EXHIBIT 4.2
MAJESTIC INVESTOR HOLDINGS, LLC
MAJESTIC INVESTOR CAPITAL CORP.
$152,632,000 11.653% SENIOR SECURED NOTES DUE 2007
REGISTRATION RIGHTS AGREEMENT
December 6, 2001
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Majestic Investor Holdings, LLC, a Delaware limited liability company (the
"COMPANY"), and Majestic Investor Capital Corp., a Delaware corporation
("CAPITAL," and together with the Company, the "ISSUERS"), are issuing and
selling to ▇▇▇▇▇▇▇▇▇ & Company, Inc. (the "INITIAL PURCHASER"), upon the terms
set forth in a purchase agreement, dated as of November 30, 2001 (the "PURCHASE
AGREEMENT"), $152,632,000 aggregate principal amount at maturity of the Issuers'
11.653% Senior Secured Notes due 2007, Series A, including the Guarantees (as
defined below) endorsed thereon (the "NOTES"). As an inducement to the Initial
Purchaser to enter into the Purchase Agreement, the Issuers and each of the
guarantors (the "GUARANTORS") signatory to the Purchase Agreement jointly and
severally agree with the Initial Purchaser, for the benefit of the holders of
the Securities (as defined below) (including, without limitation, the Initial
Purchaser), as follows:
1. DEFINITIONS.
Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
ADVICE: See the last paragraph of Section 6.
AGREEMENT: This Registration Rights Agreement.
APPLICABLE PERIOD: See Section 2(f).
BUSINESS DAY: Any day, other than a Saturday, a Sunday or a day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
CLOSING DATE: December 6, 2001.
CONTROLLING PERSON: See Section 8(a).
DTC: See Section 6(i).
EFFECTIVENESS DATE: The 120th day following the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT: See Section 4(a).
EVENT DATE: See Section 4(a).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended, and the
rules and regulations of the SEC promulgated thereunder.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE OFFER REGISTRATION STATEMENT: See Section 2(a).
EXCHANGE SECURITIES: 11.653% Senior Secured Notes due 2007,
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Series B, of the Issuers, including the guarantees endorsed thereon, identical
in all respects to the Notes and the Guarantees, except for references to series
and restrictive legends.
FILING DATE: The 60th day following the Closing Date.
GUARANTEES: The full and unconditional guarantee, on a senior secured basis
by the Guarantors, as to payment of principal, interest, premium, if any, and
the Weekly Liquidated Damages Amount, if any, with respect to the Notes.
HOLDER: Each holder of Registrable Securities.
HOLDER INDEMNIFIED PARTIES: See Section 8(a).
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTIES: See Section 8(c).
INDENTURE: The Indenture, dated as of the date hereof, by and among the
Issuers, the Guarantors 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 SHELF REGISTRATION: See Section 3(a).
LOSSES: See Section 8(a).
MAXIMUM CONTRIBUTION AMOUNT: See Section 8(d).
NASD: The National Association of Securities Dealers, Inc.
PARTICIPATING BROKER-DEALER: See Section 2(f).
PERSON: An individual, trustee, corporation, limited liability company,
partnership, limited liability partnership, joint stock company, joint venture,
trust, unincorporated organization or association, government or any agency or
political subdivision thereof, union, business association, firm or other
entity.
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PRIVATE EXCHANGE: See Section 2(g).
PRIVATE EXCHANGE SECURITIES: See Section 2(g).
PROSPECTUS: The prospectus included in a Registration Statement at the time
that such Registration Statement is declared effective (including, without
limitation, a prospectus that discloses information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A under the Securities Act), as amended or supplemented by any
prospectus supplement with respect to the terms of the offering of any portion
of the 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.
REGISTRABLE SECURITIES: Any of the Notes, the Private Exchange Securities
and the Exchange Securities received in the Exchange Offer that may not be sold
without restriction under federal or state securities law.
REGISTRATION STATEMENT: Any registration statement of either of the Issuers
that covers any of the Securities and that is filed pursuant to the provisions
of this Agreement, including the Prospectus included therein, all amendments and
supplements to such registration statement and Prospectus (including
post-effective amendments), all exhibits thereto and all material incorporated
by reference or deemed to be incorporated by reference therein.
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 SEC.
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 SEC.
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
SEC.
SEC: The Securities and Exchange Commission.
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SECURITIES: The Notes, the Private Exchange Securities and the Exchange
Securities, collectively.
SECURITIES ACT: The Securities Act of 1933, as amended, and the rules and
regulations of the SEC promulgated thereunder.
SHELF EFFECTIVENESS DATE: With respect to a Shelf Registration, the 60th
day after the filing of such Shelf Registration.
SHELF FILING DATE: With respect to a Shelf Registration, the 30th day
following (i) in the case of an Initial Shelf Registration, delivery of the
Shelf Notice triggering the obligation to file such Initial Shelf Registration,
and (ii) in the case of a Subsequent Shelf Registration, the cessation of
effectiveness of the prior Shelf Registration.
SHELF NOTICE: See Section 2(i).
SHELF REGISTRATION: The Initial Shelf Registration and any Subsequent Shelf
Registration.
SPECIAL COUNSEL: Counsel chosen by the holders of a majority in aggregate
principal amount of Securities.
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if any, the trustee under any
indenture governing the Exchange Securities or the Private Exchange Securities.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A registration in which
securities of either of the Issuers are sold to an underwriter for reoffering to
the public.
WEEKLY LIQUIDATED DAMAGES AMOUNT: With respect to any Event, an amount per
week per $1,000 principal amount of Registrable Securities equal to $0.05 for
the first 90-day period immediately following the applicable Event Date,
increasing by an additional $0.05 per week per $1,000 principal amount of
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Registrable Securities with respect to each subsequent 90-day period, up to a
maximum amount of $0.20 per week per $1,000 principal amount of Registrable
Securities.
2. EXCHANGE OFFER.
(a) The Issuers and the Guarantors shall:
(i) prepare and file with the SEC promptly after the date hereof, but
in no event later than the Filing Date, a registration statement (the "EXCHANGE
OFFER REGISTRATION STATEMENT") on an appropriate form under the Securities Act
with respect to a proposed offer (the "EXCHANGE OFFER") to the Holders to issue
and deliver to such Holders, in exchange for the Notes, a like aggregate
principal amount of Exchange Securities;
(ii) use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective as promptly as
practicable after the filing thereof, but in no event later than the
Effectiveness Date;
(iii) use their respective reasonable best efforts to keep the
Exchange Offer Registration Statement effective until the consummation of the
Exchange Offer pursuant to its terms; and
(iv) unless the Exchange Offer would not be permitted by a policy of
the SEC, commence the Exchange Offer and use their respective reasonable best
efforts to, on the earliest practicable date after the Exchange Offer
Registration Statement is declared effective, but in no event later than 30 days
thereafter, consummate the Exchange Offer and issue Exchange Securities in
exchange for all Notes tendered prior thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the SEC.
(b) The Exchange Securities shall be issued under, and entitled to the
benefits of, the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA).
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(c) In connection with the Exchange Offer, the Issuers and the Guarantors
shall:
(i) mail to each Holder a copy of the Prospectus forming part of the
Exchange Offer Registration Statement, together with an appropriate letter of
transmittal that is an exhibit to the Exchange Offer Registration Statement, and
any related documents;
(ii) keep the Exchange Offer open for not less than 30 days after the
date notice thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) utilize the services of a depositary for the Exchange Offer with
an address in the Borough of Manhattan, The City of New York;
(iv) 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; and
(v) otherwise comply with all laws applicable to the Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer, the
Issuers and the Guarantors shall:
(i) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Notes so accepted for
exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each
Holder of Notes, Exchange Securities equal in aggregate principal amount to the
Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and each Private Exchange Security
will accrue from the last interest payment date on which interest was paid on
the Notes surrendered in exchange therefor or, if no interest has been paid on
the
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Notes, from the date of original issue of the Notes. Each Exchange Security and
each Private Exchange Security shall bear interest at the rate set forth
thereon; provided, that interest with respect to the period prior to the
issuance thereof shall accrue at the rate or rates borne by the Notes
surrendered in exchange therefor from time to time during such period.
(f) The Issuers and the Guarantors shall include within the Prospectus
contained in the Exchange Offer Registration Statement a section entitled "Plan
of Distribution," containing a summary statement of the positions taken or
policies made by the staff of the SEC 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 Securities received by
such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"). 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 (without limitation) all Participating Brokers-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Securities. The Issuers and the Guarantors shall use their
respective reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective and to amend and supplement the Prospectus to
be lawfully delivered by all Persons subject to the prospectus delivery
requirement of the Securities Act for the shorter of : (i) such period of time
as such Persons must comply with such requirements in order to resell the
Exchange Securities and (ii) the period ending when all Registrable Securities
covered by the Exchange Offer Registration Statement have been sold pursuant
thereto (the "APPLICABLE PERIOD").
(g) If, prior to consummation of the Exchange Offer, the Initial Purchaser
holds any Notes acquired by it and having the status as an unsold allotment in
the initial distribution of the Notes, the Issuers and the Guarantors shall,
upon the request of the Initial Purchaser, simultaneously with the delivery of
the Exchange Securities in the Exchange Offer, issue (pursuant to the same
indenture as the Exchange Securities and subject to transfer restrictions
thereon) and deliver to the Initial Purchaser, in exchange for the Notes held by
the Initial Purchaser (the "PRIVATE EXCHANGE"), a like principal amount of debt
securities of the Issuers, including guarantees endorsed thereon, that are
identical to the Exchange Securities (the "PRIVATE EXCHANGE Securities"). The
Private Exchange Securities shall bear the same CUSIP number as the Exchange
Securities.
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(h) The Issuers may require each Holder participating in the Exchange Offer
to represent to the Issuers and the Guarantors that, at the time of the
consummation of the Exchange Offer: (i) any Exchange Securities received by such
Holder in the Exchange Offer will be acquired in the ordinary course of its
business; (ii) such Holder will have no arrangement or understanding with any
Person to participate in the distribution of the Exchange Securities within the
meaning of the Securities Act or resale of the Exchange Securities in violation
of the Securities Act; (iii) if such Holder is not a broker-dealer, that it is
not engaged in and does not intend to engage in, the distribution of the
Exchange Securities; (iv) if such Holder is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Notes that were acquired
as a result of market-making or other trading activities, that it will deliver a
prospectus, as required by law, in connection with any resale of such Exchange
Securities; and (v) if such Holder is an affiliate of either of the Issuers,
that it will comply with the registration and prospectus delivery requirements
of the Securities Act applicable to it.
(i) If: (i) prior to the consummation of the Exchange Offer, either of
the Issuers or the Holders of a majority in aggregate principal amount of
Registrable Securities determines in its or their reasonable judgment that the
Exchange Securities would not, upon receipt, be tradeable by the Holders thereof
without restriction under the Securities Act and the Exchange Act and without
material restrictions under applicable Blue Sky or state securities laws; (ii)
applicable interpretations of the staff of the SEC would not permit the
consummation of the Exchange Offer prior to the Effectiveness Date; (iii)
subsequent to the consummation of the Private Exchange, any Holder of Private
Exchange Securities so requests; (iv) the Exchange Offer is not consummated
within 150 days of the Closing Date for any reason; or (v) in the case of (A)
any Holder prohibited by law or SEC policy from participating in the Exchange
Offer, (B) any Holder participating in the Exchange Offer that receives Exchange
Securities that may not be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of either of the Issuers within the meaning of the Securities Act) or
(C) any broker-dealer that holds Notes acquired directly from the Issuers or any
of their respective affiliates and, in each such case contemplated by this
clause (v), such Holder notifies the Issuers within 20 Business Days of
consummation of the Exchange Offer, then the Issuers shall promptly (and in any
event within five Business Days) deliver to the Holders (or in the case of an
occurrence of any event described in clause (v) of this Section 2(i), to any
such Holder) and the Trustee notice thereof (the "SHELF NOTICE") and shall as
promptly as possible thereafter (but in no
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event later than the Shelf Filing Date) file an Initial Shelf Registration
pursuant to Section 3; provided, that no Holder (other than the Initial
Purchaser) shall be entitled to have Securities held by it covered by such Shelf
Registration unless such Holder agrees to be bound by all of the provisions of
this Agreement applicable to such Holder.
3. SHELF REGISTRATION.
If a Shelf Notice is required to be delivered pursuant to clause (i), (ii),
(iii) or (iv) of Section 2(i), then this Section 3 shall apply to all
Registrable Securities. Otherwise, upon consummation of the Exchange Offer in
accordance with Section 2, the provisions of this Section 3 shall apply solely
with respect to (i) Notes held by any Holder thereof prohibited by law or SEC
policy from participating in the Exchange Offer, (ii) Notes held by any
broker-dealer that acquired such Notes directly from the Issuers or any of their
respective affiliates, and (iii) Exchange Securities that are not freely
tradeable, in each case, as contemplated by clause (v) of Section 2(i).
(a) Initial Shelf Registration. The Issuers and the Guarantors shall
prepare and file with the SEC a Registration Statement for an offering to be
made on a continuous basis pursuant to Rule 415 covering all of the Registrable
Securities (the "INITIAL SHELF REGISTRATION"), subject to the Issuers' right
pursuant to Section 3(c) to exclude the Registrable Securities of Holders which
have not provided the information required to be furnished by such Holders
pursuant to Section 3(c). The Issuers and the Guarantors shall file with the SEC
the Initial Shelf Registration as promptly as possible following the occurrence
of the event described in Section 2(i) which triggered such filing obligation,
but in no event later than the Shelf Filing Date. The Initial Shelf Registration
shall be on Form S-1 or another appropriate form permitting registration of such
Registrable Securities for resale by such Holders in the manner or manners
designated by them (including, without limitation, one or more underwritten
offerings). The Issuers and the Guarantors (i) shall not permit any securities
other than the Registrable Securities to be included in any Shelf Registration,
and (ii) shall use their respective reasonable best efforts to cause the Initial
Shelf Registration to be declared effective under the Securities Act as promptly
as practicable after the filing thereof (but in no event later than the Shelf
Effectiveness Date) and to keep the Initial Shelf Registration continuously
effective under the Securities Act until the date that is 24 months after the
date it is declared effective (subject to extension pursuant to the last
paragraph of Section 6) (the "EFFECTIVENESS
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PERIOD"), or such shorter period ending when (i) all Registrable Securities
covered by the Initial Shelf Registration have been sold, (ii) a Subsequent
Shelf Registration covering all of the Registrable Securities has been declared
effective under the Securities Act, (iii) such Registrable Securities are
eligible for resale pursuant to Rule 144(k) under the Securities Act or (iv)
there cease to be any outstanding Registrable Securities.
(b) Subsequent Shelf Registrations. If any Shelf Registration ceases to be
effective for any reason at any time during the Effectiveness Period (other than
because of the sale of all of the Registrable Securities registered thereunder),
the Issuers and the Guarantors shall use their respective reasonable best
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of such cessation
of effectiveness file an amendment to the Shelf Registration in a manner
reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "SUBSEQUENT
SHELF REGISTRATION"). If a Subsequent Shelf Registration is filed, the Issuers
and the Guarantors shall use their respective reasonable best efforts to cause
the Subsequent Shelf Registration to be declared effective as promptly as
practicable after such filing and to keep such Subsequent Shelf Registration
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, and any previously filed Subsequent Shelf Registration, was
previously effective.
(c) Provision of Information. The Issuers and the Guarantors may exclude
from any Shelf Registration the Registrable Securities of any Holder who,
without a reasonable basis, fails to furnish to the Issuers in writing, within
20 days after receipt of a written request therefor, the information specified
in Item 507 or 508, as applicable, of Regulation S-K under the Securities Act
for use in connection with any Shelf Registration or Prospectus or preliminary
prospectus included therein. No such Holder shall be entitled to liquidated
damages pursuant to Section 4 unless and until such Holder shall have provided
all such information. Each Holder whose Registrable Securities are to be
included in a Shelf Registration Statement agrees to promptly furnish to the
Issuers all additional information required to be disclosed in order to make the
information previously furnished to the Issuers by such Holder not materially
misleading.
4. LIQUIDATED DAMAGES.
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(a) The Issuers and the Guarantors acknowledge and agree that the Holders
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if the Issuers and the Guarantors fail to
fulfill their respective obligations hereunder. Accordingly, in the event of
such failure, the Issuers and the Guarantors jointly and severally agree to pay
liquidated damages to each Holder under the circumstances and to the extent set
forth below:
(i) if the Exchange Offer Registration Statement has not been filed
with the SEC on or prior to the Filing Date;
(ii) if the Exchange Offer Registration Statement is not declared
effective by the SEC on or prior to the Effectiveness Date; or
(iii) if the Issuers and the Guarantors have not exchanged Exchange
Securities for all Notes validly tendered in accordance with the terms of the
Exchange Offer within 30 days after the date on which the Exchange Offer
Registration Statement is declared effective by the SEC;
(iv) if obligated to file an Initial Shelf Registration and the
Issuers and the Guarantors fail to file such Initial Shelf Registration with the
SEC on or prior to Shelf Filing Date;
(v) if an Initial Shelf Registration is filed and such Initial Shelf
Registration is not declared effective on or prior to the Shelf Effectiveness
Date; or
(vi) if a Shelf Registration is filed and declared effective by the
SEC but thereafter ceases to be effective without being succeeded within 30 days
by a Subsequent Shelf Registration filed and declared effective;
(each of the foregoing an "EVENT," and the date on which the Event occurs being
referred to herein as an "EVENT DATE").
Upon the occurrence of any Event, the Issuers shall pay, or cause to be
paid (and the Guarantors hereby guarantee the payment of), in addition to
amounts otherwise due under the Indenture and the Registrable Securities, as
liquidated damages, and not as a penalty, to each Holder for each weekly period
beginning on the Event Date an amount equal to the Weekly Liquidated Damages
Amount per
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$1,000 principal amount of Registrable Securities held by such Holder; provided,
that such liquidated damages will, in each case, cease to accrue (subject to the
occurrence of another Event) on the date on which all Events have been cured. An
Event under clause (i) above shall be cured on the date that the Exchange Offer
Registration Statement (or, if an Initial Shelf Registration is required to be
filed pursuant to clause (i), (ii) or (iii) of Section 2(i), the date that such
Initial Shelf Registration) is filed with the SEC; an Event under clause (ii)
above shall be cured on the date that the Exchange Offer Registration Statement
(or, if an Initial Shelf Registration is required to be filed pursuant to clause
(i), (ii) or (iii) of Section 2(i), the date that such Initial Shelf
Registration) is declared effective by the SEC; an Event under clause (iii)
above shall be cured on the earlier of the date (A) the Exchange Offer is
consummated with respect to all Notes validly tendered or (B) the Issuers
deliver a Shelf Notice to the Holders and the Trustee pursuant to clause (i),
(ii) or (iii) of Section 2(i); an Event under clause (iv) above shall be cured
on the date that such Initial Shelf Registration is filed with the SEC; an Event
under clause (v) above shall be cured on the date that such Initial Shelf
Registration is declared effective by the SEC; and an Event under clause (vi)
above shall be cured on the earlier of (1) the date on which the applicable
Shelf Registration is no longer subject to an order suspending the effectiveness
thereof or proceedings relating thereto or (2) a new Subsequent Shelf
Registration is declared effective.
(b) The Issuers shall notify the Trustee within five Business Days after
each Event Date. The Issuers shall pay the liquidated damages due on the
Registrable Securities by depositing with the Trustee, in trust, for the benefit
of the Holders thereof, by 12:00 noon, New York City time, on or before the
applicable semi-annual interest payment date for the Registrable Securities,
immediately available funds in sums sufficient to pay the liquidated damages
then due. The liquidated damages amount due shall be payable in the same manner
as interest payments on the Notes on each interest payment date to the record
Holder entitled to receive the interest payment to be made on such date as set
forth in the Indenture.
5. GAMING CONSENTS.
Prior to consummating the Exchange Offer or filing the Initial Shelf
Registration, as the case may be, the Issuers and the Guarantors shall make or
obtain all Permits necessary or desirable for the consummation of the
transactions contemplated hereby, including without limitation, the Exchange
Offer, and the required approvals of the Nevada Gaming Commission, the Nevada
State Gaming Control
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Board, the Mississippi Gaming Commission, the Colorado Limited Gaming Control
Commission and the Colorado Department of Revenue Gaming Commission or any other
applicable gaming authorities, for the pledge of, or any negative pledge on, the
membership interests in the Company, ▇▇▇▇▇▇ Nevada Gaming, LLC, ▇▇▇▇▇▇
Mississippi Gaming, LLC and ▇▇▇▇▇▇ Colorado Gaming, LLC and the capital stock of
Capital.
6. REGISTRATION PROCEDURES.
In connection with the registration of any Securities pursuant to Sections
2 or 3, the Issuers and the Guarantors shall effect such registrations to permit
the sale of such Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Issuers and the Guarantors shall:
(a) Prepare and file with the SEC, as soon as practicable after the date
hereof but in any event on or prior to the Filing Date, with respect to an
Exchange Offer Registration Statement, and on or prior to the Shelf Filing Date,
with respect to a Shelf Registration, as prescribed by Sections 2 and 3,
respectively, and use their respective reasonable best efforts to cause each
such Registration Statement to become effective and remain continuously
effective as provided in this Agreement; provided, that if (i) such filing is
pursuant to Section 3 or (ii) 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 Securities during the Applicable Period, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, (A) the
Issuers shall notify the Holders of the Registrable Securities covered by such
Registration Statement, their Special Counsel, each Participating Broker-Dealer,
the managing underwriters, if any, and their counsel of such filing at least
five Business Days prior to making such filing, (B) if requested, the Issuers
and the Guarantors shall furnish to and afford the Holders of the Registrable
Securities covered by such Registration Statement, their Special Counsel, each
Participating Broker-Dealer, the managing underwriters, if any, and their
counsel a reasonable opportunity to review, and shall make available for
inspection by such Persons, copies of all such documents (including copies of
any documents to be incorporated by reference therein and all exhibits thereto)
proposed to be filed and such financial and other information and books and
records of the Issuers and the Guarantors, as shall be necessary, in the opinion
of Special Counsel and the respective counsels to such Participating
Broker-Dealers and underwriters, to conduct a reasonable due diligence
investigation within the meaning of the Securities Act, and (C) the Issuers and
the Guarantors shall cause the members, managers, officers, directors and
employees of the Issuers and the Guarantors, and counsel and independent
certified public accountants of the Issuers and the Guarantors, to respond to
such inquiries, as shall be necessary, in the opinion of Special Counsel and the
respective counsels to such Participating Broker-
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Dealers and underwriters, to conduct a reasonable due diligence investigation
within the meaning of the Securities Act. The Issuers and the Guarantors may
require each Holder to agree in writing to keep confidential any non-public
information relating to the Issuers and the Guarantors received by such Holder,
to refrain from using such information as the basis for any market transactions
in the securities of the Issuers and not to disclose such information (other
than to an affiliate or prospective purchaser who agrees in writing to respect
the confidentiality provisions of this Section 6(a)) until such information has
been made generally available to the public unless the release of such
information is required by law or necessary to respond to inquiries of
regulatory authorities. The Issuers and the Guarantors shall not file any
Registration Statement or Prospectus or any amendments or supplements thereto
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 Registrable Securities covered by such Registration Statement, their Special
Counsel, any Participating Broker-Dealer or the managing underwriters, if any,
or their counsel shall reasonably object to such filing within five Business
Days after receipt of the Issuers' notice of filing described above in this
Section 6(a). 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 Securities Act.
(b) Provide an indenture trustee for the Registrable Securities or the
Exchange Securities, as the case may be, and cause the Indenture (or other
indenture relating to the Registrable Securities) to be qualified under the TIA
not later than the effective date of the first Registration Statement; in
connection therewith, 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 their respective reasonable 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 SEC to enable such
indenture to be so qualified in a timely manner.
15
(c) Prepare and file with the SEC such pre-effective amendments and
post-effective amendments to the Registration Statement as may be necessary in
order to cause the Registration Statement to become effective and to keep such
Registration Statement continuously effective for the time periods required
hereby; cause the related Prospectus to be supplemented by any Prospectus
supplement required by Applicable Law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act, and comply fully with Rules 424, 430A and 462, as applicable,
under the Securities Act in a timely manner; and comply in all material respects
with the provisions of the Securities Act and the Exchange Act applicable
thereto with respect to the disposition of all securities covered by such
Registration Statement, as so amended, or in such Prospectus, as so
supplemented, in accordance with the intended methods of distribution set forth
in such Registration Statement, as so amended, and such Prospectus, as so
supplemented.
(d) Furnish to such selling Holders and Participating Broker-Dealers who so
request (i) upon the Issuers' and the Guarantors' receipt, a copy of the order
of the SEC declaring such Registration Statement and any post-effective
amendment thereto effective, (ii) such reasonable number of copies of such
Registration Statement and of each amendment and supplement thereto (in each
case including any documents incorporated therein by reference and all exhibits
(including exhibits incorporated by reference) to such Registration Statement
and each such amendment and supplement), (iii) such reasonable number of copies
of the Prospectus included in such Registration Statement (including each
preliminary prospectus and each supplement thereto), and such reasonable number
of copies of the final Prospectus as filed by the Issuers and the Guarantors
pursuant to Rule 424(b) under the Securities Act, in conformity with the
requirements of the Securities Act, and (iv) such other documents (including any
amendments and supplements required to be filed pursuant to Section 6(c) and any
documents incorporated therein by reference and all exhibits thereto, including
exhibits incorporated by reference), as any such Person may reasonably request.
The Issuers and the Guarantors hereby consent to the use (in accordance with
Applicable Law) of the Prospectus by each of the selling Holders of Registrable
Securities and by each such Participating Broker-Dealer, as the case may be, and
the underwriters or agents, if any, and dealers (if any), in connection with the
offering and sale of the Registrable Securities covered by, or the sale by
Participating Broker-Dealers of the Exchange Securities pursuant to, such
Prospectus and any amendment or supplement thereto.
16
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or (B) 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 Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, their
Special Counsel, each Participating Broker-Dealer and the managing underwriters,
if any, promptly (but in any event within five Business Days), and, if requested
by such Person, confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or Registration Statement 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 under the Securities Act, (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
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 Registrable Securities, the representations and
warranties of the Issuers and the Guarantors contained in any agreement
(including any underwriting agreement) contemplated by Section 6(n) below cease
to be true and correct in any material respect, (iv) of the receipt by the
Issuers or any of the Guarantors of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities or the Exchange
Securities to be sold by any Participating Broker-Dealer for offer or sale in
any jurisdiction, or the contemplation, initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference to be
untrue in any material respect or that requires the making of any additions to
or changes in such Registration Statement, Prospectus or documents so that 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 such statements were made,
not misleading, (vi) of the Issuers' and the Guarantors' reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate, and (vii) of any request by the SEC for amendments to the
Registration Statement or supplements to the Prospectus or for additional
information relating thereto.
(f) Use their respective reasonable best efforts to register or qualify,
and, if applicable, to cooperate with the selling Holders of Registrable
Securities, the
17
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of, Registrable Securities to be included in a Registration
Statement for offer and sale under the securities or Blue Sky laws of such
jurisdictions within the United States as any selling Holder, Participating
Broker-Dealer or the managing underwriters reasonably request in writing; and,
if Securities are offered other than through an Underwritten Offering, the
Issuers and the Guarantors shall cause their respective counsel to perform Blue
Sky investigations and file registrations and qualifications required to be
filed pursuant to this Section 6(f) at the expense of the Issuers and the
Guarantors; 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 necessary or
advisable to enable the disposition in such jurisdictions of the Securities
covered by the applicable Registration Statement; provided, however, that none
of the Issuers or the Guarantors shall be required to (i) register or qualify
generally to do business in any jurisdiction where it is not then so qualified,
(ii) take any action that would subject it to general service of process in any
jurisdiction where it is not then so subject or (iii) take any action that would
subject it to general taxation in respect of doing business in any such
jurisdiction where it is not then so subject.
(g) Use their respective reasonable best efforts to prevent the issuance of
any order suspending the effectiveness of a Registration Statement or preventing
or suspending the use of a Prospectus or suspending the qualification (or
exemption from qualification) of any of the Securities for sale in any
jurisdiction, and, if any such order is issued, use their respective reasonable
best efforts to obtain the withdrawal or lifting of any such order at the
earliest possible time.
(h) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) 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 Securities during the
Applicable Period, and if requested by the managing underwriters, if any, such
Participating Broker-Dealer or the Holders of a majority in aggregate principal
amount of the Registrable Securities, (A) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, or such Holders reasonably request to be included therein
as required to comply with any Applicable Law and (B) make all required filings
of such Prospectus supplement or such post-effective amendment as soon as
practicable after the Issuers and the Guarantors have
18
received notification of such matters required by Applicable Law to be
incorporated in such Prospectus supplement or post-effective amendment.
(i) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) 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 Securities during the
Applicable Period, cooperate with the selling Holders, such Participating
Broker-Dealer and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable 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 ("DTC"); and
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, such Participating
Broker-Dealer or the Holders may request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or (ii) 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 Securities during the
Applicable Period, upon the occurrence of any event contemplated by Section
6(e)(v), 6(e)(vi) or 6(e)(vii), as promptly as practicable prepare a
post-effective amendment to the Registration Statement, a supplement to the
related Prospectus or a supplement or amendment to any such 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 Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by a Participating
Broker-Dealer, 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, and, if SEC review is required, use their
respective reasonable best efforts to cause such post-effective amendment to be
declared effective as soon as practicable.
(k) Use their respective reasonable best efforts to cause the Securities
covered by a Registration Statement to be rated with the appropriate rating
agencies, if appropriate, and if so requested by the holders of a majority in
aggregate principal amount of Securities covered by such Registration Statement
or the managing underwriters, if any.
19
(l) Prior to the effective date of the first Registration Statement
relating to the Securities, (i) provide the applicable trustee with printed
certificates for the Securities in a form eligible for deposit with DTC and (ii)
provide a CUSIP number for each of the Securities.
(m) Use their respective reasonable best efforts to cause all Securities
covered by such Registration Statement to be listed on each securities exchange,
if any, on which similar debt securities issued by the Issuers are then listed.
(n) If a Shelf Registration is filed pursuant to Section 3, enter into such
agreements (including, an underwriting agreement in form, scope and substance as
is customary in Underwritten Offerings) and take all such other actions in
connection therewith (including those reasonably requested by the managing
underwriters, if any, or the Holders of a majority in aggregate principal amount
of Registrable Securities being sold) in order to expedite or facilitate the
registration or the disposition of such Registrable Securities, and in such
connection, whether or not an underwriting agreement is entered into and whether
or not the registration is an Underwritten Registration, (i) make such
representations and warranties to the Holders and the underwriters, if any, with
respect to the business of the Issuers and their respective subsidiaries, and
the Registration Statement, Prospectus and documents, if any, incorporated or
deemed to be incorporated by reference therein, in each case, in form, substance
and scope as are customarily made by issuers to underwriters in Underwritten
Offerings, and confirm the same if and when reasonably requested; (ii) obtain
opinions of counsel to the Issuers and the Guarantors and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the Holders of a majority
in aggregate principal amount of the Registrable Securities being sold),
addressed to each selling Holder and each of the underwriters, if any, covering
the matters customarily covered in opinions requested in Underwritten Offerings;
(iii) obtain "cold comfort" letters and updates thereof (which letters and
updates (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters) from the independent certified public accountants of the
Issuers and the Guarantors (and, if necessary, any other independent certified
public accountants of any subsidiary of the Issuers or of any business acquired
by the Issuers for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each of
the underwriters and each selling Holder, such letters to be in customary form
and covering matters of the type customarily covered in "cold
20
comfort" letters in connection with Underwritten Offerings and such other
matters as reasonably requested by underwriters; and (iv) deliver such documents
and certificates as may be reasonably requested by the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any, to evidence the continued validity of the representations
and warranties of the Issuers and the Guarantors and their respective
subsidiaries made pursuant to clause (i) above and to evidence compliance with
any conditions contained in the underwriting agreement or other similar
agreement entered into by the Issuers and the Guarantors.
(o) Comply with all applicable rules and regulations of the SEC and make
generally available to their respective security holders 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 on the first
day of the fiscal quarter following each fiscal quarter in which Registrable
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.
(p) Upon consummation of an Exchange Offer or Private Exchange, obtain an
opinion of counsel to the Issuers and the Guarantors (in form, scope and
substance reasonably satisfactory to the Initial Purchaser), addressed to all
Holders participating in the Exchange Offer or Private Exchange, as the case may
be, to the effect that (i) the Issuers and the Guarantors have duly authorized,
executed and delivered the Exchange Securities or the Private Exchange
Securities, as the case may be, and the Indenture, (ii) the Exchange Securities
or the Private Exchange Securities, as the case may be, and the Indenture
constitute legal, valid and binding obligations of the Issuers and the
Guarantors, enforceable against the Issuers and the Guarantors in accordance
with their respective terms, except as such enforcement may be subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and (B) general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law), and (iii) all obligations of the Issuers and the Guarantors
under the Exchange Securities or the Private Exchange Securities, as the case
may be, and the Indenture are secured by ▇▇▇▇▇ (as defined in the Indenture) on
the assets
21
securing the obligations of the Issuers and the Guarantors under the Notes and
the Indenture immediately prior to the consummation of such Exchange Offer or
Private Exchange, as the case may be.
(q) If an Exchange Offer or Private Exchange is to be consummated, upon
delivery of the Registrable Securities by such Holders to the Issuers and the
Guarantors (or to such other Person as directed by the Issuers and the
Guarantors) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Issuers and the Guarantors shall mark, or
caused to be marked, on such Registrable Securities that such Registrable
Securities are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be, and in no event shall such
Registrable Securities be marked as paid or otherwise satisfied.
(r) Cooperate with each seller of Registrable Securities covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(s) Use their respective reasonable best efforts to take all other steps
necessary to effect the registration of the Registrable Securities covered by a
Registration Statement contemplated hereby.
Each Holder and each Participating Broker-Dealer agrees by acquisition of
such Registrable Securities or Exchange Securities that, upon receipt of written
notice from the Issuers and the Guarantors of the happening of any event of the
kind described in Section 6(e)(ii), 6(e)(iv), 6(e)(v), 6(e)(vi) or 6(e)(vii),
such Holder will forthwith discontinue disposition (in the jurisdictions
specified in a notice of a 6(e)(iv) event, and elsewhere in a notice of a
6(e)(ii), 6(e)(v), 6(e)(vi) or 6(e)(vii) event) of such Securities covered by
such Registration Statement or Prospectus until the earlier of (i) such ▇▇▇▇▇▇'s
receipt of the copies of the amended or supplemented Prospectus contemplated by
Section 6(j); or (ii) the time such Holder is advised in writing (the "ADVICE")
by the Issuers and the Guarantors that offers or sales in a particular
jurisdiction may be resumed, or that the use of the applicable Prospectus may be
resumed, as the case may be, and has received copies of any amendments or
supplements thereto. If so directed by the Issuers in such notice, each Holder
and each Participating Broker-Dealer will deliver to the Issuers (at the
Issuers' expense) all copies of the Prospectus contained in the Registration
Statement covering such
22
Securities that was in effect at the time of such ▇▇▇▇▇▇'s or Participating
Broker-Dealer's receipt of such notice. If the Issuers and the Guarantors shall
give 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 such Securities covered by such Registration Statement shall have received
(x) the copies of the amended or supplemented Prospectus contemplated by Section
6(j) or (y) the Advice.
7. REGISTRATION EXPENSES.
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Issuers and the Guarantors shall be borne by the Issuers
and the Guarantors whether or not the Exchange Offer is consummated or the
Exchange Offer Registration Statement or a Shelf Registration 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 and (B) fees
and expenses of compliance with state securities or Blue Sky laws (including,
without limitation, reasonable fees and disbursements of counsel in connection
with Blue Sky qualifications of the Registrable Securities or Exchange
Securities and determination of the eligibility of the Registrable Securities or
Exchange Securities for investment under the laws of such jurisdictions (x)
where the Holders are located, in the case of the Exchange Securities, or (y) as
provided in Section 6(f), in the case of Registrable Securities or Exchange
Securities to be sold by a Participating Broker-Dealer during the Applicable
Period));
(ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities or Exchange Securities in a
form eligible for deposit with DTC and of printing prospectuses if the printing
of prospectuses is requested by the managing underwriters, if any, or, in
respect of Registrable Securities or Exchange Securities to be sold by a
Participating Broker-Dealer during the Applicable Period, by the Holders of a
majority in aggregate principal amount of the Registrable Securities included in
any Registration Statement or of such Exchange Securities, as the case may be);
(iii) messenger, telephone, duplication, word processing and delivery
expenses incurred by the Issuers and the Guarantors in the performance of their
23
obligations hereunder;
(iv) fees and disbursements of counsel for the Issuers, the
Guarantors and, subject to Section 7(b), the Holders;
(v) fees and disbursements of all independent certified public
accountants referred to in Section 6(n)(iii) (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance);
(vi) fees and expenses of any "qualified independent underwriter" or
other independent appraiser participating in an offering pursuant to Section 3
of Schedule E to the By-laws of the NASD, but only where the need for such a
"qualified independent underwriter" arises due to a relationship with the
Issuers and the Guarantors;
(vii) Securities Act liability insurance, if the Issuers and the
Guarantors so desire such insurance
(viii) fees and expenses of all other Persons, including special
experts, retained by the Issuers or the Guarantors; internal expenses of the
Issuers and the Guarantors (including, without limitation, all salaries and
expenses of their respective officers and employees performing legal or
accounting duties), and the expenses of any annual audit; and
(ix) rating agency fees and the fees and expenses incurred in
connection with the listing of the Securities to be registered on any securities
exchange.
(b) The Issuers and the Guarantors shall reimburse the Holders for the
reasonable fees and disbursements of not more than one counsel (in addition to
appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Registrable Securities to be included in any
Registration Statement and other reasonable and necessary out-of-pocket expenses
of the Holders incurred in connection with the registration of the Registrable
Securities.
8. INDEMNIFICATION.
(a) Indemnification by the Issuers and the Guarantors. The Issuers and
24
the Guarantors, jointly and severally, shall, without limitation as to time,
indemnify and hold harmless each Holder and each Participating Broker-Dealer,
each Person who controls (within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act (any of such persons being hereinafter
referred to as a "CONTROLLING PERSON")) each such Holder and any such
Participating Broker-Dealer and the members, managers, officers, directors,
partners, employees, representatives and agents of each such Holder,
Participating Broker-Dealer and controlling person (collectively, the "HOLDER
INDEMNIFIED PARTIES"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and reasonable attorneys' fees) and expenses (including,
without limitation, costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the foregoing)
(collectively, "LOSSES"), as incurred, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus, Prospectus or form of prospectus, or in any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such Losses are based upon information relating to
such Holder or Participating Broker-Dealer and furnished in writing to the
Issuers and the Guarantors by such Holder or Participating Broker-Dealer
expressly for use therein; provided, that the Issuers and the Guarantors shall
not be liable under the indemnity provided in this Section 8(a) to any Holder
Indemnified Party to the extent that such Loss results solely from an untrue
statement of a material fact contained in, or the omission of a material fact
from, any preliminary prospectus, which untrue statement or omission was
corrected in the Prospectus (as then amended or supplemented) if it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (i) such Holder or Participating Broker-Dealer sold the Securities
concerned to the person alleging such Loss and failed to send or give, at or
prior to the written confirmation of such sale, a copy of the Prospectus (as
then amended or supplemented), if required by law to have so delivered it, and
(ii) the Issuers had previously furnished copies of such corrected Prospectus to
such Holder or Participating Broker-Dealer within a reasonable amount of time
prior to such sale or such confirmation, and (iii) the corrected Prospectus, if
delivered, would have been a complete defense against the person asserting such
Loss. The Issuers and each of the Guarantors shall also indemnify underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution, their members, managers, officers,
25
directors, agents and employees and each of their respective controlling persons
to the same extent as provided above with respect to the indemnification of the
Holder Indemnified Parties.
(b) Indemnification by Holders of Registrable Securities. In connection
with any Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or any amendment or supplement thereto, in which a Holder is
participating, such Holder shall furnish to the Issuers and the Guarantors in
writing such information as the Issuers and the Guarantors reasonably request
for use in connection with any such Registration Statement, preliminary
prospectus, Prospectus or form of prospectus, any amendment or supplement
thereto, and shall, severally and not jointly, without limitation as to time,
indemnify and hold harmless the Issuers and the Guarantors, their respective
members, managers, directors, officers, agents and employees, each controlling
person of the Issuers or any of the Guarantors and the members, managers,
directors, officers, agents or employees of such controlling persons, to the
fullest extent lawful, from and against any and all Losses, as incurred, arising
out of or based upon any untrue or alleged untrue statement of a material fact
contained in any such Registration Statement, preliminary prospectus, Prospectus
or form of prospectus, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading to the extent, but only
to the extent, that such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact is contained in
or omitted from any information so furnished in writing by such Holder to the
Issuers and the Guarantors expressly for use in any Registration Statement,
preliminary prospectus, Prospectus or form of prospectus, or any amendment or
supplement thereto. In no event shall the liability of any selling Holder be
greater in amount than such Holder's Maximum Contribution Amount (as defined
below).
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
brought or asserted against any Person entitled to indemnification hereunder (an
"INDEMNIFIED PARTY"), such indemnified party shall promptly notify the party or
parties from which such indemnification is sought (the "INDEMNIFYING PARTIES")
in writing; provided, that the failure to so notify the indemnifying parties
shall not relieve the indemnifying parties from any obligation or liability
except to the extent (but only to the extent) that it shall be finally
determined by a court of competent jurisdiction (which determination is not
subject to appeal) that the indemnifying
26
parties have been prejudiced materially by such failure.
The indemnifying parties shall have the right, exercisable by giving
written notice to an indemnified party, within 20 Business Days after receipt of
written notice from such indemnified party of such Proceeding, to assume, at
their expense, the defense of any such Proceeding; provided, that an indemnified
party shall have the right to employ separate counsel in any such Proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless: (i) the
indemnifying parties have agreed to pay such fees and expenses; (ii) the
indemnifying parties shall have failed promptly to assume the defense of such
Proceeding or shall have failed to employ counsel reasonably satisfactory to
such indemnified party; or (iii) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and one or
more indemnifying parties (or any affiliates or controlling persons of any of
the indemnifying parties), and such indemnified party shall have been advised by
counsel that there may be one or more defenses available to such indemnified
party that are in addition to, or in conflict with, those defenses available to
the indemnifying party or such affiliate or controlling person (in which case,
if such indemnified party notifies the indemnifying parties in writing that it
elects to employ separate counsel at the expense of the indemnifying parties,
the indemnifying parties shall not have the right to assume the defense thereof
and the reasonable fees and expenses of such counsel shall be at the expense of
the indemnifying parties; it being understood, however, that, the indemnifying
parties shall not, in connection with any one such Proceeding or separate but
substantially similar or related Proceedings in the same jurisdiction, arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for such indemnified party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party jointly and severally agrees, subject to the
exceptions and limitations set forth above, to indemnify and hold harmless each
indemnified party from and against any and all Losses by reason of such
settlement or judgment. The indemnifying party shall not consent to the entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of such Proceeding for
which such
27
indemnified party would be entitled to indemnification hereunder (whether or not
any indemnified party is a party thereto).
(d) Contribution. If the indemnification provided for in this Section 8 is
unavailable to an indemnified party or is insufficient to hold such indemnified
party harmless for any Losses in respect of which this Section 8 would otherwise
apply by its terms (other than by reason of exceptions provided in this Section
8), then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall have a joint and several obligation to contribute to
the amount paid or payable by such indemnified party as a result of such Losses,
(i) in such proportion as is appropriate to reflect the relative benefits
received by the indemnifying party, on the one hand, and such indemnified party,
on the other hand, from their sale of Registrable 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 indemnifying
party, on the one hand, and such indemnified party, on the other hand, in
connection with the actions, statements or omissions that resulted in such
Losses as well as any other relevant equitable considerations. The relative
fault of such indemnifying party, on the one hand, and indemnified party, on the
other hand, shall be determined by reference to, among other things, whether any
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or indemnified party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent any such
statement or omission. The amount paid or payable by an indemnified party as a
result of any Losses shall be deemed to include any legal or other fees or
expenses incurred by such party in connection with any Proceeding, to the extent
such party would have been indemnified for such fees or expenses if the
indemnification provided for in Section 8(a) or 8(b) was available to such
party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling Holder shall not be required to contribute, in the aggregate, any
amount in excess of such Holder's Maximum Contribution Amount. A selling
Holder's "MAXIMUM CONTRIBUTION AMOUNT" shall equal the excess, if any, of
(i) the aggregate proceeds received by such Holder pursuant to the sale of the
Registrable Securities giving rise to such
28
indemnification obligation over (ii) the aggregate amount of damages that 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 Securities 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 the Registrable Securities held by each Holder hereunder and not joint. The
Issuers' obligations to contribute pursuant to this Section 8(d) are joint and
several.
The indemnity and contribution agreements contained in this Section 8 are
in addition to any liability that the indemnifying parties otherwise may have to
the indemnified parties.
9. RULE 144 AND RULE 144A.
Each of the Issuers covenants that (a) during any period that it is
required to file reports under the Securities Act or the Exchange Act, it shall
file all reports required to be filed by it in a timely manner in order to
permit resales of Registrable Securities pursuant to Rule 144 under the
Securities Act and (b) during any period that it is not required to file such
reports, it shall, upon the request of any Holder, make available to each Holder
or beneficial owner of Registrable Securities and to any prospective purchaser
of Registrable Securities designated by such Holder or beneficial owner the
information required by Rule 144A(d)(4) under the Securities Act to permit
resales of Registrable Securities pursuant to Rule 144A. Each of the Issuers
shall take such further action as any Holder may reasonably request, all to the
extent required from time to time to enable such Holder to sell Registrable
Securities without registration under the Securities Act pursuant to the
exemptions provided by Rule 144 and Rule 144A. Upon the request of any Holder,
each of the Issuers and the Guarantors shall deliver to such Holder a written
statement as to whether such Issuer or Guarantor has complied with such
information requirements. Nothing in this Section 9 shall be deemed to require
the Issuers to register any Securities pursuant to the Exchange Act.
10. UNDERWRITTEN REGISTRATIONS.
If any of the Registrable Securities covered by any Shelf Registration are
to be sold in an Underwritten Offering, the investment banker or investment
bankers
29
and manager or managers that will manage the offering will be selected by the
Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering with the consent of the Issuers, which
consent shall not be unreasonably withheld or delayed.
No Holder may participate in any Underwritten Registration hereunder unless
such ▇▇▇▇▇▇ (a) agrees to sell such ▇▇▇▇▇▇'s Registrable 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, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
11. MISCELLANEOUS.
(a) Remedies. In the event of a breach by either of the Issuers or any of
the Guarantors of any of their respective obligations under this Agreement, each
Holder, in addition to being entitled to exercise all rights provided herein, in
the Indenture or, in the case of the Initial Purchaser, in the Purchase
Agreement, or granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement. The Issuers and the
Guarantors agree that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by either of the Issuers or any of the
Guarantors of any of the provisions of this Agreement and hereby further agree
that, in the event of any action for specific performance in respect of such
breach, the Issuers and the Guarantors shall waive the defense that a remedy at
law would be adequate.
(b) No Inconsistent Agreements. The Issuers and the Guarantors have not
entered into, as of the date hereof, and shall not enter into, after the date of
this Agreement, any agreement with respect to any of their respective securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.
(c) 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 Registrable
Securities; provided, that Sections 4(a) and 8 shall not be amended, modified or
supplemented, and waivers or consents to departures from this proviso may not be
given,
30
unless the Issuers have obtained the written consent of each Holder.
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 whose securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by Holders of at least a majority in aggregate principal amount of the
Registrable 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.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, certified
first-class mail with return receipt requested, next-day air courier or
facsimile:
(i) if to a Holder, at the most current address given by such Holder
to the Issuers in accordance with the provisions of this Section 11(d), which
address initially is, with respect to each Holder, the address of such Holder
maintained by the Registrar (as defined in the Indenture), with a copy to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, Attention:
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.; and
(ii) if to either of the Issuers or any of the Guarantors, initially
at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, facsimile number: (313)
496-8400, Attention: Chief Financial Officer, with a copy to ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, facsimile number: (▇▇▇) ▇▇▇-▇▇▇▇,
Attention: Chief Financial Officer, and an additional copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
Sears Tower, Suite 5800, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
facsimile number (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 11(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier, if sent by next-day air
courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
31
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in the Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties hereto,
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 Registrable Securities in violation
of the terms hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities in any manner,
whether by operation of law or otherwise, such Registrable Securities shall be
held subject to all of the terms of this Agreement, and by taking and holding
such Registrable 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.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof. When
a reference is made in this Agreement to a Section, paragraph, subparagraph,
Schedule or Exhibit, such reference shall mean a Section, paragraph,
subparagraph, Schedule or Exhibit to this Agreement unless otherwise indicated.
The words "INCLUDE," "INCLUDES," and "INCLUDING" when used in this Agreement
shall be deemed in each case to be followed by the words "WITHOUT LIMITATION."
The phrases "THE DATE OF THIS AGREEMENT," "THE DATE HEREOF," and terms of
similar import, unless the context otherwise requires, shall be deemed to refer
to December 6, 2001. The words "HEREOF," "HEREIN," "herewith," "HEREBY" and
"HEREUNDER" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND INTERPRETED, AND
THE RIGHTS OF THE PARTIES SHALL
32
BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW AND RULE 327(b) OF NEW YORK CIVIL PRACTICE LAWS AND RULES. EACH
ISSUER AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY
NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK
IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH ISSUER
AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH ISSUER AND
EACH GUARANTOR IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY
REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH ISSUER OR SUCH GUARANTOR,
AS THE CASE MAY BE, AT ITS ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME
EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF
THE INITIAL PURCHASER TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR
TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST EITHER OF THE ISSUERS
OR ANY OF THE GUARANTORS IN ANY OTHER JURISDICTION.
(i) 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 respective best efforts
33
to find and employ an 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.
(j) Entire Agreement. This Agreement 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. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Issuers and the
Guarantors in respect of securities sold pursuant to the Purchase Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any provision of
this Agreement, or where any provision hereof is validly asserted as a defense,
the prevailing party, as determined by the courts, shall be entitled to recover
reasonable attorneys' fees in addition to its costs and expenses and any other
available remedy.
(l) Securities Held by Either of the Issuers or their Respective
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of the principal amount of Registrable Securities is required
hereunder, Registrable Securities held by either of the Issuers or their
respective affiliates (as such term is defined in Rule 405 under the Securities
Act) (other than Holders deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
[signature pages follow this page]
34
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
MAJESTIC INVESTOR HOLDINGS, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
MAJESTIC INVESTOR CAPITAL CORP.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ NEVADA GAMING, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇ MISSISSIPPI GAMING, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
▇▇▇▇▇▇ COLORADO GAMING, LLC
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager
ACCEPTED AND AGREED TO:
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: EVP
