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EXHIBIT 4.45
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
This Exchange and Registration Rights Agreement (this "Agreement") is made
and entered into as of June 25, 1997 by and among Horseshoe Gaming, L.L.C., a
Delaware limited liability company (the "Company"), Xxxxxxxx Property Group,
Limited Partnership, a Mississippi limited partnership (the "Guarantor"), and
Xxxxxxxxxxx Xxxxxxx Securities, Inc. (the "Initial Purchaser"), who has agreed
to purchase an aggregate principal amount of $160,000,000 of the Company's
9-3/8% Series A Senior Subordinated Notes Due 2007 (the "Series A Notes") on the
Closing Date pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Note Purchase Agreement, dated as
of June 18, 1997, (the "Purchase Agreement"), by and among the Company, the
Guarantor and the Initial Purchaser. In order to induce the Initial Purchaser to
purchase the Series A Notes, the Company and the Guarantor have agreed to
provide the registration rights set forth in this Agreement for the equal
benefit of the Initial Purchaser and its direct and indirect transferees. The
execution and delivery of this Agreement is a condition to the Initial
Purchaser's obligation to purchase the Series A Notes under the Purchase
Agreement.
The parties hereby agree as follows:
Section 1. Definitions.
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: Of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
beneficial ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
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Company: As set forth in the preamble and shall also include the Company's
successors.
Consummate: A Registered 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 Series B 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 registrar under the Indenture of the Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of the
Series B Notes pursuant to a 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 Series B Notes in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such Exchange Offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Guarantor: Xxxxxxxx Property Group Limited Partnership, a Mississippi
limited partnership.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of June 15, 1997, by and among the
Company and U.S. Trust Company of Texas, N.A., as trustee (the "Trustee"), and
the Guarantor, pursuant to which the Notes are to be issued, as such Indenture
is amended or supplemented from time to time in accordance with the terms
thereof.
Initial Purchaser: As defined in the preamble hereto.
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Interest Payment Date: As defined in the Indenture.
Liquidated Damages: As defined in Section 5 hereof.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person or person: An individual, corporation, partnership, association,
limited liability company, limited liability partnership, trust, estate or other
entity.
Prospectus: The prospectus included in the Registration Statement, 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.
Record Holder: With respect to any Damages Payment Date relating to the
Series A Notes, each Person who is a Holder of Transfer Restricted 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 Series B Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to a 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.
Series A Notes: As defined in the preamble hereto.
Series B Notes: Debt securities of the Company, which are substantially
identical to the Series A Notes (and which are entitled to the benefits of the
Indenture or a trust indenture which is substantially identical to the Indenture
(other than such changes to the Indenture or any such identical trust indenture
as are necessary to comply with any requirements of the Commission to effect or
maintain the qualification thereof under the TIA) and which, in either case, has
been qualified under the TIA, except that the Series B Notes related thereto
shall have been registered pursuant to an effective Registration Statement under
the Act and shall contain no restrictive legends thereon.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
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Suspension Notice: As defined in Section 6(c)(iii)(D).
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
Trustee: The trustee under the Indenture and the trustee under any
indenture governing the Series B Notes.
Transfer Restricted Securities: Each Series A Note, until the earliest to
occur of (a) the date on which such Series A Note is exchanged in the Exchange
Offer for a Series B Note entitled to be resold to the public without complying
with the prospectus delivery requirements of the Act, (b) the date on which such
Series A Note has been effectively registered under the Act and disposed of in
accordance with a Shelf Registration Statement, (c) the date on which such
Series A Note is 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) and (d) the date on which such Series A Note is saleable
pursuant to Rule 144(k) under the Act.
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering 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. No securities
other than the Transfer Restricted Securities shall be entitled to the benefits
of this Agreement.
(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 (after the procedures set forth in Section 6(a) below
have been complied with), the Company and the Guarantor shall (i) cause to be
filed with the Commission as soon as practicable after the Closing Date, but in
no event later than forty-five (45) days after the Closing Date, an Exchange
Offer Registration Statement on Form S-1 or S-4 (if the use of such form is then
available) and, if applicable, a Shelf Registration Statement under the Act
relating to the Series B Notes and the Exchange Offer, (ii) cause such
Registration Statement to become effective as soon as practicable, but in no
event later than 165 days following the Closing Date, (iii) Consummate the
Exchange Offer as soon as practicable, but in no event later than 30 days after
the date the Exchange Offer Registration Statement is declared effective by the
Commission,
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(iv) in connection with the foregoing, file (A) all pre-effective amendments to
such Registration Statement as may be necessary in order to cause such
Registration Statement to become effective, (B) if applicable, a post-effective
amendment to such Registration Statement under the Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Series B Notes to be made under state Blue Sky or securities laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(v) upon the effectiveness of such Registration Statement, commence the Exchange
Offer. To the extent permitted by law, the Exchange Offer shall be on the
appropriate form permitting registration of the Series B Notes to be offered in
exchange for the Transfer Restricted Securities and to permit resales of Notes
held by Broker-Dealers as contemplated by Section 3(e) below.
(b) The Company and the Guarantor shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer.
The Company and the Guarantor shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the Notes
and the Guarantees executed by the Guarantor or any Additional Guarantor (as
such terms are defined in the Indenture) shall be included in the Exchange Offer
Registration Statement; provided, however, the Company and the Guarantor shall
not be restricted in any respect with regard to the filing or effectiveness of
any other registration statement under the Act.
(c) In connection with the Exchange Offer, the Company 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) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New
York; and
(iii) permit Holders to withdraw tendered Transfer Restricted
Securities at any time prior to the close of business, New
York time, on the last Business Day on which the Exchange
Offer shall remain open.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Transfer Restricted Securities
tendered and not validly withdrawn pursuant to the Exchange
Offer;
(ii) deliver to the Trustee for cancellation all Transfer
Restricted Securities so accepted for exchange;
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(iii) cause the Trustee to authenticate and deliver promptly to each
holder of Series A Notes a principal amount of Series B Notes
that is equal in principal amount to the Transfer Restricted
Securities of such holder so accepted for exchange.
(e) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus contained in the Exchange Offer Registration
Statement that any Broker-Dealer who holds Series A 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
Series A Notes pursuant to the Exchange Offer; however, such Broker-Dealer may
be deemed to be an "underwriter" within the meaning of the Act and must,
therefore, deliver a prospectus meeting the requirements of the Act in
connection with any resales of the Series B 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 Notes held by any such Broker-Dealer except to the extent
required by the Commission as a result of a change in policy after the date of
this Agreement.
The Company and the Guarantor shall use their 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 Notes 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 one hundred twenty
(120) days from the date on which the Exchange Offer is Consummated.
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 and the Guarantor are not
required to file an Exchange Offer Registration Statement and the Company is not
required to 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 or Holders of
Transfer Restricted Securities shall notify the Company within
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twenty (20) business days of the Consummation of the Exchange Offer (A) that any
such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) that any such Holder may not resell
the Series B Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (C) that any such Holder is a Broker-Dealer and holds Series A Notes
acquired directly from the Company or one of its affiliates, then the Company
and the Guarantor shall:
(x) 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 latest to occur of (1) the 30th day after the date on which the
Company determines that it is not required to file the Exchange Offer
Registration Statement, (2) the 30th day after the date on which the Company
receives notice from a Holder of Transfer Restricted Securities as contemplated
by clause (ii) above, and (3) the 45th day after the Closing Date, 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 (with each of the deadlines in (1), (2) and (3)
hereof constituting a "Shelf Filing Deadline"); and
(y) use their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the later of
the 30th business day after the applicable Shelf Filing Deadline but in no case
later than 60 days after the date such Shelf Registration Statement is filed.
The Company and the Guarantor shall 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 Notes 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, from the effective
date of the Shelf Registration Statement until the earlier of (x) 36 months from
the effective date, (y) the date 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 and (z) the date on which all
Transfer Restricted Securities may be sold without registration pursuant to Rule
144(k) of the Act. The Company shall not permit any securities other than the
Transfer Restricted Securities to be included in the Shelf Registration.
(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 20 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus
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included therein. No Holder of Transfer Restricted Securities shall be entitled
to Liquidated Damages pursuant to Section 5 hereof unless and until such Holder
shall have provided the Company in writing, within 20 business days after
receipt of a request therefor, all such reasonably requested information. Each
Holder as to which any Shelf Registration Statement is being effected agrees to
furnish promptly to the Company all information reasonably required to be
disclosed in order to make the information previously furnished to the Company
by such Holder not materially misleading.
Section 5. Liquidated Damages.
If (i) the Exchange Offer Registration Statement is not filed with the
Commission on or prior to 45 days after the Closing Date or a Shelf Registration
Statement required by this Agreement is not filed with the Commission on or
prior to the applicable Shelf Filing Deadline specified in Section 4 (a)(x)
hereof, (ii) the Exchange Offer Registration Statement or Shelf Registration
Statement has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in Section 3 or 4, respectively, of this
Agreement (the "Effectiveness Target Date"), (iii) the Exchange Offer has not
been Consummated within 30 days following the date the Exchange Offer
Registration Statement is declared effective by the Commission or (iv) the
Exchange Offer Registration Statement or Shelf Registration Statement required
by this Agreement is filed and declared effective but shall thereafter cease to
be effective pursuant to a stop order or otherwise during the time period
specified herein that such Registration Statement is required to remain
effective (each such event referred to in clauses (i) through (iv), a
"Registration Default"), the Company and the Guarantor hereby jointly and
severally agree to pay liquidated damages ("Liquidated Damages") to each Holder
of Transfer Restricted Securities in an amount equal to $.05 per week per $1,000
principal amount of Transfer Restricted Securities held by such Holder for each
week or portion thereof that the Registration Default continues. The weekly
Liquidated Damages associated with a Registration Default shall increase by an
additional increment equal to $.05 per week per $1,000 principal amount 90 days
after commencement of the Registration Default and shall thereafter increase by
an additional increment equal to $.05 per week per $1,000 principal amount at
the end of each subsequent 90 day period for so long as the Registration Default
continues; provided however that in no event shall the Liquidated Damages
associated with a Registration Default exceed $.35 per week per $1,000 principal
amount. The Company shall notify the Trustee within one Business Day after each
and every date on which a Registration Default occurs. All accrued Liquidated
Damages on each Damages Payment Date shall be paid to Record Holders by the
Company in the same manner as interest payments on the Notes, as provided in the
Indenture. Following the cure 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 and the Guarantor 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.
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Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with the Exchange
Offer, the Company and the Guarantor shall comply with all of the provisions of
Section 6(c) below, shall use their best efforts to effect such exchange 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 and the Guarantor hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the Guarantor to
Consummate an Exchange Offer for such Series A Notes. The Company and the
Guarantor hereby agree to pursue the issuance of such a decision to the
Commission staff level but shall not be required to take action to effect a
change of Commission policy. The Company and the Guarantor agree, 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) pursue a resolution (which need
not be favorable and may be resolved by an oral, rather than written,
communication from the Commission staff) by the Commission staff of such
submission with reasonable diligence.
(ii) All Holders of Transfer Restricted Securities participating in
the Exchange Offer shall cooperate in the Company's preparations for the
Exchange Offer. Each Holder of Transfer Restricted Securities shall furnish,
upon the request of the Company, prior to the Consummation of the Exchange
Offer, a written representation to the Company (which may be contained in the
letter of transmittal contemplated by the Exchange Offer Registration Statement)
to the effect that (A) it is not an affiliate of the Company within the meaning
of Rule 405 under the Act, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any person to
participate in, a distribution of the Series B Notes to be issued in the
Exchange Offer and (C) it is acquiring the Series B Notes in its ordinary course
of business. Each Holder hereby acknowledges and agrees that, any Broker-Dealer
and any such Holder using the Exchange Offer to participate in a distribution of
the Series B Notes 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
if the resales are of
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Series B Notes obtained by such Holder in exchange for Series A Notes acquired
by such Holder directly from the Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, 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
and (B) including a representation that neither the Company nor the Guarantor
has entered into any arrangement or understanding with any Person to distribute
the Series B Notes to be received in the Exchange Offer and that, to the
Company's information and belief, each Holder participating in the Exchange
Offer is acquiring the Series B Notes in its ordinary course of business and has
no arrangement or understanding with any Person to participate in the
distribution of the Series B Notes received in the Exchange Offer.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantor shall comply with all the
provisions of Section 6(c) below and shall use their 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 possible prepare and file
with the Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.
(c) General Provisions. In connection with any Registration Statement and
any Prospectus required by this Agreement to permit the exchange, sale or resale
of Transfer Restricted Securities, (including, without limitation, any
Registration Statement and the related Prospectus required to permit resales of
Notes by Broker-Dealers), the Company and the Guarantor shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Act or any regulation thereunder, financial
statements of the Guarantor) 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 and the Guarantor shall file promptly an appropriate
amendment to such Registration Statement, in the case of clause (A), correcting
any such misstatement or omission, and, in the case of either clause (A) or (B),
use its 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 practicable thereafter;
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(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 effective for the applicable period set forth in
Section 3 or 4 hereof as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with the applicable provisions of Rule 424
under the Act in a timely manner; and comply with the provisions of the Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly 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, and (D) of the
existence of any fact or the happening of any event that makes any statement of
a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue (unless amended and corrected by disclosure in a subsequently
filed document that is incorporated therein by reference), 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 (such notice
described in this clause (D) being referred to herein as a "Suspension Notice");
(iv) 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 and
the Guarantor shall use their best efforts to obtain the withdrawal or lifting
of such order at the earliest possible time;
(v) before filing with the Commission, furnish to each of the
selling Holders and their counsel and each of the underwriter(s), if any, copies
of any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or Prospectus,
which documents will be subject to the review of such Holders and
underwriter(s), if any, for a period of no more than five (5) business days. The
Company will not file any such Registration Statement or Prospectus or any
amendment or
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supplement to any such Registration Statement or Prospectus (including all such
documents incorporated by reference), and the Company shall use its good faith
efforts to correct such Registration Statement or Prospectus as soon as
practicable, to which a selling Holder of Transfer Restricted Securities covered
by such Registration Statement or the underwriter(s), if any, shall reasonably
object within five (5) 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 omits
to state a material fact required to be stated therein or necessary to make the
statements, in light of the circumstances under which they were made, not
misleading;
(vi) 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 of the underwriters, all financial and other records,
pertinent corporate documents and properties of the Company and the Guarantor
and cause the Company's and Guarantor's officers, managers 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;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), 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 underwriters, 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 incorporated in such Prospectus supplement or post-effective amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of the
Notes covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the underwriter(s)
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto and, if
requested, any documents incorporated by reference therein;
(x) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any
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amendment or supplement thereto as such Persons reasonably may request; the
Company and the Guarantor hereby consent 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;
(xi) enter into, and cause the Guarantor to enter into, and deliver
an underwriting agreement and other reasonable and customary agreements and
certificates and make, and cause the Guarantor to make, such representations and
warranties as are reasonable and customary in connection with a registered
offering, and whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, the Company and
the Guarantor shall:
(A) furnish to each Purchaser, each selling Holder and each
underwriter, if any, 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 date of the Consummation of the Exchange Offer and, if
applicable, the effectiveness of the Shelf Registration Statement:
(1) a certificate, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, signed by (y) the President or any Vice President and (z) a
principal financial or accounting officer of each of the Company and the
Guarantor confirming, as of the date thereof, the matters set forth in
Paragraphs (c)(i), (ii), (iii) and (v) of Section 7 of the Purchase Agreement
and such other matters as such parties may reasonably request;
(2) an opinion, dated the date of Consummation of the
Exchange Offer or the date of effectiveness of the Shelf Registration Statement,
as the case may be, of counsel for the Company and the Guarantor, in form and
substance customary for transactions of this kind and reasonably satisfactory to
the Initial Purchaser's counsel, including a statement to the effect that the
counsel providing each such opinion or opinions has participated in conferences
with officers and other representatives of the Company and the Guarantor, and
representatives of the independent public accountants for the Company and the
Guarantor, in connection with the preparation of such Registration Statement and
the related Prospectus and have considered the matters required to be stated
therein and the statements contained therein, although such counsel has not
independently verified the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on the basis of the foregoing
(relying as to materiality to a large extent upon facts provided to such counsel
by officers and other representatives of the Company and the Guarantor and
without independent check or verification), no facts have come to such counsel's
attention that caused such counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or any post-effective
amendment thereto became effective, and, in the case of the Exchange Offer
Registration Statement, as of the date of Consummation, contained an untrue
statement of a material fact or
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omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that, the Prospectus contained in
such Registration Statement as of its date and, in the case of the opinion dated
the date of Consummation of the Exchange Offer, as of the date of Consummation,
contained an untrue statement of a material fact or omitted to state a material
fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Without limiting the
foregoing, such counsel may state further that such counsel assumes no
responsibility for, and has not independently verified, the accuracy,
completeness or fairness of the financial statements, notes and schedules and
other financial data included in any Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness of the Shelf
Registration Statement, as the case may be, from the Company's and the
Guarantor's independent accountants, in the customary form and covering matters
of the type customarily covered in comfort letters by underwriters in connection
with primary underwritten offerings, and affirming the matters set forth in the
letters delivered pursuant to Section 7(d) of the Purchase Agreement, without
exception;
(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; and
(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.
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with, and cause the Guarantor to 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) may request and do any and all other acts or
things necessary or advisable to enable the disposition in such jurisdictions of
the Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that neither the Company nor the Guarantor shall be required
to register or qualify as a foreign corporation where it is not now so qualified
or to take any action that would subject it to the service of process in suits
or to taxation, other than as to matters and transactions relating to the
Registration Statement, in any jurisdiction where it is not now so subject;
(xiii) shall issue, upon the request of any Holder of Series A Notes
covered by the Shelf Registration Statement, Series B Notes, having an aggregate
principal amount equal to the aggregate principal amount of Series A Notes
surrendered to the Company
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by such Holder in exchange therefor or being sold by such Holder; such Series B
Notes to be registered in the name of such Holder or in the name of the
purchaser(s) of such Notes, as the case may be; in return, the Series A Notes
held by such Holder shall be surrendered to the Company for cancellation;
(xiv) 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 enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to any sale
of Transfer Restricted Securities made by such underwriter;
(xv) use its 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 underwriters, if any, to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (xii) above;
(xvi) 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 not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with The
Depository Trust Company;
(xviii) 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;
(xix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or best
efforts
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Underwritten Offering or (B) if not sold to underwriters in such an offering,
beginning with the first month of the Company's first fiscal quarter commencing
after the effective date of the Registration Statement;
(xx) 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, and cause the Guarantor to
cooperate, with the Trustee and the Holders of Notes 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 cause the Guarantor to
execute, and use its best efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be so
qualified in a timely manner;
(xxi) obtain an opinion of counsel to the Company addressed to the
Trustee for the benefit of all Holders of Transfer Restricted Securities
participating in the Exchange Offer and which includes an opinion that (i) the
Company has duly authorized, executed and delivered the Series B Notes and
related indenture, (ii) each of the Series B Notes and the related indenture
constitute a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with their respective terms (with customary
exceptions) and (iii) each of the Series B Notes are entitled to the benefits of
the Indenture or the indenture governing such Series B Notes as provided in this
Agreement.
(xxii) provide promptly to each Holder upon request each document
filed with the Commission pursuant to the requirements of Section 13 and Section
15 of the Exchange Act;
(xxiii) cause all Notes covered by the Registration Statement to be
listed on such securities exchange on which similar securities are listed if
requested by the Holders of a majority in aggregate principal amount of Notes or
any underwriter so long as the Company otherwise satisfies the listing
requirements of such securities exchange and such listing would not cause the
Company to incur substantial expenses; and
(xxiv) use their best efforts to take all other steps necessary to
effect the registration of the Transfer Restricted Securities covered by a
Registration Statement contemplated hereunder.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any Suspension Notice, 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;
provided, however, that the Company shall not
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give more than three Suspension Notices during any period of twelve consecutive
months and in no event shall the aggregate period during which a Holder of
Transfer Restricted Securities is prohibited from disposing of Transfer
Restricted Securities pursuant to this sentence exceed sixty (60) days in any
twelve consecutive months. 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 or the Guarantor's performance
of or compliance with this Agreement will be borne by the Company or the
Guarantor, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses
(including filings made by any Purchaser or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel that may be required by the rules and regulations of the NASD));
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company, the Guarantor and,
subject to Section 7(b) below, the Holders of Transfer Restricted Securities;
(v) all application and filing fees in connection with listing Notes on a
national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
certified public accountants of the Company and the Guarantor (including the
expenses of any special audit and comfort letters required by or incident to
such performances).
The Company and the Guarantor, in any event, will bear their respective
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 or the Guarantor.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchaser 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
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disbursements of not more than one counsel, who shall 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.
(c) The Company shall have no obligation to pay any underwriting fees,
discounts or selling commissions attributable to the Notes being sold by the
selling Holders, which expenses shall be borne by the selling Holders.
Section 8. Indemnification.
(a) The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless (i) each Holder, (ii) each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) any Holder (any of the persons referred to in this clause (ii)
being hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing or defending any claim or action, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Holder) directly or
indirectly caused by, related to, based upon, arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement, Prospectus or preliminary prospectus
(or any amendment or supplement thereto), or any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses are caused by (x) an untrue statement or
omission or alleged untrue statement or omission that is made in reliance upon
and in conformity with information relating to any of the Holders furnished in
writing to the Company by any of the Holders expressly for use therein or (y)
any untrue statement or omission contained in a preliminary prospectus or
amended preliminary prospectus delivered by a Holder to a purchaser if such
untrue statement or omission is corrected in the Prospectus and such Holder
failed to deliver a copy of the Prospectus at or prior to the sale of Series B
Notes to such purchaser.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Indemnified Holders with respect to which indemnity may be sought against the
Company, such Indemnified Holder (or the Indemnified Holder controlled by such
controlling person) shall promptly notify the Company and the Guarantor in
writing (provided, that the failure to give such notice shall not relieve the
Company or the Guarantor of their obligations pursuant to this Agreement to the
extent that such failure does not materially prejudice the position of the
Company or the Guarantor). Such Indemnified Holders shall have the right to
employ not more than one counsel in any such action and the fees and expenses of
such counsel shall be paid, as incurred, by the
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Company and the Guarantor; provided, however, that the Indemnified Holders shall
reimburse the Company and the Guarantor for such fees and expenses in the event
that it is ultimately determined that such Indemnified Holders are not entitled
to indemnification hereunder. The Company and the Guarantor shall not, in
connection with any one such action or proceeding or separate but substantially
similar or related actions or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (in addition to
any local counsel) at any time for all such Indemnified Holders, which firm
shall be designated by the Holders. Notwithstanding anything contained herein to
the contrary, the Company and the Guarantor shall indemnify Indemnified Holders
for more than one counsel if the Indemnified Holders shall have been advised by
counsel that there may exist a conflict of interest among any of the Indemnified
Holders. The Company shall be liable for any settlement of any such action or
proceeding effected with the Company's prior written consent, which consent
shall not be withheld unreasonably, and the Company agrees to indemnify and hold
harmless any Indemnified Holder from and against any loss, claim, damage,
liability or expense by reason of any settlement of any action effected with the
written consent of the Company. The Company shall not, without the prior written
consent of each Indemnified Holder, settle or compromise or consent to the entry
of judgment in or otherwise seek to terminate any pending or threatened action,
claim, litigation or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not any Indemnified Holder is a
party thereto), unless such settlement, compromise, consent or termination
includes an unconditional release of each Indemnified Holder from all liability
arising out of such action, claim, litigation or proceeding.
(b) In connection with a Registration Statement in which a Holder of
Transfer Restricted Securities is participating, each such Holder agrees,
severally and not jointly, to indemnify and hold harmless (i) the Company and
the Guarantor (ii) any person controlling (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act) the Company or the Guarantor, and
(iii) the respective officers, managers, partners, members, employees,
representatives and agents of the Company or the Guarantor and each such
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as a "Company Indemnitee"), to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities,
judgments, actions and expenses (including without limitation and as incurred,
reimbursement of all reasonable costs of investigating, preparing, pursuing or
defending any claim or action, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Company Indemnitee) directly or indirectly
caused by, related to, based upon, arising out of or in connection with any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus (or any amendment
or supplement thereto), or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with respect to claims and actions based on
information relating to such Holder furnished in writing to the Company by such
Holder expressly for use in any Registration Statement; provided, however, that
such Holder shall not be liable in any such case to the extent that within a
reasonable time prior to the filing of any
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such Registration Statement, Prospectus, preliminary prospectus or amendment
thereof or supplement thereto, such Holder has furnished in writing to the
Company information expressly for use in such Registration Statement,
Prospectus, preliminary prospectus or any amendment thereof or supplement
thereto which corrected or made not misleading information previously furnished
to the Company and such Holder specifically notified the Company in writing that
such information was delivered in order to correct or make not misleading
information previously furnished to the Company. In no event shall the liability
of any selling Holder hereunder be greater in amount than the dollar amount of
the proceeds received by such Holder upon the sale of the Transfer Restricted
Securities giving rise to such indemnification obligation. The Company shall be
entitled to receive indemnities from underwriters, selling brokers, dealer
managers and similar securities industry professionals participating in the
distribution, to the same extent as provided above with respect to information
so furnished in writing by such persons specifically for inclusion in any
Registration Statement.
In case any action or proceeding (including any governmental or regulatory
investigation or proceeding) shall be brought or asserted against any of the
Company Indemnitees with respect to which indemnity may be sought against any
Holder described above, such Company Indemnitee (or the Company Indemnitee
controlled by such controlling person) shall promptly notify such Holder in
writing (provided, that the failure to give such notice shall not relieve such
Holder of its obligations pursuant to this Agreement to the extent that such
failure does not prejudice the position of such Holder). Such Company
Indemnitees shall have the right to employ not more than one counsel in any such
action and the fees and expenses of such counsel shall be paid, as incurred, by
such Holder; provided, however, that the Company Indemnitees shall reimburse
such Holder for such fees and expenses in the event that it is ultimately
determined that such Company Indemnitees are not entitled to indemnification
hereunder. The indemnifying Holder shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of more than
one separate firm of attorneys (in addition to any local counsel) at any time
for all such Company Indemnitees, which firm shall be designated by the Company
Indemnitees. Notwithstanding anything contained herein to the contrary, the
indemnifying Holder shall indemnify Company Indemnitees for more than one
counsel if the Company Indemnitees shall have been advised by counsel that there
may exist a conflict of interest among any of the Company Indemnitees. The
indemnifying Holder shall be liable for any settlement of any such action or
proceeding effected with the indemnifying Holder's prior written consent, which
consent shall not be withheld unreasonably, and the indemnifying Holder agrees
to indemnify and hold harmless any Company Indemnitee from and against any loss,
claim, damage, liability or expense by reason of any settlement of any action
effected with the written consent of such Holder. The Indemnifying Holder shall
not, without the prior written consent of each Indemnified Holder, settle or
compromise or consent to the entry of judgment in or otherwise seek to terminate
any pending or threatened action, claim, litigation or proceeding in respect of
which indemnification or contribution may be sought hereunder (whether or not
any Company Indemnitee is a party thereto), unless such settlement, compromise,
consent or
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termination includes an unconditional release of each Company Indemnitee from
all liability arising out of such action, claim, litigation or proceeding.
(c) If the indemnification provided for in this Section 8 is unavailable
to an indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the Company and
the Guarantor on the one hand and of the Indemnified Holder on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of the Company and the Guarantor on
the one hand and of the Indemnified Holder on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Guarantor or by the
Indemnified Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 8(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Guarantor and each Holder of Transfer Restricted
Securities agree that it would not be just and equitable if contribution
pursuant to this Section 8(c) were determined by pro rata allocation (even if
the Holders were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to contribute pursuant to
this Section 8(c) are several in proportion to the respective principal amount
of Transfer Restricted Securities held by each of the Holders hereunder and not
joint.
Section 9. Rule 144A.
Upon the request of any Holder, the Company shall deliver to such holder
following the receipt by the Company of such request, the information required
by Rule (d)(4) of Rule 144A under the Act, as such rule may be amended from time
to time or any similar rule or regulation hereafter adopted by the Commission
("Rule 144A"), and will take such further action as any Holder may request, all
to the extent required from time to time by Rule 144A to enable such Holder to
sell Transfer Restricted Securities without registration under the Act within
the limitations or the exemptions provided by Rule 144A. All information shall
be "reasonably
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current" as defined in Rule 144A. The Company shall also furnish such
information during the pendency of any suspension of the effectiveness of the
Registration Statement.
Section 10. Participation In 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.
Section 12. Miscellaneous.
(a) Remedies. To the extent permitted by law, the Company and the
Guarantor agree that monetary damages (including the liquidated damages
contemplated hereby) would not be adequate compensation for any loss incurred by
reason of a 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, and will cause the
Guarantor not to, 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 rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders of
the Company's securities under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company will not take any action,
or permit any change to occur, with respect to the Notes that would materially
and adversely affect the ability of the Holders to Consummate any Exchange
Offer.
(d) 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
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hereof may not be given unless the Company and the Guarantor have obtained the
written consent of Holders of not less than 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 and that does not affect directly or indirectly
the rights of other Holders whose securities are not being tendered pursuant to
such Exchange Offer may be given by the Holders of not less than a majority of
the outstanding principal amount of Transfer Restricted Securities being
tendered or registered.
(e) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
registrar under the Indenture, with a copy to the registrar under the Indenture;
and
(ii) if to the Company or the Guarantor:
Horseshoe Gaming, L.L.C.
0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxxx & XxXxxxxx
000 Xxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation
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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.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such subject
matter.
(l) Notes Held by the Company or its Affiliates. Whenever the consent or
approval of Holders of a specified percentage of Transfer Restricted Securities
is required hereunder, Transfer Restricted Securities held by the Company, the
Guarantor or their respective Affiliates shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
HORSESHOE GAMING, L.L.C.
By: HORSESHOE GAMING, INC., its Manager
By: /s/ XXXX X. XXXXXX
-------------------------------------
Xxxx Xxxxxx
President
XXXXXXXX PROPERTY GROUP LIMITED
PARTNERSHIP
By: HORSESHOE GP, INC., its General Partner
By: /s/ XXXX X. XXXXXX
-------------------------------------
Xxxx Xxxxxx
President
XXXXXXXXXXX XXXXXXX SECURITIES, INC.
By: /s/ XXXXX X. XXXXXXXXX
-------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Treasurer
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