case may be, to be qualified under the Trust
Indenture Act in a timely manner.
(o) The Company and the Guarantor may require each Holder of notes
to be sold pursuant to any Shelf Registration Statement to furnish to the
Company and the Guarantor such information regarding the Holder and the
distribution of such
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Notes or New Notes as the Company and the Guarantor may from time to time
reasonably require for inclusion in such Registration Statement. The Company and
the Guarantor may exclude from such Shelf Registration Statement the Notes of
any Holder that unreasonably fails to furnish such information within a
reasonable time after receiving such request.
(p) In the case of any Shelf Registration Statement, the Company and
the Guarantor shall enter into such and take all other appropriate actions
(including if requested an underwriting agreement in customary form) in order to
expedite or facilitate the registration or the disposition of the Notes, and in
connection therewith, if an underwriting agreement is entered into, cause the
same to contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 (or such other provisions and procedures acceptable
to the Majority Holders and the Managing Underwriters, if any, with respect to
all parties to be indemnified pursuant to Section 7).
(q) In the case of any Shelf Registration Statement, the Company and
the Guarantor shall:
(i) make reasonably available for inspection by the Holders of
Notes to be registered thereunder, any underwriter participating in any
disposition pursuant to such Registration Statement, and any attorney,
accountant or other agent retained by the Holders or any such underwriter,
all relevant financial and other records, pertinent corporate documents
and properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or any
such underwriter, attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that any information that is designated
in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by the Holders or
any such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
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(iii) if requested by any Holder, make such representations and
warranties to the Holders of Notes registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
(iv) if requested by any Holder, obtain opinions of counsel to
the Company and the Guarantor and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory
to the Managing Underwriters, if any) addressed to each selling Holder and
the underwriters, if any, covering such matters as were covered in
opinions requested in the underwriting agreement filed as an exhibit to
the registration statement on the Form S-3 dated December 18, 1998
relating to the $500,000,000 7 1/2% Senior Notes due 2009 of the Company
and such other matters as may be reasonably requested by such Holders and
underwriters;
(v) if requested by any Holder, obtain "cold comfort" letters
and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired
by the Company for which financial statements and financial data are, or
are required to be, included in the Registration Statement), addressed to
each selling Holder of Notes registered thereunder and the underwriters,
if any, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by the Majority Holders and the Managing
Underwriters, if any, including those to evidence compliance with Section
4(k) and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this Section shall
be performed at (A) the effectiveness of such Registration Statement and each
post-effective amendment thereto; and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
16
(r) In the case of any Exchange Offer Registration Statement, the
Company and the Guarantor shall:
(i) make reasonably available for inspection by any Initial
Purchaser, and any attorney, accountant or other agent retained by such
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by such Initial
Purchaser or any such attorney, accountant or agent in connection with any
such Registration Statement as is customary for similar due diligence
examinations; PROVIDED, HOWEVER, that any information that is designated
in writing by the Company, in good faith, as confidential at the time of
delivery of such information shall be kept confidential by such Initial
Purchaser or any such attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or required by
law, or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality;
(iii) if requested by an Initial Purchaser, make such
representations and warranties to such Initial Purchaser, in form,
substance and scope as are customarily made by issuers to underwriters in
primary underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) if requested by an Initial Purchaser, obtain opinions of
counsel to the Company and the Guarantor and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to such Initial Purchaser and its counsel, addressed to such
Initial Purchaser, covering such matters as were covered in opinions
requested in the underwriting agreement filed as an exhibit to the
registration statement on the Form S-3 dated December 18, 1998 relating to
the $500,000,000 7 1/2% Senior Notes due 2009 of the Company and such
other matters as may be reasonably requested by such Initial Purchaser or
its counsel;
(v) if requested by an Initial Purchaser, obtain "cold comfort"
letters and updates thereof from the independent certified public
accountants of the Company
17
(and, if necessary, any other independent certified public accountants of
any subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to such Initial
Purchaser, in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary underwritten
offerings, or if requested by such Initial Purchaser or its counsel in
lieu of a "cold comfort" letter, an agreed-upon procedures letter under
Statement on Auditing Standards No. 35, covering matters requested by such
Initial Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel, including
those to evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section shall be performed at the close of the Registered Exchange Offer and the
effective date of any post-effective amendment to the Exchange Offer
Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Notes by Holders to the Company (or to such other Person as
directed by the Company) in exchange for the New Notes, the Company shall mark,
or caused to be marked, on the Notes so exchanged that such Notes are being
canceled in exchange for the New Notes. In no event shall the Notes be marked as
paid or otherwise satisfied.
(t) The Company will use its best efforts (i) if the Notes have been
rated prior to the initial sale of such Notes by one or more nationally
recognized statistical rating agencies, to confirm that a rating (which need not
be the same rating from each such agency) will apply to the Notes or the New
Notes, as the case may be, covered by a Registration Statement; or (ii) if the
Notes were not previously rated, to cause the Notes covered by a Registration
Statement to be rated with at least one nationally recognized statistical rating
agency, if so requested by Majority Holders with respect to the related
Registration Statement or by any Managing Underwriters.
(u) In the case of any Shelf Registration Statement, if any
Broker-Dealer shall underwrite any Notes or participate
18
as a member of an underwriting syndicate or selling group or "assist in the
distribution" (within the meaning of the Rules of Fair Practice and the By-Laws
of the National Association of Securities Dealers, Inc.) thereof, whether as a
Holder of such Notes or as an underwriter, a placement or sales agent or a
broker or dealer in respect thereof, or otherwise, assist such Broker-Dealer in
complying with the requirements of such Rules and By-Laws, including, without
limitation, by:
(i) if such Rules or By-Laws shall so require, engaging a
"qualified independent underwriter" (as defined in such Rules) to
participate in the preparation of the Registration Statement, to exercise
usual standards of due diligence with respect thereto and, if any portion
of the offering contemplated by such Registration Statement is an
underwritten offering or is made through a placement or sales agent, to
recommend the yield of such Notes;
(ii) indemnifying any such qualified independent underwriter to
the extent of the indemnification of underwriters provided in Section 7
hereof; and
(iii) providing such information to such Broker-Dealer as may be
required in order for such Broker-Dealer to comply with the requirements
of such Rules.
(v) The Company and the Guarantor shall use their best efforts to
take all other steps necessary to effect the registration of the Notes or the
New Notes, as the case may be, covered by a Registration Statement.
5. ADDITIONAL INTEREST
(a) The parties hereto agree that the Holders of Notes or New Notes,
as the case may be, will suffer damages if the Company and the Guarantor fail to
perform their obligations under Section 2 or 3 hereof and that it would not be
feasible to ascertain the extent of such damages. Accordingly, in the event
that:
(i) neither the Exchange Offer Registration Statement nor
the Shelf Registration Statement have been filed on or
prior to the 90th day following the original issuance of
the Notes;
(ii) neither the Exchange Offer Registration Statement nor
the Shelf Registration
19
Statement have been declared effective on or prior to
the 180th day following the original issuance of the
Notes;
(iii) neither the Exchange Offer has been completed nor the
Shelf Registration Statement has been declared effective
on or prior to the 210th day following the original
issuance of the Notes; or
(iv) either the Exchange Offer Registration Statement or
Shelf Registration Statement cease to be effective or
usable in connection with the resales of the Notes or
New Notes during a period in which it is required to be
effective hereunder without being succeeded immediately
by any additional Registration Statement or
post-effective amendment covering the Notes or the New
Notes, as the case may be, which has been filed and
declared effective;
(each such event referred to in the foregoing clauses (i) through (iv), a
"Registration Default"), then additional interest ("Additional Interest") will
accrue on the principal amount of the Notes and the New Notes, respectively (in
addition to the stated interest on the Notes and the New Notes), from and
including the date on which any Registration Default first occurs and while any
such Registration Default has occurred and is continuing, to but excluding the
date on which all filings, declarations of effectiveness and consummations, as
the case may be, have been achieved which, if achieved on a timely basis, would
have prevented the occurrence of all of the then existing Registration Defaults.
Additional Interest will accrue at a rate of 0.25% per annum during the 90-day
period immediately following such first occurrence of a Registration Default and
while any such Registration Default has occurred and is continuing, and shall
increase by 0.25% per annum at the end of each subsequent 90-day period up to a
maximum of 0.50% per annum with respect to all Registration Defaults, until the
date on which all of the filings, declarations of effectiveness and
consummations referred to in the preceding sentence have been achieved, on which
date the interest rate on the Notes or the New Notes, respectively, will revert
to the interest rate originally borne by such notes.
(b) The Company and the Guarantor shall notify the Trustee under the
Indenture (or the trustee under any New Notes
20
Indenture) immediately upon the happening of each and every Registration
Default. The Company and the Guarantor shall pay the Additional Interest due on
the Notes or New Notes, as the case may be, by depositing with the Ttrustee
(which shall not be the Company for these purposes) for the Notes or the New
Notes, in trust, for the benefit of the Holders thereof, prior to 11:00 A.M. on
the next interest payment date specified in the Indenture (or such New Notes
Indenture), sums sufficient to pay the Additional Interest then due. The
Additional Interest due shall be payable on each interest payment date specified
by the Indenture (or such New Notes Indenture) to the record holders entitled to
receive the interest payment to be made on such date.
(c) The parties hereto agree that the Additional Interest provided
for in this Section 5 constitutes a reasonable estimate of the damages that will
be suffered by Holders of Notes or New Notes by reason of the happening of any
Registration Default.
(d) All of the Company's and the Guarantor's obligations set forth
in this Section 5 shall survive the termination of this Agreement.
6. REGISTRATION EXPENSES. The Company and the Guarantor shall be
jointly and severally responsible to bear all expenses incurred in connection
with the performance of its obligations under Sections 2, 3 and 4 hereof and, in
the event of any Shelf Registration Statement, will reimburse the Holders for
the reasonable fees and disbursements of one firm or counsel designated by the
Majority Holders to act as counsel for the Holders in connection therewith, and,
in the case of any Exchange Offer Registration Statement, will reimburse the
Initial Purchasers for the reasonable fees and disbursements of one firm
designated as counsel acting in connection therewith.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company and the
Guarantor, jointly and severally, agree to indemnify and hold harmless each
Holder of Notes or New Notes, as the case may be, covered by any Registration
Statement (including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and each Person
who controls any such Holder within the meaning of either the Securities Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the
Securities Act, the Exchange Act or
21
other Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (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 the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary Prospectus
or the 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 not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; PROVIDED, HOWEVER, that the Company and the Guarantor will
not be liable in any case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such 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 and the
Guarantor by or on behalf of any such Holder specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company
and the Guarantor may otherwise have.
The Company and the Guarantor, jointly and severally, also agree to
indemnify or contribute as provided in Section 7(d) to Losses of each any
underwriter of Notes or New Notes, as the case may be, registered under a Shelf
Registration Statement, their directors, officers, employees or agents and each
Person who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchasers and the selling Holders provided
in this Section 7(a) and shall, if requested by any Holder, enter into an
underwriting agreement reflecting such agreement, as provided in Section 4(p)
hereof.
(b) Each Holder of notes covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus delivery
as contemplated in Section 4(h) hereof, each Exchanging Dealer) severally agrees
to indemnify and hold harmless the Company and the Guarantor, and their
respective directors and officers who signs such Registration Statement and each
Person who controls the Company and the Guarantor within the meaning of either
the Securities Act or the Exchange Act, to the same extent as the foregoing
indemnity from the Company and the Guarantor to each such Holder, but only with
reference to
22
written information relating to such Holder furnished to the Company and the
Guarantor by or on behalf of such Holder specifically for inclusion in the
documents referred to in the foregoing indemnity. This indemnity agreement will
be in addition to any liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 7 or notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from liability under paragraph (a) or (b) above unless and to the
extent it did not otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses; and
(ii) will not, in any event, relieve the indemnifying party from any obligations
to any indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint
counsel of the indemnifying party's choice at the indemnifying party's expense
to represent the indemnified party in any action for which indemnification is
sought (in which case the indemnifying party shall not thereafter be responsible
for the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); PROVIDED, HOWEVER, that such
counsel shall be satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party; (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action; or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at
23
the expense of the indemnifying party. An indemnifying party will not, without
the prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compromise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party shall
have a joint and several obligation to contribute to the aggregate losses,
claims, damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which such indemnified party may be subject in such proportion as
is appropriate to reflect the relative benefits received by such indemnifying
party, on the one hand, and such indemnified party, on the other hand, from the
Initial Placement and the Registration Statement which resulted in such Losses;
PROVIDED, HOWEVER, that in no case shall any Initial Purchaser or any subsequent
Holder of any Note or New Note be responsible, in the aggregate, for any amount
in excess of the purchase discount or commission applicable to such Note, or in
the case of a New Note, applicable to the Note that was exchangeable into such
New Note, as set forth on the cover page of the Final Memorandum, nor shall any
underwriter be responsible for any amount in excess of the underwriting discount
or commission applicable to the notes purchased by such underwriter under the
Registration Statement which resulted in such Losses. If the allocation provided
by the immediately preceding sentence is unavailable for any reason, the
indemnifying party and the indemnified party shall contribute in such proportion
as is appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such indemnified
party, on the other hand, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Guarantor shall be deemed to be equal
to the total net proceeds from the Initial Placement (before deducting expenses)
as set forth on the cover page of the Final Memorandum. Benefits received by the
Initial Purchasers shall
24
be deemed to be equal to the total purchase discounts and commissions as set
forth on the cover page of the Final Memorandum, and benefits received by any
other Holders shall be deemed to be equal to the value of receiving Notes or New
Notes, as applicable, registered under the Securities Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting discounts
and commissions, as set forth on the cover page of the Prospectus forming a part
of the Registration Statement which resulted in such Losses. Relative fault
shall be determined by reference to, among other things, whether any alleged
untrue statement or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other hand, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The parties
agree that it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Holders were treated as one entity for such
purpose) or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), 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. For purposes of this Section, each Person who controls a
Holder within the meaning of either the Securities Act or the Exchange Act and
each director, officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each Person who controls the Company
and the Guarantor within the meaning of either the Securities Act or the
Exchange Act, each officer of the Company and the Guarantor who shall have
signed the Registration Statement and each director of the Company and the
Guarantor shall have the same rights to contribution as the Company, subject in
each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder or
the Company or the Guarantor or any of the officers, directors or controlling
Persons referred to in this Section hereof, and will survive the sale by a
Holder of notes covered by a Registration Statement.
8. UNDERWRITTEN REGISTRATIONS. (a) If any of the Notes or New
Notes, as the case may be, covered by any Shelf Registration Statement are to be
sold in an underwritten
25
offering, the Managing Underwriters shall be selected by the Majority Holders.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell such
Person's Notes or New Notes, as the case may be, on the basis reasonably
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements; and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
9. NO INCONSISTENT AGREEMENTS. Neither the Company nor the
Guarantor has, as of the date hereof, entered into, nor shall they, on or after
the date hereof, enter into, any agreement with respect to notes of the Company
that is inconsistent with the rights granted to the Holders herein or otherwise
conflicts with the provisions hereof.
10. AMENDMENTS AND WAIVERS. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of New Notes); PROVIDED
that, with respect to any matter that directly or indirectly affects the rights
of any Initial Purchaser hereunder, the Company shall obtain the written consent
of each such Initial Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective. Notwithstanding the foregoing
(except the foregoing proviso), a waiver or consent to departure from the
provisions hereof with respect to a matter that relates exclusively to the
rights of Holders whose Notes or New Notes, as the case may be, are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the Majority Holders,
determined on the basis of Notes or New Notes, as the case may be, being sold
rather than registered under such Registration Statement.
11. NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
26
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section, which address
initially is, with respect to each Holder, the address of such Holder maintained
by the Registrar under the Indenture, with a copy in like manner to Xxxxxxx
Xxxxx Xxxxxx;
(b) if to you, initially at the respective addresses set forth in
the Purchase Agreement; and
(c) if to the Company or the Guarantor, initially at its address:
Harrah's Entertainment, Inc.
Harrah's Operating Company, Inc.
One Harrah's Court
Las Vegas, Nevada 89119
Attn: Treasurer
With a copy to: General Counsel
All such notices and communications shall be deemed to have been
duly given when received.
The Initial Purchasers or the Company or the Guarantor by notice to
the other parties may designate additional or different addresses for subsequent
notices or communications.
12. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company and the
Guarantor thereto, subsequent Holders of Notes and the New Notes. The Company
and the Guarantor hereby agree to extend the benefits of this Agreement to any
Holder of Notes and the New Notes, and any such Holder may specifically enforce
the provisions of this Agreement as if an original party hereto.
13. COUNTERPARTS. This agreement may be in signed counterparts, each
of which shall an original and all of which together shall constitute one and
the same agreement.
14. HEADINGS. The headings used herein are for convenience only and
shall not affect the construction hereof.
15. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New
27
York applicable to contracts made and to be performed in the State of New York.
16. SEVERABILITY. In the event that any one of more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
17. NOTES HELD BY THE COMPANY, ETC. Whenever the consent or approval
of Holders of a specified percentage of principal amount of Notes or New Notes
is required hereunder, Notes or New Notes, as applicable, held by the Company or
its Affiliates (other than subsequent Holders of Notes or New Notes if such
subsequent Holders are deemed to be Affiliates solely by reason of their
holdings of such Notes or New Notes) shall not be counted in determining whether
such consent or approval was given by the Holders of such required percentage.
28
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a building agreement among the
Company, the Guarantor and the several Initial Purchasers.
Very truly yours,
Xxxxxx'x Operating Company, Inc.
By:
--------------------------
Name:
Title:
Xxxxxx'x Entertainment, Inc.
By:
--------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
XXXXXXX XXXXX XXXXXX INC.
Banc of America Securities LLC
Credit Suisse First Boston Corporation
Deutsche Banc Xxxx. Xxxxx Inc.
Xxxxxxx, Xxxxx & Co.
Xxxxxx Brothers Inc.
Xxxxxxx Lynch, Xxxxxx, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
Bear Xxxxxxx & Co., Inc.
BNY Capital Markets, Inc.
CIBC World Markets Corp.
Commerzbank Capital Markets Corp.
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
XX Xxxxx Securities Corporation
Wassertein Perella Securities, Inc.
Xxxxx Fargo Brokerage Services, LLC
By: XXXXXXX XXXXX XXXXXX INC.
By:
---------------------------
Name:
Title:
ANNEX A
Each Broker-Dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. The Letter of
Transmittal states that by so acknowledging and by delivering a prospectus, a
Broker-Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This Prospectus, as it may be amended or
supplemented from time to time, may be used by a Broker-Dealer in connection
with resales of New Notes received in exchange for Notes where such Notes were
acquired by such Broker-Dealer as a result of market-making activities or other
trading activities. The Company and the Guarantor have agreed that, starting on
the Expiration Date (as defined herein) and ending on the close of business one
year after the Expiration Date, they will make this Prospectus available to any
Broker-Dealer for use in connection with any such resale. See "Plan of
Distribution."
24
ANNEX B
Each Broker-Dealer that receives New Notes for its own account in
exchange for Notes, where such Notes were acquired by such Broker-Dealer as a
result of market-making activities or other trading activities, must acknowledge
that it will deliver a prospectus in connection with any resale of such New
Notes. See "Plan of Distribution."
25
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives New Notes for its own account
pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. This Prospectus, as
it may be amended or supplemented from time to time, may be used by a
Broker-Dealer in connection with resales of New Notes received in exchange for
Notes where such Notes were acquired as a result of market-making activities or
other trading activities. The Company and the Guarantor have agreed that,
starting on the Expiration Date and ending on the close of business one year
after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until [ ], 2001, all dealers effecting transactions in the
New Notes may be required to deliver a prospectus.
The Company and the Guarantor will not receive any proceeds from any
sale of New Notes by brokers-dealers. New Notes received by Broker-Dealers for
their own account pursuant to the Exchange Offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the New Notes or a combination
of such methods of resale, at market prices prevailing at the time of resale, at
prices related to such prevailing market prices or negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
such Broker-Dealer and/or the purchasers of any such New Notes. Any
Broker-Dealer that resells New Notes that were received by it for its own
account pursuant to the Exchange Offer and any broker or dealer that
participates in a distribution of such New Notes may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of New Notes and any commissions or concessions received by any such
Persons may be deemed to be underwriting compensation under the Securities Act.
The Letter of Transmittal states that by acknowledging that it will deliver and
by delivering a prospectus, a Broker-Dealer will not be deemed to admit that it
is an "underwriter" within the meaning of the Securities Act.
For a period of one year after the Expiration Date, the Company and
the Guarantor will promptly send additional copies of this Prospectus and any
amendment or supplement to
26
this Prospectus to any Broker-Dealer that requests such documents in the Letter
of Transmittal. The Company and the Guarantor have agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holder of the Notes) other than commissions or concessions of any brokers or
dealers and will indemnify the holders of the Notes (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
27
ANNEX D
RIDER A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS
OR SUPPLEMENTS THERETO.
Name: ______________________________
Address: ______________________________
______________________________
RIDER B
If the undersigned is not a Broker-Dealer, the undersigned represents that it
acquired the New Notes in the ordinary course of its business, it is not engaged
in, and does not intend to engage in, a distribution of New Notes and it has not
arrangements or understandings with any Person to participate in a distribution
of the New Notes. If the undersigned is a Broker-Dealer that will receive New
Notes for its own account in exchange for Notes, it represents that the Notes to
be exchanged for New Notes were acquired by it as a result of market-making
activities or other trading activities and acknowledges that it will deliver a
prospectus in connection with any resale of such New Notes; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
28
