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Exhibit 4.3
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REGISTRATION RIGHTS AND LIMITED PARTNERS' AGREEMENT
dated as of December 30, 1997
by and among
THE RESORT AT ▇▇▇▇▇▇▇▇▇, LIMITED PARTNERSHIP,
THE RESORT AT ▇▇▇▇▇▇▇▇▇, INC.,
LIMITED PARTNERS OF THE RESORT AT ▇▇▇▇▇▇▇▇▇, LIMITED PARTNERSHIP,
RAS WARRANT CO.
and
NATWEST CAPITAL MARKETS LIMITED
as the Initial Purchaser
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THIS REGISTRATION RIGHTS AND LIMITED PARTNERS' AGREEMENT (this
"Agreement") is dated as of December 30, 1997, by and among The Resort at
▇▇▇▇▇▇▇▇▇, Limited Partnership, a Nevada limited partnership ("RAS" or the
"Partnership"), the Resort at ▇▇▇▇▇▇▇▇▇, Inc., a Nevada corporation ("RAS,
Inc."), the Existing Limited Partners (as defined herein), RAS Warrant Co., a
Nevada corporation ("Warrant Co."), and NatWest Capital Markets Limited
("Initial Purchaser").
This Agreement is entered into in connection with the Purchase Agreement,
dated December 22, 1997, among RAS, RAS, Inc., Warrant Co. and the Initial
Purchaser (the "Purchase Agreement"), relating to, among other things, the sale
by RAS to the Initial Purchaser, at the election of the Initial Purchaser, of
either warrants (the "Partnership Warrants") to purchase limited partnership
interests of RAS ("LP Partnership Interests") or warrants (the "Corporate
Warrants") to purchase shares of common stock of Warrant Co. to be issued upon
exercise of the Corporate Warrants. The only assets of Warrant Co. will be
warrants in RAS with the same terms as the Partnership Warrants (the "Warrant
Co. LP Warrants" and, together with the Partnership Warrants, the "Warrants").
In order to induce the Initial Purchaser to enter into the Purchase Agreement,
RAS has agreed to provide to the Holders (as defined herein), among other
things, the registration rights and put rights for LP Partnership Interests set
forth in this Agreement and the Existing Limited Partners have agreed to provide
the Holders, among other things, the tag-along rights for the Warrants and LP
Partnership Interests as set forth herein. In order to induce the Existing
Limited Partners to enter into this Agreement, the Initial Purchaser has agreed
on behalf of the Holders to provide to the Existing Limited Partners, among
other things, the drag-along rights for the Warrants and LP Partnership
Interests as set forth herein. In order to induce RAS to enter into this
Agreement, the Initial Purchaser, on behalf of the Holders of Partnership
Warrants, and Warrant Co., as the Holder of the Warrant Co. LP Warrants, each
has agreed to provide RAS with the call rights for the Warrants and the LP
Partnership Interests as set forth herein. The execution and delivery of this
Agreement is a condition to the obligation of the Initial Purchaser to purchase
either the Partnership Warrants or the Corporate Warrants under the Purchase
Agreement.
The parties hereby agree as follows:
In consideration of the foregoing, the parties hereto agree as follows:
Definitions. As used in this Agreement, the following capitalized defined
terms shall have the following meanings:
"Affiliate" means, when used with reference to any Person, any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, the referenced Person or such other Person, as the
case may be. For the purposes of this definition, "control" (including, with
correlative meanings, the term "controlling," "controlled by," and "under common
control with"), when used with respect to any specified Person, means the power
to direct or cause the direction of management or policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise. Neither the Holders nor any of their Affiliates shall be
deemed to be an Affiliate of the Partnership or of any of its Affiliates in
their capacities as such.
"Business Day" shall mean a day that is not a Legal Holiday.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time.
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"Existing Limited Partners" shall mean (i) Seven Circle Gaming
Corporation, a Delaware corporation, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇
▇▇▇▇▇▇, jointly as husband and wife, Christiana Limited Partnership, a Nevada
limited partnership, (ii) the successors, assigns or heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of any Person
described in the preceding clause (i), as the case may be, and (iii) a trust the
beneficiaries of which include only natural persons described in (i) and their
respective spouses and lineal descendants.
"Fair Market Value" shall mean the value of any securities as
determined (without any discount for lack of liquidity, the amount of securities
proposed to be sold or the fact that the securities held by any Holder of such
security may represent a minority interest in a private company) by a nationally
recognized investment banking firm selected in good faith by the Partnership for
the determination of such value.
"Gaming Authority" means any of the Nevada Gaming Commission, the
Nevada State Gaming Control Board, the City of Las Vegas, any gaming regulatory
body in North Dakota and Colorado, and any other gaming regulatory body or any
agency which has, or may at any time after the Issue Date have, jurisdiction
over the gaming activities of the Partnership or any of its Affiliates or
subsidiaries or any successor to such authority.
"Gaming Laws" means the provisions of the Nevada Gaming Control Act,
as amended from time to time, all regulations of the Nevada Gaming Commission
promulgated thereunder, as amended from time to time, all ordinances, rules and
regulations adopted by the City of Las Vegas, as amended from time to time, and
all other laws, statutes, rules, rulings, orders, ordinances, regulations and
other legal requirements of any Gaming Authority.
"Holder" shall mean the Initial Purchaser and Warrant Co., for so
long as such entity owns any Warrants, Registrable Securities or LP Warrant
Partnership Interests, and each of their respective successors, assigns and
direct and indirect transferees who become registered owners of Warrants,
Registrable Securities or LP Warrant Partnership Interests.
"Indenture" shall mean the Indenture dated as of December 30, 1997
among the Partnership, RAS, Inc. and United States Trust Company of New York, as
Trustee, as supplemented or amended from time to time in accordance with the
terms thereof.
"Legal Holiday" shall mean a Saturday, a Sunday or a day on which
banking institutions in New York, New York are required by law, regulation or
executive order to remain closed. If a payment date is a Legal Holiday, payment
may be made on the next succeeding day that is not a Legal Holiday.
"LP Warrant Partnership Interests" shall mean the LP Partnership
Interests and any other securities issued or issuable upon exercise of the
Warrants.
"Limited Partner" means, collectively, each Holder of LP Warrant
Partnership Interests, each Existing Limited Partner and each Permitted
Transferee.
"Partnership Agreement" means the Agreement of Limited Partnership
of RAS, dated August 15, 1996, by and among RAS, Inc. and the Existing Limited
Partners, as amended by the First
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Amendment thereto dated as of December 30, 1997, and as the same may be further
amended from time to time.
"Permitted Transferee" shall mean any (i) Limited Partner, (ii) the
Partnership, and (iii) any Affiliate of any Limited Partner or the Partnership
to the extent such Person agrees to be bound by this Agreement.
"Person" shall mean an individual, partnership, corporation, trust
or unincorporated organization, or a government or agency or political
subdivision thereof.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, any prospectus subject to completion
and a prospectus that includes any information previously omitted from a
prospectus filed as part of an effective registration statement in reliance upon
Rule 430A promulgated under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Registrable 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, if any,
in such Prospectus.
"Registrable Securities" shall mean the LP Warrant Partnership
Interests and any other securities issued or issuable upon exercise of the
Warrants. As to any particular Registrable Securities, such securities shall
cease to be Registrable Securities when (i) a Registration Statement with
respect to such securities shall have been declared effective under the
Securities Act and such securities shall have been disposed of pursuant to such
Registration Statement, (ii) such securities have been sold to the public
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A
under the Securities Act, as such Rule may be amended from time to time, or any
similar rule or resolution hereafter adopted by the SEC) under the Securities
Act, (iii) such securities shall have been otherwise Transferred by their Holder
and new certificates for such securities not bearing a legend restricting
further Transfer shall have been delivered by the Partnership or its Transfer
Agent and subsequent disposition of such securities shall not require
registration or qualification under the Securities Act or any similar state law
then in force or (iv) such securities shall have ceased to be outstanding.
"Registration Expenses" shall mean all expenses incident to the
Partnership's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees and expenses, fees and
expenses of compliance with securities or blue sky laws (including, without
limitation, reasonable fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities), rating
agency fees, printing expenses, messenger, telephone and delivery expenses, fees
and disbursements of counsel for the Partnership and all independent certified
public accountants, the fees and disbursements of underwriters customarily paid
by issuers or sellers of securities (but not including any underwriting
discounts or commissions or transfer taxes, if any, attributable to the sale of
Registrable Securities by Holders of such Registrable Securities) and other
reasonable out-of-pocket expenses of Holders.
"Registration Statement" shall mean any registration statement of
the Partnership which covers any of the LP Warrant Partnership Interests
pursuant to the provisions of this Agreement and all amendments and supplements
to any such registration statement, including post-effective amendments,
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in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Restricted Security" shall mean any LP Warrant Partnership Interest
which is a "restricted security" within the meaning of Rule 144(a)(3) under the
Securities Act.
"Rule 144" shall mean Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144A
under the Securities Act) or regulation hereafter adopted by the SEC providing
for offers and sales of securities made in compliance therewith resulting in
offers and sales by subsequent holders that are not affiliates of an issuer of
such securities being free of the registration and prospectus delivery
requirements of the Securities Act.
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended
from time to time.
"Transfer" shall have the meaning set forth in Section 3.
"Transfer Agent" means any transfer agent or registrar appointed by
the Partnership for the Warrants or LP Partnership Interests.
1. Registration Rights.
2.1 Piggy-Back Registration.
(a) If at any time the Partnership proposes to file a registration
statement under the Securities Act with respect to an offering by the
Partnership for its own account or for the account of any holder of LP
Partnership Interests (other than (i) a registration statement on Form S-8 (or
any substitute form that may be adopted by the SEC) or (ii) a Registration
Statement filed in connection with an offer or offering of securities solely to
the Partnership's existing securityholders, then the Partnership shall give
written notice of such proposed filing to the Holders as soon as practicable
(but in no event less than 20 Business Days before the anticipated filing date),
and such notice shall offer the Holders the opportunity to register such number
of Registrable Securities as each of the Holders may request (which request
shall specify the Registrable Securities intended to be disposed of by such
selling Holder and the intended method of distribution thereof) (a "Piggy-Back
Registration"). The Partnership shall use its reasonable best efforts to cause
the managing underwriter or underwriters of such proposed underwritten offering
to permit the Registrable Securities requested to be included in a Piggy-Back
Registration to be included on the same terms and conditions as any similar
securities of the Partnership or any other securityholder included therein and
to permit the sale or other disposition of such Registrable Securities in
accordance with the intended method of distribution thereof. Any selling Holder
shall have the right to withdraw its request for inclusion of its Registrable
Securities in any Registration Statement pursuant to this Section 2.1 by giving
written notice to the Partnership of its request to withdraw. The Partnership
may withdraw a Piggy-Back Registration at any time prior to the time it becomes
effective; provided that the Partnership shall give prompt notice thereof to
participating selling Holders. The Partnership will pay all Registration
Expenses in connection with each registration of Registrable Securities
requested pursuant to this Section 2.1, and each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder's Registrable Securities pursuant to a
Registration Statement effected pursuant to this Section 2.1.
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(b) No failure to effect a registration under this Section 2.1 and
to complete the sale of Registrable Securities in connection therewith shall
relieve the Partnership of any other obligation under this Agreement.
2.2 Reduction of Offering.
(a) If the managing underwriter or underwriters of any underwritten
offering described in Section 2.1 have informed, in writing, the selling Holders
of the Registrable Securities requesting inclusion in such offering that it is
their opinion that the total amount of partnership interests (or other equity
securities) which the Partnership, the selling Holders and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to materially and adversely affect the success of such offering,
including the price at which such securities can be sold, then the amount of
partnership interests to be offered for the account of the selling Holders and
all such other Persons (other than the Partnership) participating in such
registration shall be reduced or limited pro rata in proportion to the
respective amounts of partnership interests requested to be registered to the
extent necessary to reduce the total amount of partnership interests requested
to be included in such offering to the amount of partnership interests, if any,
recommended by such managing underwriters; provided, however, that if such
offering is effected for the account of any securityholder of the Partnership
other than the selling Holders, pursuant to the demand registration rights of
any such securityholder, then the amount of partnership interests to be offered
for the account of the Partnership (if any) and the selling Holders (but not
such securityholders who have exercised their demand registration rights) shall
be reduced or limited pro rata in proportion to the respective amounts of
partnership interests requested to be registered to the extent necessary to
reduce the total amount of partnership interests requested to be included in
such offering to the amount of partnership interests, if any, recommended by
such managing underwriters.
(b) If the managing underwriter or underwriters of any underwritten
offering described in Section 2.1 notify the selling Holders requesting
inclusion of Registrable Securities in such offering, that the kind of
securities that the selling Holders, the Partnership and any other Persons
desiring to participate in such registration intend to include in such offering
is such as to materially and adversely affect the success of such offering, (x)
the Registrable Securities to be included in such offering shall be reduced as
described in Subsection 2.2(a) or (y) if a reduction in the Registrable
Securities pursuant to Subsection 2.2(a) would, in the judgment of the managing
underwriter or underwriters, be insufficient to substantially eliminate the
adverse effect that inclusion of the Registrable Securities requested to be
included would have on such offering, such Registrable Securities will be
excluded from such offering.
(c) If, as a result of the proration provisions of this Section 2.2,
any selling Holder shall not be entitled to include all Registrable Securities
in a Piggy-Back Registration that such selling Holder has requested to be
included, such selling Holder may elect to withdraw his request to include
Registrable Securities in such registration; provided, however, that such a
withdrawal shall be irrevocable and, after making such withdrawal, a selling
Holder shall no longer have any right to include Registrable Securities in the
registration as to which such withdrawal was made.
2.3 Registration Procedures. In connection with the obligations of the
Partnership with respect to any Registration Statement pursuant to Section 2.1,
the Partnership shall:
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(a) prepare and file with the SEC a Registration Statement on the
appropriate form under the Securities Act, which form (i) shall be
selected by the Partnership and (ii) shall comply as to form in all
material respects with the requirements of the applicable form and include
all financial statements required by the SEC to be filed therewith, and
the Partnership shall use its reasonable best efforts to cause such
Registration Statement to become effective and remain effective in
accordance with Section 2.1;
(b) prepare and file with the SEC such amendments and post-effective
amendments to each Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period, cause each
Prospectus to be supplemented by any required prospectus supplement and,
as so supplemented, to be filed pursuant to Rule 424 under the Securities
Act;
(c) furnish to each Holder of Registrable Securities and to each
underwriter of an underwritten offering of Registrable Securities, 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, in
order to facilitate the public sale or other disposition of the
Registrable Securities;
(d) use its reasonable best efforts to register or qualify the
Registrable Securities under all applicable state securities or Blue Sky
laws of such jurisdictions as any Holder shall reasonably request in
writing 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 such Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that the Partnership shall not be
required to (i) qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to
qualify but for this Subsection 2.3(d), (ii) file any general consent to
service of process or (iii) subject itself to taxation in any such
jurisdiction if it is not so subject;
(e) notify each Holder of Registrable Securities promptly and, if
requested by such Holder, confirm such advice in writing (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request
by the SEC or any state securities authority for 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) if, between the
effective date of a Registration Statement and the closing of any sale of
Registrable Securities covered thereby, the representations and warranties
of the Partnership 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 or if the
Partnership receives any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such purpose and (v)
of the happening of any event during the period a 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;
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(f) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible moment;
(g) furnish to each Holder of Registrable Securities, without
charge, at least one conformed copy of each Registration Statement and any
post-effective amendment thereto (with documents incorporated therein by
reference or exhibits thereto);
(h) cooperate with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold and not bearing any
restrictive legends and registered in such names as the selling Holders
may reasonably request at least two Business Days prior to the closing of
any sale of Registrable Securities;
(i) upon the occurrence of any event contemplated by Subsection
2.3(e)(v) hereof, use reasonable efforts to prepare a supplement or
post-effective amendment to a 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 Registrable Securities, such Prospectus will not contain 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; provided, however, that the Partnership
shall not be required to amend or supplement a Registration Statement, any
related Prospectus or any document incorporated therein by reference in
the event that, and for so long as, an event occurs and is continuing as a
result of which the Registration Statement, any related Prospectus or any
document incorporated therein by reference as then amended or supplemented
would, in the Partnership's good faith judgment, contain an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in light of the
circumstances under which they are made. The Partnership agrees to notify
each Holder to suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder hereby agrees to
suspend use of the Prospectus until the Partnership has amended or
supplemented the Prospectus to correct such misstatement or omission. At
such time as such public disclosure is otherwise made or the Partnership
determines in good faith that such disclosure is not necessary, the
Partnership agrees promptly to notify each Holder of such determination,
to amend or supplement the Prospectus if necessary to correct any untrue
statement or omission therein and to furnish each Holder such numbers of
copies of the Prospectus as so amended or supplemented as each Holder may
reasonably request;
(j) 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 or any document which is to be
incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Holders and make available for discussion of such document
the representatives of the Partnership as shall be reasonably requested by
the Holders of Registrable Securities;
(k) obtain a CUSIP number for the LP Warrant Partnership Interests;
(l) (i) make reasonably available for inspection by a representative
of, and counsel for, any underwriter participating in any disposition
pursuant to a Registration Statement, all
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relevant financial and other records, pertinent corporate documents and
properties of the Partnership and (ii) cause the Partnership's officers
and employees to supply all relevant information reasonably requested by
such representative, counsel or any such underwriter in connection with
any such Registration Statement; and
(m) if requested by the Holders in connection with any Registration
Statement, shall use its reasonable best efforts to cause (w) counsel for
the Partnership to deliver an opinion relating to the Registration
Statement and the partnership interests of the Partnership, in customary
form, (x) its general partner to execute and deliver all customary
documents and certificates requested by a representative of the Holders or
any underwriter, as applicable and (y) its independent public accountants
to provide a comfort letter in customary form.
The Partnership may, as a condition to such Holder's participation in any
Registration Statement, require each Holder of Registrable Securities to (i)
furnish to the Partnership such information regarding the Holder and the
proposed distribution by such Holder of such Registrable Securities as the
Partnership may from time to time reasonably request in writing and (ii) agree
in writing to be bound by this Agreement.
2.4 Indemnification and Contribution.
(a) The Partnership agrees to indemnify and hold harmless each Holder of
Registrable Securities offered pursuant to a Registration Statement, the
Affiliates, directors, officers, agents, representatives and employees of each
such Person or its affiliates, and each other Person, if any, who controls any
such Person or its Affiliates within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant") from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement pursuant to which the offering of such Registrable Securities is
registered (or any amendment thereto) or related Prospectus (or any amendments
or supplements thereto) or any related preliminary prospectus, or caused by,
arising out of or based upon any omission or alleged omission to state therein 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; provided, however, that the Partnership will not be required to
indemnify a Participant if (i) such losses, claims, damages or liabilities are
caused by any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with information furnished to
the Partnership in writing by or on behalf of such Participant expressly for use
therein or (ii) if such Participant sold to the person asserting the claim the
Registrable Securities which are the subject of such claim and such untrue
statement or omission or alleged untrue statement or omission was contained or
made in any preliminary prospectus and corrected in the Prospectus or any
amendment or supplement thereto and the Prospectus does not contain any other
untrue statement or omission or alleged untrue statement or omission of a
material fact that was the subject matter of the related proceeding and such
Participant failed to deliver or provide a copy of the Prospectus (as amended or
supplemented) to such Person with or prior to the confirmation of the sale of
such Registrable Securities sold to such Person if required by applicable laws,
unless such failure to deliver or provide a copy of the Prospectus (as amended
or supplemented) was a result of noncompliance by the Partnership with Section
2.3 of this Agreement.
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(b) Each Participant agrees, severally and not jointly, to indemnify and
hold harmless the Partnership, its officers and each Person who controls the
Partnership (including RAS, Inc.) within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Partnership to each Participant, but only (i) with
reference to information furnished to the Partnership in writing by or on behalf
of such Participant expressly for use in any Registration Statement or
Prospectus, any amendment or supplement thereto, or any preliminary prospectus
or (ii) with respect to any untrue statement or representation made by such
Participant in writing to the Partnership.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, shall have the right to retain
counsel reasonably satisfactory to the Indemnified Person to represent the
Indemnified Person and any others the Indemnifying Person may reasonably
designate in such proceeding and shall pay the reasonable fees and expenses
actually incurred by such counsel related to such proceeding; provided, however,
that the failure to so notify the Indemnifying Person shall not relieve it of
any obligation or liability which it may have hereunder or otherwise (unless and
only to the extent that such failure results in the loss or compromise of any
material rights or defenses by the Indemnifying Person). In any such proceeding,
any Indemnified Person shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have
mutually agreed in writing to the contrary, (ii) the Indemnifying Person shall
have failed within a reasonable period of time to retain counsel reasonably
satisfactory to the Indemnified Person or (iii) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying
Person and the Indemnified Person and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that, unless there exists a conflict among
Indemnified Persons, the Indemnifying Person shall not, in connection with any
one such proceeding or separate but substantially similar related proceeding in
the same jurisdiction arising out of the same general allegations, be liable for
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed promptly as they are incurred. Any such separate
firm for the Participants and such control Persons of Participants shall be
designated in writing by Participants who sold a majority in interest of
Registrable Securities sold by all such Participants and any such separate firm
for the Partnership, its general partner and their directors, their officers and
such control Persons of the Partnership shall be designated in writing by the
Partnership. The Indemnifying Person shall not be liable for any settlement of
any proceeding effected without its prior written consent, but if settled with
such consent or if there be a final non-appealable judgment for the plaintiff
for which the Indemnified Person is entitled to indemnification pursuant to this
Agreement, the Indemnifying Person agrees to indemnify and hold harmless each
Indemnified Person from and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Person shall, without the prior written
consent of the Indemnified Person, effect any settlement or compromise of any
pending or threatened proceeding in respect of which any Indemnified Person is
or could have been a party, and indemnity could have been sought hereunder by
such Indemnified Person, unless such settlement (A) includes an unconditional
written release of such Indemnified Person, in form and substance reasonably
satisfactory to such Indemnified Person, from all liability on claims that are
the subject matter of such proceeding and (B) does not include any statement as
to an admission of fault, culpability or failure to act by or on behalf of any
Indemnified Person.
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(d) If the indemnification provided for in Subsections 2.4(a) and 2.4(b)
hereof is for any reason unavailable to an Indemnified Person in respect of any
losses, claims, damages or liabilities referred to therein, then each
Indemnifying Person under such Subsections, in lieu of indemnifying such
Indemnified Person thereunder and in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such Indemnified
Person as a result of such losses, claims, damages or liabilities in such
proportion as is appropriate to reflect (i) the relative benefits received by
the Indemnifying Person or Persons on the one hand and the Indemnified Person or
Persons on the other from the offering of the Warrants or (ii) if the allocation
provided by the foregoing clause (i) is not permitted by applicable law, not
only such relative benefits but also the relative fault of the Indemnifying
Person or Persons on the one hand and the Indemnified Person or Persons on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof). The relative fault of the parties shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Partnership on the one
hand or such Participant or such other Indemnified Person, as the case may be,
on the other, the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission, and any other
equitable considerations appropriate in the circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Subsection 2.4 were determined by pro rata
allocation (even if the Participants were treated as one entity for such
purposes) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an Indemnified Person as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
Subsection shall be deemed to include, subject to the limitations set forth
above, any reasonable legal or other expenses actually incurred by such
Indemnified Person in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Subsection 2.4, in no event
shall a Participant be required to contribute any amount in excess of the amount
by which proceeds received by such Participant from sales of Registrable
Securities exceeds the amount of any damages that such Participant has otherwise
been required to pay or has paid 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.
(f) The indemnity and contribution agreements contained in this Subsection
2.4 will be in addition to any liability which the Indemnifying Persons may
otherwise have to the Indemnified Persons referred to above.
2. Restrictions on Transfer.
3.1 Existing Limited Partners. No Existing Limited Partner shall, directly
or indirectly, sell, assign, give, transfer, exchange, convert, devise,
bequeath, pledge or otherwise dispose of, in any transaction or series of
transactions (each, a "Transfer"), any LP Partnership Interest or the beneficial
ownership thereof or any interest therein except (i) in compliance with Sections
4 or 5, as the case may be, (ii) to a Permitted Transferee (including, without
limitation, to Warrant Co. if such Transfer is solely for the purpose of
exchanging such Transferred LP Warrant Partnership Interest for corresponding
Common Stock in Warrant Co.), (iii) in a bona fide public distribution pursuant
to an effective registration statement under the Securities Act (each Transfer
permitted by clauses (ii) and (iii) being an
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"Exempt Transfer"), or (iv) in compliance with the Gaming Laws. In any event,
each permitted Transfer by an Existing Limited Partner shall be subject to
Section 7.
3.2 Holders of LP Warrant Partnership Interests. No Holder of any LP
Warrant Partnership Interest shall Transfer such LP Warrant Partnership Interest
or the beneficial ownership thereof or any interest therein except in compliance
with the Gaming Laws and Section 7.
3. Tag-Along Rights.
4.1 Transfer by Existing Limited Partners.
(a) In the event of any proposed Transfer of any LP Partnership
Interest by any of the Existing Limited Partners or their respective Permitted
Transferees in a single transaction or a series of related transactions
involving LP Partnership Interests of the Partnership aggregating at least 15%
of the LP Partnership Interests of the Partnership then collectively owned by
the Existing Limited Partners to a Person (such other Person being hereinafter
referred to as the "Proposed Purchaser"), other than pursuant to an Exempt
Transfer, the Holders of Warrants and LP Warrant Partnership Interests (the
"Non-Selling Partners") each shall have the irrevocable and exclusive right, but
not the obligation (the "Tag-Along Right"), to require the purchase from each of
them up to such number of Warrants and/or LP Warrant Partnership Interests
determined in accordance with Section 4.3.
(b) Any Warrants or LP Warrant Partnership Interests purchased from
the Holders pursuant to this Section 4.1 shall be paid for at the same price per
LP Partnership Interest and upon the same terms and conditions of such proposed
Transfer by such Existing Limited Partners; provided that the price per Warrant
payable by the Proposed Purchaser shall equal the price proposed to be paid per
LP Partnership Interest for which such Warrant is exercisable, less the exercise
price of such Warrant.
(c) The Partnership shall give written notice at least 15 days prior
to the date of the proposed Transfer to the Non-Selling Partners stating (i) the
name and address of the Proposed Purchaser, (ii) the proposed amount of
consideration and terms and conditions of payment offered by such Proposed
Purchaser (if the proposed consideration is not cash, the notice shall describe
the terms of the proposed consideration), (iii) the amount of LP Partnership
Interests proposed to be Transferred and (iv) that either the Proposed Purchaser
has been informed of the Tag-Along Right and has agreed to purchase Warrants
and/or LP Warrant Partnership Interests in accordance with the terms hereof or
that the Existing Limited Partners will make such purchase. The Tag-Along Right
may be exercised by any or all of the Non-Selling Partners by giving written
notice to the Partnership and the Person proposing to make such Transfer
("Tag-Along Notice"), within 5 Business Days of receipt of the notice specified
in the preceding sentence, indicating its election to exercise the Tag-Along
Right (the "Participating Holders"). The Tag-Along Notice shall state the amount
of Warrants and/or LP Warrant Partnership Interests that such Participating
Holder proposes to include in such Transfer to the Proposed Purchaser. Failure
by any Non-Selling Partner to give such notice within the 5 Business Days notice
period shall be deemed an election by such Non-Selling Partner not to sell its
Warrants and/or LP Warrant Partnership Interests in connection with that
proposed Transfer. The closing with respect to any sale to a Proposed Purchaser
pursuant to this Section 4.1 shall be held at the time and place specified in
the Tag-Along Notice but in any event within 30 days of the date the Tag-Along
Notice is given; provided that if through the exercise of reasonable efforts the
Existing Limited Partners or Permitted Transferees so proposing to transfer LP
Partnership Interests are unable to cause such transaction to close within 30
days, such period may be extended for such reasonable period of time as may be
necessary to close such
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transaction. Consummation of the sale of Warrants and/or LP Warrant Partnership
Interests by any Existing Limited Partner or Permitted Transferee to a Proposed
Purchaser shall be conditioned upon consummation of the sale by each
Participating Holder to such Proposed Purchaser of the securities subject to the
Tag-Along Right, if any.
4.2 Purchase Obligation of Existing Limited Partners. In the event that
the Proposed Purchaser does not purchase such Warrants and/or LP Warrant
Partnership Interests from the Participating Holders on the same terms and
conditions as purchased from the Existing Limited Partners or such Permitted
Transferees, then the Existing Limited Partners or such Permitted Transferees
making such Transfer shall purchase such securities if the Transfer occurs on
such terms and conditions.
4.3 Determination of Transferred Interests. The number of Warrants and/or
LP Partnership Interests purchased from each Participating Holder and the
Existing Limited Partners and/or such Permitted Transferees shall be determined
by multiplying the aggregate amount of LP Partnership Interests proposed to be
sold by the Existing Limited Partners and/or such Permitted Transferees to the
Proposed Purchaser by a fraction, the numerator of which is the total number of
LP Warrant Partnership Interests (including the number of LP Warrant Partnership
Interests issuable upon exercise of the Warrants) owned by such Participating
Holder or such Existing Limited Partner or Permitted Transferee and the
denominator of which is the total number of LP Partnership Interests (including
the number of LP Warrant Partnership Interests issuable upon exercise of the
Warrants) outstanding. In the event that any Participating Holder shall elect to
sell less than the maximum number of Warrants and/or LP Warrant Partnership
Interests he is entitled to sell pursuant to the provisions of this Section 4
then each other Participating Holder shall have the right to sell additional
Warrants and LP Warrant Partnership Interests, pro rata according to the
respective number of Warrants and LP Warrant Partnership Interests offered for
sale by the Participating Holders.
4.4 Costs of Transfer. The Existing Limited Partners and/or Permitted
Transferees who are parties to a sale to a Proposed Purchaser shall arrange for
payment directly by the Proposed Purchaser to each Participating Holder, upon
delivery of the certificate or certificates representing the Warrants and/or LP
Warrant Partnership Interests duly endorsed for transfer, together with such
other documents as the Proposed Purchaser may reasonably request. The reasonable
costs and expenses incurred by the Existing Limited Partners and/or Permitted
Transferees and Participating Holders in connection with a sale of Warrants
and/or LP Warrant Partnership Interests subject to this Section 4 shall be
allocated pro rata based upon the proceeds from the securities sold by each
Limited Partner to a Proposed Purchaser; provided that the costs and expenses
shall not include the fees and expenses of more than one law firm, which firm
shall be selected by the Existing Limited Partners, unless representation of the
Existing Limited Partners and/or Permitted Transferees and the Participating
Holders by the same counsel, due to actual or potential differing interests
between them, shall create a conflict of interest, in which case the costs and
expenses shall include the reasonable fees and expenses of one additional law
firm designated by Participating Holders proposing to sell a majority of the
Warrants and/or LP Warrant Partnership Interests proposed to be sold by all
Participating Holders.
4.5 Expiration of Tag-Along Right. If at the end of 30 days following the
date on which a Tag-Along Notice was given, or as otherwise extended pursuant to
the provisions of Subsection 4.1, the sale of Warrants and/or LP Warrant
Partnership Interests by the Existing Limited Partners and/or Permitted
Transferees and the sale of the Warrants and/or LP Warrant Partnership Interests
by the Participating Holders have not been completed in accordance with the
terms of the Proposed Purchaser's offer, all certificates representing such
Warrants and LP Warrant Partnership Interests shall be returned
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to the Participating Holders, and all the restrictions on sale, transfer or
assignment contained in this Agreement with respect to LP Partnership Interests
owned by the Existing Limited Partners and Permitted Transferees shall again be
in effect.
4.6 Termination. Tag-Along Rights shall terminate upon the effectiveness
of any registration statement filed with the SEC with respect to LP Partnership
Interests in an initial public offering or subsequent public offering if, after
giving effect to such offering, at least 50% of the LP Partnership Interests on
a fully-diluted basis would be held by non-Affiliates of the Partnership and
without restriction on transfer under the Securities Act.
4. Drag-Along Rights.
5.1 Transfer by Existing Limited Partners.
(a) In the event of any proposed Transfer of any LP Partnership Interests
by any of the Existing Limited Partners or their respective Permitted
Transferees in any single transaction or a series of related transactions
involving LP Partnership Interests, aggregating at least 51% of the total LP
Partnership Interests then outstanding, to a Person (such other Person being
hereinafter referred to as the "Proposed Majority-Interest Purchaser"), other
than pursuant to an Exempt Transfer, such selling Existing Limited Partners
shall have the exclusive and irrevocable right, but not the obligation (the
"Drag-Along Right"), to require each Holder to Transfer to the Proposed
Majority-Interest Purchaser such number of LP Warrant Partnership Interests
(and/or Warrants exercisable for an amount of LP Warrant Partnership Interests)
determined in accordance with Subsection 5.3.
(b) Any Warrants or LP Warrant Partnership Interests purchased from the
Holders pursuant to this Section 5.1 shall be paid for at the same price per LP
Partnership Interest, and upon the same terms and conditions of such proposed
Transfer by such Existing Limited Partners; provided that the price per Warrant
payable by the Proposed Majority Interest Purchaser shall equal the price
proposed to be paid per LP Partnership Interest for which such Warrant is
exercisable, less the exercise price of such Warrant.
(c) The Partnership shall notify, or cause to be notified, each Holder in
writing of each such proposed Transfer at least 15 days prior to the date
thereof. Such notice shall set forth (i) the name of the Proposed
Majority-Interest Purchaser and the number of LP Partnership Interests proposed
to be Transferred, (ii) the name and address of the Proposed Majority-Interest
Purchaser, (iii) the proposed amount of consideration and terms and conditions
of payment offered by such Proposed Majority-Interest Purchaser (if the proposed
consideration is not cash, the notice shall describe the terms of the proposed
consideration) and (iv) that either the Proposed Majority-Interest Purchaser has
been informed of the Drag-Along Right and has agreed to purchase Warrants and/or
LP Warrant Partnership Interests in accordance with the terms hereof or that the
Existing Limited Partners will make such purchase. The closing with respect to
any Transfer to a Proposed Majority-Interest Purchaser pursuant to this Section
5 shall be held at the time and place specified in the Drag-Along Notice but in
any event within 60 days of the date the Drag-Along Notice is given; provided
that if through the exercise of reasonable efforts the Existing Limited Partners
or Permitted Transferees so proposing to transfer LP Partnership Interests are
unable to cause such transaction to close within 60 days, such period may be
extended for such reasonable period of time as may be necessary to close such
transaction. Consummation of the sale of Warrants and/or LP Warrant Partnership
Interests by any Existing Limited Partner or Permitted Transferee to a Proposed
Majority-Interest Purchaser shall be conditioned upon
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consummation of the sale by each Holder to such Proposed Majority-Interest
Purchaser of the securities subject to the Drag-Along Right.
5.2 Purchase Obligation of Existing Limited Partners. In the event that
the Proposed Majority-Interest Purchaser does not purchase Warrants and/or LP
Warrant Partnership Interests from the Holders on the same terms and conditions
as purchased from the Existing Limited Partners, then the Existing Limited
Partners making such Transfer shall purchase such Warrants and/or LP Warrant
Partnership Interests if the Transfer occurs on such terms and conditions.
5.3 Determination of Transferred Interests. The number of Warrants and/or
LP Partnership Interests of each Holder which shall be subject to the Drag-Along
Right shall be equal to the total number of LP Warrant Partnership Interests
(including the number of LP Warrant Partnership Interests issuable upon the
exercise of Warrants) owned by such Holder multiplied by a fraction, the
numerator of which is the number of LP Partnership Interests to be sold by the
Existing Limited Partners to the Proposed Majority-Interest Purchaser and the
denominator of which is the total number of LP Partnership Interests then owned
by the Existing Limited Partners.
5.4 Costs and Expiration of Drag-Along Right. The provisions of Subsection
4.4 and 4.5 shall, with respect to each exercise of the Drag-Along Right by the
Existing Limited Partners, apply with the same effect as if references therein
to Tag-Along Right were references to the Drag-Along Right.
5.5 Termination. Drag-Along rights shall terminate upon the effectiveness
of any registration statement filed with the SEC with respect to LP Partnership
Interests in an initial public offering or subsequent public offering if, after
giving effect to such offering, at least 50% of the LP Partnership Interests on
a fully-diluted basis would be held by Non-Affiliates of the Partnership and
without restriction on transfer under the Securities Act.
5. Put and Call Provisions.
6.1 Holders' Right to Put Warrants. Each Holder of Warrants shall have the
right, but not the obligation (the "Resale Right"), exercisable during the
Resale Period (hereinafter defined), to sell to the Partnership (and the
Partnership, upon exercise of such Resale Right by such Holder, hereby agrees to
purchase), at the Takeout Price (hereinafter defined) per Warrant, all Warrants
then owned by such Holder and on the terms and conditions set forth in this
Section 6.1.
(a) The "Resale Period" shall be a 30-day period commencing on
either (i) April 15, 2003 in the event that a Qualified IPO (hereinafter
defined) has not been successfully completed by the Partnership on or prior to
December 31, 2002 and the $100,000,000 principal amount First Mortgage Notes of
the Partnership and RAS, Inc. due March 31, 2004 (the "First Mortgage Notes")
have been prepaid in full on or prior to December 31, 2002, or (ii) April 15,
2006 in the event that clause (i) shall not have become effective and a
Qualified IPO has not been successfully completed by the Partnership on or
before December 31, 2005.
(b) "Qualified IPO" shall mean the completion of an underwritten
initial public offering pursuant to an effective registration statement under
the Securities Act, covering the offer and sale of LP Partnership Interests for
the account of the Partnership, in which newly issued LP Partnership Interests
are sold and the aggregate gross proceeds to the Partnership, before
underwriting discounts and
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commissions and before expenses is not less than $50,000,000.00.
(c) The "Takeout Price" per Warrant shall be equal to the greater
of:
(i) the product of (A) eight multiplied by the Consolidated
Cash Flow (as defined in the Indenture) for the fiscal year ended
December 31, 2005 (or, if the Resale period is calculated under
Section 6.1(a)(i), December 31, 2003), minus all Indebtedness (as
defined in the Indenture) outstanding on such date and (B) a
fraction, the numerator of which is an amount equal to the number of
LP Partnership Interests to which the Holder of such Warrants would
be entitled assuming such Holder had exercised its Warrants and the
denominator of which is an amount equal to the total number of LP
Partnership Interests then outstanding on a fully diluted basis
(calculated as if all Warrants had been exercised);
(ii) the product of (A) eight multiplied by the average
Consolidated Cash Flow for each of the fiscal years ended December
31, 2003, 2004 and 2005 (or, if the Resale Period is calculated
under Section 6.1(a)(i), December 31, 2001, 2002 and 2003), minus
all Indebtedness outstanding on such dates and (B) a fraction, the
numerator of which is an amount equal to the number of LP
Partnership Interests to which the Holder of such Warrants would be
entitled assuming such Holder had exercised its Warrants and the
denominator of which is an amount equal to the number of LP
Partnership Interests then outstanding on a fully diluted basis
(calculated as if all Warrants had been exercised); and
(iii) the product of (A) the present value on such Put Closing
Date (as hereinafter defined) of (x) the amount that would have been
earned on RAS's and RAS, Inc.'s 13% Senior Subordinated PIK Notes
(the "Notes") issued under the Indenture from the Issue Date (as
defined in the Indenture) to the Put Closing Date had such Notes
borne interest at 20% on a bond equivalent basis during such period
minus (y) the actual cash interest paid on such Notes during such
period (including the cash interest paid on June 15, 2003 or June
15, 2006, as applicable), and (B) a fraction, the numerator of which
is an amount equal to the number of LP Partnership Interests to
which the Holder of such Warrants would be entitled assuming such
Holder had exercised its Warrants and the denominator of which is an
amount equal to the total number of LP Partnership Interests
issuable upon exercise of all Warrants then outstanding (calculated
as if all Warrants then outstanding had been exercised).
(d) If the Partnership successfully completes a Qualified IPO during
the applicable Resale Period prior to any Holder giving notice of the exercise
of such Holder's Resale Right to the Partnership pursuant to Subsection 6.1(e),
then such Holder's Resale Right (but not including Resale Rights for which
notice of exercise shall have been given period thereto) shall thereupon
terminate and become void.
(e) Each Holder of Warrants desiring to exercise Resale Rights shall
do so by giving the Partnership, on or before the last day of the Resale Period,
written notice (which notice shall be irrevocable) of such Holder's intention to
exercise Resale Rights (the "Put Notice") and shall specify in such notice the
number of Warrants to be sold and may specify in such notice a proposed date of
sale. The closing of any sale of Warrants pursuant to exercise of Resale Rights
shall take place at the offices
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of the Partnership on June 15, 2003 if the Resale Period is calculated under
Section 6.1(a)(i) or June 15, 2006 if the Resale Period is calculated under
Section 6.1(a)(ii) (the "Put Closing Date"). On or prior to the Put Closing
Date, the Partnership shall deliver a certified or bank cashier's check to the
Holder of Warrants being repurchased, in an amount equal to the aggregate
Takeout Price for the Warrants being repurchased from such Holder pursuant to
exercise of Resale Rights, or shall transfer such amount by wire transfer of
immediately available funds to any account specified in writing by such Holder
to the Partnership.
6.2 Partnership's Right to Call Warrants. In the event that the Resale
Period occurs pursuant to Subsection 6.1(a) and less than all of the Warrants
have been sold by the Holders pursuant thereto, the Partnership shall have the
one time right, but not the obligation (the "Repurchase Right"), exercisable
during the Repurchase Period (hereinafter defined), to purchase all Warrants
then outstanding from all Holders thereof (and each such Holder, upon exercise
of such Repurchase Right by such the Partnership, hereby agrees to purchase), at
the Takeout Price per Warrant, as determined pursuant to Section 6.1 except such
determination shall be made as of the date of closing such purchase and sale
transaction, and on the terms and conditions set forth in this Section 6.2.
(a) The "Repurchase Period" shall be a 30-day period commencing on
either (i) October 15, 2003 if the Resale Period commenced April 15, 2003 or
(ii) October 15, 2006 if the Resale Period commenced April 15, 2006.
(b) The Partnership shall exercise its Repurchase Right by giving
the Holders of outstanding Warrants, on or before the last day of the Repurchase
Period, written notice (which notice shall be irrevocable) of its intention to
exercise the Repurchase Right (the "Call Notice") and shall specify in such
notice a proposed date of sale. The closing of any purchase and sale of Warrants
pursuant to exercise of the Repurchase Right shall take place at the offices of
the Partnership on a mutually agreed Business Day (the "Call Closing Date")
which shall be not later than 30 days after the date on which the Call Notice is
given to such Holders (whether or not such Call Closing Date is on or after the
last day of the Repurchase Period). On or prior to the Call Closing Date, the
Partnership shall deliver a certified or bank cashier's check to each Holder of
Warrants being repurchased, in an amount equal to the aggregate Takeout Price
for the Warrants being repurchased from such Holder pursuant to exercise of the
Repurchase Right, or shall transfer such amount by wire transfer of immediately
available funds to any account specified in writing by such Holder to the
Partnership.
6.3 Subordination of Put and Call Obligations. The obligations of the
Partnership described in Subsections 6.1 and 6.2 shall be subordinate to the
Partnership's obligations under the First Mortgage Notes and related agreements,
the Senior PIK Notes and the Indenture and any additional bank financing so long
as each of the foregoing remains outstanding.
7. Registration of Transfers and Exchanges. When any certificate evidencing any
LP Warrant Partnership Interests (a "Partnership Certificate") is presented to
the General Partner or the Transfer Agent with a request:
(A) to register the transfer of any LP Warrant Partnership
Interests; or
(B) to exchange such Partnership Certificate for Partnership
Certificates of other authorized denominations evidencing in the aggregate an
equal number of LP Warrant Partnership Interests, the General Partner or the
Transfer Agent shall register the transfer or make the exchange as
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requested if the requirements of this Section 7 for such transactions are met;
provided, however, that the Partnership Certificates presented or surrendered
for registration of transfer or exchange:
(I) shall be duly endorsed or accompanied by a written instrument of
transfer in form satisfactory to the General Partner or the Transfer
Agent, duly executed by the holder thereof or his attorney duly authorized
in writing; and
(II) in the case of Partnership Interests the offer and sale of
which have not been registered under the Securities Act of 1933, as
amended (the "Securities Act"), such Partnership Certificates shall be
accompanied, in the sole discretion of the General Partner, by the
following additional information and documents, as applicable:
(1) if such Partnership Certificates are being delivered to
the General Partner or the Transfer Agent by a holder for
registration in the name of such holder, without transfer, a
certification from such holder to that effect (in
substantially the form of Exhibit B hereto); or
(2) if such LP Warrant Partnership Interests are being
transferred to a "qualified institutional buyer" (as defined
in Rule 144A under the Securities Act (a "Qualified
Institutional Buyer")) in accordance with Rule 144A under the
Securities Act, a certificate to that effect (in substantially
the form of Exhibit B hereto); or
(3) if such LP Warrant Partnership Interests are being
transferred to an institutional "accredited investor" (as
defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act (an "Institutional Accredited Investor"))
delivery of a certification to that effect (in substantially
the form of Exhibit B hereto) and a Transferee Certificate for
Institutional Accredited Investors in substantially the form
of Exhibit C hereto; or
(4) if such LP Warrant Partnership Interests are being
transferred in reliance on Regulation S under the Securities
Act ("Regulation S"), delivery of a certification to that
effect (in substantially the form of Exhibit B hereto) and a
Transferee Certificate for Regulation S Transfers in
substantially the form of Exhibit C hereto and an opinion of
counsel reasonably satisfactory to the General Partner to the
effect that such transfer is in compliance with the Securities
Act; or
(5) if such LP Warrant Partnership Interests are being
transferred in reliance on Rule 144 under the Securities Act,
delivery of a certification to that effect (in substantially
the form of Exhibit B hereto) and an opinion of counsel
reasonably satisfactory to the General Partner to the effect
that such transfer is in compliance with the Securities Act;
or
(6) if such LP Warrant Partnership Interests are being
transferred in reliance on another exemption from the
registration requirements of the Securities Act, a
certification to that effect (in substantially the form of
Exhibit B hereto) and an opinion of counsel reasonably
satisfactory to the
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General Partner to the effect that such transfer is in
compliance with the Securities Act.
7.1 Legends. The legends set forth in this Section 7.2 shall be affixed to
certificates representing Registrable Securities in addition to any legends
required by the Partnership Agreement and any other applicable agreement.
(i) For so long as transfer of a Registrable Security is not
permitted without registration under the Securities Act, each
certificate evidencing a Registrable Security shall bear a legend
substantially to the following effect:
THIS SECURITY (OR ITS PREDECESSOR) HAS NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
ACCORDINGLY, MAY NOT BE OFFERED, SOLD OR PLEDGED OR OTHERWISE
TRANSFERRED WITHIN THE UNITED STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF OR A BENEFICIAL INTEREST HEREIN,
THE HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) (A "QIB"),
(B) IT IS AN INSTITUTIONAL "ACCREDITED INVESTOR" (AS DEFINED IN RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT)
(AN "INSTITUTIONAL ACCREDITED INVESTOR") OR (C) IT IS NOT A U.S.
PERSON, IS NOT ACQUIRING THIS SECURITY FOR THE ACCOUNT OR BENEFIT OF
A U.S. PERSON, AND IS ACQUIRING THIS SECURITY IN AN OFFSHORE
TRANSACTION IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (2) AGREES THAT IT WILL NOT, WITHIN THE TIME PERIOD REFERRED TO
IN RULE 144(k) (TAKING INTO ACCOUNT THE PROVISIONS OF RULE 144(d)
UNDER THE SECURITIES ACT, IF APPLICABLE) UNDER THE SECURITIES ACT AS
IN EFFECT WITH RESPECT TO SUCH TRANSFER, ON THE DATE OF THE TRANSFER
OF THIS SECURITY RESELL OR OTHERWISE TRANSFER THIS SECURITY EXCEPT
(A) TO THE RESORT AT ▇▇▇▇▇▇▇▇▇, LIMITED PARTNERSHIP (THE "ISSUER")
OR ANY SUBSIDIARY THEREOF, (B) INSIDE THE UNITED STATES TO A QIB IN
COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) INSIDE THE
UNITED STATES TO AN INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO
SUCH TRANSFER, FURNISHES TO THE TRANSFER AGENT A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS RELATING TO THE
RESTRICTIONS ON TRANSFER OF THIS SECURITY (THE FORM OF WHICH LETTER
CAN BE OBTAINED FROM THE TRUSTEE), AND IF SUCH TRANSFER IS IN
RESPECT OF AN AGGREGATE AMOUNT OF SECURITIES AT THE TIME OF TRANSFER
OF LESS THAN $250,000, AN OPINION OF COUNSEL ACCEPTABLE TO THE
ISSUER THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT,
(D) OUTSIDE THE UNITED STATES IN AN OFFSHORE TRANSACTION IN
COMPLIANCE WITH RULE 904 UNDER THE
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SECURITIES ACT, (E) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE, BASED
UPON AN OPINION OF COUNSEL ACCEPTABLE TO THE ISSUER), (F) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
(G) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT (BASED UPON AN OPINION OF COUNSEL
ACCEPTABLE TO THE ISSUER) AND IN EACH CASE, IN ACCORDANCE WITH
APPLICABLE SECURITIES LAWS AND (3) AGREES THAT IT WILL DELIVER TO
EACH PERSON TO WHOM THIS SECURITY OR AN INTEREST HEREIN IS
TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. AS
USED HEREIN, THE TERMS "OFFSHORE TRANSACTION," "UNITED STATES" AND
"U.S. PERSON" HAVE THE MEANINGS GIVEN TO THEM BY RULE 902 OF
REGULATION S UNDER THE SECURITIES ACT. THE WARRANT AGREEMENT
CONTAINS A PROVISION REQUIRING THE WARRANT AGENT TO REFUSE TO
REGISTER ANY TRANSFER OF THIS SECURITY IN VIOLATION OF THE FOREGOING
RESTRICTIONS.
(ii) For so long as this Agreement shall remain in effect with
respect to any Registrable Security, each certificate evidencing a
Registrable Security shall bear a legend substantially to the
following effect:
THIS SECURITY WAS ISSUED SUBJECT TO THAT CERTAIN REGISTRATION RIGHTS
AND LIMITED PARTNERS' AGREEMENT DATED AS OF DECEMBER 30, 1997 AMONG
THE PARTNERSHIP, CERTAIN LIMITED PARTNERS AND THE INITIAL PURCHASER
REFERRED TO THEREIN, AND IS SUBJECT TO THE RESTRICTIONS SET FORTH
THEREIN.
(iii) Upon any sale or transfer of any Restricted Security
pursuant to Rule 144 or an effective registration statement under
the Securities Act, the Transfer Agent shall permit the holder
thereof to exchange such Restricted Security for a LP Warrant
Partnership Interest that does not bear the legends set forth above
under clauses (i) and (ii) above, and rescind any related
restriction on the transfer of such LP Warrant Partnership Interest.
(iv) On and after the date of issuance of a License to the
Partnership and until the Partnership has been registered as a
Registered Company and granted the Exemptions by the Nevada
Commission, each Warrant Certificate evidencing such Warrant (and
all Warrants issued in exchange therefor or substitution thereof)
shall bear a legend substantially to the following effect:
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE, OR OTHER DISPOSITION OF ANY
INTEREST IN THE LIMITED PARTNERSHIP IS VOID UNLESS APPROVED IN
ADVANCE BY THE NEVADA GAMING COMMISSION. IF AT ANY TIME THE NEVADA
GAMING COMMISSION FINDS THAT AN INDIVIDUAL OWNER OF ANY SUCH
INTEREST IS
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UNSUITABLE TO HOLD THAT INTEREST, THE NEVADA GAMING COMMISSION SHALL
IMMEDIATELY NOTIFY THE LIMITED PARTNERSHIP OF THAT FACT. THE LIMITED
PARTNERSHIP SHALL, WITHIN TEN DAYS FROM THE DATE THAT IT RECEIVES
THE NOTICE FROM THE NEVADA GAMING COMMISSION, RETURN TO THE
UNSUITABLE OWNER THE AMOUNT OF HIS CAPITAL ACCOUNT AS REFLECTED ON
THE BOOKS OF THE LIMITED PARTNERSHIP. BEGINNING ON THE DATE WHEN THE
NEVADA GAMING COMMISSION SERVES NOTICE OF A DETERMINATION OF
UNSUITABILITY, PURSUANT TO THE PRECEDING SENTENCE, UPON THE LIMITED
PARTNERSHIP, IT IS UNLAWFUL FOR THE UNSUITABLE OWNER: (A) TO RECEIVE
ANY SHARE OF THE PROFITS OR DISTRIBUTIONS OF ANY CASH OR OTHER
PROPERTY OTHER THAN A RETURN OF CAPITAL AS REQUIRED ABOVE; (B) TO
EXERCISE, DIRECTLY OR THROUGH ANY TRUSTEE OR NOMINEE, ANY VOTING
RIGHT CONFERRED BY SUCH INTEREST; OR (C) TO RECEIVE ANY REMUNERATION
IN ANY FORM FROM THE LIMITED PARTNERSHIP, FOR SERVICES RENDERED OR
OTHERWISE.
(v) On and after the date of issuance of a License to the
Partnership and until the Partnership has been registered as a
Registered Company and granted the Exemptions by the Nevada
Commission, each certificate representing LP Partnership Interests
(and all LP Partnership Interests issued in exchange therefor or
substitution thereof) shall bear a legend substantially to the
following effect:
THE SALE, ASSIGNMENT, TRANSFER, PLEDGE, OR OTHER DISPOSITION OF ANY
INTEREST IN THE LIMITED PARTNERSHIP IS VOID UNLESS APPROVED IN
ADVANCE BY THE NEVADA GAMING COMMISSION. IF AT ANY TIME THE NEVADA
GAMING COMMISSION FINDS THAT AN INDIVIDUAL OWNER OF ANY SUCH
INTEREST IS UNSUITABLE TO HOLD THAT INTEREST, THE NEVADA GAMING
COMMISSION SHALL IMMEDIATELY NOTIFY THE LIMITED PARTNERSHIP OF THAT
FACT. THE LIMITED PARTNERSHIP SHALL, WITHIN TEN DAYS FROM THE DATE
THAT IT RECEIVES THE NOTICE FROM THE NEVADA GAMING COMMISSION,
RETURN TO THE UNSUITABLE OWNER THE AMOUNT OF HIS CAPITAL ACCOUNT AS
REFLECTED FROM THE NEVADA GAMING COMMISSION, RETURN TO THE
UNSUITABLE OWNER THE AMOUNT OF HIS CAPITAL ACCOUNT AS REFLECTED ON
THE BOOKS OF THE LIMITED PARTNERSHIP. BEGINNING ON THE DATE WHEN THE
NEVADA GAMING COMMISSION SERVES NOTICE OF A DETERMINATION OF
UNSUITABILITY, PURSUANT TO THE PRECEDING SENTENCE, UPON THE LIMITED
PARTNERSHIP, IT IS UNLAWFUL FOR THE UNSUITABLE OWNER: (A) TO RECEIVE
ANY SHARE OF THE PROFITS OR DISTRIBUTIONS OF ANY CASH OR OTHER
PROPERTY OTHER THAN A RETURN OF CAPITAL AS REQUIRED ABOVE; (B) TO
EXERCISE, DIRECTLY OR THROUGH ANY TRUSTEE OR NOMINEE, ANY VOTING
RIGHT CONFERRED BY SUCH INTEREST; OR (C) TO RECEIVE ANY
20
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REMUNERATION IN ANY FORM FROM THE LIMITED PARTNERSHIP, FOR SERVICES
RENDERED OR OTHERWISE.
ANY LIMITED PARTNER GRANTED DELAYED LICENSING THAT IS LATER FOUND
UNSUITABLE BY THE NEVADA GAMING COMMISSION SHALL RETURN ALL EVIDENCE
OF ANY OWNERSHIP IN THE LIMITED PARTNERSHIP TO THE LIMITED
PARTNERSHIP, AT WHICH TIME THE LIMITED PARTNERSHIP SHALL REFUND TO
THE UNSUITABLE LIMITED PARTNER NO MORE THAN THE AMOUNT THAT HE PAID
FOR HIS OWNERSHIP INTEREST, AND THE UNSUITABLE LIMITED PARTNER SHALL
NO LONGER HAVE ANY DIRECT OR INDIRECT INTEREST IN THE LIMITED
PARTNERSHIP.
7.2 Special Provisions Relating to Gaming Regulations and Warrant Co.
(a) Notwithstanding any other provision of this Agreement, on and
after such time as the Partnership shall have obtained a nonrestricted
gaming license (the "License") issued by the Nevada Gaming Commission (the
"Nevada Commission"), no Holder may sell, assign, transfer, pledge or make
any other disposition of a LP Partnership Interest without the prior
approval of the Nevada Commission unless the Partnership is then
registered by the Nevada Commission as a "publicly traded corporation" (a
"Registered Company"), as that term is defined in the Nevada Gaming
Control Act and the regulations promulgated thereunder, and holds certain
exemptions from the Nevada Commission in connection with such registration
(the "Exemptions"). The Partnership shall promptly notify each Holder in
writing in each instance upon becoming the holder of the License, a
Registered Company and the holder of the Exemptions.
(b) Subject to compliance with the requirements of all applicable
Gaming Laws, upon any Holder's surrender of a LP Partnership Interest for
transfer of such LP Partnership Interest to Warrant Co., such transfer
shall be registered in accordance with this Section 7 and the Holder's LP
Partnership Interest shall be cancelled and a Warrant Co. LP Warrant shall
be issued to Warrant Co. in respect thereof; provided that such Holder and
Warrant Co. certify to the Partnership and its Transfer Agent that such
transfer is solely for the purpose of exchanging a Corporate Warrant
corresponding thereto as contemplated by this Agreement.
(c) Subject to compliance with the requirements of all applicable
Gaming Laws, the Company may issue additional LP Partnership Interests
from time to time to any holder of Common Stock of Warrant Co. upon such
stockholder's delivery to the Partnership of the certificate or
certificates evidencing such LP Partnership Interest, duly endorsed or
accompanied by a written instrument or instruments of transfer to such
stockholder, in form satisfactory to the Partnership duly executed by
Warrant Co.; provided that such stockholder and Warrant Co. shall certify
to the Partnership and its Transfer Agent that such transfer is solely for
the purpose of exchanging the Common Stock of Warrant Co. for the
corresponding LP Partnership Interest then held by Warrant Co. Upon
satisfaction of the foregoing conditions, the Partnership shall cause such
transfer and issuance to be made and duly registered on the books of the
Partnership.
21
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8. Miscellaneous.
8.1 No Inconsistent Agreements. The Partnership has not entered and will
not enter, into any agreement with respect to any of its securities that is
inconsistent with the rights granted to the Holders of Registrable Securities in
this Agreement or otherwise conflicts with the provisions hereof. The
Partnership has not entered and it will not enter into any agreement with
respect to any of its securities which will grant to any Person piggy-back
registration rights with respect to a Registration Statement.
8.2 Adjustments Affecting Registrable Securities. The Partnership shall
not, directly or indirectly, take any action with respect to the Registrable
Securities as a class that would adversely affect the ability of the Holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement.
8.3 Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of the Holders of not less than a majority in aggregate principal amount
of the then outstanding Registrable Securities. Notwithstanding the foregoing, a
waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders of Registrable Securities
whose securities are being sold pursuant to a Registration Statement and that
does not directly or indirectly affect, impair, limit or compromise the rights
of other Holders of Registrable Securities 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, however, that
the provisions of this sentence may not be amended, modified or supplemented
except in accordance with the provisions of the immediately preceding sentence.
Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or facsimile: if to a Holder of the
Registrable Securities, at the most current address of such Holder set forth on
the records of the registrar under the Indenture; if to the Initial Purchaser,
to NatWest Capital Markets Limited, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇; with a copy to White & Case, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇; and if to the Partnership, to The Resort at ▇▇▇▇▇▇▇▇▇, Limited
Partnership, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇. 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; and when
receipt is acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
8.5 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;
provided, however, that this Agreement shall not inure to the benefit of or be
binding upon a successor or assign of a Holder unless and to the extent such
successor or assign holds Registerable Securities.
22
24
8.6 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.
8.7 Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning thereof.
8.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
8.9 Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, illegal,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ 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.
8.10 Registrable Securities Held by the Partnership, RAS, Inc. or their
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of Registerable Securities is required hereunder, Registerable
Securities held by the Partnership, RAS, Inc. or their affiliates (as such term
is defined in Rule 405 under the Securities Act) shall not be counted in
determining whether such consent or approval was given by the Holders of such
required percentage.
8.11 Third Party Beneficiaries. Holders of Registerable Notes and
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK
AND IS FOLLOWED BY A SINGLE SIGNATURE PAGE.]
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25
IN WITNESS WHEREOF, the parties have executed this Registration Rights and
Limited Partners' Agreement as of the date first written above.
THE RESORT AT ▇▇▇▇▇▇▇▇▇, LIMITED PARTNERSHIP
By: THE RESORT AT ▇▇▇▇▇▇▇▇▇, INC., General
Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
SEVEN CIRCLE GAMING CORPORATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
CHRISTIANA LIMITED PARTNERSHIP,
a Nevada limited partnership
By: KEEPSAKE, INC., a Nevada corporation,
General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
RAS WARRANT CO.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written:
NATWEST CAPITAL MARKETS LIMITED
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: N S Coulbeck
Title: Director
26
EXHIBIT A
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF RESTRICTED SECURITIES
Re: _____________________________________
This Certificate relates to limited partner interests (the "LP
Partnership Interests")(1) held in definitive form by ________ (the
"Transferor"). The Transferor has requested the Transfer Agent by written order
to exchange or register the transfer of LP Partnership Interests. In connection
with such request, the Transferor does hereby certify that Transferor is
familiar with the Registration Rights and Limited Partners' Agreement
("Agreement") relating to the LP Partnership Interests and the restrictions on
transfers thereof as provided in Sections [ ] and [ ] of such Agreement, and
that the transfer of LP Partnership Interests requested hereby does not require
registration under the Securities Act (as defined below) because:(2)
[ ] Such LP Partnership Interests are being acquired for the
Transferor's own account without transfer pursuant to an Exempt
Transfer permitted by the Agreement.
[ ] Such LP Partnership Interests are being transferred pursuant to an
effective registration statement under the Securities Act.
[ ] Such LP Partnership Interests are being transferred in reliance on
and in compliance with an exemption from the registration
requirements of the Securities Act. If required by the Agreement, an
opinion of counsel to the effect that such transfer does not require
registration under the Securities Act accompanies this Certificate.
______________________________________
[INSERT NAME OF TRANSFEROR]
By: __________________________________
Date: _______________________
________
(1) To be appropriately modified for any other partnership interests.
(2) Check applicable box.
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EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF WARRANTS
Re: Limited Partnership Interests (the "Securities")
of The Resort at ▇▇▇▇▇▇▇▇▇, Limited Partnership
(the "Partnership")
This Certificate relates to ____________ Securities held in the form
of physical Partnership Certificates by _________________ (the "Transferor").
The Transferor:*
/ / has requested that the General Partner of the Partnership or the
Transfer Agent for the Partnership by written order to exchange or register the
transfer of Securities evidenced by physical Partnership Certificates.
In connection with such request and in request of each such
Security, the Transferor does hereby certify that the Transferor is familiar
with the Agreement of Limited Partnership and Registration Rights and Limited
Partners' Agreement dated as of December 30, 1997, each relating to the above
captioned Securities, and the restrictions on transfers thereof as provided
therein; and that the transfer of these Securities does not require registration
under the Securities Act of 1933, as amended (the "Act") because*:
/ / Such Security is being acquired for the Transferor's own account,
without transfer.
/ / Such Security is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A under the Act), in reliance on Rule 144A.
/ / Such Security is being transferred to an institutional "accredited
investor" (within the meaning of subparagraphs (a)(1), (2), (3) or (7) of Rule
501 under the Act.
/ / Such Security is being transferred in reliance on Regulation S under
the Act.
28
/ / Such Security is being transferred in reliance on Rule 144 under the
Act.
/ / Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Act other than Rule
144A or Rule 144 or Regulation S under the Act to a person other than an
institutional "accredited investor."
-------------------------------------
(INSERT NAME OF TRANSFEROR)
By:
----------------------------------
(Authorized Signature)
Date:
-----------------------------
*Check applicable box.
2
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EXHIBIT C
Form of Certificate to Be
Delivered in Connection with
Transfers to Institutional Accredited Investors
[Date]
The Resort at ▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Re: The Resort at ▇▇▇▇▇▇▇▇▇, Limited Partnership (the "Partnership")
Limited Partnership Interests (the "Securities")
Ladies and Gentlemen:
In connection with our proposed purchase of Securities of the Partnership,
we confirm that:
1. We have received such information as we deem necessary in order to make
our investment decision.
2. We understand that the limited partnership interests of the Partnership
represented by this Certificate are subject to restrictions on the transfer and
the mandatory transfer of interests and other matters, as contained in the
Partnership's Agreement of Limited Partnership, as amended, and in a
Registration Rights and Limited Partners' Agreement dated as of December 30,
1997, and the undersigned agrees to be bound by, and not to resell, pledge or
otherwise transfer the Securities except in compliance with, such restrictions
and conditions and the Securities Act of 1933, as amended (the "Securities
Act").
3. We understand that the offer and sale of the Securities have not been
registered under the Securities Act, and that the Securities may not be offered
or sold within the United States or to, or for the account or benefit of, U.S.
persons except as permitted in the following sentence. We agree, on our own
behalf and on behalf of any accounts for which we are acting as hereinafter
stated, that if we should sell any Securities, we will do so only (A) to the
Partnership or any subsidiary thereof, (B) inside the United States in
accordance with Rule 144A under the Securities Act to a "qualified institutional
buyer" (as defined therein), (C) inside the United States to an institutional
"accredited investor" (as defined below) that, prior to such transfer, furnishes
(or has furnished on its behalf by a U.S. broker-dealer) to the General Partner
and the transfer agent for the Partnership a signed letter substantially in the
form hereof, (D) outside the United States in accordance with Regulation S under
the Securities Act, (E) pursuant to the exemption from registration provided by
Rule 144 under the Securities Act (if available), or (F) pursuant to an
effective registration statement under the Securities Act, and we further agree
to provide to any person purchasing Securities from us a notice advising such
purchaser that resales of the Securities are restricted as stated herein.
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4. We understand that, on any proposed resale of Securities, we will be
required to furnish the General Partner and/or the transfer agent for the
Partnership, such certification, legal opinions and other information as may be
reasonably required to confirm that the proposed sale complies with the
foregoing restrictions. We further understand that the Securities purchased by
us will bear a legend to the foregoing effect.
5. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act) and have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Securities, and we
and any accounts for which we are acting are each able to bear the economic risk
of our or their investment, as the case may be.
6. We are acquiring the Securities purchased by us for our account or for
one or more accounts (each of which is an institutional "accredited investor")
as to each of which we exercise sole investment discretion.
You and the Partnership and its transfer agent are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby.
Very truly yours,
(Name of Transferor)
By: __________________________
(Authorized Signatory)
2
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EXHIBIT D
Form of Certificate to Be
Delivered in Connection
with Regulation S Transfers
[Date]
The Resort at ▇▇▇▇▇▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Re: The Resort at ▇▇▇▇▇▇▇▇▇, Limited Partnership (the "Partnership")
Limited Partnership Interests (the "Securities")
Dear Sirs:
In connection with our proposed purchase of ___________ of the Securities,
we confirm that such sale has been effected pursuant to and in accordance with
Regulation S under the Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, we represent that:
(1) the offer of the Securities was not made to a person in the United
States;
(2) neither (a) at the time the buy offer was originated, the transferee
was outside the United States or we and any person acting on our behalf
reasonably believed that the transferee was outside the United States, or (b)
the transaction was executed in, on or through the facilities of a designated
off-shore securities market and neither we nor any person acting on our behalf
knows that the transaction has been prearranged with a buyer in the United
States;
(3) no directed selling efforts have been made in the United States in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S,
as applicable;
(4) the transaction is not part of a plan or scheme to evade the
registration requirements of the Securities Act; and
(5) we have advised the transferee of the transfer restrictions applicable
to the Securities.
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You and the Partnership and its transfer agent are entitled to rely upon
this letter and are irrevocably authorized to produce this letter or a copy
hereof to any interested party in any administrative or legal proceeding or
official inquiry with respect to the matters covered hereby. Defined terms used
herein without definition have the respective meanings provided in Regulation S.
Very truly yours,
(Name of Transferor)
By: __________________________
(Authorized Signatory)
4