EXHIBIT 4.4
___________________________________
Registration Rights Agreement
Dated as of March 27, 2002
among
Isle of Capri Casinos, Inc.,
the Subsidiary Guarantors listed on the Signature pages hereof
and
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ - Grantchester, Inc.
CIBC World Markets Corp.
Deutsche Banc Alex. ▇▇▇▇▇ Inc.
and
Credit Lyonnais Securities (USA) Inc.
___________________________________
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is made and
entered into this 27th day of March, 2002, among Isle of Capri Casinos, Inc., a
Delaware corporation (the "Company"), Riverboat Corporation of Mississippi, a
Mississippi corporation ("RCM"), Riverboat Corporation of Mississippi-Vicksburg,
a Mississippi corporation ("RCM-Vicksburg"), Riverboat Services, Inc., an Iowa
corporation ("RSI"), CSNO, L.L.C., a Louisiana limited liability company
("CSNO"), Louisiana Riverboat Gaming Partnership, a Louisiana general
partnership ("LRGP"), St. ▇▇▇▇▇▇▇ Gaming Company, Inc., a Louisiana corporation
("SCGC"), IOC Holdings, L.L.C., a Louisiana limited liability company ("IOCH"),
Grand Palais Riverboat, Inc., a Louisiana corporation ("GPRI"), LRGP Holdings,
L.L.C., a Louisiana limited liability company ("LRGP Holdings"), PPI, Inc., a
Florida corporation ("PPI"), Isle of Capri Casino Colorado, Inc., a Colorado
corporation ("Isle Colorado"), Isle of Capri Casino-Tunica, Inc., a Mississippi
corporation ("Isle-Tunica"), IOC-Coahoma, Inc., a Mississippi corporation
("IOC-Coahoma"), IOC-Natchez, Inc., a Mississippi Corporation ("Isle-Natchez"),
IOC-▇▇▇▇, Inc., a Mississippi corporation ("Isle-▇▇▇▇"), IOC- Boonville, Inc., a
Nevada corporation ("Isle-Boonville"), IOC-Kansas City, Inc., a Missouri
corporation ("Isle-Kansas City"), Isle of Capri ▇▇▇▇▇▇▇▇▇▇, ▇.▇., an Iowa
limited liability company ("Isle-Bettendorf"), Isle of Capri Marquette, Inc., an
Iowa corporation ("Isle-Marquette"), IOC-Davenport, Inc., an Iowa corporation
("Isle-Davenport"), LL Holding Corporation ("LLHC") and Gemini, Inc., a Nevada
corporation ("Gemini" and together with RCM, RCM-Vicksburg, RSI, CSNO, LRGP,
SCGC, IOCH, GPRI, LRGP Holdings, PPI, Isle Colorado, Isle-Tunica, IOC-Coahoma,
IOC-Natchez, IOC-▇▇▇▇, IOC-Boonville, IOC-Kansas City, Isle-Bettendorf,
Isle-Marquette, Isle-Davenport and LLHC, the "Subsidiary Guarantors"), Dresdner
Kleinwort ▇▇▇▇▇▇▇▇▇▇▇-Grantchester, Inc. ("▇▇▇▇▇▇▇▇▇▇▇"), on its own behalf and
as representative of CIBC World Markets Corp. ("CIBC"), Deutsche Banc Alex.
▇▇▇▇▇ Inc.("Deutsche Banc") and Credit Lyonnais Securities (USA) Inc. ("Credit
Lyonnais") (collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement, dated March
21, 2002 among the Company, the Subsidiary Guarantors and the Initial Purchasers
(the "Purchase Agreement"), which provides for the sale by the Company to the
Initial Purchasers of an aggregate of $200,000,000 in principal amount of the
Company's 9% Senior Subordinated Notes due 2012, Series A (the "Notes"), which
are guaranteed by the Subsidiary Guarantors. In order to induce the Initial
Purchasers to enter into the Purchase Agreement, the Company and the Subsidiary
Guarantors have agreed to provide to the Initial Purchasers and their direct and
indirect transferees the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under the Purchase
Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions.
-----------
As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"1933 Act" shall mean the Securities Act of 1933, as amended from time
--------
to time.
"1934 Act" shall mean the Securities Exchange Act of l934, as amended
--------
from time to time.
"Broker Prospectus Period" shall mean a period of at least 365 days
------------------------
after the consummation of the Exchange Offer during which the Company shall make
a prospectus meeting the requirements of the 1933 Act available to all
Participating Broker-Dealers for use in connection with any resale of any
Exchange Notes acquired in the Exchange Offer.
"Closing Date" shall mean the Closing Time as defined in the Purchase
------------
Agreement.
"Company" shall have the meaning set forth in the preamble and shall
-------
also include the Company's successors.
"Depositary" shall mean The Depository Trust Company, or any other
----------
depositary appointed by the Company, provided, however, that such depositary
must have an address in the Borough of Manhattan, in the City of New York.
"Exchange Notes" shall mean the 9% Senior Subordinated Notes due 2012,
--------------
Series B issued by the Company and guaranteed by the Subsidiary Guarantors under
the Indenture containing terms identical to the Notes in all material respects
(except for references to certain interest rate provisions, restrictions on
transfers and restrictive legends), to be offered to Holders of Notes in
exchange for Transfer Restricted Notes pursuant to the Exchange Offer.
"Exchange Offer" shall mean the exchange offer by the Company and the
--------------
Subsidiary Guarantors of Exchange Notes for Transfer Restricted Notes pursuant
to Section 2.1 hereof.
"Exchange Offer Registration" shall mean a registration under the 1933
---------------------------
Act effected pursuant to Section 2.1 hereof.
"Exchange Offer Registration Statement" shall mean an exchange offer
-------------------------------------
registration statement on Form S-4 (or, if applicable, on another appropriate
form), and all amendments and supplements to such registration statement,
including the Prospectus contained therein, all exhibits thereto and all
documents incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section 2.1
---------------
hereof.
"Holder" shall mean an Initial Purchaser, for so long as it owns any
------
Transfer Restricted Notes, and each of its successors, assigns and direct and
indirect transferees who become registered owners of Transfer Restricted Notes
under the Indenture and each Participating Broker-Dealer that holds Exchange
Notes for so long as such Participating Broker-Dealer is required to deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Notes.
"Indenture" shall mean the Indenture relating to the Notes, dated as
---------
of March 27, 2002, between the Company, the Subsidiary Guarantors, and State
Street Bank and Trust
2
Company, as trustee, as the same may be amended, supplemented, waived or
otherwise modified from time to time in accordance with the terms thereof.
"Initial Purchaser" or "Initial Purchasers" shall have the meaning set
----------------- ------------------
forth in the preamble.
"Majority Holders" shall mean the Holders of a majority of the
----------------
aggregate principal amount of Outstanding (as defined in the Indenture) Transfer
Restricted Notes; provided that whenever the consent or approval of Holders of a
--------
specified percentage of Transfer Restricted Notes is required hereunder,
Transfer Restricted Notes held by the Company and other obligors on the Notes or
any Affiliate (as defined in the Indenture) of the Company or any Subsidiary
Guarantor shall be disregarded in determining whether such consent or approval
was given by the Holders of such required percentage amount.
"Notes" shall have the meaning set forth in the preamble hereof.
-----
"Participating Broker-Dealer" shall mean any of ▇▇▇▇▇▇▇▇▇▇▇, CIBC,
---------------------------
Deutsche Banc and Credit Lyonnais and any other broker-dealer which makes a
market in the Notes and exchanges Transfer Restricted Notes in the Exchange
Offer for Exchange Notes.
"Person" shall mean an individual, partnership (general or limited),
------
corporation, limited liability company, trust or unincorporated organization, or
a government or agency or political subdivision thereof.
"Private Exchange" shall have the meaning set forth in Section 2.1
----------------
hereof.
"Private Exchange Notes" shall have the meaning set forth in Section
----------------------
2.1 hereof.
"Prospectus" shall mean the prospectus included in a Registration
----------
Statement, including any preliminary prospectus, and any such prospectus as
amended or supplemented by any prospectus supplement, including any such
prospectus supplement with respect to the terms of the offering of any portion
of the Transfer Restricted Notes covered by a Shelf Registration Statement, and
by all other amendments and supplements to a prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
------------------
"Registration Expenses" shall mean any and all expenses incident to
---------------------
performance of or compliance by the Company and the Subsidiary Guarantors with
this Agreement, including without limitation: (i) all SEC, stock exchange or
National Association of Securities Dealers, Inc. (the "NASD") registration and
filing fees, including, if applicable, the fees and expenses of any "qualified
independent underwriter" that is required to be retained by any holder of
Transfer Restricted Notes in accordance with the rules and regulations of the
NASD, (ii) all fees and expenses incurred in connection with compliance with
state securities or blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any underwriters or
Holders in connection with blue sky qualification of any of the Exchange Notes
or Transfer Restricted Notes and any filings with the NASD), (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing, printing
and distributing any
3
Registration Statement, any Prospectus, any amendments or supplements thereto,
any underwriting agreements, securities sales agreements and other documents
relating to the performance of and compliance with this Agreement, (iv) all fees
and expenses incurred in connection with the listing, if any, of any of the
Transfer Restricted Notes on any securities exchange or exchanges, (v) all
rating agency fees, (vi) the fees and disbursements of counsel for the Company
and the Subsidiary Guarantors and of the independent public accountants of the
Company and the Subsidiary Guarantors, including the expenses of any special
audits or "cold comfort" letters required by or incident to such performance and
compliance, (vii) the fees and expenses of the Trustee (including the reasonable
fees and disbursements of its counsel), and any escrow agent or custodian, and
(viii) any fees and disbursements of the underwriters customarily required to be
paid by issuers or sellers of securities and the fees and expenses of any
special experts retained by the Company and the Subsidiary Guarantors in
connection with any Registration Statement, but excluding underwriting discounts
and commissions and transfer taxes, if any, relating to the sale or disposition
of Transfer Restricted Notes by a Holder. Notwithstanding the foregoing, except
as specifically provided above, the Company and the Subsidiary Guarantors shall
not be responsible for the fees and expenses of the Initial Purchasers in
connection with the Exchange Offer, or the fees and expenses of counsel to the
Initial Purchasers in connection therewith.
"Registration Statement" shall mean any registration statement of the
----------------------
Company which covers any of the Exchange Notes or Transfer Restricted Notes
pursuant to the provisions of this Agreement, and all amendments and supplements
to any such Registration Statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"SEC" shall mean the Securities and Exchange Commission or any
---
successor agency or government body performing the functions currently performed
by the United States Securities and Exchange Commission.
"Shelf Registration" shall mean a registration effected pursuant to
------------------
Section 2.2 hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
----------------------------
statement of the Company pursuant to the provisions of Section 2.2 of this
Agreement which covers Transfer Restricted Notes or Private Exchange Notes on an
appropriate form under Rule 415 under the 1933 Act, or any similar rule that may
be adopted by the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Transfer Restricted Notes" shall mean the Notes and, if issued, the
-------------------------
Private Exchange Notes; provided, however, that Notes and, if issued, the
Private Exchange Notes, shall cease to be Transfer Restricted Notes when (i)
such Transfer Restricted Note has been exchanged by a person (other than a
Participating Broker-Dealer) for an Exchange Note in the Exchange Offer, (ii)
following the exchange by a Participating Broker-Dealer in the Exchange Offer of
a Transfer Restricted Note for an Exchange Note, the date on which such Exchange
Note is sold to a purchaser who received from such Participating Broker-Dealer
on or prior to the date of such
4
sale a copy of the prospectus contained in the Exchange Offer Registration
Statement, as amended or supplemented, (iii) such Transfer Restricted Note has
been effectively registered under the 1933 Act and disposed of in accordance
with the Shelf Registration Statement, (iv) such Transfer Restricted Note is
eligible for distribution to the public pursuant to Rule l44(k) (or any similar
provision then in force, but not Rule 144A) under the 1933 Act, or (v) such
Transfer Restricted Note ceases to be outstanding.
"Trustee" shall mean the trustee with respect to the Notes under the
-------
Indenture.
2. Registration Under the ▇▇▇▇ ▇▇▇.
2.1 Exchange Offer. The Company and the Subsidiary Guarantors shall,
--------------
for the benefit of the Holders, at the Company's and Subsidiary Guarantors'
cost, (A) file the Exchange Offer Registration Statement with the SEC on or
prior to the 75/th/ day following the Closing Date, which Exchange Offer
Registration Statement shall be on an appropriate form under the 1933 Act and
shall relate to a proposed Exchange Offer and the issuance and delivery to the
Holders who so elect, in exchange for the Transfer Restricted Notes (other than
Private Exchange Notes), of a like principal amount of Exchange Notes, (B) use
their best efforts to have the Exchange Offer Registration Statement declared
effective by the SEC under the 1933 Act on or prior to the 120/th/ day following
the Closing Date, (C) commence the Exchange Offer promptly after the Exchange
Offer Registration Statement is declared effective, (D) keep the Exchange Offer
open for acceptance for not less than 20 business days after notice thereof is
mailed to Holders (or longer if required by applicable law) (such period
referred to herein as the "Exchange Period") and consummate the Exchange Offer
no later than 30 business days following the date on which the Exchange Offer
Registration Statement is declared effective by the SEC, (E) use their best
efforts to issue, promptly after the end of the Exchange Period, Exchange Notes
in exchange for all Notes that have been properly tendered for exchange during
the Exchange Period and (F) use their best efforts to maintain the effectiveness
of the Exchange Offer Registration Statement during the Exchange Period and
thereafter until such time as the Company has issued Exchange Notes in exchange
for all Transfer Restricted Notes that have been properly tendered for exchange
during the Exchange Period. The Exchange Notes will be issued under the
Indenture. Upon the effectiveness of the Exchange Offer Registration Statement,
the Company and the Subsidiary Guarantors shall promptly commence the Exchange
Offer, it being the objective of such Exchange Offer to enable each Holder
eligible and electing to exchange Transfer Restricted Notes for Exchange Notes
(assuming that such Holder makes certain representations and warranties to the
Company, including representations that (a) it is not an affiliate of the
Company within the meaning of Rule 405 under the 1933 Act, (b) any Exchange
Notes to be received by it will be acquired in the ordinary course of its
business, (c) 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 Notes, (d) if
such Holder is a broker-dealer that will receive Exchange Notes for its own
account in exchange for Transfer Restricted Notes acquired as a result of
market-making or other trading activities, that such broker-dealer will deliver
a prospectus in connection with any resale of such Exchange Notes, and (e) it
has no arrangements or understandings with any Person to participate in the
distribution of the Transfer Restricted Notes or the Exchange Notes) to transfer
such Exchange Notes from and after their receipt without any limitations or
restrictions under the 1933 Act and under state securities or blue sky laws.
5
In connection with the Exchange Offer, the Company and the Subsidiary
Guarantors shall additionally:
(a) utilize the services of the Depositary for the Exchange Offer;
(b) permit Holders to withdraw tendered Transfer Restricted Notes at
any time prior to 5:00 p.m. (Eastern Standard Time), on the last business
day of the Exchange Period, by sending to the institution specified in the
notice, a telegram, telex, facsimile transmission or letter setting forth
the name of such Holder, the principal amount of Transfer Restricted Notes
delivered for exchange, and a statement that such Holder is withdrawing
such Holder's election to have such Notes exchanged;
(c) notify each Holder that any Transfer Restricted Notes not tendered
will remain outstanding and continue to accrue interest, but will not
retain any rights under this Agreement (except in the case of the Initial
Purchasers and Participating Broker-Dealers as provided herein); and
(d) otherwise comply in all respects with all applicable laws relating
to the Exchange Offer.
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them and having the status of an unsold
allotment in the initial distribution, the Company and the Subsidiary Guarantors
upon the request of any Initial Purchaser shall, simultaneously with the
delivery of the Exchange Notes in the Exchange Offer, issue and deliver to such
Initial Purchaser in exchange (the "Private Exchange") for the Notes held by
such Initial Purchaser, a like principal amount of debt securities of the
Company that are identical (except that such securities shall bear appropriate
transfer restrictions) to the Exchange Notes (the "Private Exchange Notes") and
shall be guaranteed by the Subsidiary Guarantors.
The Exchange Notes and the Private Exchange Notes shall be issued
under (i) the Indenture or (ii) an indenture identical in all material respects
to the Indenture and which, in either case, has been qualified under the Trust
Indenture Act of 1939, as amended (the "TIA"), or is exempt from such
qualification and shall provide that the Exchange Notes shall not be subject to
the transfer restrictions set forth in the Indenture but that the Private
Exchange Notes shall be subject to such transfer restrictions. The Exchange
Notes, the Private Exchange Notes and the Notes shall vote and consent together
on all matters as one class and none of the Exchange Notes, the Private Exchange
Notes or the Notes will have the right to vote or consent as a separate class on
any matter. The Private Exchange Notes shall be of the same series as, and the
Company shall use all commercially reasonable efforts to have the Private
Exchange Notes bear the same CUSIP number as, the Exchange Notes. The Company
and the Subsidiary Guarantors shall not have any liability under this Agreement
solely as a result of such Private Exchange Notes not bearing the same CUSIP
number as the Exchange Notes.
As soon as practicable after the close of the Exchange Offer and/or
the Private Exchange, as the case may be, the Company and the Subsidiary
Guarantors shall:
(i) accept for exchange all Transfer Restricted Notes duly
tendered and not validly withdrawn pursuant to the Exchange Offer in
accordance with the terms
6
of the Exchange Offer Registration Statement and the letter of transmittal
which shall be an exhibit thereto;
(ii) accept for exchange all Notes properly tendered pursuant
to the Private Exchange;
(iii) deliver to the Trustee for cancellation all Transfer
Restricted Notes so accepted for exchange; and
(iv) cause the Trustee promptly to authenticate and deliver
Exchange Notes or Private Exchange Notes, as the case may be, to each
Holder of Transfer Restricted Notes so accepted for exchange in a principal
amount equal to the principal amount of the Transfer Restricted Notes of
such Holder so accepted for exchange.
Interest on each Exchange Security and Private Exchange Security,
including Additional Interest, will accrue from the last date on which interest
was paid on the Transfer Restricted Notes surrendered in exchange therefor or,
if no interest has been paid on the Transfer Restricted Notes, from the Closing
Date. The Company shall inform the Initial Purchasers of the names and addresses
of the Holders to whom the Exchange Offer is made, and the Initial Purchasers
shall have the right, but not the obligation, to contact such Holders and
otherwise facilitate the tender of Transfer Restricted Notes in the Exchange
Offer.
2.2 Shelf Registration. If,
------------------
(i) the Company or any Subsidiary Guarantor is not permitted
to file the Exchange Offer Registration Statement or to consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable
law or SEC policy,
(ii) for any other reason the Exchange Offer is not consummated
within 150 days after the Closing Date,
(iii) any Holder notifies the Company within 30 days following
the date upon which the Exchange Offer Registration Statement is declared
effective that
(1) such Holder is not entitled to participate in the Exchange
Offer,
(2) such Holder may not resell or otherwise transfer 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 for such resales by such Holder, or
(3) such Holder is a broker-dealer and owns Notes acquired
directly from the Company or an affiliate of the Company,
or
(iv) the holders of a majority in aggregate principal amount of
the Transfer Restricted Notes are not eligible to participate in the
Exchange Offer and to receive Exchange Notes that they may resell to the
public without volume restrictions
7
under the 1933 Act and without similar restrictions under applicable blue
sky or state securities laws,
then in case of each of clauses (i) through (iv) the Company and the Subsidiary
Guarantors shall, at their cost:
(a) use their best efforts to file with the SEC on or prior to
the 60/th/ day after such filing obligation arises and thereafter
shall use their best efforts to cause to be declared effective no
later than 120 days after such filing obligation arises, a Shelf
Registration Statement relating to the offer and sale of the Transfer
Restricted Notes by the Holders from time to time in accordance with
the methods of distribution elected by the Holders of a majority in
aggregate principal amount of Transfer Restricted Notes participating
in the Shelf Registration and set forth in such Shelf Registration
Statement; provided, however, that, if the obligation to file the
Shelf Registration Statement arises because the Exchange Offer has not
been consummated within 150 days after the Closing Date, the Company
and Subsidiary Guarantors shall use their best efforts to file the
Shelf Registration Statement on or prior to the 181/st/ day following
the Closing Date,
(b) use their best efforts to keep the Shelf Registration
Statement continuously effective, supplemented and amended (including
through a post-effective amendment on Form S-3 if the Company is
eligible to use such Form) in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years from
the date the Shelf Registration Statement is declared effective by the
SEC, or for such shorter period that will terminate when all Transfer
Restricted Notes covered by the Shelf Registration Statement have been
sold pursuant to the Shelf Registration Statement or cease to be
outstanding or otherwise to be Transfer Restricted Notes (the
"Effectiveness Period"); provided, however, that the Effectiveness
Period in respect of the Shelf Registration Statement shall, upon
written request to the Company, be extended to the extent required to
permit dealers to comply with the applicable prospectus delivery
requirements of Rule 174 under the 1933 Act and as otherwise provided
herein, and
(c) notwithstanding any other provisions hereof, use their best
efforts to ensure that (i) any Shelf Registration Statement and any
amendment thereto and any Prospectus forming part thereof and any
supplement thereto complies in all material respects with the 1933 Act
and the rules and regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, 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 not misleading and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any supplement
to such Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements, in
light of the circumstances under which they were made, not misleading.
8
The Company and the Subsidiary Guarantors shall not permit any
securities other than Transfer Restricted Notes to be included in the Shelf
Registration Statement. The Company and the Subsidiary Guarantors further agree,
if necessary, to supplement or amend the Shelf Registration Statement, as
required by Section 3(b) below, and to furnish to the Holders of Transfer
Restricted Notes copies of any such supplement or amendment promptly after its
being used or filed with the SEC.
2.3 Expenses. The Company and the Subsidiary Guarantors shall pay all
--------
Registration Expenses in connection with the registration pursuant to Section
2.1 or 2.2. Each Holder shall pay all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Transfer Restricted Notes pursuant to the Shelf Registration Statement.
2.4 Effectiveness.
-------------
(a) The Company and the Subsidiary Guarantors will be deemed not to
have used their 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 either the
Company or any Subsidiary Guarantor voluntarily 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 Notes covered thereby not being able to exchange or
offer and sell such Transfer Restricted Notes during that period as and to
the extent contemplated hereby, unless such action is required by
applicable law, in each case other than under the circumstances described
in paragraphs 3(e)(iii), (iv), (v) or (vi) below.
(b) An Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2 hereof
will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however, that if, after it has been
declared effective, the offering of Transfer Restricted Notes pursuant to
an Exchange Offer Registration Statement or a Shelf Registration Statement
is interfered with by any stop order, injunction or other order or
requirement of the SEC or any other governmental agency or court, such
Registration Statement will not be effective during the period of such
interference, until the offering of Transfer Restricted Notes pursuant to
such Registration Statement may legally resume.
2.5 Additional Interest. In the event that either,
-------------------
(a) the Exchange Offer Registration Statement is not filed with the
SEC on or prior to the 75th calendar day following the Closing Date, or a
Shelf Registration Statement is not filed with the SEC prior to the dates
specified for such filing in Section 2.2 hereof;
(b) the Exchange Offer Registration Statement has not been declared
effective by the SEC under the 1933 Act on or prior to the 120th calendar
day following the Closing Date, or a Shelf Registration Statement is not
declared effective by the SEC under the 1933 Act on or prior to the 120/th/
day after such filing obligation arises,
9
(c) the Exchange Offer is not consummated within 150 days following
the Closing Date,
(d) a Shelf Registration Statement is declared effective but
thereafter, during the period for which the Company and the Subsidiary
Guarantors are required to maintain the effectiveness of such Shelf
Registration Statement, it ceases to be effective or usable in connection
with the resale of the Notes covered by such Shelf Registration Statement,
or
(e) the Exchange Offer Registration Statement is declared effective,
but thereafter, during the Broker Prospectus Period, it ceases to be
effective (or the Company or any Subsidiary Guarantor restricts the use of
the prospectus included therein) (each such event referred to in these
clauses (a) through (e) above, a "Registration Default"),
then, the interest rate borne by the Transfer Restricted Notes shall be
increased by one-quarter of one percent (0.25%) per annum with respect to the
first 90-day period (or portion thereof) while a Registration Default is
continuing immediately following the occurrence of such Registration Default,
which rate will increase by an additional one quarter of one percent (0.25%) per
annum at the beginning of each subsequent 90-day period (or portion thereof)
while a Registration Default is continuing until all Registration Defaults have
been cured, provided that the maximum aggregate increase in the interest rate on
the Transfer Restricted Notes will in no event exceed one percent (1.00%) per
annum (the "Additional Interest"). Following the cure of all Registration
Defaults the accrual of Additional Interest will cease and the interest rate on
the Transfer Restricted Notes will revert to the original rate. Notwithstanding
the foregoing, any Registration Default specified in clause (a), (b) or (c) of
this Section that relates to the Exchange Offer Registration Statement or the
Exchange Offer shall be deemed cured at such time as the Shelf Registration
Statement is declared effective by the SEC, or earlier upon the cure of the
Registration Default described therein.
If the Shelf Registration Statement is unusable by the Holders whose
Transfer Restricted Notes are covered thereby for any reason, and the aggregate
number of days in any consecutive twelve-month period for which the Shelf
Registration Statement shall not be usable exceeds 30 days in the aggregate,
then the interest rate borne by such Holders' Notes will be increased by
one-quarter of one percent (0.25%) per annum for the first 90-day period (or
portion thereof) beginning on the 31st day in any consecutive twelve-month
period that such Shelf Registration Statement ceases to be usable, which rate
shall be increased by an additional one-quarter of one percent (0.25%) per annum
at the beginning of each subsequent 90-day period (or portion thereof) in any
consecutive twelve-month period during which the Shelf Registration Statement is
unusable, provided that the maximum aggregate increase in the interest rate on
such Holder's Notes will in no event exceed one percent (1.00%) per annum. Any
amounts payable under this paragraph shall also be deemed "Additional Interest"
for purposes of this Agreement. Upon any such Shelf Registration Statement once
again becoming usable, the interest rate borne by the Notes will be reduced to
the original interest rate if no other Registration Default shall be continuing
at such time. Additional Interest shall be computed based on the actual number
of days elapsed in each 90-day period in which the Shelf Registration Statement
is unusable.
10
The Company shall notify the Trustee within three business days after
each and every date on which an event occurs in respect of which Additional
Interest is required to be paid (an "Event Date"). Any Additional Interest due
shall be payable on each interest payment date to the Holder of Notes with
respect to which Additional Interest is due and owing. Each obligation to pay
Additional Interest shall be deemed to accrue from and including the day
following the applicable Event Date.
3. Registration Procedures.
In connection with the obligations of the Company and the Subsidiary
Guarantors with respect to Registration Statements pursuant to Sections 2.1 and
2.2 hereof, the Company and the Subsidiary Guarantors shall:
(a) prepare and file with the SEC a Registration Statement, within the
relevant time period specified in Section 2, on the appropriate form under
the 1933 Act, which form (i) shall be selected by the Company, (ii) shall,
in the case of a Shelf Registration, be available for the sale of the
Transfer Restricted Notes by the selling Holders thereof, (iii) shall
comply as to form in all material respects with the requirements of the
applicable form and include or incorporate by reference all financial
statements required by the SEC to be filed therewith or incorporated by
reference therein, and (iv) shall comply in all respects with the
requirements of Regulation S-T under the 1933 Act;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary under
applicable law to keep such Registration Statement effective for the
applicable period; and cause each Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant
to Rule 424 (or any similar provision then in force) under the 1933 Act and
comply with the provisions of the 1933 Act, the 1934 Act and the rules and
regulations thereunder applicable to them with respect to the disposition
of all securities covered by each Registration Statement during the
applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof (including sales by any
Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each Holder of
Transfer Restricted Notes to be covered thereby, at least five business
days prior to filing, that a Shelf Registration Statement with respect to
such Transfer Restricted Notes is being filed and advising such Holders
that the distribution of such Transfer Restricted Notes will be made in
accordance with the method selected by a majority in aggregate principal
amount of the Holders of Transfer Restricted Notes participating in the
Shelf Registration; (ii) furnish to each Holder of Transfer Restricted
Notes to be covered thereby and to each underwriter of an underwritten
offering of Transfer Restricted Notes, if any, without charge, as many
copies of each Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereto and such other documents as such Holder or
underwriter may reasonably request, including financial statements and
schedules and, if the Holder so requests, all exhibits in order to
facilitate the public sale or other disposition of the Transfer Restricted
Notes; and (iii) hereby consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of
11
Transfer Restricted Notes in connection with the offering and sale of the
Transfer Restricted Notes covered by the Prospectus or any amendment or
supplement thereto;
(d) use their best efforts to register or qualify the Transfer
Restricted Notes under all applicable state securities or "blue sky" laws
of such jurisdictions as any Holder of Transfer Restricted Notes covered by
a Registration Statement and each underwriter of an underwritten offering
of Transfer Restricted Notes shall reasonably request by the time the
applicable Registration Statement is declared effective by the SEC, and do
any and all other acts and things which may be reasonably necessary or
advisable to enable each such Holder and underwriter to consummate the
disposition in each such jurisdiction of such Transfer Restricted Notes
owned by such Holder; provided, however, that the Company and the
Subsidiary Guarantors shall not be required to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where they
would not otherwise be required to qualify but for this Section 3(d), or
(ii) take any action which would subject them to general service of process
or taxation in any such jurisdiction where they are not then so subject;
(e) notify promptly each Holder of Transfer Restricted Notes under a
Shelf Registration or any Participating Broker-Dealer who has notified the
Company that it is utilizing the Exchange Offer Registration Statement as
provided in paragraph (f) below and, if requested by such Holder or
Participating Broker-Dealer, confirm such advice in writing promptly (i)
when a Registration Statement has become effective and when any
post-effective amendments and supplements to a Registration Statement have
become effective, (ii) of any request by the SEC or any state securities
authority for post-effective amendments and supplements to a Registration
Statement and Prospectus or for additional information after the
Registration Statement has become effective, (iii) of the issuance by the
SEC or any state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration, if,
between the effective date of a Registration Statement and the closing of
any sale of Transfer Restricted Notes covered thereby, the representations
and warranties of the Company and the Subsidiary Guarantors contained in
any underwriting agreement, securities sales agreement or other similar
agreement, if any, relating to the offering cease to be true and correct in
all material respects, (v) of the happening of any event or the discovery
of any facts during the period a Shelf Registration Statement is effective
which makes any statement made in such Registration Statement or the
related Prospectus untrue in any material respect or which requires the
making of any changes in such Registration Statement or Prospectus in order
to make the statements therein not misleading, (vi) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Transfer Restricted Notes or the Exchange Notes, as
the case may be, for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose and (vii) of any
determination by the Company that a post-effective amendment to such
Registration Statement would be appropriate;
(f) in the case of the Exchange Offer Registration Statement (i)
include in the Exchange Offer Registration Statement a section entitled
"Plan of Distribution" which section shall be in customary form, and which
shall contain a summary statement of the
12
positions taken or policies made by the staff of the SEC with respect to
the potential "underwriter" status of any broker-dealer that holds Transfer
Restricted Notes acquired for its own account as a result of market-making
activities or other trading activities and that will be the beneficial
owner (as defined in Rule 13d-3 under the Exchange Act) of Exchange Notes
to be received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of the
SEC or such positions or policies, represent the prevailing views of the
staff of the SEC, including a statement that any such broker-dealer who
receives Exchange Notes for Transfer Restricted Notes pursuant to the
Exchange Offer may be deemed a statutory underwriter and must deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Notes, (ii) furnish to each Participating
Broker-Dealer who has delivered to the Company the notice referred to in
Section 3(e), without charge, as many copies of each Prospectus included in
the Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such Participating
Broker-Dealer may reasonably request, (iii) hereby consent to the use of
the Prospectus forming part of the Exchange Offer Registration Statement or
any amendment or supplement thereto, by any Person subject to the
prospectus delivery requirements of the SEC, including all Participating
Broker-Dealers, in connection with the sale or transfer of the Exchange
Notes covered by the Prospectus or any amendment or supplement thereto, and
(iv) include in the transmittal letter or similar documentation to be
executed by an exchange offeree in order to participate in the Exchange
Offer (x) the following provision:
"If the exchange offeree is a broker-dealer holding Transfer
Restricted Notes acquired for its own account as a result of
market-making activities or other trading activities, it will deliver
a prospectus meeting the requirements of the 1933 Act in connection
with any resale of Exchange Notes received in respect of such Transfer
Restricted Notes pursuant to the Exchange Offer;" and
(y) a statement to the effect that by a broker-dealer's making the
acknowledgment described in clause (x) and by delivering a Prospectus
in connection with the exchange of Transfer Restricted Notes, the
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the 1933 Act;
(g) make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible moment;
(h) in the case of a Shelf Registration, furnish to each Holder of
Transfer Restricted Notes, and each underwriter, if any, without charge, at
least one conformed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules (without documents incorporated therein by reference and all
exhibits thereto, unless requested);
(i) in the case of a Shelf Registration, cooperate with the selling
Holders of Transfer Restricted Notes to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Notes to be
sold and not bearing any restrictive legends;
13
and enable such Transfer Restricted Notes to be in such denominations
(consistent with the provisions of the Indenture) and registered in such
names as the selling Holders or the underwriters, if any, may reasonably
request at least three business days prior to the closing of any sale of
Transfer Restricted Notes;
(j) in the case of a Shelf Registration, upon the occurrence of any
event or the discovery of any facts, each as contemplated by Sections
3(e)(v) and 3(e)(vi) hereof, as promptly as practicable after the
occurrence of such an event, use their best efforts to prepare a supplement
or post-effective amendment to the Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any
other required document so that, as thereafter delivered to the purchasers
of the Transfer Restricted Notes or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading or will remain so qualified. At such time as such
public disclosure is otherwise made or the Company determines that such
disclosure is not necessary, in each case to correct any misstatement of a
material fact or to include any omitted material fact, the Company and the
Subsidiary Guarantors agree promptly to notify each Holder of such
determination and to furnish each Holder such number of copies of the
Prospectus as amended or supplemented, as such Holder may reasonably
request;
(k) in the case of a Shelf Registration, a reasonable time prior to
the filing of any Registration Statement, any Prospectus, any amendment to
a Registration Statement or amendment or supplement to a Prospectus,
provide copies of such document to the Initial Purchasers on behalf of such
Holders; and make representatives of the Company and the Subsidiary
Guarantors as shall be reasonably requested by the Holders of Transfer
Restricted Notes, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document;
(l) obtain a CUSIP number for all Exchange Notes, Private Exchange
Notes or Transfer Restricted Notes, as the case may be, not later than the
effective date of a Registration Statement, and provide the Trustee with
certificates for the Exchange Notes, Private Exchange Notes or the Transfer
Restricted Notes, as the case may be, in a form eligible for deposit with
the Depositary;
(m) (i) cause the Indenture to be qualified under the TIA in
connection with the registration of the Exchange Notes or Transfer
Restricted Notes, as the case may be, (ii) cooperate with the Trustee and
the Holders to effect such changes to the Indenture as may be required for
the Indenture to be so qualified in accordance with the terms of the TIA
and (iii) execute, and use their best efforts to cause the 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 the
Indenture to be so qualified in a timely manner;
(n) in the case of a Shelf Registration, enter into agreements
(including underwriting agreements) and take all other customary and
appropriate actions in order to
14
expedite or facilitate the disposition of such Transfer Restricted Notes and if
so requested by the holders of such Transfer Restricted Notes 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 of such
Transfer Restricted Notes and the underwriters, if any, as the Company and the
Subsidiary Guarantors are able to make, in form, substance and scope as are
customarily made by issuers to underwriters in similar underwritten offerings as
may be reasonably requested by them;
(ii) in connection with an underwritten registration, obtain opinions of
counsel to the Company and the Subsidiary 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 principal amount of the Transfer Restricted Notes being sold) addressed to
each selling Holder and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by such Holders
and underwriters;
(iii) in connection with an underwritten registration, obtain "cold
comfort" letters and updates thereof from the Company's and the Subsidiary
Guarantor's independent certified public accountants (and, if necessary, any
other independent certified public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial statements are,
or are required to be, included in the Registration Statement) addressed to the
underwriters, if any, and use reasonable efforts to have such letter addressed
to the selling Holders of Transfer Restricted Notes (to the extent consistent
with Statement on Auditing Standards No. 72 of the American Institute of
Certified Public Accountants), such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten offerings;
(iv) enter into a securities sales agreement with the Holders and an
agent of the Holders providing for, among other things, the appointment of such
agent for the selling Holders for the purpose of soliciting purchases of
Transfer Restricted Notes, which agreement shall be in form, substance and scope
customary for similar offerings;
(v) if an underwriting agreement is entered into, cause the same to set
forth indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4 hereof with
respect to the underwriters and all other parties to be indemnified pursuant to
said Section or, at the request of any underwriters, in the form customarily
provided to such underwriters in similar types of transactions; and
(vi) deliver such documents and certificates as may be reasonably
requested and as are customarily delivered in similar offerings to the Holders
of a
15
majority in principal amount of the Transfer Restricted Notes being sold
and the managing underwriters, if any.
The above shall be done at (i) the effectiveness of such Shelf Registration
Statement (and each post-effective amendment thereto) and (ii) each closing
under any underwriting or similar agreement as and to the extent required
thereunder;
(o) in the case of a Shelf Registration or if a Prospectus is
required to be delivered by any Participating Broker-Dealer in the case of
an Exchange Offer, make available for inspection by representatives of the
Holders of the Transfer Restricted Notes, any underwriters participating in
any disposition pursuant to a Shelf Registration Statement, any
Participating Broker-Dealer and any counsel or accountant retained by any
of the foregoing, all non-confidential financial and other records,
pertinent corporate documents and properties of the Company or any
Subsidiary Guarantor reasonably requested by any such persons, and cause
the respective officers, directors, employees, and any other agents of the
Company and the Subsidiary Guarantors to supply all information reasonably
requested by any such representative, underwriter, special counsel or
accountant in connection with a Registration Statement, and make such
representatives of the Company and the Subsidiary Guarantors available for
discussion of such documents as shall be reasonably requested by such
persons;
(i) If so requested by the Initial Purchasers, in the case of
an Exchange Offer Registration Statement, a reasonable time prior to filing
of any Exchange Offer Registration Statement, any Prospectus forming a part
thereof, any amendment to an Exchange Offer Registration Statement or
amendment or supplement to such Prospectus, provide copies of such document
to the Initial Purchasers and to counsel to the Holders of Transfer
Restricted Notes; and
(ii) in the case of a Shelf Registration, a reasonable time
prior to filing any Shelf Registration Statement, any Prospectus forming a
part thereof, any amendment to such Shelf Registration Statement or
amendment or supplement to such Prospectus, provide copies of such
documents to the Initial Purchasers, if so requested, to the Holders of
Transfer Restricted Notes to be covered thereby, to counsel for such
Holders designated by them and to the underwriter or underwriters of an
underwritten offering of such Transfer Restricted Notes, if any, make such
changes in any such document prior to the filing thereof relating to such
Holders or such Transfer Restricted Notes as the counsel to the Holders or
the underwriter or underwriters reasonably request and not file any such
document in a form to which the holders of a majority in aggregate
principal amount of Transfer Restricted Notes covered by such Shelf
Registration Statement, counsel for such Holders of the Transfer Restricted
Notes covered by such Shelf Registration Statement, or any underwriter
shall not have previously been advised and furnished a copy of or to which
the Majority Holders of Transfer Restricted Notes covered by such Shelf
Registration Statement, counsel to such Holders or Transfer Restricted
Notes or any underwriter shall reasonably object, and make the
representatives of the Company and the Subsidiary Guarantors available for
discussion of such document as shall be reasonably requested by such
Holders of Transfer Restricted Notes, the counsel for such Holders of
Transfer Restricted Notes or any underwriter;
16
(p) in the case of a Shelf Registration, use their best efforts
to cause all Transfer Restricted Notes to be listed on any securities
exchange on which similar debt securities issued by the Company and the
Subsidiary Guarantors are then listed if requested by the Holders of a
majority in aggregate principal amount of such Transfer Restricted
Securities covered by such Shelf Registration Statement, or if requested by
the underwriter or underwriters of an underwritten offering of Transfer
Restricted Notes, if any;
(q) in the case of a Shelf Registration, use their best efforts
to cause the Transfer Restricted Notes to be rated by the appropriate
rating agencies, if so requested by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Notes covered by such Shelf
Registration Statement, or if requested by the underwriter or underwriters
of an underwritten offering of Transfer Restricted Notes, if any;
(r) otherwise comply with all applicable rules and regulations of
the SEC and make available to their security holders, as soon as reasonably
practicable, an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder; and
(s) cooperate and assist in any filings required to be made with the
NASD and, in the case of a Shelf Registration, in the performance of any
due diligence investigation by any underwriter and its counsel (including
any "qualified independent underwriter" that is required to be retained in
accordance with the rules and regulations of the NASD).
In the case of a Shelf Registration Statement, the Company and the
Subsidiary Guarantors may (as a condition to such Holder's participation in the
Shelf Registration) require each Holder of Transfer Restricted Notes to furnish
to the Company and Subsidiary Guarantors such information regarding the Holder
and the proposed distribution by such Holder of such Transfer Restricted Notes
as the Company and Subsidiary Guarantors may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each Holder agrees
that, upon receipt of any notice from the Company or any Subsidiary Guarantor of
the happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(v) hereof, such Holder will forthwith discontinue
disposition of Transfer Restricted Notes pursuant to a Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(k) hereof, and, if so directed by the
Company and Subsidiary Guarantors, such Holder will deliver to the Company and
Subsidiary Guarantors (at its expense) all copies in such Holder's possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Transfer Restricted Notes current at the time of
receipt of such notice.
If any of the Transfer Restricted Notes covered by any Shelf
Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Transfer Restricted
Notes to be included in such offering and shall be acceptable to the
17
Company and Subsidiary Guarantors. No Holder of Transfer Restricted Notes may
participate in any underwritten registration hereunder unless such Holder (a)
agrees to sell such Holder's Transfer Restricted Notes on the basis provided in
any underwriting arrangements approved by the persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.
4 Indemnification; Contribution.
(a) The Company and the Subsidiary Guarantors agree to indemnify and
hold harmless the Initial Purchasers and each of their affiliates and any
other Person under common control with the Initial Purchasers, each Holder,
each Participating Broker-Dealer, each Person who participates as an
underwriter (any such Person being an "Underwriter") and each Person, if
any, who controls any Holder or Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto) pursuant to which
Exchange Notes or Transfer Restricted Notes were registered under the 1933
Act, 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 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) against any and all loss, liability, claim, damage and
expense whatsoever, 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
4(d) below) any such settlement is effected with the written consent of the
Company and the Subsidiary Guarantors; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by any indemnified
party), 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 subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense 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
18
furnished to the Company by the Holder or underwriter 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 indemnity
agreement contained in this subsection (a) shall not inure to the benefit of any
Holder or Participating Broker-Dealer from whom the person asserting any such
losses, claims, damages or liabilities purchased the Notes concerned, to the
extent that a prospectus relating to such Notes was required to be delivered by
such Holder or Participating Broker-Dealer under the 1933 Act in connection with
such purchase and any such loss, claim, damage or liability of such Holder or
Participating Broker-Dealer results from the fact that there was not sent or
given to such person, at or prior to the sale of such Notes to such person, a
copy of such prospectus if the Company had previously furnished copies thereof
to such Holder or Participating Broker-Dealer.
(b) Each Holder severally, but not jointly, agrees to indemnify and
hold harmless the Company, the Subsidiary Guarantors, the Initial
Purchasers, each Underwriter and the other selling Holders, and each of
their respective directors and officers, and each Person, if any, who
controls the Company, any Subsidiary Guarantor, the Initial Purchasers, any
Underwriter or any other selling Holder within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained
in Section 4(a) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in
the Shelf Registration Statement (or any amendment thereto) or any
Prospectus included therein (or any amendment or supplement thereto) in
reliance upon and in conformity with written information with respect to
such Holder furnished to the Company and the Subsidiary Guarantors by such
Holder expressly for use in the Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement
thereto); provided, however, that no such Holder shall be liable for any
claims hereunder in excess of the amount of net proceeds received by such
Holder from the sale of Transfer Restricted Notes pursuant to such Shelf
Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action or
proceeding commenced against it in respect of which indemnity may be sought
hereunder, but failure so to notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account
of this indemnity agreement. An indemnifying party may participate at its
own expense in the defense of such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event
shall the indemnifying party or parties be liable for the fees and expenses
of more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any claim
whatsoever in
19
respect of which indemnification or contribution could be sought under
this Section 4 (whether or not the indemnified parties are actual or
potential parties thereto), unless such settlement, compromise or consent
(i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) If the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, liabilities, claims, damages or expenses
referred to therein, then each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, in such proportion as is
appropriate to reflect the relative fault of the Company and the
Subsidiary Guarantors, on the one hand, and the Holders and the Initial
Purchasers, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative fault of the Company and the Subsidiary Guarantors on the
one hand and the Holders and the Initial Purchasers 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 Company, the
Subsidiary Guarantors, the Holders or the Initial Purchasers and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
The Company, the Subsidiary Guarantors, the Holders and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 4 were determined by pro rata allocation (even if the
Initial Purchasers 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 above in this Section 4. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 4 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party 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 or alleged untrue statement or
omission or alleged omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 4, each Person, if any, who controls an
Initial Purchaser or Holder within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Initial Purchaser or Holder, and each director of the Company or any Subsidiary
Guarantor, and each Person, if any, who controls the Company or any Subsidiary
Guarantor within the meaning of Section 15 of the 1933 Act or
20
Section 20 of the 1934 Act shall have the same rights to contribution as the
Company and the Subsidiary Guarantors. The Initial Purchasers' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the principal amount of Notes set forth opposite their respective names in
Schedule A to the Purchase Agreement and not joint.
5. Miscellaneous.
-------------
5.1 Rule 144 and Rule 144A. For so long as the Company and the
----------------------
Subsidiary Guarantors are subject to the reporting requirements of Section 13 or
15 of the 1934 Act, the Company and the Subsidiary Guarantors covenant that they
will file the reports required to be filed by them under the 1933 Act and
Section 13(a) or 15(d) of the 1934 Act and the rules and regulations adopted by
the SEC thereunder. If the Company and the Subsidiary Guarantors cease to be so
required to file such reports, the Company and Subsidiary Guarantors covenant
that they will upon the request of any Holder of Transfer Restricted Notes (a)
make publicly available such information as is necessary to permit sales
pursuant to Rule 144 under the 1933 Act, (b) deliver such information to a
prospective purchaser as is necessary to permit sales pursuant to Rule 144A
under the 1933 Act and take such further action as any Holder of Transfer
Restricted Notes may reasonably request, and (c) take such further action that
is reasonable in the circumstances, in each case, to the extent required from
time to time to enable such Holder to sell its Transfer Restricted Notes without
registration under the 1933 Act within the limitation of the exemptions provided
by (i) Rule 144 under the 1933 Act, as such Rule may be amended from time to
time, (ii) Rule 144A under the 1933 Act, as such Rule may be amended from time
to time, or (iii) any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Transfer Restricted Notes, the Company and the
Subsidiary Guarantors will deliver to such Holder a written statement as to
whether they have complied with such requirements.
5.2 No Inconsistent Agreements. The Company and the Subsidiary
--------------------------
Guarantors have not entered into, and the Company and the Subsidiary Guarantors
will not after the date of this Agreement enter into, any agreement which is
inconsistent with the rights granted to the Holders of Transfer Restricted Notes
in this Agreement or otherwise conflicts with the provisions hereof. The rights
granted to the Holders hereunder do not and will not for the term of this
Agreement in any way conflict with the rights granted to the holders of the
Company's or Subsidiary Guarantors' other issued and outstanding securities
under any such agreements.
5.3 Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company and the Subsidiary Guarantors have obtained
the written consent of Holders of at least a majority in aggregate principal
amount of the outstanding Transfer Restricted Notes affected by such amendment,
modification, supplement, waiver or departure.
5.4 Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery, registered
first-class mail, telex, telecopier, or any courier guaranteeing overnight
delivery (a) if to a Holder, at the most current address given by such Holder to
the Company by means of a notice given in accordance with the provisions of this
Section 5.4, which address initially, and until so changed, is the address set
21
forth in the Purchase Agreement with respect to the Initial Purchasers; and (b)
if to the Company and the Subsidiary Guarantors, initially at the Company's
address set forth in the Purchase Agreement, and thereafter at such other
address of which notice is given in accordance with the provisions of this
Section 5.4.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; two business days
after being deposited in the mail, postage prepaid, if mailed; when answered
back, if telexed; when receipt is 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 under the
Indenture, at the address specified in such Indenture.
5.5 Successor and Assigns. This Agreement shall inure to the benefit
---------------------
of and be binding upon the successors, assigns and transferees 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
Notes in violation of the terms of the Purchase Agreement or the Indenture. If
any transferee of any Holder shall acquire Transfer Restricted Notes, in any
manner, whether by operation of law or otherwise, such Transfer Restricted Notes
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Transfer Restricted Notes 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.
5.6 Third Party Beneficiaries. The Initial Purchasers (even if the
-------------------------
Initial Purchasers are not Holders of Transfer Restricted Notes) shall be third
party beneficiaries to the agreements made hereunder between the Company and the
Subsidiary Guarantors, on the one hand, and the Holders, on the other hand, and
shall have the right to enforce such agreements directly to the extent they deem
such enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder. Each Holder of Transfer Restricted Notes shall be a third
party beneficiary to the agreements made hereunder between the Company and the
Subsidiary Guarantors, 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
it deems such enforcement necessary or advisable to protect its rights
hereunder.
5.7 Specific Enforcement. Without limiting the remedies available to
--------------------
the Initial Purchasers and the Holders, the Company and the Subsidiary
Guarantors acknowledge that any failure by the Company or the Subsidiary
Guarantors to comply with their obligations under Sections 2.1 through 2.4
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 would 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
22
enforce the Company's and Subsidiary Guarantors' obligations under Sections 2.1
through 2.4 hereof.
5.8 Restriction on Resales. Until the expiration of two years after
----------------------
the original issuance of the Notes and the Guarantees, the Company and the
Subsidiary Guarantors will not, and will cause their "affiliates" (as such term
is defined in Rule 144(a)(1) under the ▇▇▇▇ ▇▇▇) not to, resell any Notes and
Guarantees which are "restricted securities" (as such term is defined under Rule
144(a)(3) under the ▇▇▇▇ ▇▇▇) that have been reacquired by any of them and shall
immediately upon any purchase of any such Notes and Subsidiary Guarantees submit
such Notes and Subsidiary Guarantees to the Trustee for cancellation.
5.9 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.
5.10 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
5.11 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICT OF LAWS THEREOF.
5.12 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.
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
Very truly yours,
ISLE OF CAPRI CASINOS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
RIVERBOAT CORPORATION OF MISSISSIPPI
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
RIVERBOAT CORPORATION OF MISSISSIPPI-VICKSBURG
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
RIVERBOAT SERVICES, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
CSNO, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
S-1
LOUISIANA RIVERBOAT GAMING
PARTNERSHIP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
ST. ▇▇▇▇▇▇▇ GAMING COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
IOC HOLDINGS, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
GRAND PALAIS RIVERBOAT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
LRGP HOLDINGS, L.L.C.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
PPI, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
S-2
ISLE OF CAPRI CASINO COLORADO, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
ISLE OF CAPRI CASINO-TUNICA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
IOC-COAHOMA, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
IOC-NATCHEZ, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
IOC-▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
IOC BOONVILLE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
S-3
IOC-KANSAS CITY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
ISLE OF CAPRI ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
ISLE OF CAPRI MARQUETTE, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
IOC-▇▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
GEMINI, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
LL HOLDING CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President and Secretary
S-4
CONFIRMED AND ACCEPTED,
as of the date first above written:
DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇ - GRANTCHESTER, INC.
CIBC WORLD MARKETS CORP.
DEUTSCHE BANC ALEX.▇▇▇▇▇ INC.
CREDIT LYONNAIS SECURITIES (USA) INC.
BY: DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇ - GRANTCHESTER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
S-5