Exhibit 4.5
REGISTRATION RIGHTS AGREEMENT
DATED AS OF MARCH 30, 2001
by and among
THE MISSISSIPPI BAND OF CHOCTAW INDIANS
D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE,
AND
BANC OF AMERICA SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
▇▇▇▇▇ FARGO BROKERAGE SERVICES, LLC
BANC ONE CAPITAL MARKETS, INC.
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of March 30, 2001, by and among The Mississippi Band of Choctaw
Indians d/b/a Choctaw Resort Development Enterprise (the "ENTERPRISE"), a
business enterprise of The Mississippi Band of Choctaw Indians, , a federally
recognized Indian Tribe and Native American sovereign nation (the "TRIBE"), and
Banc of America Securities LLC, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇▇▇ Fargo Brokerage
Services, LLC and Banc One Capital Markets, Inc. (each, an "INITIAL PURCHASER"
and, collectively, the "INITIAL PURCHASERS"), each of whom has agreed to
purchase the Enterprise's 9 1/4% Senior Notes due 2009 (the "NOTES") pursuant to
the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated March
22, 2001 (the "PURCHASE AGREEMENT"), by and among the Enterprise, the Tribe and
the Initial Purchasers. In order to induce the Initial Purchasers to purchase
the Notes, the Enterprise has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchasers set forth in Section 5 of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them under the Indenture, dated as of
March 30, 2001, entered into by and among the Enterprise, the Tribe and Firstar
Bank, N.A., as Trustee, relating to the Notes and the Exchange Notes (the
"INDENTURE").
The parties hereby agree as follows:
Section 1. DEFINITIONS. As used in this Agreement, the following
capitalized terms shall have the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 under the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Enterprise
to the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Notes tendered by Holders
thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Enterprise's 9 1/4% Senior Notes due 2009 to be
issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
EXCHANGE OFFER: The exchange and issuance by the Enterprise of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Notes that are tendered by Holders thereof in connection with such exchange
and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchasers
propose to sell the Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act and pursuant to Regulation S under
the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a) hereof.
HOLDERS: As defined in Section 2 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, as amended, modified or
supplemented by any prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all materials incorporated by reference
into such Prospectus.
RECOMMENCEMENT DATE: As defined in Section 6(d) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Enterprise
relating to (a) an Exchange Offer or (b) the registration for resale of Transfer
Restricted Securities pursuant to the Shelf Registration Statement, in each
case, (i) that is filed pursuant to the provisions of this Agreement and (ii)
including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and materials
incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
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RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 as in effect on the date of the
Indenture.
TRANSFER RESTRICTED SECURITIES: Each (a) Note, until the earliest to
occur of (i) the date on which such Note is exchanged in the Exchange Offer for
an Exchange Note by a Holder other than a Broker-Dealer, (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 Act and
disposed of in accordance with a Shelf Registration Statement (and the
purchasers thereof have been issued Exchange Notes), or (iv) the date on which
such Note is distributed to the public pursuant to Rule 144 under the Act or is
saleable pursuant to Rule 144(k) under the Act (or similar provisions then in
effect) and (b) Exchange Note held by a Broker-Dealer until the date on which
such Exchange Note is disposed of by a Broker-Dealer pursuant to the "Plan of
Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
Section 2. HOLDERS. A Person is deemed to be a holder of Transfer
Restricted Securities (each, a "HOLDER") whenever such Person owns Transfer
Restricted Securities.
Section 3. REGISTERED EXCHANGE OFFER. (a) Unless the Exchange Offer
shall not be permitted by applicable federal law (after the procedures set forth
in Section 6(a)(i) hereof have been complied with), the Enterprise shall (i)
cause the Exchange Offer Registration Statement to be filed with the Commission
as soon as practicable after the Closing Date, but in no event later than 90
days after the Closing Date (such 90th day being, for purposes of this Section
3, the "FILING DEADLINE"), (ii) use its best efforts to cause such Exchange
Offer Registration Statement to become effective at the earliest possible time,
but in no event later than 180 days after the Closing Date (such 180th day
being, for purposes of this Section 3, the "EFFECTIVENESS DEADLINE"), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon the effectiveness of such Exchange Offer Registration Statement,
commence and Consummate the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting (i) registration of the Exchange Notes to be offered
in exchange
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for the Notes that are Transfer Restricted Securities and (ii) resales of
Exchange Notes by any Broker-Dealer that tendered into the Exchange Offer
Notes that such Broker-Dealer acquired for its own account as a result of
market making activities or other trading activities (other than Notes
acquired directly from the Enterprise or any of its Affiliates) as
contemplated by Section 3(c) hereof.
(b) The Enterprise shall use its best efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and shall keep the
Exchange Offer open for a period of not less than the minimum period required
under applicable federal and state securities laws to Consummate the Exchange
Offer; PROVIDED, HOWEVER, that in no event shall such period be less than 20
Business Days. The Enterprise shall cause the Exchange Offer to comply with all
applicable federal and state securities laws. No securities other than the
Exchange Notes shall be included in the Exchange Offer Registration Statement.
The Enterprise shall use its best efforts to cause the Exchange Offer to be
Consummated on the earliest practicable date after the Exchange Offer
Registration Statement has become effective, but in no event later than 30
Business Days thereafter (such 30th day being the "CONSUMMATION DEADLINE"),
unless a longer period is required by applicable federal or state securities
laws.
(c) The Enterprise shall include a "Plan of Distribution" section in
the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted Securities
that were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Notes acquired
directly from the Enterprise or any Affiliate of the Enterprise), may exchange
such Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan
of Distribution" section shall also contain all other information with respect
to such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement. See the SHEARMAN & STERLING no-action letter (available
July 2, 1993).
Because any such Broker-Dealer may be deemed to be an "underwriter"
within the meaning of the Act and must, therefore, deliver a prospectus meeting
the requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Enterprise shall
permit the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such prospectus delivery requirement
through the Consummation Deadline and thereafter as provided in the remainder of
this paragraph. To the extent necessary to ensure that the prospectus contained
in the Exchange Offer Registration Statement is available for sales of Exchange
Notes by any Broker-Dealer that acquired Exchange Notes as a result of
market-making or similar activities such that the Broker-Dealer would be
required to deliver a prospectus under the Act upon a subsequent sale or other
disposition of the Exchange Notes, the Enterprise agrees to use its best efforts
to keep the Exchange Offer Registration Statement continuously effective,
supplemented,
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amended and current as required by and subject to the provisions of Sections
6(a) and 6(c) hereof and in conformity with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission,
as announced from time to time, for a period of one year (as extended due to
events specified in Section 6(c)(i) hereof) from the Consummation Deadline or
such shorter period as will terminate when all Transfer Restricted Securities
covered by such Registration Statement have been sold pursuant thereto. The
Enterprise shall provide sufficient copies of the latest version of such
Prospectus to such Broker-Dealers, promptly upon request, and in no event
later than one day after the date of such request, at any time during such
period.
Section 4. SHELF REGISTRATION. (a) SHELF REGISTRATION. If (i) the
Exchange Offer is not permitted by applicable law (after the Enterprise has
complied with the procedures set forth in Section 6(a)(i) hereof) or (ii) if any
Holder of Transfer Restricted Securities shall notify the Enterprise in writing
prior to the 20th day following the Consummation Deadline that (A) such Holder
was 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 not appropriate or
available for such resales by such Holder or (C) such Holder is a Broker-Dealer
and holds Notes acquired directly from the Enterprise or any of its Affiliates,
then the Enterprise shall: (x) cause to be filed, on or prior to 30 days after
the earlier of (1) the date on which the Enterprise determines that the Exchange
Offer Registration Statement need not or cannot be filed as a result of clause
(a)(i) above and (2) the date on which the Enterprise receives the notice
specified in clause (a)(ii) above (such earlier date being, for purposes of this
Section 4, the "FILING DEADLINE"), a shelf registration statement pursuant to
Rule 415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the "SHELF REGISTRATION STATEMENT")) relating to all
Transfer Restricted Securities, and (y) shall use its best efforts to cause such
Shelf Registration Statement to become effective on or prior to 90 days after
the Filing Deadline for the Shelf Registration Statement (such 90th day being,
for purposes of this Section 4, the "EFFECTIVENESS DEADLINE").
If, after the Enterprise filed an Exchange Offer Registration Statement
that satisfies the requirements of Section 3(a) hereof, the Enterprise is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law (i.e.,
clause (a)(i) above), then the filing of the Exchange Offer Registration
Statement shall be deemed to satisfy the requirements of clause (x) above;
PROVIDED that, in such event, the Enterprise shall remain obligated to meet the
Effectiveness Deadline set forth in clause (y) above.
To the extent necessary to ensure that the Shelf Registration Statement
is available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Enterprise
shall use its best efforts to keep any Shelf Registration Statement required by
this Section 4(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Sections 6(b) and 6(c) hereof and
in conformity with
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the requirements of this Agreement, the Act and the policies, rules and
regulations of the Commission, as announced from time to time, for a period
of at least two years (as extended due to events specified in Section 6(c)(i)
hereof) following the Closing Date, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto.
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Enterprise in writing, within 20 days after receipt of a request therefor,
the information specified in Item 507 or 508, as applicable, of Regulation S-K
of the Act 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 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder agrees to furnish promptly additional
information required to be disclosed in order to make the information previously
furnished to the Enterprise by such Holder not materially misleading.
Section 5. LIQUIDATED DAMAGES. If (i) any Registration Statement
required by this Agreement is not filed with the Commission on or prior to the
applicable Filing Deadline, (ii) any such Registration Statement has not been
declared effective by the Commission on or prior to the applicable Effectiveness
Deadline, (iii) the Exchange Offer has not been Consummated on or prior to the
Consummation Deadline, (iv) the Shelf Registration Statement is declared
effective but thereafter, pending the announcement of a material corporate
transaction, the Enterprise issues a notice that the Shelf Registration
Statement is unusable, or such notice is required under applicable securities
laws to be issued by the Enterprise, and, during the period specified in Section
4(a) hereof, the aggregate number of days in any consecutive twelve-month period
for which all such notices are issued or required to be issued exceeds 45 days,
or (v) the Exchange Offer Registration Statement is filed and declared effective
but thereafter shall cease to be effective or fail to be usable for its intended
purpose without being succeeded within 5 Business Days by a post-effective
amendment to such Exchange Offer Registration Statement that cures such failure
and that is itself declared effective immediately (each such event referred to
in clauses (i) through (v), a "REGISTRATION DEFAULT"), then the Enterprise
hereby agrees to pay to each Holder of Transfer Restricted Securities affected
thereby liquidated damages in an amount equal to $.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 immediately
following the occurrence of such Registration Default until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages for all
Registration Defaults of $10.00 per year per $1,000 in principal amount of
Transfer Restricted Securities; PROVIDED that the Enterprise 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)
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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 or the happening of any
other event 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) or (v) above, as applicable, the
liquidated damages payable with respect to the Transfer Restricted Securities
as a result of such clause (i), (ii), (iii), (iv) or (v), as applicable,
shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated damages
are due cease to be Transfer Restricted Securities, all obligations of the
Enterprise to pay accrued liquidated damages with respect to such securities
shall survive until such time as such obligations with respect to such
securities shall have been satisfied in full.
Section 6. REGISTRATION PROCEDURES. (a) EXCHANGE OFFER REGISTRATION
STATEMENT. In connection with the Exchange Offer, the Enterprise shall (x)
comply with all applicable provisions of Section 6(c) hereof, (y) use its best
efforts to effect such exchange and to permit the resale of Exchange Notes by
any Broker-Dealer that tendered in the Exchange Offer Notes that such
Broker-Dealer acquired for its own account as a result of its market-making
activities or other trading activities (other than Notes acquired directly from
the Enterprise or any of its Affiliates) being sold in accordance with the
intended method or methods of distribution thereof, and (z) comply with all of
the following provisions:
(i) 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
Enterprise raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Enterprise hereby
agrees to seek a no-action letter or other favorable decision from the
Commission allowing the Enterprise to Consummate an Exchange Offer for
such Transfer Restricted Securities, provided that the Enterprise shall
not be required to seek such no-action letter or favorable decision if
in the opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ such no-action letter or favorable
decision is not likely to be forthcoming based upon its information and
experience. The Enterprise hereby agrees to pursue the issuance of such
a decision to the Commission staff level. In connection with the
foregoing, the Enterprise hereby agrees 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 Enterprise 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.
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(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Enterprise, prior to the Consummation of the
Exchange Offer, a written representation to the Enterprise (which may
be contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
Affiliate of the Enterprise, (B) it is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any
Person to participate in, a distribution of the Exchange Notes to be
issued in the Exchange Offer and (C) it is acquiring the Exchange Notes
in its ordinary course of business. As a condition to its participation
in the Exchange Offer, each Holder using the Exchange Offer to
participate in a distribution of the Exchange Notes shall acknowledge
and agree that if the resales are of Exchange Notes obtained by such
Holder in exchange for Notes acquired directly from the Enterprise or
an Affiliate thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of the
Commission enunciated in EXXON CAPITAL HOLDINGS CORPORATION (available
May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND CO., INC. (available June 5,
1991), as interpreted in the Commission's letter to SHEARMAN &
STERLING, dated July 2, 1993, and similar applicable no-action letters
(including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Enterprise shall provide a supplemental
letter to the Commission (A) stating that the Enterprise is registering
the Exchange Offer in reliance on the position of the Commission
enunciated in EXXON CAPITAL HOLDINGS CORPORATION (available May 13,
1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991), as
interpreted in the Commission's letter to SHEARMAN & STERLING, dated
July 2, 1993, and, if applicable, any no-action letter obtained
pursuant to clause (i) above, (B) including a representation that the
Enterprise has not entered into any arrangement or understanding with
any Person to distribute the Exchange Notes to be received in the
Exchange Offer and that, to the best of the Enterprise's information
and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business and has
no arrangement or understanding with any Person to participate in the
distribution of the Exchange Notes received in the Exchange Offer and
(C) any other undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to clause (i)
above, if applicable.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Enterprise shall:
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(i) comply with all of the provisions of Section 6(c) hereof
and use its best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Enterprise pursuant to Section 4(b)
hereof), and pursuant thereto, the Enterprise will prepare and file
with the Commission a Registration Statement relating to the
registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in
accordance with the intended method or methods of distribution thereof
within the time periods specified and otherwise in accordance with the
provisions hereof; and
(ii) issue, upon the request of any Holder or purchaser of
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Notes having an aggregate principal amount equal to
the aggregate principal amount of Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Enterprise for
cancellation; the Enterprise shall register Exchange Notes on the Shelf
Registration Statement for this purpose and issue the Exchange Notes to
the purchaser(s) of securities subject to the Shelf Registration
Statement in the names as such purchaser(s) shall designate.
(c) GENERAL PROVISIONS. In connection with any Registration Statement
and any related Prospectus required by this Agreement, the Enterprise shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain 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 Enterprise
shall file promptly an appropriate amendment to such Registration
Statement curing such defect, and, if Commission review is required,
use their respective reasonable best efforts to cause such amendment to
be declared effective as soon as practicable;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be; cause the Prospectus to be supplemented by any required Prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424
under the Act, and to comply fully with Rules 424, 430A and 462, as
applicable, under the Act in a timely manner; and comply with the
provisions of the Act with respect to the disposition of all securities
covered by such Registration Statement during the applicable
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period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement in order
to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Enterprise shall use its
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) hereof shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) (A) in the case of a Shelf Registration Statement, upon
request of any Holder, furnish to each Holder in connection with such
exchange or sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus (including all documents incorporated by reference after the
initial filing of such Registration Statement), which documents will be
subject to the review and comment of such Holders in connection with
such sale, if any, for a period of at least five
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Business Days, and the Enterprise will not file any such
Registration Statement or Prospectus or any amendment or supplement
to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Holders shall
reasonably object within five Business Days after the receipt
thereof. A Holder shall be deemed to have reasonably objected to
such filing if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains an
untrue statement of a material fact or omits to state any material
fact necessary to make the statements therein not misleading or
fails to comply with the applicable requirements of the Act; or (B)
in the case of an Exchange Offer Registration Statement, furnish to
each Initial Purchaser in connection with such exchange or sale, if
any, before filing with the Commission, copies of any Registration
Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus
(including all documents incorporated by reference after the initial
filing of such Registration Statement), which documents will be
subject to the review and comment of such Initial Purchaser in
connection with such sale, if any, for a period of at least five
Business Days, and the Enterprise will not file any such
Registration Statement or Prospectus or any amendment or supplement
to any such Registration Statement or Prospectus (including all such
documents incorporated by reference) to which such Initial Purchaser
shall reasonably object within five Business Days after the receipt
thereof. An Initial Purchaser shall be deemed to have reasonably
objected to such filing if such Registration Statement, amendment,
Prospectus or supplement, as applicable, as proposed to be filed,
contains an untrue statement of a material fact or omits to state
any material fact necessary to make the statements therein not
misleading or fails to comply with the applicable requirements of
the Act;
(vi) (A) in the case of a Shelf Registration Statement, upon
request from any Holder, promptly, prior to the filing of any document
that is to be incorporated by reference into a Registration Statement
or Prospectus, provide copies of such document to each Holder in
connection with such exchange or sale, if any, make the Enterprise's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders may reasonably
request; or (B) in the case of an Exchange Offer Registration
Statement, promptly, prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus,
provide copies of such document to each Initial Purchaser in connection
with such exchange or sale, if any, make the Enterprise's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Initial Purchasers may
reasonably request;
(vii) make available, at reasonable times, for inspection by
each Holder and any attorney or accountant retained by such Holder, all
financial and other records, pertinent corporate documents of the
Enterprise and the Tribe and cause the Enterprise's officers,
11
directors and employees to supply all information reasonably
requested by any such Holder, attorney or accountant in connection
with such Registration Statement or any post-effective amendment
thereto subsequent to the filing thereof and prior to its
effectiveness;
(viii) if requested by any Holder in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Enterprise
is notified of the matters to be included in such Prospectus supplement
or post-effective amendment;
(ix) (A) in the case of a Shelf Registration Statement, upon
request from any Holder, furnish to each Holder in connection with such
exchange or sale, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference); or
(B) in the case of an Exchange Offer Registration Statement, furnish to
each Initial Purchaser in connection with such exchange or sale,
without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto,
including all documents incorporated by reference therein and all
exhibits (including exhibits incorporated therein by reference);
(x) deliver to each Holder, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Enterprise hereby consents to the use (in accordance with
applicable law, rules, regulations and orders) of the Prospectus and
any amendment or supplement thereto by each selling Holder in
connection with the offering and the sale of the Transfer Restricted
Securities covered by the Prospectus or any amendment or supplement
thereto;
(xi) upon the request of any Holder, enter into such
agreements (including underwriting agreements) and make such
representations and warranties and take all such other actions in
connection therewith in order to expedite or facilitate the disposition
of the Transfer Restricted Securities pursuant to any applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or
resale pursuant to any applicable Registration Statement. In such
connection, the Enterprise shall:
(A) upon the request of any Holder furnish (or in the
case of paragraphs (2) and (3) below, use its best efforts to
cause to be furnished) to each
12
Holder, upon Consummation of the Exchange Offer or upon the
effectiveness of the Shelf Registration Statement, as the
case may be:
(1) a certificate, dated such date, signed
on behalf of the Enterprise by (x) the Chief
Executive Officer or President and (y) the Chief
Financial Officer or Chief Accounting Officer of the
Enterprise, confirming, as of the date thereof, the
matters set forth in Section 5(g) of the Purchase
Agreement and such other similar matters as such
Holders may reasonably request;
(2) an opinion, dated the date of
Consummation of the Exchange Offer or the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of counsel for the Enterprise
covering matters similar to those set forth in
paragraphs (c), (d) and (e) of Section 5 of the
Purchase Agreement and such other matters as such
Holder may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Enterprise,
representatives of the independent public accountants
for the Enterprise and has considered the matters
required to be stated therein and the statements
contained therein, although such counsel has not
independently verified the accuracy, completeness or
fairness of such statements; and that such counsel
advises that, on the basis of the foregoing (relying
as to materiality to the extent such counsel deems
appropriate upon the statements of officers and other
representatives of the Enterprise and the Tribe) and
without independent check or verification, nothing
came to such counsel's attention that led such
counsel to believe that the applicable Registration
Statement, at the time such Registration Statement or
any post-effective amendment thereto became effective
and, in the case of the Exchange Offer Registration
Statement, as of the date of Consummation of the
Exchange Offer, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein, in light of the circumstances
in which they were made, not misleading, or that the
Prospectus contained in such Registration Statement
as of its date and, in the case of the opinion dated
the date of Consummation of the Exchange Offer, as of
the date of Consummation, contained an untrue
statement of a material fact or omitted to state a
material fact necessary in order to make the
statements therein, in the light of the circumstances
under which they were made, not misleading. Without
limiting the foregoing, such counsel may state
further that such counsel expresses no belief as to
the financial statements or the schedules thereto and
other financial or statistical data derived therefrom
included in
13
any Registration Statement contemplated
by this Agreement or the related Prospectus; and
(3) a customary comfort letter, dated the
date of Consummation of the Exchange Offer, or as of
the date of effectiveness of the Shelf Registration
Statement, as the case may be, from the Enterprise's
independent accountants, in the customary form and
covering matters of the type customarily covered in
comfort letters to underwriters in connection with
underwritten public offerings, and covering the
matters set forth in the comfort letters delivered
pursuant to Section 5(a) of the Purchase Agreement;
and
(B) deliver such other documents and certificates as
may be reasonably requested by the selling Holders to evidence
compliance with the matters covered in clause (A) above and
with any customary conditions contained in any agreement
entered into by the Enterprise pursuant to this clause (xi);
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; PROVIDED, HOWEVER, that the
Enterprise shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any restrictive
legends; and to register such Transfer Restricted Securities in such
denominations and such names as the selling Holders may request at
least two Business Days prior to any sale of such Transfer Restricted
Securities;
(xiv) use its best efforts to cause the disposition of 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
to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xii) above;
14
(xv) provide a CUSIP number for all Transfer Restricted
Securities not later than the effective date of a Registration
Statement covering such Transfer Restricted Securities and provide the
Trustee under the Indenture with certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depository Trust Company;
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA and execute and use its reasonable best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner;
(xviii) following the Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the
case may be, whether or not required by the Commission, file a copy of
all of the following information and reports with the Commission for
public availability within the time periods specified in the
Commission's rules and regulations (unless the Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request: (A) all quarterly and
annual financial information that would be required to be contained in
a filing with the Commission on Forms 10-Q and 10-K if the Enterprise
were required to file such Forms, including a "Management's Discussion
and Analysis of Financial Condition and Results of Operations" and,
with respect to the annual information only, a report on the annual
financial statements by the Enterprise's certified independent
accountants; and (B) all current reports that would be required to file
such reports; and
(xix) the Enterprise will be deemed not to have used its best
efforts to cause the Exchange Offer Registration Statement or the Shelf
Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if the Enterprise takes any
action that would, or omits to take any action which omission would,
result in any such Registration Statement not being declared effective
or in the Holders of Transfer Restricted Securities covered thereby not
being able to exchange or offer and sell such Transfer Restricted
Securities during that period as and to the extent
15
contemplated hereby, unless (A) such action is required by
applicable law or (B) such action is taken by the Enterprise in good
faith and for valid business reasons (but not including avoidance of
the Enterprise's obligations hereunder), including a material
business transaction, as long as the Enterprise promptly complies
with the requirements of Section 6(c)(iv) hereof, if applicable.
(d) RESTRICTIONS ON HOLDERS. Each Holder agrees by acquisition of a
Transfer Restricted Security that, upon receipt of the notice referred to in
Section 6(c)(iii)(C) hereof or any notice from the Enterprise of the existence
of any fact or the happening of any event of the kind described in Section
6(c)(iii)(D) hereof or, in the case of the Shelf Registration, the Enterprise
shall issue a notice pending the announcement of a material business transaction
that the Shelf Registration Statement is unusable (in each case, a "SUSPENSION
NOTICE"), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in
writing by the Enterprise that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "RECOMMENCEMENT DATE"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Enterprise with more
recently dated Prospectuses or (ii) deliver to the Enterprise (at the
Enterprise's expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of the Suspension Notice. The
time period regarding the effectiveness of such Registration Statement set forth
in Section 3 or 4 hereof, as applicable, shall be extended by a number of days
equal to the number of days in the period from and including the date of
delivery of the Suspension Notice to the Recommencement Date.
Section 7. REGISTRATION EXPENSES. (a) All expenses incident to the
Enterprise's performance of or compliance with this Agreement will be borne by
the Enterprise, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses; (ii) all fees and expenses of compliance with federal securities
and state Blue Sky or securities laws; (iii) all expenses of printing (including
printing certificates for the Exchange Notes to be issued in the Exchange Offer
and printing of Prospectuses), messenger and delivery services and telephone;
(iv) all fees and disbursements of counsel for the Enterprise, as well as all
reasonable fees and disbursements of counsel for the Holders of Transfer
Restricted Securities if requested by any Holder of Transfer Restricted
Securities (which counsel for the Holders shall be chosen by the Holders of a
majority of the outstanding Transfer Restricted Securities); (v) all application
and filing fees in connection with listing the Exchange Notes on a national
securities exchange or automated quotation system pursuant to the requirements
hereof; and (vi) all fees and disbursements of independent certified public
accountants of the Enterprise (including the expenses of any special audit and
comfort letters required by or incident to such performance); (vii) all rating
agency fees, if any; and (viii)
16
all fees and expenses relating to the qualification of the Indenture under
the applicable securities laws.
The Enterprise will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Enterprise.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Enterprise will reimburse
the Initial Purchasers and the Holders of Transfer Restricted Securities who are
tendering Notes into the Exchange Offer and/or selling or reselling Notes or
Exchange Notes pursuant to the "Plan of Distribution" contained in the Exchange
Offer Registration Statement or the Shelf Registration Statement, as applicable,
for the reasonable fees and disbursements of not more than one counsel, who
shall be Shearman & Sterling, unless another firm shall be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.
Section 8. INDEMNIFICATION. (a) The Enterprise agrees to indemnify and
hold harmless the Initial Purchasers, each Holder and each Person, if any, who
controls such Initial Purchasers or Holder (within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act), including, with respect to such
Initial Purchasers or Holder or controlling person, their respective directors,
agents, officers and employees, from and against: (i) any and all loss,
liability, claim, damage, expense and action whatsoever, joint or several, as
incurred, to which such Holder, Initial Purchasers or controlling person or any
such director, agent, officer or employee may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Registration Statement (or any amendment or supplement thereto), including all
documents incorporated therein by reference, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading, or arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in any
Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; (ii) any and all loss, liability, claim, damage, expense or action
whatsoever, joint or several, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, PROVIDED that (subject to Section 8(d) hereof) any such
settlement is effected with the written consent of the Enterprise; (iii) in
whole or in part upon any failure of the Enterprise to perform its obligations
hereunder or under law; (iv) any act or failure to act or any alleged act or
failure to
17
act by any such Holder, Initial Purchaser or controlling person, or their
respective directors, agents, officers and employees, in connection with, or
relating in any manner to, the exchange or sale of Transfer Restricted
Securities contemplated hereby, and which is included as part of or referred
to in any and all losses, claims, damages, liabilities, expenses or actions
arising out of or based upon any matter covered by clause (i) or (ii) above,
PROVIDED that the Enterprise shall not be liable under this Section 8(a) to
the extent that a court of competent jurisdiction shall have determined by a
final judgment that such loss, claim, damage, liability, expense or action
resulted directly from any such acts or failures to act undertaken or omitted
to be taken by such Holder, underwriter or controlling person, or their
respective directors, agents, officers and employees, through its negligence
or willful misconduct; or (v) any and all expenses whatsoever, joint or
several, as incurred (including the fees and disbursements of counsel chosen
by any indemnified party, subject to the limitations in Section 8(c) below),
reasonably incurred in investigating, preparing or defending against any
litigation or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under subparagraphs
(i) through (iv) above; PROVIDED, HOWEVER, that this indemnity agreement
shall not apply to any loss, liability, claim, damage, expense or action to
the extent arising out of any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with written
information furnished to the Enterprise by the Initial Purchasers or such
Holder expressly for use in a Registration Statement (or any amendment
thereto) or any Prospectus (or any amendment or supplement thereto); and
PROVIDED, FURTHER, that the Enterprise shall not be liable to the Initial
Purchasers or any Holder, or their respective directors, agents, officers,
employees or any person controlling such Initial Purchasers or Holder, with
respect to any such untrue statement or alleged untrue statement or omission
or alleged omission made in any preliminary Prospectus to the extent that the
Enterprise shall sustain the burden of proving that any such loss, liability,
claim, damage, expense or action resulted from the fact that the Initial
Purchaser or any Holder sold the Notes to a person to whom such Initial
Purchaser or Holder failed to send or give, at or prior to the written
confirmation of the sale of such Notes, a copy of the final Prospectus (as
amended or supplemented) if the Enterprise has previously furnished copies
thereof to the Initial Purchasers and the Holders (sufficiently in advance of
the Closing Date to allow for distribution of the final Prospectus in a
timely manner) and complied with their obligations under Sections 3(c) hereof
and 3(b) of the Purchase Agreement and the loss, liability, claim, damage,
expense or action of the Initial Purchasers or any Holder resulted from an
untrue statement or omission or alleged untrue statement or omission of a
material fact contained in or omitted from such preliminary Prospectus (as
amended or supplemented) which was corrected in the final Prospectus (as
amended or supplemented). The indemnity agreement set forth in this Section
8(a) shall be in addition to any liabilities that the Enterprise may
otherwise have. In the event of an underwritten offering, as contemplated by
Section 6 herein, the Enterprise will also indemnify the underwriters, if
any, selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any
Registration Statement.
18
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Enterprise, and its directors,
agents, officers and employees, and each person, if any, who controls (within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act) the
Enterprise to the same extent as the foregoing indemnity from the Enterprise set
forth in clause (a) above, but only with reference to information relating to
such Holder furnished in writing to the Enterprise by such Holder expressly for
use in any Registration Statement. In no event shall any Holder, its directors,
agents, officers, employees or any Person who controls such Holder be liable or
responsible for any amount in excess of the amount by which the total amount
received by such Holder with respect to its sale of Transfer Restricted
Securities pursuant to a Registration Statement exceeds (i) the amount paid by
such Holder for such Transfer Restricted Securities and (ii) the amount of any
damages that such Holder, its directors, agents, officers, employees or any
Person who controls such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party shall, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in and, to the extent that it
shall elect, jointly with all other indemnifying parties similarly notified, by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party; PROVIDED, HOWEVER, if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and otherwise to participate in the defense of such
action on behalf of such indemnified party. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party's
election so to assume the defense of such action and approval by the indemnified
party's election so to assume the defense of such action and approval by the
indemnified party's counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel),
19
approved by the indemnifying party (the Enterprise in the case of Section
8(a) hereof and a majority of the Holders in the case of Section 8(b)
hereof), representing the indemnified parties who are parties to such action)
or (ii) the indemnifying party shall not have employed counsel satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party.
The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability, expense or action by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by this Section 8(c), the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnified party shall, without the prior written consent of the
indemnified party, effect any settlement, compromise or consent to the entry of
judgment in any pending or threatened action, suit or proceeding in respect of
which any indemnified party is or could have been a party and indemnity was or
could have been sought hereunder by such indemnified party, unless such
settlement, compromise or consent includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding.
(d) If the indemnification provided for in this Section 8 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages, liabilities,
expenses or actions referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities, expenses or
actions referred to therein (i) in such proportion as is appropriate to reflect
the relative benefits received by the Enterprise, on the one hand, and the
Holders, on the other hand, from their sale of Transfer Restricted Securities or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Enterprise, on the one hand, and the Holders, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities, expenses or actions, as well as any other relevant
equitable considerations. The relative fault of the Enterprise, on the one hand,
and the Holders, on the other hand, shall be determined by reference to, among
other things, whether any such 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 Enterprise, on the one hand, or the Holders, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a
20
party as a result of the losses, claims, damages, liabilities, expenses or
actions referred to above shall be deemed to include, subject to the
limitations set forth in Section 8(c), any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any action or claim.
The Enterprise and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, expenses or actions referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities,
expenses or actions. Notwithstanding the provisions of this Section 8, no
Holder, or its directors, agents, officers, employees or any Person, if any, who
controls such Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several, in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder, and not joint.
Section 9. REPORTS AND RULE 144A. The Enterprise agrees with each
Holder, for so long as any Transfer Restricted Securities remain outstanding (i)
whether or not required by the Commission, the Enterprise shall furnish to the
Holders of Notes, within the time periods specified in the Commission's rules
and regulations, (A) all quarterly and annual financial information that would
be required to be contained in a filing with the Commission on Forms 10-Q and
10-K if the Enterprise were required to file such Forms, including a
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and, with respect to the annual information only, a report on the
annual financial statements by the Enterprise's certified independent
accountants, and (B) all current reports that would be required to be filed with
the Commission on Form 8-K if the Enterprise were required to file such reports
and (ii) to make available, upon the request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
Section 10. GOVERNING LAW; JURISDICTION, GOVERNING LAW PROVISIONS.
21
(a) GOVERNING LAW PROVISIONS. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK
APPLICABLE TO AGREEMENTS MADE AND PERFORMED IN SUCH STATE.
(b) CONSENT TO SUIT. The Enterprise irrevocably waives, to the fullest
extent permitted by applicable law, its sovereign immunity from unconsented
suit, whether such suit be brought in law or in equity, or in administrative
proceedings or proceedings in arbitration, to permit the commencement,
maintenance, and enforcement of any action, by the Trustee (or by the Holders or
their respective representatives), to interpret or enforce the terms of this
Agreement and to enforce and execute any judgment resulting therefrom against
any assets of the Enterprise. Notwithstanding any provisions of law or canon of
construction, the Enterprise intends this waiver to be interpreted liberally to
permit the full litigation of disputes arising under or out of this Agreement.
Without limiting the generality of the foregoing, the Enterprise waives its
immunity from unconsented suit to permit any court of competent jurisdiction or
arbitrators, appointed and acting under the commercial arbitration rules of the
American Arbitration Association to: (i) enforce and interpret the terms of this
Agreement and award and enforce the award of damages owing as a consequence of a
breach thereof, whether such award is the product of litigation, administrative
proceedings or arbitration; (ii) determine whether any consent or approval of
the Enterprise has been improperly granted or unreasonably withheld; (iii)
enforce any judgment prohibiting the Enterprise from taking any action, or
mandating or obligating the Enterprise to take any action, including a judgment
compelling the Enterprise to submit to binding arbitration; and (iv) as to a
court only but not arbitrators, adjudicate any claim under the Indian Civil
Rights Act of 1968, 25 U.S.C. Section 1302 (or any successor statute).
(c) CONSENT TO JURISDICTION. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby ("RELATED PROCEEDINGS") may be instituted in the federal courts of the
United States of America located in the City of New York or the courts of the
State of New York in each case located in the City of New York (collectively,
the "SPECIFIED COURTS"), and each party irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement of
a judgment of any such court (a "RELATED JUDGMENT"), as to which such
jurisdiction is non-exclusive) of such courts in any such suit, action or
proceeding. Service of any process, summons, notice or document by mail to such
party's address set forth above shall be effective service of process for any
suit, action or other proceeding brought in any such court. The parties
irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and
unconditionally waive and agree not to plead or claim in any such court has been
brought in an inconvenient forum.
Section 11. MISCELLANEOUS. (a) REMEDIES. The Enterprise acknowledges
and agrees that any failure by it to comply with its obligations under Sections
3 and 4 hereof may result in material irreparable injury to the Initial
Purchasers or the Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries precisely and that, in
the event of any such failure, the Initial Purchasers or any Holder may obtain
such relief as may be required to specifically enforce the Enterprise's
obligations under Sections 3 and 4 hereof. The Enterprise further agrees to
waive the defense in any action for specific performance that a remedy at law
would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Enterprise will not, on or after
the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with
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the rights granted to the Holders in this Agreement or that otherwise
conflicts with the provisions hereof. The Enterprise has not previously
entered into any agreement granting any registration rights with respect to
its securities to any Person. The rights granted to the Holders hereunder do
not in any way conflict with and are not inconsistent with the rights granted
to the holders of the Enterprise's securities under any agreement in effect
on the date hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless (i) in the case of Section 5
hereof and this Section 10(c)(i), the Enterprise has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Enterprise has obtained the written
consent of the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities (excluding Transfer Restricted Securities held by
the Enterprise or its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not being
tendered pursuant to such Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Exchange Offer.
(d) THIRD PARTY BENEFICIARY. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Enterprise, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent they may deem such
enforcement necessary or advisable to protect its rights or the rights of the
Holders hereunder.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telecopier, or air courier
guaranteeing overnight delivery:
(1) if to a Holder, at the address set forth on the records of
the Registrar under the Indenture, with a copy to the Registrar under
the Indenture; and
(2) if to the Enterprise:
Choctaw Resort Development Enterprise
▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chairman of the Board
and
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Attorney General of Mississippi Band of Choctaw Indians
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Attorney General
With copies to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, Rogers, Ortiz, Fairbanks & Yepa, LLP
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: C. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Rome, McGuigan, Sabanosh, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when receipt
acknowledged, if telecopied; and on the next business day, if timely delivered
to an air courier guaranteeing overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders; PROVIDED that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Transfer Restricted Securities in
violation of the terms hereof or of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Securities in any
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manner, whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Transfer Restricted Securities such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement, including the restrictions on resale set
forth in this Agreement and, if applicable, the Purchase Agreement, and such
Person shall be entitled to receive the benefits hereof.
(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) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(j) ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
THE MISSISSIPPI BAND OF CHOCTAW INDIANS D/B/A
CHOCTAW RESORT DEVELOPMENT ENTERPRISE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇
Title: Secretary-Treasurer
26
BANC OF AMERICA SECURITIES LLC
for themselves and the other Initial
Purchasers named in Schedule 1 to the
Purchase Agreement
By:
------------------------------------------
Name:
Title:
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