EXHIBIT 4.5
REGISTRATION RIGHTS AGREEMENT
dated as of October 17, 2000
by and among
ANCHOR GAMING,
THE GUARANTORS NAMED HEREIN
and
BANC OF AMERICA SECURITIES LLC,
as Representative for the Initial Purchasers
TABLE OF CONTENTS
PAGE
1. DEFINITIONS..............................................1
2. EXCHANGE OFFER...........................................4
3. SHELF REGISTRATION.......................................7
4. ADDITIONAL INTEREST......................................8
5. REGISTRATION PROCEDURES..................................9
6. REGISTRATION EXPENSES...................................17
7. INDEMNIFICATION.........................................18
8. RULES 144 AND 144A......................................21
9. UNDERWRITTEN REGISTRATIONS..............................21
10. MISCELLANEOUS...........................................21
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This Registration Rights Agreement (the "AGREEMENT"), dated as of October
17, 2000, by and among Anchor Gaming, a Nevada corporation (the "COMPANY"), as
the issuer, the Guarantors listed on Schedule A hereto (the "Guarantors") and
Banc of America Securities LLC, as representative (in such capacity, the
"REPRESENTATIVE") for the Initial Purchasers listed in Schedule B hereto (the
"INITIAL PURCHASERS").
This Agreement is entered into in connection with the Purchase Agreement,
dated as of October 17, 2000 (the "PURCHASE AGREEMENT"), among the Company, the
Guarantors and the Representative relating to the sale by the Company to the
Initial Purchasers of $250,000,000 aggregate principal amount of the Company's
9?% Senior Subordinated Notes due 2008 (the "NOTES"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Company has agreed
to provide the registration rights set forth in this Agreement for the equal
benefit of the Initial Purchasers and their respective direct and indirect
transferees. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligations to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the following
meanings:
"ADDITIONAL INTEREST": See Section 4.
"ADVICE": See Section 5.
"APPLICABLE PERIOD": See Section 2.
"CLOSING DATE": The closing of the offering of the Notes to the Initial
Purchasers.
"COMMISSION": The Securities and Exchange Commission.
"EFFECTIVENESS DATE": The 120th day after the Closing Date in the case of
the Exchange Offer Registration Statement and the 90th day after the delivery of
a Shelf Notice in the case of the Initial Shelf Registration Statement.
"EFFECTIVENESS TARGET DATE": See Section 4.
"EFFECTIVENESS PERIOD": See Section 3.
"EVENT DATE": See Section 4.
"EXCHANGE ACT": The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"EXCHANGE DEADLINE": See Section 2.
"EXCHANGE NOTES": See Section 2.
"EXCHANGE OFFER": See Section 2.
"EXCHANGE OFFER REGISTRATION STATEMENT": See Section 2.
"FILING DATE": The 45th day after the Closing Date in the case of the
Exchange Offer Registration Statement and the 45th day after delivery of a Shelf
Notice in the case of the Initial Shelf Registration Statement.
"HOLDER": Any holder of Transfer Restricted Securities.
"HOLDERS COUNSEL": See Section 5.
"INDENTURE": The Indenture, dated as of October 17, 2000, by and among the
Company, the Guarantors and U.S. Trust Company, National Association, as
trustee, pursuant to which the Notes are being issued, as amended or
supplemented from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS": See the introductory paragraph to this Agreement.
"INITIAL SHELF REGISTRATION STATEMENT": See Section 3.
"INSPECTORS": See Section 5.
"NASD": See Section 5.
"NOTES": See the introductory paragraphs to this Agreement.
"PARTICIPANT": See Section 7.
"PARTICIPATING BROKER-DEALER": See Section 2.
"PERSON": An individual, trustee, corporation, partnership, joint stock
company, limited liability company, trust, unincorporated association, union,
business association, firm or other legal entity.
"PRIVATE EXCHANGE": See Section 2.
"PRIVATE EXCHANGE NOTES": See Section 2.
"PROSPECTUS": The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated 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 Transfer Restricted Securities covered by such Registration Statement,
and all other amendments and supplements to the Prospectus, including
post-effective amendments, and all material incorporated by reference or deemed
to be incorporated by reference in such Prospectus.
"RECORDS": See Section 5.
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"REGISTRATION DEFAULT": See Section 4.
"REGISTRATION STATEMENT": Any registration statement of the Company and the
Guarantors, including, but not limited to, the Exchange Offer Registration
Statement, that covers any of the Transfer Restricted Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"REPRESENTATIVE": See the introductory paragraph to this Agreement.
"RULE 144": Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule (other than Rule 144A) or regulation
hereafter adopted by the Commission providing for offers and sales of securities
made in compliance therewith resulting in offers and sales by subsequent holders
that are not affiliates of an issuer of such securities being free of the
registration and prospectus delivery requirements of the Securities Act.
"RULE 144A": Rule 144A under the Securities Act, as such Rule may be
amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the Commission providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
"RULE 415": Rule 415 under the Securities Act, as such Rule may be amended
from time to time, or any similar rule or regulation hereafter adopted by the
Commission.
"SECURITIES ACT": The Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"SELLING HOLDERS": See Section 5.
"SHELF NOTICE": See Section 2.
"SHELF REGISTRATION STATEMENT": See Section 3.
"THE COMPANY": See the introductory paragraph to this Agreement.
"THE GUARANTORS": See the introductory paragraph to this Agreement.
"SUBSEQUENT SHELF REGISTRATION STATEMENT": See Section 3.
"TIA": The Trust Indenture Act of 1939, as amended.
"TRANSFER RESTRICTED SECURITY": Each Note until:
(i) the date on which such Note has been exchanged by a Person other
than a broker-dealer for an Exchange Note in the Exchange Offer;
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(ii) following the exchange by a broker-dealer in the Exchange Offer
of a Note for an Exchange Note, the date on which such Exchange Note is
sold to a purchaser who receives from such broker-dealer on or prior to the
date of such sale a copy of the Prospectus contained in the Exchange Offer
Registration Statement;
(iii) the date on which such Note has been effectively registered
under the Securities Act and disposed of in accordance with the Shelf
Registration Statement; or
(iv) the date on which such Note is distributed to the public pursuant
to Rule 144 under the Securities Act or becomes salable pursuant to Rule
144(k) under the Securities Act.
"TRUSTEE": The trustee under the Indenture and, if existent, the trustee
under any indenture governing the Exchange Notes and Private Exchange Notes (if
any).
"UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING": A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
2. EXCHANGE OFFER
(a) The Company and the Guarantors agree to file with the Commission as
soon as practicable after the Closing Date, but in no event later than the
Filing Date, an offer to exchange (the "EXCHANGE OFFER") any and all of the
Transfer Restricted Securities for a like aggregate principal amount of debt
securities of the Company, the terms of which are substantially identical to the
Notes (the "EXCHANGE NOTES") (and which are entitled to the benefits of the
Indenture or a trust indenture which is 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) in all material respects and
which, in either case, has been qualified under the TIA), except that the
Exchange Notes shall have been registered pursuant to an effective Registration
Statement under the Securities Act. The Exchange Offer will be registered under
the Securities Act on the appropriate form (the "EXCHANGE OFFER REGISTRATION
STATEMENT") and will comply with all applicable tender offer rules and
regulations under the Exchange Act. Unless the Exchange Offer would not be
permitted by applicable law or Commission policy, the Company and the Guarantors
will commence the Exchange Offer and use their respective best efforts to (x)
cause the Exchange Offer Registration Statement to become declared effective
under the Securities Act on or before the Effectiveness Date; (y) keep the
Exchange Offer open for at least 30 days (or longer if required by applicable
law) after the date that notice of the Exchange Offer is mailed to Holders; and
(z) issue, on or prior to the later of (1) the 30th business day following the
date on which the Exchange Offer Registration Statement was declared effective
by the Commission, and (2) the earliest possible date following such 30th
business day if a longer period is required by federal securities laws (such
later date being the "EXCHANGE DEADLINE"), Exchange Notes in exchange for all
Notes tendered prior thereto in the Exchange Offer. Each Holder who participates
in the Exchange Offer will be required to represent that any Exchange Notes
received by it will be acquired in the ordinary course of its business, that at
the time of the consummation of the Exchange Offer such Holder will have no
arrangement or understanding with any person to participate in the distribution
(within the meaning of the Securities Act) of the
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Exchange Notes, and that such Holder is not an affiliate of the Company within
the meaning of the Securities Act. Upon consummation of the Exchange Offer in
accordance with this Section 2, the provisions of this Agreement shall continue
to apply, mutatis mutandis, solely with respect to Transfer Restricted
Securities that are Private Exchange Notes and Exchange Notes held by
Participating Broker-Dealers, and neither the Company nor the Guarantors shall
have any further obligation to register Transfer Restricted Securities (other
than Private Exchange Notes) pursuant to Section 3 of this Agreement.
(b) The Company shall include within the Prospectus contained in the
Exchange Offer Registration Statement a section entitled "Plan of Distribution"
reasonably acceptable to the Representative, which shall contain a summary
statement of the positions taken or policies made by the Staff of the Commission
with respect to the potential "underwriter" status of any broker-dealer that is
the beneficial owner (as defined in Rule 1 3d-3 under the Exchange Act) of
Exchange Notes received by such broker-dealer in the Exchange Offer (a
"PARTICIPATING BROKER-DEALER"), whether such positions or policies have been
publicly disseminated by the Staff of the Commission or such positions or
policies, in the judgment of the Representative, represent the prevailing views
of the Staff of the Commission. Such "Plan of Distribution" section shall also
allow the use of the Prospectus by all persons subject to the prospectus
delivery requirements of the Securities Act, including all Participating
Broker-Dealers, and include a statement describing the means by which
Participating Broker-Dealers may resell the Exchange Notes.
The Company and the Guarantors shall use their respective best efforts to
keep the Exchange Offer Registration Statement effective and to amend and
supplement the Prospectus contained therein, in order to permit such Prospectus
to be lawfully delivered by all persons subject to the prospectus delivery
requirements of the Securities Act for such period of time as such persons must
comply with such requirements in order to resell the Exchange Notes, PROVIDED
that such period shall not exceed 90 days (or such longer period if extended
pursuant to the last paragraph of Section 5) (the "APPLICABLE PERIOD").
If, prior to the commencement or consummation of the Exchange Offer, the
Initial Purchasers hold any Notes acquired by them and having the status as an
unsold allotment in the initial distribution, the Company, upon the request of
the Representative, shall issue and deliver to the Initial Purchasers, in
exchange (the "PRIVATE EXCHANGE") for such Notes held by the Initial Purchasers,
a like principal amount of debt securities of the Company that are identical to
the Exchange Notes (the "PRIVATE EXCHANGE NOTES") (and which are issued pursuant
to the same indenture as the Exchange Notes). The Private Exchange Notes shall
bear the same CUSIP number as the Exchange Notes. Interest on the Exchange Notes
and Private Exchange Notes will accrue from the last interest payment date on
which interest was paid to the Initial Purchasers on the Notes surrendered in
exchange therefor or, if no interest has been paid on the Notes, from the date
of original issue.
In connection with the Exchange Offer, the Company and the Guarantors
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;
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(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 Notes 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.
As soon as practicable after the close of the Exchange Offer or the Private
Exchange, as the case may be, the Company shall:
(1) accept for exchange all Notes tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(2) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange Notes, as the case
may be, equal in principal amount to the Notes of such Holder so accepted
for exchange.
The Exchange Notes and the Private Exchange Notes may be issued under (A)
the Indenture or (B) an indenture substantially identical to the Indenture,
which in either event will provide that the Exchange Notes will not be subject
to the transfer restrictions set forth in the Indenture and that the Exchange
Notes, the Private Exchange Notes and the Notes will vote and consent together
on all matters as one class and that neither the Exchange Notes, the Private
Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
(c) If (i) the Exchange Offer is not permitted by applicable law or
Commission policy, (ii) any Holder of Transfer Restricted Securities notifies
the Company prior to the 20th day following the Exchange Offer that (A) such
Holder is prohibited by law or Commission policy from participating in the
Exchange Offer; (B) such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is neither
appropriate nor available for such resales; or (C) it is a broker-dealer and
owns Notes acquired directly from the Company or an affiliate of the Company,
(iii) the Exchange Offer is commenced and not consummated within 30 days
following the Effectiveness Date for any reason or (iv) it is an Initial
Purchaser and that its Notes are not eligible to be exchanged for Exchange
Notes, then the Company shall promptly deliver to the Holders and the Trustee
written notice thereof (the "SHELF NOTICE") and the Company and the Guarantors
shall file an Initial Shelf Registration Statement pursuant to Section 3.
Following the delivery of a Shelf Notice to the Holders of Transfer Restricted
Securities (only in the circumstances contemplated by clause (i) of the
preceding sentence and only if the Company shall have satisfied its obligations,
if any, pursuant to Section 5(x) below), the Company and the Guarantors shall
have no obligation to conduct the Exchange Offer or the Private Exchange under
this Section 2.
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3. SHELF REGISTRATION
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) INITIAL SHELF REGISTRATION STATEMENT. The Company and the Guarantors
shall prepare and file with the Commission a Registration Statement for an
offering to be made on a continuous basis pursuant to Rule 415 covering all of
the Transfer Restricted Securities (the "INITIAL SHELF REGISTRATION STATEMENT").
The Company and the Guarantors shall use their respective best efforts to file
such Initial Shelf Registration Statement with the Commission as promptly as
practicable after such obligation arises, but in no event later than the Filing
Date. The Initial Shelf Registration Statement shall be on Form S-3 (if
available) or another appropriate form permitting registration of such Transfer
Restricted Securities for resale by such Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). Neither the Company nor any Guarantor shall permit any securities
other than the Transfer Restricted Securities to be included in the Initial
Shelf Registration Statement or any Subsequent 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 15 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 included therein.
No Holder of Transfer Restricted Securities shall be entitled to Additional
Interest pursuant to Section 4 hereof unless and until such Holder shall have
used its best efforts to provide 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 to be disclosed in order to make
the information previously furnished to the Company by such Holder not
materially misleading. The Company and the Guarantors shall use their respective
best efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act on or prior to 90 days after the obligation
to file the Initial Shelf Registration Statement arises and to keep the Initial
Shelf Registration Statement continuously effective under the Securities Act
until the date which is 24 months from the date it becomes effective (subject to
extension pursuant to the last paragraph of Section 5 hereof) (the
"EFFECTIVENESS PERIOD"), or such shorter period ending when (i) all Transfer
Restricted Securities covered by the Initial Shelf Registration Statement have
been sold in the manner set forth and as contemplated in the Initial Shelf
Registration Statement, (ii) a Subsequent Shelf Registration Statement covering
all of the Transfer Restricted Securities has been declared effective under the
Securities Act or (iii) during any period in which all Transfer Restricted
Securities may be sold pursuant to Rule 144(k) under the Securities Act.
(b) SUBSEQUENT SHELF REGISTRATION STATEMENTS. If the Initial Shelf
Registration Statement or any Subsequent Shelf Registration Statement ceases to
be effective for any reason at any time during the Effectiveness Period (other
than because of the sale of all of the securities registered thereunder), the
Company and the Guarantors shall use their respective best efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 45 days of such cessation of effectiveness amend the Shelf
Registration Statement in a manner reasonably expected to obtain the withdrawal
of the order suspending the effectiveness thereof, or file an additional
Registration Statement pursuant to Rule 415 covering all of the Transfer
Restricted Securities (a "SUBSEQUENT SHELF REGISTRATION STATEMENT"). If a
Subsequent
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Shelf Registration Statement is filed, the Company and the Guarantors shall use
their respective best efforts to cause the Subsequent Shelf Registration
Statement to be declared effective as soon as practicable after such filing and
to keep such Registration Statement continuously effective for a period equal to
the number of days in the Effectiveness Period less the aggregate number of days
during which the Initial Shelf Registration Statement or any Subsequent Shelf
Registration Statement was previously continuously effective. As used herein,
the term "SHELF REGISTRATION STATEMENT" means the Initial Shelf Registration
Statement and any Subsequent Shelf Registration Statement.
(c) SUPPLEMENTS AND AMENDMENTS. The Company and the Guarantors shall
promptly supplement and amend the Shelf Registration Statement if required by
the rules, regulations or instructions applicable to the registration form used
for such Shelf Registration Statement, if required by the Securities Act, or if
requested by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by such Registration Statement or by any
underwriter of such Transfer Restricted Securities.
4. ADDITIONAL INTEREST
(a) If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the applicable filing deadline
specified for such filing, (ii) any such Registration Statement has not been
declared effective by the Commission on or prior to the date specified herein
for such effectiveness (the "EFFECTIVENESS TARGET DATE"), (iii) the Exchange
Offer has not been consummated within 30 days of the Effectiveness Target Date
with respect to such Exchange Offer Registration Statement or (iv) any
Registration Statement required by this Agreement is filed and declared
effective but shall thereafter cease to be effective or fail to be usable for
its intended purpose without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself declared effective immediately (each such event referred to in clauses
(i) through (iv), a "REGISTRATION DEFAULT"), then the Company and the Guarantors
hereby jointly and severally agree to pay to each Holder of Transfer Restricted
Securities affected thereby Additional Interest (the "ADDITIONAL INTEREST") in
an amount equal to $0.1925 per week per $1,000 in principal amount of Transfer
Restricted Securities held by such Holder for each week or portion thereof that
the Registration Default continues for the first 90-day period immediately
following the occurrence of such Registration Default. The amount of the
Additional Interest shall increase by an additional $0.1925 per week per $1,000
in principal amount of Transfer Restricted Securities with respect to each
subsequent 90-day period until all Registration Defaults have been cured, up to
a maximum amount of Additional Interest of $0.385 per week per $1,000 in
principal amount of Transfer Restricted Securities; PROVIDED that the Company
and the Guarantors shall in no event be required to pay Additional Interest for
more than one Registration Default at any given time. Notwithstanding anything
to the contrary set forth herein, (1) upon filing of the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (2) upon the effectiveness of the Exchange
Offer Registration Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (ii) above, (3) upon Consummation of the Exchange
Offer, in the case of (iii) above, or (4) upon the filing of a post-effective
amendment to the Registration Statement or an additional Registration Statement
that causes the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement) to again be declared effective or made usable
in the case of (iv) above, the Additional Interest
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payable with respect to the Transfer Restricted Securities as a result of such
clause (i), (ii), (iii) or (iv), as applicable, shall cease.
(b) The Company shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "EVENT DATE"). Additional Interest shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders
thereof, on or before the applicable semi-annual interest payment date,
immediately available funds in sums sufficient to pay the Additional Interest
then due to Holders of Notes with respect to which the Trustee serves. The
Additional Interest due shall be payable on each interest payment date to the
record Holder of Notes entitled to receive the interest payment to be paid on
such date as set forth in the Indenture. Each obligation to pay Additional
Interest shall be deemed to accrue on the applicable Event Date.
5. REGISTRATION PROCEDURES
In connection with the registration of any Transfer Restricted Securities
or Private Exchange Notes pursuant to Sections 2 or 3 hereof, the Company and
the Guarantors shall effect such registrations to permit the sale of such
Transfer Restricted Securities or Private Exchange Notes in accordance with the
intended method or methods of disposition thereof, and, pursuant thereto, the
Company and the Guarantors shall:
(a) Prepare and file with the Commission, as soon as practicable after the
date hereof but in any event prior to the Filing Date, a Registration Statement
or Registration Statements as prescribed by Section 2 or 3, and use its best
efforts to cause each such Registration Statement to become effective and remain
effective as provided herein; PROVIDED, that, if (1) such filing is pursuant to
Section 3, or (2) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell Exchange
Notes during the Applicable Period, before filing any Registration Statement or
Prospectus or any amendments or supplements thereto, the Company and the
Guarantors shall, if requested, furnish to and afford the Holders of the
Transfer Restricted Securities and each such Participating Broker-Dealer (the
"SELLING HOLDERS"), as the case may be, covered by such Registration Statement,
one special counsel for the Selling Holders (the "HOLDERS COUNSEL") and the
managing underwriters, if any, a reasonable opportunity to review copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (at least five
business days prior to such filing). The Company and the Guarantors shall not
file any Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an opportunity to
review prior to the filing of such document, if the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities covered by such
Registration Statement, or such Participating Broker-Dealer, as the case may be,
the Holders Counsel, or the managing underwriters, if any, shall reasonably
object.
(b) Use their respective best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the
period specified in Section 2 or 3 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 an untrue statement of material fact
or omit to state any material fact necessary to make the statements therein not
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misleading 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 Guarantors shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use their respective best efforts to cause such amendment to be
declared effective as soon as practicable.
(c) Prepare and file with the Commission such amendments and
post-effective amendments to each Shelf Registration Statement or Exchange Offer
Registration Statement, as the case may be, as may be necessary to keep such
Registration Statement continuously effective for the Effectiveness Period or
the Applicable Period, as the case may be; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act, the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder applicable to them with respect to the disposition of all securities
covered by such Registration Statement as so amended or in such Prospectus as so
supplemented and with respect to the subsequent resale of any securities being
sold by a Participating Broker-Dealer covered by any such Prospectus. The
Company and the Guarantors shall be deemed not to have used their respective
best efforts to keep a Registration Statement effective during the Applicable
Period if it voluntarily takes any action that would result in Selling Holders
of the Transfer Restricted Securities covered thereby or Participating
Broker-Dealers seeking to sell Exchange Notes not being able to sell such
Transfer Restricted Securities or such Exchange Notes during that period unless
such action is required by applicable law.
(d) If (l) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, the Company shall notify the selling Holders of Transfer
Restricted Securities, or each such Participating Broker-Dealer, as the case may
be, the Holders Counsel and the managing underwriters, if any, promptly (but in
any event within two business days), and confirm such notice in writing, (i)
when a Prospectus or any Prospectus supplement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective (including in such notice a
written statement that any Holder may, upon request, obtain, without charge, one
conformed copy of such Registration Statement or post-effective amendment
including financial statements and schedules, documents incorporated or deemed
to be incorporated by reference and exhibits), (ii) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus or the initiation of any proceedings for that purpose, (iii) if at
any time when a prospectus is required by the Securities Act to be delivered in
connection with sales of the Transfer Restricted Securities the representations
and warranties of the Company contained in any agreement (including any
underwriting agreement) contemplated by Section 5(p) below cease to be true and
correct, (iv) of the receipt by the Company of any notification with respect to
the suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Transfer Restricted Securities or the
Exchange Notes to be sold by any Participating Broker-Dealer for offer or sale
in any jurisdiction, or the initiation or threatening of any proceeding for such
purpose, (v) of the happening of any event or any
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information becoming known that makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement, Prospectus or
documents so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading, and that in the case of the Prospectus, it will not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (vi) of the
Company's reasonable determination that a post-effective amendment to a
Registration Statement would be appropriate.
(e) If (l) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, use their respective best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or of any
order preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Transfer
Restricted Securities or the Exchange Notes to be sold by any Participating
Broker-Dealer, for sale in any jurisdiction, and, if any such order is issued,
to use their respective best efforts to obtain the withdrawal of any such order
at the earliest possible moment.
(f) If a Shelf Registration Statement is filed pursuant to Section 3 and
if requested by the managing underwriters, if any, or the Holders of a majority
in aggregate principal amount of the Transfer Restricted Securities being sold
in connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, or such Holders or counsel reasonably request to
be included therein, (ii) make all required filings of such prospectus
supplement or such post-effective amendment as soon as practicable after the
Company has received notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment, and (iii) supplement or make
amendments to such Registration Statement.
(g) If (l) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, furnish to each selling Holder of Transfer Restricted
Securities and to each such Participating Broker-Dealer who so requests and to
the Holders Counsel and each managing underwriter, if any, without charge, one
conformed copy of the Registration Statement or Registration Statements and each
post-effective amendment thereto, including financial statements and schedules,
and, if requested, all documents incorporated or deemed to be incorporated
therein by reference and all exhibits.
(h) If (1) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, deliver to each selling Holder of Transfer
11
Restricted Securities or each such Participating Broker-Dealer, as the case may
be, their counsel, and the underwriters, if any, without charge, as many copies
of the Prospectus or Prospectuses (including each form of preliminary
prospectus) and each amendment or supplement thereto and any documents
incorporated by reference therein as such Persons may reasonably request; and,
subject to the last paragraph of this Section 5, the Company and the Guarantors
hereby consent to the use of such Prospectus and each amendment or supplement
thereto by each of the selling Holders of Transfer Restricted Securities or each
such Participating Broker-Dealer, as the case may be, and the underwriters or
agents, if any, and dealers (if any), in connection with the offering and sale
of the Transfer Restricted Securities covered by or the sale by Participating
Broker-Dealers of the Exchange Notes pursuant to such Prospectus and any
amendment or supplement thereto.
(i) Prior to any public offering of Transfer Restricted Securities or any
delivery of a Prospectus contained in the Exchange Offer Registration Statement
by any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use their respective best efforts to register or qualify,
and to cooperate with the selling Holders of Transfer Restricted Securities or
each such Participating Broker-Dealer, as the case may be, the underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such
Transfer Restricted Securities for offer and sale under the securities or Blue
Sky laws of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer, or the managing underwriters reasonably request in
writing; PROVIDED, that where Exchange Notes held by Participating
Broker-Dealers or Transfer Restricted Securities are offered other than through
an underwritten offering, the Company and the Guarantors agree to cause their
respective counsel to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(i); keep each
such registration or qualification (or exemption therefrom) effective during the
period such Registration Statement is required to be kept effective and do any
and all other acts or things reasonably necessary or advisable to enable the
disposition in such jurisdictions of the Exchange Notes held by Participating
Broker-Dealers or the Transfer Restricted Securities covered by the applicable
Registration Statement; PROVIDED, FURTHER, that neither the Company nor any
Guarantor shall be required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any action that would
subject it to general service of process in any such jurisdiction where it is
not then so subject or (C) subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction.
(j) If a Shelf Registration Statement is filed pursuant to Section 3,
cooperate with the selling Holders of Transfer Restricted Securities and the
managing underwriters, if any, to facilitate the timely preparation and delivery
of certificates representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends and shall be in a form
eligible for deposit with The Depository Trust Company; and enable such Transfer
Restricted Securities to be in such denominations and registered in such names
as the managing underwriters, if any, or Holders may reasonably request.
(k) Use their respective 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,
12
except as may be required solely as a consequence of the nature of such selling
Holder's business, in which case the Company and the Guarantors will cooperate
in all reasonable respects with the filing of such Registration Statement and
the granting of such approvals.
(l) If (l) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, upon the occurrence of any event contemplated by paragraph
5(d)(v) or 5(d)(vi) above, as promptly as practicable prepare and (subject to
Section 5(a) above) file with the Commission, at the expense of the Company, a
supplement or post-effective amendment to the Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed to
be incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Transfer Restricted
Securities being sold thereunder or to the purchasers of the Exchange Notes to
whom such Prospectus will be delivered by a Participating Broker-Dealer any such
Prospectus will not 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, in light of the circumstances under which they were made,
not misleading.
(n) Use their respective best efforts to cause the Transfer Restricted
Securities covered by a Registration Statement or the Exchange Notes, as the
case may be, to be rated with the appropriate rating agencies, if so requested
by the Holders of a majority in aggregate principal amount of Transfer
Restricted Securities covered by such Registration Statement or the Exchange
Notes, as the case may be, or the managing underwriters, if any.
(o) Prior to the effective date of the first Registration Statement
relating to the Transfer Restricted Securities, (i) provide the Trustee with
printed certificates for the Transfer Restricted Securities in a form eligible
for deposit with The Depository Trust Company and (ii) provide a CUSIP number
for the Transfer Restricted Securities.
(p) In the event of an underwritten offering of Transfer Restricted
Securities pursuant to a Shelf Registration Statement, enter into an
underwriting agreement as is customary in underwritten offerings and take all
such other actions as are reasonably requested by the managing underwriters in
order to expedite or facilitate the registration or the disposition of such
Transfer Restricted Securities, and in such connection, (i) make such
representations and warranties to the underwriters, with respect to the business
of the Company and its subsidiaries and the Registration Statement, Prospectus
and documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, as are customarily made by issuers to underwriters in
underwritten offerings, and confirm the same if and when requested; (ii) obtain
opinions of counsel to the Company and the Guarantors and updates thereof in
form and substance reasonably satisfactory to the managing underwriters,
addressed to the underwriters covering the matters customarily covered in
opinions requested in underwritten offerings and such other matters as may be
reasonably requested by underwriters; (iii) obtain "cold comfort" letters and
updates thereof in form and substance reasonably satisfactory to the managing
underwriters 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
13
are, or are required to be, included in the Registration Statement), addressed
to each of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings and such other matters as reasonably requested by
underwriters; and (iv) if an underwriting agreement is entered into, the same
shall contain indemnification provisions and procedures no less favorable than
those set forth in Section 7 hereof (or such other provisions and procedures
acceptable to Holders of a majority in aggregate principal amount of Transfer
Restricted Securities covered by such Registration Statement and the managing
underwriters or agents) with respect to all parties to be indemnified pursuant
to said Section. The above shall be done at each closing under such underwriting
agreement, or as and to the extent required thereunder.
(q) If (l) a Shelf Registration Statement is filed pursuant to Section 3,
or (2) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, make available for inspection by any selling Holder of such
Transfer Restricted Securities being sold, or each such Participating
Broker-Dealer, as the case may be, any underwriter participating in any such
disposition of Transfer Restricted Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or each such
Participating Broker-Dealer, as the case may be, or underwriter (collectively,
the "INSPECTORS"), at the offices where normally kept, during reasonable
business hours, all financial and other records, pertinent corporate documents
and properties of the Company, the Guarantors and their respective subsidiaries
(collectively, the "RECORDS") as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities, and cause the officers,
directors and employees of the Company, the Guarantors and their respective
subsidiaries to supply all information in each case reasonably requested by any
such Inspector in connection with such Registration Statement. Records which the
Company determines, in good faith, to be confidential and any Records which it
notifies the Inspectors are confidential shall not be disclosed by the
Inspectors unless (i) the disclosure of such Records is necessary to avoid or
correct a misstatement or omission in such Registration Statement, (ii) the
release of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or (iii) the information in such Records has
been made generally available to the public. Each selling Holder of such
Transfer Restricted Securities and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Company unless and
until such is made generally available to the public. Each selling Holder of
such Transfer Restricted Securities and each such Participating Broker-Dealer
will be required to further agree that it will, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to the
Company and allow the Company to undertake appropriate action to prevent
disclosure of the Records deemed confidential at their expense.
(r) Provide an indenture trustee for the Transfer Restricted Securities or
the Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(a), as the case may be, to be qualified
under the TIA not later than the effective date of the Exchange Offer or the
first Registration Statement relating to the Transfer Restricted Securities; and
in connection therewith, cooperate with the trustee under any such indenture and
the Holders of the Transfer Restricted Securities, to effect such changes to
such indenture as may
14
be required for such indenture to be so qualified in accordance with the terms
of the TIA; and execute, and use its best efforts to cause such trustee to
execute, all documents as may be required to effect such changes, and all other
forms and documents required to be filed with the Commission to enable such
indenture to be so qualified in a timely manner.
(s) Comply with all applicable rules and regulations of the Commission and
make generally available to its securityholders earnings statements satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder
(or any similar rule promulgated under the Securities Act) no later than 45 days
after the end of any 12-month period (or 90 days after the end of any 12-month
period if such period is a fiscal year) (i) commencing at the end of any fiscal
quarter in which Transfer Restricted Securities are sold to underwriters in a
firm commitment or best efforts underwritten offering and (ii) if not sold to
underwriters in such an offering, commencing on the first day of the first
fiscal quarter of the Company after the effective date of a Registration
Statement, which statements shall cover said 12-month periods.
(t) Upon consummation of an Exchange Offer or a Private Exchange, obtain
an opinion of counsel to the Company and the Guarantors addressed to the Trustee
for the benefit of all Holders of Transfer Restricted Securities participating
in the Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i)(A) the Company and the Guarantors have duly
authorized, executed and delivered the Exchange Notes and Private Exchange Notes
and the related indenture, and (ii) each of the Exchange Notes or the Private
Exchange Notes, as the case may be, and related indenture constitute a legal,
valid and binding obligation of the Company and the Guarantors, enforceable
against the Company and the Guarantors in accordance with its respective terms
(with customary exceptions).
(u) If an Exchange Offer or a Private Exchange is to be consummated, upon
delivery of the Transfer Restricted Securities by Holders to the Company (or to
such other Person as directed by the Company) in exchange for the Exchange Notes
or the Private Exchange Notes, as the case may be, the Company shall xxxx, or
cause to be marked, on such Transfer Restricted Securities that such Transfer
Restricted Securities are being cancelled in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be; in no event shall such Transfer
Restricted Securities be marked as paid or otherwise satisfied.
(v) Cooperate with each seller of Transfer Restricted Securities covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Transfer Restricted Securities and their respective counsel
in connection with any filings required to be made with the National Association
of Securities Dealers, Inc. (the "NASD").
(w) Use their respective best efforts to take all other steps necessary to
effect the registration of the Transfer Restricted Securities covered by a
Registration Statement contemplated hereby.
(x) If, following the date hereof there has been announced a change in
Commission policy with respect to exchange offers such as the Exchange Offer,
that in the reasonable opinion of counsel to the Company raises a substantial
question as to whether the Exchange Offer is permitted by applicable federal
law, seek a no-action letter or other favorable decision from the Commission
allowing the Company to consummate an Exchange Offer for such Transfer
15
Restricted Securities. The Company and the Guarantors hereby agree to pursue the
issuance of such a decision to the Commission staff level. In connection with
the foregoing, the Company and the Guarantors hereby agree to take all such
other actions as may be requested by the Commission or otherwise required in
connection with the issuance of such decision, including without limitation (A)
participating in telephonic conferences with the Commission, (B) delivering to
the Commission staff an analysis prepared by counsel to the Company and the
Guarantors setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C) diligently
pursuing a resolution (which need not be favorable) by the Commission staff.
The Company may require each seller of Transfer Restricted Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Company such information regarding such seller or Participating
Broker-Dealer and the distribution of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, as the Company may, from time to time, reasonably request including, without
limitation, a written representation to the Company (which may be contained in
the letter of transmittal contemplated by the Exchange Offer Registration
Statement or Shelf Registration Statement, as applicable) stating that (A) it is
not an affiliate of the Company, (B) the amount of Transfer Restricted
Securities held by such Holder prior to the Exchange Offer, (C) the amount of
Transfer Restricted Securities owned by such Holder to be exchanged in the
Exchange Offer and representing that such Holder is not engaged in. and does not
intend to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued and (D) it is
acquiring the Exchange Notes in its ordinary course of business. The Company may
exclude from such registration the Transfer Restricted Securities of any seller
or Participating Broker-Dealer who unreasonably fails to furnish such
information within a reasonable time after receiving such request.
Each Holder of Transfer Restricted Securities and each Participating
Broker-Dealer agrees by acquisition of such Transfer Restricted Securities or
Exchange Notes to be sold by such Participating Broker-Dealer, as the case may
be, that, upon receipt of any notice from the Company of the happening of any
event of the kind described in Section 5(d)(ii), 5(d)(iv), 5(d)(v), or 5(d)(vi),
such Holder will forthwith discontinue disposition of such Transfer Restricted
Securities covered by such Registration Statement or Prospectus or Exchange
Notes to be sold by such Participating Broker-Dealer, as the case may be, until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 5(l), or until it is advised in writing (the "ADVICE")
by the Company that the use of the applicable Prospectus may be resumed, and has
received copies of any amendments or supplements thereto. In the event the
Company shall give any such notice, each of the Effectiveness Period and the
Applicable Period shall be extended by the number of days during such periods
from and including the date of the giving of such notice to and including the
date when each seller of Transfer Restricted Securities covered by such
Registration Statement or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, shall have received (x) the copies of the
supplemented or amended Prospectus contemplated by Section 5(l) or (y) the
Advice.
16
6. REGISTRATION EXPENSES
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Company and the Guarantors shall be borne by the
Company, whether or not the Exchange Offer or a Shelf Registration Statement is
filed or becomes effective, including, without limitation, (i) all registration
and filing fees (including, without limitation, (A) fees with respect to filings
required to be made with the NASD in connection with an underwritten offering
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without limitation, reasonable fees and disbursements of its counsel
in connection with Blue Sky qualifications of the Transfer Restricted Securities
or Exchange Notes and determination of the eligibility of the Transfer
Restricted Securities or Exchange Notes for investment under the laws of such
jurisdictions (x) where the Holders of Transfer Restricted Securities are
located, in the case of the Exchange Notes, or (y) as provided in Section 5(i),
in the case of Transfer Restricted Securities or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses (A) of printing certificates
for the Notes in a form eligible for deposit with The Depository Trust Company
and (B) of printing prospectuses if the printing of prospectuses is requested by
(I) the managing underwriters, if any, or, (II) in respect of Notes to be sold
by any Participating Broker-Dealer during the Applicable Period, by the Holders
of a majority in aggregate principal amount of the Notes included in any
Registration Statement), (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company and fees and disbursements of
the Holders Counsel (subject to the provisions of Section 6(b)), (v) fees and
all independent certified public accountants referred to in Section 5(p)(iii)
(including, without limitation, the expenses of any special audit and cold
comfort" letters required by or incident to such performance), (vi) the fees and
expenses of any "qualified independent underwriter" or other independent
appraiser participating in an offering pursuant to the rules and regulations of
the NASD, (vii) rating agency fees, (viii) Securities Act liability insurance,
if the Company or any Guarantor desires such insurance, (ix) fees and expenses
of all other Persons retained by the Company and/or the Guarantors, (x) internal
expenses of the Company and the Guarantors (including, without limitation, all
salaries and expenses of officers and employees of the Company or any Guarantor
performing legal or accounting duties), (xi) the expense of any annual or
special audit, (xii) the fees and expenses incurred in connection with the
listing of the securities to be registered on any securities exchange and (xiii)
the expenses relating to printing, word processing and distributing all
Registration Statements, underwriting agreements, securities sales agreements,
indentures and any other documents necessary in order to comply with this
Agreement.
(b) In connection with any Shelf Registration Statement hereunder, the
Company and the Guarantors shall reimburse the Holders of the Transfer
Restricted Securities being registered in such registration for the fees and
disbursements of the Holders' Counsel (in addition to appropriate local counsel)
chosen by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities to be included in such Registration Statement and
other out-of-pocket expenses of the Holders of Transfer Restricted Securities
incurred in connection with the registration of the Transfer Restricted
Securities.
17
7. INDEMNIFICATION
(a) The Company and the Guarantors, jointly and severally, will indemnify
and hold harmless each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
the directors, officers, employees and agents of each person, and each person,
if any, who controls any such person within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act (each a "PARTICIPANT") from and
against any and all losses, claims, liabilities, expenses and damages (including
any and all investigative, legal and other expenses reasonably incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claim asserted), to which they, or any of them, may become
subject under the Securities Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or any amendment or supplement thereto or
any preliminary prospectus or the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make the
statements in it not misleading; PROVIDED, that a Participant will not be
entitled to any such indemnification hereunder to the extent that such loss,
claim, liability, expense or damage arises from and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to such Participant furnished in
writing to the Company by such Participant expressly for inclusion therein or in
the case of a Participating Broker-Dealer, if the person asserting any such
loss, claim, liability, expense or damage purchased the Exchange Notes from such
Participating Broker-Dealer but was not sent or given a copy of the Prospectus
at or prior to the written confirmation of the sale of Exchange Notes to such
person and such untrue statement or omission or alleged untrue statement or
omission was cured in the Prospectus.
(b) Each Participant, severally and not jointly, will indemnify and hold
harmless the Company and the Guarantors, each person, if any, who controls the
Company or the Guarantors, within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, each director and officer of the Company
and the Guarantors to the same extent as the foregoing indemnity from the
Company and the Guarantors to each Participant, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to such Participant furnished in
writing to the Company by such Participant expressly for use in any Registration
Statement or Prospectus or any amendment or supplement thereto or any
preliminary prospectus. The liability of any Participant under this paragraph
shall in no event exceed the proceeds received by such Participant from sales of
Transfer Restricted Securities giving rise to such obligations.
(c) Any party that proposes to assert the right to be indemnified under
this Section 7 will, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of
18
substantive rights or defenses by the indemnifying party. If any such action is
brought against any indemnified party and it notifies the indemnifying party of
its commencement, the indemnifying party will be entitled to participate in and,
to the extent that it elects by delivering written notice to the indemnified
party promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel satisfactory to the
indemnified party and after notice from the indemnifying party to the
indemnified party of its election to assume the defense, the indemnifying party
will not be liable to the indemnified party for any legal or other expenses
except as provided below and except for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
The indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at the
expense of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party, (2)
the indemnified party has reasonably concluded (based on advice of counsel) that
there may be legal defenses available to it or other indemnified parties that
are different from or in addition to those available to the indemnifying party,
(3) a conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, in
each of which cases the reasonable fees, disbursements and other charges of
counsel will be at the expense of the indemnifying party or parties. It is
understood that the indemnifying party or parties shall not, in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one separate
firm admitted to practice in such jurisdiction at any one time for all such
indemnified party or parties. All such fees, disbursements and other charges
will be reimbursed by the indemnifying party promptly as they are incurred. An
indemnifying party will not be liable for any settlement of any action or claim
effected without its written consent (which consent will not be unreasonably
withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Company or the Guarantors or any
Participant, the Company and the Guarantors on the one hand and each Participant
on the other hand will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claim asserted, but after deducting any
contribution received by the Company and the Guarantors from persons other than
a Participant, such as persons who control the Company or the Guarantors within
the meaning of the Securities Act, officers and directors of the Company and the
Guarantors, who also may be liable for contribution) to which the Company and
the Guarantors and each Participant may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Guarantors on the one hand and each Participant on the other. The relative
benefits received by the Company and the Guarantors on the one hand and each
Participant on the other shall be deemed to be equal to (i) with respect to the
Company and the Guarantors, the total net proceeds from the initial offering
(before deducting expenses) received by the Company, (ii) with respect to the
Initial Purchasers in such
19
offering, the total purchase discount and commissions, (iii) with respect to any
other Holder of Transfer Restricted Securities, the value of such Notes and (iv)
with respect to any underwriter, the total underwriting discounts and
commissions with respect to such underwriting, in each case of clauses (i), (ii)
or (iv), as set forth on the cover page of the applicable offering memorandum or
prospectus. If, but only if, the allocation provided by the foregoing sentence
is not permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative benefits
referred to in the foregoing sentence but also the relative fault of the Company
and the Guarantors on the one hand and each Participant on the other, with
respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any other
relevant equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Guarantors, on the
one hand, or a Participant, on the other hand, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company, the Guarantors and each
Participant agree that it would not be just and equitable if contributions
pursuant to this Section 7(d) were to be determined by pro rata allocation or by
any other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, liability, expense or damage, or action in
respect thereof, referred to above in this Section 7(d) shall be deemed to
include, for purpose of this Section 7(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 7(d), a Participant shall not be required to contribute any amount in
excess of the amount by which proceeds received by such Participant from sales
of Transfer Restricted Securities exceeds the amount of any damages that such
Participant has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and no person found
guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of
the Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this Section 7(d),
any person who controls a party to this Agreement within the meaning of the
Securities Act will have the same rights to contribution as that party, and each
officer of the Company and the Guarantors will have the same rights to
contribution as the Company and the Guarantors, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after receipt of
notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 7(d), will notify any such
party or parties from whom contribution may be sought, but the omission so to
notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 7(d). No
party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably
withheld).
(e) The indemnity and contribution agreements contained in this Section 7
will be in addition to any liability which the indemnifying persons may
otherwise have to the indemnified persons referred to above.
20
8. RULES 144 AND 144A
The Company and each Guarantor covenants that it will file the reports
required to be filed by it under the Securities Act and the Exchange Act and the
rules and regulations adopted by the Commission thereunder in a timely manner
and, if at any time the Company or such Guarantor is not required to file such
reports, it will, upon the request of any Holder of Transfer Restricted
Securities, make publicly available other information so long as necessary to
permit sales pursuant to Rule 144 and Rule 144A under the Securities Act. The
Company and each Guarantor further covenants that it will take such further
action as any Holder of Transfer Restricted Securities may reasonably request,
all to the extent required from time to time to enable such Holder to sell
Transfer Restricted Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 and Rule 1 44A
under the Securities Act, as such Rules may be amended from time to time, or (b)
any similar rule or regulation hereafter adopted by the Commission.
9. UNDERWRITTEN REGISTRATIONS
If any of the Transfer Restricted Securities covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
investment banker or investment bankers and manager or managers that will manage
the offering will be selected by the Holders of a majority in aggregate
principal amount of such Transfer Restricted Securities included in such
offering and reasonably acceptable to the Company.
No Holder of Transfer Restricted Securities 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 questionnaires, powers of
attorney, indemnities, underwriting agreements and other documents required
under the terms of such underwriting arrangements.
10. MISCELLANEOUS
(a) REMEDIES. In the event of a breach by the Company and/or any Guarantor
of any of its obligations under this Agreement, each Holder of Transfer
Restricted Securities, in addition to being entitled to exercise all rights
provided herein, in the Indenture or, in the case of the Initial Purchasers, in
the Purchase Agreement or granted by law, including recovery of damages, will be
entitled to specific performance of its rights under this Agreement. The Company
and the Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor any Guarantor has,
as of the date hereof, and the Company and the Guarantors shall not, after the
date of this Agreement, enter into any agreement with respect to any of its
securities that is inconsistent with the rights granted to the Holders of
Transfer Restricted Securities in this Agreement or otherwise conflicts with the
provisions hereof. Neither the Company nor any Guarantor has entered or will
enter
21
into any agreement with respect to any of its securities which will grant to any
Person piggy-back rights with respect to a Registration Statement.
(c) ADJUSTMENTS AFFECTING TRANSFER RESTRICTED SECURITIES. Neither the
Company nor any Guarantor shall, directly or indirectly, take any action with
respect to the Transfer Restricted Securities as a class that would adversely
affect the ability of the Holders of Transfer Restricted Securities to include
such Transfer Restricted Securities in a registration undertaken pursuant to
this Agreement.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of Holders of at
least a majority of the then outstanding aggregate principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Transfer Restricted Securities whose
securities are being sold pursuant to a Registration Statement and that does not
directly or indirectly affect, impair, limit or compromise the rights of other
Holders of Transfer Restricted Securities may be given by Holders of at least a
majority in aggregate principal amount of the Transfer Restricted Securities
being sold by such Holders pursuant to such Registration Statement; PROVIDED,
that the provisions of this sentence may not be amended, modified or
supplemented except in accordance with the provisions of the immediately
preceding sentence.
(e) NOTICES. All notices and other communications (including without
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier.
(i) if to a Holder of Transfer Restricted Securities, at the most
current address given by the Trustee to the Company; and
22
(ii) if to the Company or the Guarantors, at:
Anchor Gaming
000 Xxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
with copies to:
Xxxxxx & Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxxxxx, Esq.
and
Xxxxxx, Xxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
All such notices and communications shall be deemed to have been duty
given: when delivered by hand, if personally delivered; five business days after
being deposited in the postage prepaid, if mailed; one business day after being
timely delivered to a next-day air courier; and when receipt is acknowledged by
the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the trustee under the
Indenture at the address specified in such 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 and without the need for an express assignment, subsequent
Holders of Transfer Restricted Securities; PROVIDED, that with respect to the
indemnity and contribution agreements in Section 7, each Holder of Transfer
Restricted Securities subsequent to the Initial Purchasers shall be bound by the
terms thereof if (i) such Holder elects to include Transfer Restricted
Securities in a Shelf Registration Statement and (ii) such Holder is advised
expressly by the Company of the provisions contained in Section 7 and that such
Holder's election to include Transfer Restricted Securities in a Shelf
Registration Statement shall be deemed such Holder's agreement to be bound by
such provisions.
(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.
23
(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, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) SEVERABILITY. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ alternative means to achieve the same or
substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.
(k) ENTIRE AGREEMENT. This Agreement, together with the Purchase
Agreement, the Notes and the Indenture, is intended by the parties as a final
expression of their agreement, and is 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 and therein.
(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 or its
affiliates (as such term is defined in Rule 405 under the Securities Act) shall
not be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
(m) GUARANTORS TO BECOME PARTIES. The Company shall cause each Person that
becomes a "Guarantor" under the Indenture to execute and deliver a joinder
agreement substantially in the form of Exhibit A attached hereto.
24
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
ANCHOR GAMING
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------------
Name: XXXXXX X. XXXXXXXX
-----------------------------------------
Title: PRESIDENT AND CHIEF EXECUTIVE OFFICER
-----------------------------------------
ANCHOR COIN
ANCHOR NATIVE AMERICAN GAMING CORPORATION
ANCHOR PALA DEVELOPMENT LLC
ANCHOR PALA MANAGEMENT LLC
AUTOMATED WAGERING INTERNATIONAL, INC.
C.G. INVESTMENTS, INC.
DD STUD, INC.
DYNATOTE OF PENNSYLVANIA, INC.
GREEN MOUNTAIN ENTERTAINMENT, INC.
NUEVO SOL TURF CLUB, INC.
POWERHOUSE TECHNOLOGIES, INC.
RAVEN'S D&R MUSIC SYSTEMS, INC.
UNITED TOTE COMPANY
UNITED WAGERING SYSTEMS, INC.
VLC, INC.
VLC OF NEVADA, INC.
as Guarantors
By: /s/ XXXXXX X. XXXXXXXX
-------------------------------------------
Name: XXXXXX X. XXXXXXXX
-----------------------------------------
Title AUTHORIZED SIGNATORY
-----------------------------------------
25
BANC OF AMERICA SECURITIES LLC,
as Representative for the Initial Purchasers
By: /s/ R. XXXX XXXXXX
-----------------------------------------
Name: R. XXXX XXXXXX
-----------------------------------------
Title: VICE PRESIDENT
-----------------------------------------
26
SCHEDULE A
GUARANTORS
Anchor Coin
Anchor Native American Gaming Corporation
Anchor Pala Development LLC
Anchor Pala Management LLC
Automated Wagering International, Inc.
C.G. Investments, Inc.
DD Stud, Inc.
Dynatote of Pennsylvania, Inc.
Green Mountain Entertainment, Inc.
Nuevo Sol Turf Club, Inc.
Powerhouse Technologies, Inc.
Raven's D&R Music Systems, Inc.
United Tote Company
United Wagering Systems, Inc.
VLC, Inc.
VLC of Nevada, Inc.
SCHEDULE B
INITIAL PURCHASERS
Banc of America Securities LLC
Xxxxxx Brothers Inc.
Xxxxxxxxxxx Xxxxxxx Securities, Inc.
Bear, Xxxxxxx & Co. Inc.
CIBC World Markets Corp.
Deutsche Banc Securities Inc.
Scotia Capital Markets (USA) Inc.
Xxxxx Fargo Brokerage Services, LLC
EXHIBIT A
Form of Joinder Agreement
JOINDER AGREEMENT, dated as of ____________, 2000 (this "Joinder
Agreement"), by each of the undersigned, pursuant to Section 10(m) of the
Registration Rights Agreement, dated as of October 17, 2000 (as amended,
supplemented or otherwise modified from time to time, the "Registration Rights
Agreement"), among Anchor Gaming, the Guarantors named therein and Banc of
America Securities LLC, as representative for the Initial Purchasers (as defined
therein). Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to such terms in the Registration Rights Agreement.
Each of the undersigned acknowledges that it has received and reviewed a
copy of the Registration Rights Agreement and acknowledges and agrees that,
pursuant to this Joinder Agreement, it hereby becomes a party to the
Registration Rights Agreement as a Guarantor and is bound by all the covenants,
agreements and representations, warranties and acknowledgements applicable to a
Guarantor therein.
This Joinder Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York, without regard to the principles of
conflicts of laws thereof.
IN WITNESS WHEREOF, each of the undersigned has caused this Joinder
Agreement to be duly executed and delivered by its proper and duly authorized
officer as of the date set forth below.
[New Guarantor]
By:
-----------------------------------
Name:
-----------------------------------
Title:
--------------------------------
2
