Exhibit 4.7
REGISTRATION RIGHTS AGREEMENT
dated as of March 5, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ JOINT VENTURE
and
SILVER LEGACY CAPITAL CORP.
as Issuers
and
BANC OF AMERICA SECURITIES LLC,
as Representative for the Initial Purchasers
TABLE OF CONTENTS
1. Definitions .................................................... 1
2. Exchange Offer ................................................. 4
3. Shelf Registration ............................................. 7
4. Liquidated Damages ............................................. 8
5. Registration Procedures ........................................ 9
6. Registration Expenses .......................................... 17
7. Indemnification ................................................ 18
8. Rules 144 and 144A ............................................. 21
9. Underwritten Registrations ..................................... 21
10. Miscellaneous .................................................. 22
This Registration Rights Agreement (the "Agreement") is dated
as of March 5, 2002, by and between Circus and Eldorado Joint Venture, a Nevada
general partnership (the "Partnership"), and Silver Legacy Capital Corp., a
Nevada corporation ("Capital"), as the issuers ("Issuers"), and Banc of America
Securities LLC, as representative ("Representative") for the initial purchasers
listed on Schedule A of the Purchase Agreement (as defined below)(the "Initial
Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of February 22, 2002, between the Issuers and the
Representative, on behalf of the Initial Purchasers (the "Purchase Agreement"),
relating to the sale by the Issuers to the Initial Purchasers of $160,000,000
aggregate principal amount of the Issuers' 10 1/8% Mortgage Notes due 2012 (the
"Notes"). In order to induce the Representative, on behalf of the Initial
Purchasers, to enter into the Purchase Agreement, the Issuers have 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' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. DEFINITIONS
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As used in this Agreement, the following terms shall have the
following meanings:
"Advice": See Section 5.
"Applicable Period": See Section 2.
"Capital": See the introductory paragraphs to this Agreement.
"Closing Date": The closing of the offering of the Notes to
the Initial Purchasers.
"Commission": The United States Securities and Exchange
Commission.
"Effectiveness Date": The 150/th/ day after the Closing Date.
"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 60/th/ day after the Closing Date.
"Holder": Any holder of Transfer Restricted Securities.
"Holders Counsel": See Section 5.
"Indenture": The Indenture, dated as of March 5, 2002, between
the Issuers and The Bank of New York, 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.
"Issuers": See the introductory paragraph to this Agreement.
"Liquidated Damages": See Section 4.
"NASD": See Section 5.
"Notes": See the introductory paragraphs to this Agreement.
"Participant": See Section 7.
"Participating Broker-Dealer": See Section 2.
"Partnership": See the introductory paragraph to this
Agreement.
"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
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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.
"Registration Default": See Section 4.
"Registration Statement": Any registration statement of the
Issuers, including, but not limited to, the Exchange Offer Registration
Statement, that covers the distribution of 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.
"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 Effectiveness Date": See Section 3.
"Shelf Notice": See Section 2.
"Shelf Registration Statement": See Section 3.
"Subsequent Shelf Registration Statement": See Section 3.
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"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;
(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;
(iv) the date on which such Note is distributed to the
public pursuant to Rule 144 under the Securities Act; or
(v) the date on which such Note can be sold pursuant to
paragraph (k) of Rule 144 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 Issuers are sold to an underwriter for
reoffering to the public.
2. EXCHANGE OFFER
--------------
(a) The Issuers 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") for any and all of the Transfer
Restricted Securities a like aggregate principal amount of debt securities of
the Issuers, 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 Issuers will commence the Exchange Offer and use their best efforts
to (x) cause the Exchange Offer Registration Statement to be 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
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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 and not validly withdrawn. 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 Exchange Notes,
and that such Holder is not an affiliate of either Issuer 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 Issuer shall have any further obligation to register Transfer
Restricted Securities (other than Private Exchange Notes) pursuant to Section 3
of this Agreement.
(b) The Issuers 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 13d-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 Issuers shall use their 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 180 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, any Initial Purchaser holds any Notes acquired by it and having the
status as an unsold allotment in the initial distribution, the Issuers, upon the
request of the Initial Purchaser, shall issue and deliver to such Initial
Purchaser, in exchange (the "Private Exchange") for such Notes held by such
Initial Purchaser, a like principal amount of debt securities of the Issuers
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
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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 Issuers 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 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 Issuers 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 Issuers prior to the 20/th/ 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 Issuers or an affiliate of either Issuer
or (iii) the Exchange Offer is commenced and not
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consummated within 180 days after the Closing Date for any reason, then the
Issuers shall promptly deliver to the Holders and the Trustee written notice
thereof (the "Shelf Notice") and 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 Issuers
shall have satisfied their obligations, if any, pursuant to Section 5(w) below),
the Issuers shall not have any further obligation to conduct the Exchange Offer
or the Private Exchange under this Section 2.
3. Shelf Registration
------------------
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Initial Shelf Registration Statement. The Issuers 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 Issuers
shall use their best efforts to file such Initial Shelf Registration Statement
with the Commission as promptly as practicable after such obligation arises and
to cause the Shelf Registration Statement to be declared effective by the
Commission on or prior to 90 days after such obligation arises (the "Shelf
Effectiveness Date"). The Initial Shelf Registration Statement shall be on Form
S-3 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). The Issuers shall not 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 Issuers in writing, within 15 business days after receipt of a
request therefor, such information as the Issuers 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 Liquidated Damages 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 Issuers all information to
be disclosed in order to make the information previously furnished to the
Issuers by such Holder not materially misleading. The Issuers shall use their
best efforts to cause the Initial Shelf Registration Statement to be declared
effective under the Securities Act on or prior to the Shelf Effectiveness Date
and to keep the Initial Shelf Registration Statement continuously effective
under the Securities Act until the date which is 24 months from the date that
the Initial Shelf Registration Statement is declared 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.
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(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 or all
of the securities registered thereunder are sold pursuant to Rule 144(k) under
the Securities Act), the Issuers shall use their 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 Shelf Registration Statement is filed, the Issuers shall use their
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 or such 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. 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 Issuers 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. LIQUIDATED DAMAGES
------------------
(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 where a specific deadline is specified, (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 Issuers hereby
8
agree to pay, jointly and severally, to each Holder of Transfer Restricted
Securities affected thereby liquidated damages (the "Liquidated Damages") in an
amount equal to $.05 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
Liquidated Damages shall increase by an additional $.05 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 Liquidated Damages of $.25 per week per $1,000 in principal
amount of Transfer Restricted Securities; provided that the Issuers shall in no
event be required to pay Liquidated Damages 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 Liquidated
Damages 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 Issuers shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Liquidated Damages 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 Liquidated Damages
then due to Holders of Notes with respect to which the Trustee serves. The
Liquidated Damages 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 Liquidated
Damages shall be deemed to accrue on the applicable Event Date. The amount of
Liquidated Damages will be determined by multiplying the applicable Liquidated
Damages rate by a fraction, the numerator of which is the principal amount of
the Notes and the denominator of which is $1,000, and further multiplying such
product by a fraction, the numerator of which is the number of days such
Liquidated Damages rate was applicable during such period and the denominator of
which is 7.
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
Issuers 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 Issuers
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
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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 Issuers 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 5 business days prior to such filing). The
Issuers 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 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
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the Issuers
shall file promptly an appropriate amendment to such Registration Statement
curing such defect, and, if Commission review is required, use its 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 it 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
Issuers shall be deemed not to have used their best efforts to keep a
Registration Statement effective during the Applicable Period if they
voluntarily take 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.
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(d) 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, the Issuers shall notify the Selling Holders, 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 Issuers
contained in any agreement (including any underwriting agreement) contemplated
by Section 5(o) below cease to be true and correct, (iv) of the receipt by the
Issuers 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 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 Issuers' reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate.
(e) 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, use their 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 its 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)
11
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 Issuers have 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 (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, furnish to each Selling Holder 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, 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 Issuers hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the Selling Holders, 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 best efforts to register or qualify,
and to cooperate with the Selling Holders, 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 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 Issuers agree to cause
their 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 the Issuers shall not be
required to (A) qualify generally to do business in any jurisdiction where it is
12
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 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, except as may be required
solely as a consequence of the nature of such selling Holder's business, in
which case the Issuers will cooperate in all reasonable respects with the filing
of such Registration Statement and the granting of such approvals.
(l) 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, 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 Issuers, 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.
(m) Use their 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.
(n) 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.
13
(o) 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 each Issuer 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 Issuers 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 Issuers (and, if necessary, any
other independent certified public accountants of any subsidiary of either
Issuer or of any business acquired by such Issuer for which financial statements
and financial data 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 the Issuers and 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.
(p) 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, make available for inspection by any Selling Holder, 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 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 either Issuer and
its 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 such Issuer and its subsidiaries
to supply all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement. Records which such
Issuer 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
14
Records has been made generally available to the public. Each Selling Holder
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 Issuers unless and
until such is made generally available to the public. Each Selling Holder 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
Issuers and allow the Issuers to undertake appropriate action to prevent
disclosure of the Records deemed confidential at their expense.
(q) 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 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.
(r) 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 Issuers after the effective date of a
Registration Statement, which statements shall cover said 12-month periods.
(s) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuers 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) each Issuer has 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 such
Issuer, enforceable against such Issuer in accordance with its respective terms
(with customary exceptions).
(t) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Transfer Restricted Securities by Holders to the Issuers
(or to such other Person as directed by the Issuers) in exchange for the
Exchange Notes or the Private Exchange Notes, as the case may be, the Issuers
shall ▇▇▇▇, 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.
15
(u) 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").
(v) 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 hereby.
(w) 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 Issuers 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 Issuers to consummate an Exchange Offer for such Transfer
Restricted Securities. The Issuers hereby agree to pursue the issuance of such a
decision to the Commission staff level. In connection with the foregoing, the
Issuers 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 Issuers 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 by the Commission staff.
The Issuers may require each seller of Transfer Restricted Securities
or Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers 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 Issuers may, from time to time, reasonably request including, without
limitation, a written representation to the Issuers (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 either Issuer, (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 Issuers may
exclude from such registration the Transfer Restricted Securities of any seller
or Participating Broker-Dealer who unreasonably fails to furnish such
information within 20 business days 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 Issuers 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 the use of any applicable Prospectus and
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
16
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 Issuers that the use of the applicable Prospectus may be
resumed, and has received copies of any amendments or supplements thereto. In
the event the Issuers 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.
6. REGISTRATION EXPENSES
---------------------
(a) All fees and expenses incident to the performance of or compliance
with this Agreement by the Issuers shall be borne, jointly and severally by the
Issuers, 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 Issuers 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(o)(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 Issuers desires such insurance, (ix) fees and expenses of all other
Persons retained by the Issuers, (x) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers 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.
17
(b) In connection with any Shelf Registration Statement hereunder, the
Issuers shall, jointly and severally, 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.
7. INDEMNIFICATION
---------------
(a) The Issuers will, jointly and severally, 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 Issuers 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 will indemnify and hold harmless each Issuer, each
person, if any, who controls such Issuer within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each director or member of the
executive committee of such Issuer and each officer, employee and agent of such
Issuer to the same extent as the foregoing indemnity from the Issuers 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 Issuers 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
18
giving rise to such obligations. Notwithstanding anything to the contrary
contained herein, the indemnification agreement contained in this Section 7(b)
with respect to any preliminary prospectus shall not inure to the benefit of any
Participant if the untrue statement or omission of material fact contained in
the preliminary prospectus was corrected on a timely basis in the Prospectus, as
then amended or supplemented, and the Issuers advised such Participant of such
untrue statement or omission of material fact and provided such Participant with
a corrected version of the Prospectus.
(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 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).
19
(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 either Issuer or any Participant, such
Issuer and each Participant 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 such Issuer from persons other than a
Participant, such as persons who control such Issuer within the meaning of the
Securities Act, officers of such Issuer and directors of such Issuer, who also
may be liable for contribution) to which such Issuer and each Participant may be
subject in such proportion as is appropriate to reflect the relative benefits
received by such Issuer on the one hand and each Participant on the other. The
relative benefits received by each Issuer on the one hand and each Participant
on the other shall be deemed to be equal to (i) with respect to such Issuer, the
total net proceeds from the initial offering (before deducting expenses)
received by such Issuer, (ii) with respect to the initial purchaser in such
offering, the total purchase discount and commissions, (iii) with respect to any
other Holder of Transfer Restricted Securities, the proceeds received upon the
sale of the Notes giving rise to the indemnification obligation 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 each Issuer
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 either Issuer or a Participant, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. Each Issuer and each Participant
shall 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
20
director, executive committee member, officer, employee or agent of each Issuer
will have the same rights to contribution as such Issuer, 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.
8. RULES 144 AND 144A
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Each Issuer 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 such Issuer 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. Such Issuer 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 144A 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 Issuers.
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.
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10. MISCELLANEOUS
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(a) Remedies. In the event of a breach by either Issuer of any of its
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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. Each Issuer agrees 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 Issuer has, as of the date
--------------------------
hereof, and neither Issuer shall, 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 Issuer has
entered or will enter 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
----------------------------------------------------
Issuer 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 Issuers have 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
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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 Issuers; and
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(ii) if to the Issuers, at:
Circus and Eldorado Joint Venture
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Silver Legacy Capital Corp.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
with copies to:
Wolf, Block, ▇▇▇▇▇▇ and ▇▇▇▇▇-▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
and
▇▇▇▇▇▇▇▇ Carano ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, 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 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 such Holder elects to include Transfer
Restricted Securities in a Shelf Registration Statement.
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(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
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS (i) 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
----------------
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 Issuers or Their 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 Issuers or
either Issuer's 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.
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IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
CIRCUS AND ELDORADO JOINT VENTURE
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chief Executive Officer
SILVER LEGACY CAPITAL CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: President and Chief
Executive Officer
25
BANC OF AMERICA SECURITIES LLC,
on its own behalf and as
representative of the Initial
Purchasers
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Managing Director
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