FORM OF REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of [ ],
1996, by and among COLORADO GAMING & ENTERTAINMENT Co.,
formerly known as HEMMETER ENTERPRISES, INC., a Delaware
corporation (the "Company"), and the parties listed on Annex A
hereto (the "Initial Holders").
This Agreement is being entered into pursuant to
Section 5.10 of the First Amended Joint Plan of
Reorganization, dated as of February 14, 1996 (the "Plan of
Reorganization"), of the Company. The Plan of Reorganization
provides for the issuance of (i) 12% Senior Secured Pay in
Kind Notes (the "Notes") due 2003 by the Company that are
guaranteed by BWBH, Inc., BWCC, Inc., Millsite 27, Inc. and
Silver Hank Casino Inc. (collectively, the "Guarantors") and
(ii) Common Stock (as hereinafter defined).
The parties hereto desire to provide certain
registration rights to the Initial Holders with respect to the
Notes and the shares of Common Stock.
Accordingly, the parties hereto agree as follows:
1. Definitions. As used herein, unless the
context otherwise requires, the following terms have the
following respective meanings:
"Commission" means the Securities and Exchange
Commission or any other Federal agency at the time
administering the Securities Act.
"Common Stock" means any shares of Common Stock, par
value $.01 per share, of the Company now or hereafter
authorized to be issued, and any and all securities of any
kind whatsoever of the Company which may be issued on or after
the date hereof in respect of, or in exchange for, shares of
Common Stock pursuant to a merger, consolidation, stock split,
stock dividend, recapitalization of the Company or otherwise.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, or any similar Federal statute, and the
rules and regulations of the Commission thereunder, all as the
same shall be in effect at the time. Reference to a
particular section of the Exchange Act shall include a
reference to the comparable section, if any, of any such
similar Federal statute.
"Holder" means a registered holder of Registrable
Common Stock or Registrable Notes, other than Registrable
Common Stock or Registrable Notes acquired in connection with
a public offering.
"Indenture" means the Indenture among the Company,
the Guarantors and IBJ Schroeder Bank & Trust Company, as
trustee, dated as of the date hereof, as the same may be
amended and supplemented from time to time in accordance with
the terms thereof.
"Initial Holders" has the meaning assigned to it in
the preamble hereof.
"Notes" has the meaning assigned to it in the
preamble hereof.
"Person" means a corporation, an association, a
partnership, an organization, a business, a trust, an
individual, or any other entity or organization, including a
government or political subdivision or an instrumentality or
agency thereof.
"Registrable Common Stock" means (i) the shares of
Common Stock issued to an Initial Holder pursuant to the Plan
of Reorganization or (ii) any Common Stock issued with respect
to the Common Stock referred to in clause (i) hereof by way of
a stock dividend, stock split or reverse stock split or in
connection with a combination of shares, recapitalization,
merger, consolidation or otherwise. As to any particular
Registrable Common Stock, such securities shall cease to be
Registrable Common Stock when (i) a registration statement
with respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration
statement, (ii) they shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the
Securities Act, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require
the registration under the Securities Act, or (iv) they shall
have ceased to be outstanding.
"Registrable Notes" means the Notes issued to any
Initial Holder pursuant to the Plan of Reorganization, any
replacement or successor notes issued in respect thereof or
any notes or other securities exchanged therefor. As to any
particular Registrable Notes, such securities shall cease to
be Registrable Notes when (i) a registration statement with
respect to the sale of such securities shall have become
effective under the Securities Act and such securities shall
have been disposed of in accordance with such registration
statement, (ii) they shall have been distributed to the public
pursuant to Rule 144 (or any successor provision) under the
Securities Act, (iii) they shall have been otherwise
transferred, new certificates for them not bearing a legend
restricting further transfer shall have been delivered by the
Company and subsequent disposition of them shall not require
the registration under the Securities Act, or (iv) they shall
have ceased to be outstanding.
"Registrable Securities" means the Registrable
Common Stock and the Registrable Notes.
"Registration Expenses" means all expenses incident
to the registration and disposition of the Registrable
Securities pursuant to Section 2 hereof, including, without
limitation, all registration, filing and applicable national
securities exchange fees; all fees and expenses of complying
with state securities or blue sky laws (including fees and
disbursements of counsel to the underwriters or the Holders in
connection with "blue sky" qualification of the Registrable
Securities and determination of their eligibility for
investment under the laws of the various jurisdictions); all
duplicating and printing expenses; all messenger and delivery
expenses; the fees and disbursements of counsel for the
Company and of its independent public accountants, including
the expenses of "cold comfort" letters or, in connection with
a registration pursuant to Section 2.3 only, any special
audits required by, or incident to, such registration; all
fees and disbursements of underwriters (other than
underwriting discounts and commissions); all transfer taxes;
and the reasonable fees and expenses of one counsel to the
Holders; provided, however, that Registration Expenses shall
exclude and the Holders shall pay underwriting discounts and
commissions in respect of the Registrable Securities being
registered.
"Securities Act" means the Securities Act of 1933,
as amended, or any similar Federal statute, and the rules and
regulations of the Commission thereunder, all as the same
shall be in effect at the time. References to a particular
section of the Securities Act shall include a reference to the
comparable section, if any, of any such similar Federal
statute.
2. Shelf Registration; Registration Under
Securities Act, etc.
2.1 Shelf Registration. Within 75 days following
the date hereof, the Company shall file with the Commission,
at the Company's expense, a "shelf" registration statement on
any appropriate form pursuant to Rule 415 under the Act
covering all Registrable Securities (the "Shelf
Registration"). The Company shall use its best efforts to
have the Shelf Registration declared effective as promptly as
practicable after such filing (but not later than 150 days
after the date hereof) and to keep the Shelf Registration
continuously effective three years following the date on which
the Shelf Registration is declared effective (the "Shelf
Registration Period"). The Company shall, to the extent
necessary, supplement or amend the Shelf Registration (in each
case, at the Company's expense) to keep the Shelf Registration
effective during the Shelf Registration Period. The Company
further agrees to supplement or amend any Shelf Registration,
as required by the registration form utilized by the Company,
by the instructions applicable to such registration form or by
the Securities Act or the rules and regulations thereunder or
as reasonably requested by any Holder. The Company shall
furnish to the Holders copies, in substantially the form
proposed to be used and/or filed, of any such supplement or
amendment at least 30 days prior to its being used and/or
filed with the Commission. The Company hereby consents to the
use (in compliance with applicable law) of the prospectus or
any amendment or supplement thereto by each of the selling
Holders of Registrable Securities in connection with the
offering and sale of the Registrable Securities covered by the
prospectus or any amendment or supplement thereto. The
Company shall pay all Registration Expenses incurred in
connection with the Shelf Registration, whether or not it
becomes effective. In no event shall the Shelf Registration
include securities other than Registrable Securities, unless
the Holders of all Registrable Securities consent to such
inclusion. Nothing herein shall obligate the Company to incur
or pay for fees and disbursements of underwriters in
connection with a distribution under the Shelf Registration.
2.2 Registration on Request.
(a) Request. Subject to the provisions of
Section 2.2(h) below, (i) if the Shelf Registration remains
continuously effective during the Shelf Registration Period in
accordance with the terms hereof, at any time or from time to
time after the expiration of the Shelf Registration Period and
until the fifth anniversary hereof, or (ii) if for any reason
the Shelf Registration does not become effective within 150
days after the date hereof or ceases to be effective at any
time prior to the expiration of the Shelf Registration Period,
at any time or from time to time after the date which is 150
days from the date hereof (if the Shelf Registration fails to
become effective) or the date on which the Shelf Registration
ceases to be effective, as the case may be, and until the
fifth anniversary hereof, the Holders, individually and
jointly, of not less than (i) 5% of issued and outstanding
shares of Common Stock or (ii) 5% of the aggregate principal
amount of outstanding Notes, (the "Initiating Holders") shall
have the right to require the Company to effect the
registration under the Securities Act of all or part of the
Registrable Common Stock or Registrable Notes, as the case may
be, held by such Initiating Holders, by delivering a written
request therefor to the Company specifying the number of
shares of Registrable Common Stock or aggregate principal
amount of Registrable Notes, as the case may be, and the
intended method of distribution. The Company shall promptly
give written notice of such requested registration to all
other Holders, and thereupon the Company shall, as
expeditiously as possible, use its best efforts to (A) effect
the registration under the Securities Act (including by means
of a shelf registration pursuant to Rule 415 under the
Securities Act if so requested in such request and if the
Company is then eligible to use such a registration) of the
Registrable Securities which the Company has been so requested
to register by the Initiating Holders, and all other
Registrable Securities which the Company has been requested to
register by any other Holder (together with the Initiating
Holders, the "Selling Holders") by written request given to
the Company within 10 days after the giving of written notice
by the Company, all to the extent necessary to permit
distribution in accordance with the intended method of
distribution set forth in the written request or requests
delivered by the Selling Holders, and (B) if requested by the
Selling Holders, obtain acceleration of the effective date of
the registration statement relating to such registration.
(b) Registration of Other Securities.
Whenever the Company shall effect a registration pursuant to
this Section 2.2 in connection with an underwritten offering
by any Selling Holders of Registrable Securities, no
securities (other than Registrable Securities) shall be
included among the securities covered by such registration
(i) if the managing underwriter of such offering shall have
advised the Company and the Selling Holders in writing that
the inclusion of such other securities would adversely affect
such offering or (ii), if such offering is not an underwritten
offering, unless the Selling Holders of not less than (A) 50%
of the Registrable Common Stock and (B) 50% of the aggregate
principal amount of the Registrable Notes, to be covered by
such registration shall have consented in writing to the
inclusion of such other securities.
(c) Registration Statement Form.
Registrations under this Section 2.2 shall be on such
appropriate registration form of the Commission as shall be
selected by the Company and as shall be reasonably acceptable
to the Selling Holders. The Company agrees to include in any
such registration statement all information which, in the
opinion of counsel to the Selling Holders and counsel to the
Company, is required to be included.
(d) Expenses. The Company shall pay all
Registration Expenses in connection with any registration
requested pursuant to this Section 2.2.
(e) Effective Registration Statement. A
registration requested pursuant to this Section 2.2 shall not
be deemed to have been effected (including for purposes of
paragraph (h) of this Section 2.2) (i) unless a registration
statement with respect thereto has become effective and has
been kept continuously effective for a period of at least
120 days (or such shorter period which shall terminate when
all the Registrable Securities covered by such registration
statement have been sold pursuant thereto), (ii) if after it
has become effective, such registration is interfered with by
any stop order, injunction or other order or requirement of
the Commission or other governmental agency or court for any
reason not attributable to the Selling Holders and has not
thereafter become effective, or (iii) if the conditions to
closing specified in the underwriting agreement, if any,
entered into in connection with such registration are not
satisfied for any reason not attributable to the Selling
Holders or waived.
(f) Selection of Underwriters. The
underwriters of each underwritten offering of the Registrable
Securities to be registered shall be selected by the Selling
Holders and shall be reasonably satisfactory to the Company.
(g) Priority in Requested Registration. If
the managing underwriter of any underwritten offering shall
advise the Company in writing (with a copy to each Selling
Holder) that, in its opinion, the (i) number of shares of
Registrable Common Stock requested to be included in such
registration exceeds the number of shares which can be sold in
such offering within a price range acceptable to the Selling
Holders of Registrable Common Stock, or (ii) the aggregate
principal amount of Registrable Notes exceeds the amount which
can be sold in such an offering within a price range
acceptable to the Selling Holders of Registrable Notes, the
Company will include in such registration that number of
shares of Registrable Common Stock or the aggregate principal
amount of Registrable Notes, as applicable, which the Company
is so advised can be sold in such offering. The Registrable
Securities requested to be included in such registration shall
be reduced (A) pro rata among the Selling Holders requesting
such registration of Registrable Common Stock on the basis of
the percentage of Registrable Common Stock of such Selling
Holders requesting such registration and (B) pro rata among
the Selling Holders requesting such registration of
Registrable Notes on the basis of the principal amount of the
Registrable Notes of such Selling Holders requesting such
registration. In connection with any such registration to
which this Section 2.2(g) is applicable, no securities other
than Registrable Securities shall be covered by such
registration.
(h) Limitations on Registration on Request.
Notwithstanding anything to the contrary contained herein, the
registration rights granted to the Holders in Section 2.2(a)
are subject to the following limitations: (i) the Holders
shall be entitled to require the Company to, and the Company
shall be required to, effect no more than three registrations
pursuant to Section 2.2(a)(i) hereof (at least one of which
relates to Registrable Notes and at least two of which relate
to Registrable Common Stock) and no more than four
registrations pursuant to Section 2.2(a)(ii) hereof (at least
one of which relates to Registrable Notes and at least two of
which relate to Registrable Common Stock); (ii) the Company
shall not be required to effect a registration pursuant to
Section 2.2(a) if, with respect thereto, the managing
underwriter, the Commission, the Securities Act or the rules
and regulations thereunder, or the form on which the
registration statement is to be filed, would require the
conduct of an audit other than the regular audit conducted by
the Company at the end of its fiscal year, but rather the
filing may be delayed until the completion of such regular
audit (unless the Holders agree to pay the expenses of the
Company in connection with such an audit other than the
regular audit) and (iii) the Holders shall not be entitled to
require the Company to, and the Company shall not be required
to, effect a registration pursuant to Section 2.2(a) within
six (6) months following the effective date of another
registration pursuant to Section 2.2(a).
(i) Postponement. The Company shall be
entitled once in any six-month period to postpone for a
reasonable period of time (but not exceeding 90 days) (the
"Postponement Period") the filing of any registration
statement required to be prepared and filed by it pursuant to
this Section 2.2 if the Company determines, in its reasonable
judgment, that such registration and offering would materially
interfere with any material financing, corporate
reorganization or other material transaction involving the
Company or any subsidiary, or would require premature
disclosure thereof, and promptly gives the Selling Holders
written notice of such determination, containing a general
statement of the reasons for such postponement and an
approximation of the anticipated delay. If the Company shall
so postpone the filing of a registration statement, (i) the
Selling Holders of not less than 50% of the shares of
Registrable Common Stock to be registered shall have the right
to withdraw the request for registration in respect of the
Registrable Common Stock or (ii) the Selling Holders of not
less than 50% of the aggregate principal amount of the
Registrable Notes to be registered shall have the right to
withdraw the request for registration in respect of the
Registrable Notes, by giving written notice to the Company at
any time and, in the event of any such withdrawal, such
request shall not be counted for purposes of the requests for
registration to which the Holders are entitled pursuant to
this Section 2.2.
2.3 Incidental Registration.
(a) Right to Include Registrable Securities.
If the Company at any time prior to the expiration of the
Holders' right to request the registration of Registrable
Securities pursuant to Section 2.2(a) hereof proposes to
register any of its securities under the Securities Act by
registration on Form S-1, S-2 or S-3 or any successor or
similar form(s) (except registrations on such Form or similar
form(s) solely for registration of securities in connection
with an employee stock option, stock purchase, stock bonus or
similar plan, pursuant to a dividend reinvestment plan,
pursuant to a merger, exchange, offer or transaction of the
type specified in Rule 145(a) under the Securities Act or
pursuant to a "shelf" registration), whether or not for sale
for its own account, it will each such time give prompt
written notice to the Holders of its intention to do so and of
the Holders' rights under this Section 2.3 and the Holders
shall be entitled to include, subject to the provisions of
this Agreement, Registrable Securities on the same terms and
conditions as apply to other comparable securities of the
Company sold in connection with such registration. Upon the
written request of any Holder (a "Requesting Holder"),
specifying the maximum number of shares of Registrable Common
Stock or principal amount of Registrable Notes, as applicable,
intended to be disposed of by such Requesting Holder, made as
promptly as practicable and in any event within 15 days after
the receipt of any such notice, the Company shall use its best
efforts to effect the registration under the Securities Act of
all Registrable Securities which the Company has been so
requested to register by the Requesting Holders; provided,
however, that if, at any time after giving written notice of
its intention to register any securities and prior to the
effective date of the registration statement filed in
connection with such registration, the Company shall determine
for any reason not to register or to delay registration of
such securities, the Company shall give written notice of such
determination and its reasons therefor to the Holders and
(i) in the case of a determination not to register, shall be
relieved of its obligation under this Section 2.3 to register
any Registrable Securities in connection with such
registration (but not from any obligation of the Company to
pay the Registration Expenses in connection therewith),
without prejudice, however, to the rights of the Holders to
request that such registration be effected as a registration
under Section 2.2, and (ii) in the case of a determination to
delay registering, shall be permitted to delay registering any
Registrable Securities, for the same period as the delay in
registering such other securities. No registration effected
under this Section 2.3 shall relieve the Company of its
obligation to effect any registration upon request under
Section 2.2. The Company will pay all Registration Expenses
in connection with any registration of Registrable Securities
requested pursuant to this Section 2.3.
(b) Right to Withdraw. Any Requesting Holder
shall have the right to withdraw its request for inclusion of
Registrable Securities in any registration statement pursuant
to this Section 2.3 at any time by giving written notice to
the Company of its request to withdraw.
(c) Priority in Incidental Registrations. If
the managing underwriter of any underwritten offering shall
inform the Company by letter of its opinion that the number of
shares of Registrable Common Stock, when added to the number
of other securities to be offered in such registration, would
materially adversely affect such offering, then the Company
shall include in such registration, that number of shares of
Registrable Common Stock which the Company is so advised by
the managing underwriter can be sold in (or during the time
of) such offering without materially adversely affecting such
offering (in the case of Registrable Common Stock, the
"Section 2.3 Common Stock Sale Amount"), (i) all of the
securities proposed by the Company to be sold for its own
account; (ii) thereafter, (x) to the extent the Section 2.3
Common Stock Sale Amount is not exceeded in clause (i), the
Registrable Common Stock requested by the Requesting Holders
to be included in such registration pursuant to Section 2.3(a)
pro rata among the Requesting Holders on the basis of the
percentage of Registrable Common Stock of such Requesting
Holders requested to be included in such registration and (y)
the Registrable Notes requested by the Requesting Holders to
be included in such registration pursuant to Section 2.3(a)
pro rata among the Requesting Holders on the basis of the
percentage of the principal amount of Registrable Notes of
such Requesting Holders requested to be included in such
registration; and (iii) thereafter, to the extent the
Section 2.3 Common Stock Sale Amount is not exceeded, any
other securities of the Company requested to be included in
such registration.
(d) Plan of Distribution. Any participation
by the Holders in a registration by the Company shall be in
accordance with the Company's plan of distribution.
2.4 Registration Procedures. If and whenever the
Company is required to use its best efforts to effect the
registration of any Registrable Securities under the
Securities Act as provided in Sections 2.1, 2.2 and 2.3
hereof, the Company shall as expeditiously as possible:
(a) prepare and file with the Commission as
soon as practicable the requisite registration statement to
effect such registration (and shall include all financial
statements required by the Commission to be filed therewith)
and thereafter use its best efforts to cause such registration
statement to become effective; provided, however, that before
filing such registration statement (including all exhibits) or
any amendment or supplement thereto or comparable statements
under securities or blue sky laws of any jurisdiction, the
Company shall furnish such documents to each Holder selling
Registrable Securities covered by such registration statement
and each underwriter, if any, participating in the offering of
the Registrable Securities and their respective counsel, which
documents will be subject to the review and comments of each
such Holder, each underwriter and their respective counsel;
and provided further, that (i) as to registration pursuant to
Section 2.1 or 2.2 hereof, the Company may discontinue any
registration of its securities which are not Registrable
Securities and, (ii) as to registration pursuant to Section
2.3 hereof, the Company may discontinue any registration of
its securities, in each case, at any time prior to the
effective date of the registration statement relating thereto;
(b) notify each Holder selling Registrable
Securities covered by such registration statement of the
Commission's requests for amending or supplementing the
registration statement and the prospectus, and prepare and
file with the Commission such amendments and supplements to
such registration statement and the prospectus used in
connection therewith as may be necessary to keep such
registration statement effective and to comply with the
provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such
registration statement for such period as shall be required
for the disposition of all of such Registrable Securities in
accordance with the intended method of distribution thereof;
provided that, except with respect to the Shelf Registration
and any other such registration statement filed pursuant to
Rule 415 under the Securities Act, such period need not exceed
120 days;
(c) furnish, without charge, to each Holder
selling Registrable Securities covered by such registration
statement and each underwriter such number of conformed copies
of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such
number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus
and any summary prospectus) and any other prospectus filed
under Rule 424 under the Securities Act, in conformity with
the requirements of the Securities Act, and such other
documents, as such Holders and such underwriters may
reasonably request;
(d) use its best efforts (i) to register or
qualify all Registrable Securities and other securities
covered by such registration statement under such securities
or blue sky laws of such States of the United States of
America where an exemption is not available and as any Holder
or Holders selling Registrable Securities covered by such
registration statement or any managing underwriter shall
reasonably request, (ii) to keep such registration or
qualification in effect for so long as such registration
statement remains in effect, and (iii) to take any other
action which may be reasonably necessary or advisable to
enable the Holders to consummate the disposition in such
jurisdictions of the securities to be sold by such Holder or
Holders; provided, however, that the Company shall not for any
purpose be required to execute a general consent to service of
process or to qualify to do business as a foreign corporation
in any jurisdiction where it is not so qualified;
(e) use its best efforts to cause all
Registrable Securities covered by such registration statement
to be registered with or approved by such other Federal or
state governmental agencies or authorities as may be necessary
in the opinion of counsel to the Company and counsel to any
Holder or Holders selling Registrable Securities covered by
such registration statement to consummate the disposition of
such Registrable Securities;
(f) furnish to each Holder selling Registrable
Securities covered by such registration statement and each
underwriter, if any, participating in the offering of the
securities covered by such registration statement, a signed
counterpart of
(i) an opinion of counsel for the
Company, and
(ii) a "comfort" letter signed by the
independent public accountants who have certified the
Company's financial statements included or incorporated by
reference in such registration statement, covering
substantially the same matters with respect to such
registration statement (and the prospectus included therein)
and, in the case of the accountants' comfort letter, with
respect to events subsequent to the date of such financial
statements, as are customarily covered in opinions of issuer's
counsel and in accountants' comfort letters delivered to the
underwriters in underwritten public offerings of securities
(and dated the dates such opinions and comfort letters are
customarily dated) and, in the case of the legal opinion, such
other legal matters, and, in the case of the accountants'
comfort letter, such other financial matters, as such Holder
or Holders, or the underwriters, may reasonably request;
(g) promptly notify the Holders selling
Registrable Securities covered by such registration statement
and each managing underwriter, if any, participating in the
offering of the securities covered by such registration
statement (i) when such registration statement, any pre-
effective amendment, the prospectus or any prospectus
supplement related thereto or post-effective amendment to such
registration statement has been filed, and, with respect to
such registration statement or any post-effective amendment,
when the same has become effective; (ii) of any request by the
Commission for amendments or supplements to such registration
statement or the prospectus related thereto or for additional
information; (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of such registration
statement or the initiation of any proceedings for that
purpose; (iv) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of any of the Registrable Securities for sale
under the securities or blue sky laws of any jurisdiction or
the initiation of any proceeding for such purpose; and (v) at
any time when a prospectus relating thereto is required to be
delivered under the Securities Act or, in the case of the
Shelf Registration, at any time during the Shelf Registration
Period, upon discovery that, or upon the happening of any
event as a result of which, the prospectus included in such
registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading, in the light of the
circumstances under which they were made, and in the case of
this clause (v), at the request of any Holder or Holders
selling Registrable Securities covered by such registration
statement promptly prepare and furnish to such Holder or
Holders and each managing underwriter, if any, participating
in the offering of the Registrable Securities, a reasonable
number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, such
prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they
were made.
(h) otherwise comply with all applicable rules
and regulations of the Commission, and make available to its
security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least twelve
months beginning with the first full calendar month after the
effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 promulgated thereunder, and
promptly furnish to the Holders a copy of any amendment or
supplement to such registration statement or prospectus;
(i) cause to be maintained a transfer agent
and registrar (which, in each case, may be the Company) for
the Common Stock and the Notes from and after the date of such
registration;
(j) (i) use its best efforts to cause all
Registrable Common Stock covered by such registration
statement to be quoted on the National Market System
("National Market System") of the National Association of
Securities Dealers, Inc. Automated Quotation System ("NASDAQ")
within the meaning of Rule 11Aa2-1 of the Commission if the
quoting of such Registrable Securities is then permitted under
NASDAQ rules; or (ii) if no similar securities of the Company
are then so quoted, use its best efforts to (x) secure
designation of all such Registrable Securities as a NASDAQ
National Market System security or (y) failing that, cause all
such Registrable Securities to be listed on a national
securities exchange or (z) failing that, to secure NASDAQ
authorization for such shares and, without limiting the
generality of the foregoing, to arrange for at least two
market makers to register as such with respect to such shares
with the National Association of Securities Dealers, Inc.;
(k) deliver promptly to counsel to the Holders
selling Registrable Securities covered by such registration
statement and each underwriter, if any, participating in the
offering of the Registrable Securities, copies of all
correspondence between the Commission and the Company, its
counsel or auditors and all memoranda relating to discussions
with the Commission or its staff with respect to such
registration statement;
(l) use its best efforts to obtain the
withdrawal of any order suspending the effectiveness of the
registration statement;
(m) provide a CUSIP number for all Registrable
Securities, no later than the effective date of the
registration statement;
(n) make available its employees and personnel
and otherwise provide reasonable assistance to the
underwriters (taking into account the needs of the Company's
businesses) in their marketing of Registrable Securities; and
(o) in the case of a Shelf Registration, upon
the occurrence of any event or the discovery of any facts,
each as contemplated by Section 2.4(g)(v) hereof, use its best
efforts to prepare a supplement or post-effective amendment to
the registration statement or the related prospectus or any
document incorporated therein by reference or file any other
required documents so that, thereafter, such prospectus will
not contain at the time of such delivery any untrue statement
of a material fact or omit to state a material fact necessary
to make the statements therein, in light of the circumstances
under which they were made, not misleading.
The Company may require the Holders selling
Registrable Securities covered by such registration statement
to furnish the Company such information regarding the Holders
and the distribution of the Registrable Securities as the
Company may from time to time reasonably request in writing.
In the event of a registration effected pursuant to Section
2.1, 2.2(a) or 2.3(a) hereof, if a Holder fails to provide
such information and the failure by such Holder to furnish
such information would prevent or unreasonably delay the
registration statement relating to such registration from
being declared effective by the Commission, the Company may
exclude such Holder's Registrable Common Stock and/or
Registrable Notes from such registration, which right of the
Company shall, in the case of a registration effected pursuant
to Section 2.1 or 2.2(a) hereof, be subject to the consent of
the Holders of not less than 50% of the shares of Registrable
Common Stock to be included in such registration in the case
of Registrable Common Stock (other than such Holder's
Registrable Common Stock) and not less than 50% of the
aggregate principal amount of the Registrable Notes to be
included in such registration (other than such Holder's
Registrable Notes).
The Holders agree that upon receipt of any notice
from the Company of the happening of any event of the kind
described in paragraph (g)(iii) or (v) of this Section 2.4,
each of the Holders will discontinue its disposition of
Registrable Securities pursuant to the registration statement
relating to such Registrable Securities until, in the case of
paragraph (g)(v) of this Section 2.4, its receipt of the
copies of the supplemented or amended prospectus contemplated
by paragraph (g)(v) of this Section 2.4 and, if so directed by
the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in
its possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. If
the disposition by the Holders of their securities is
discontinued pursuant to the foregoing sentence, the Company
shall extend the period of effectiveness of the registration
statement by the number of days during the period from and
including the date of the giving of notice to and including
the date when the Holders shall have received copies of the
supplemented or amended prospectus contemplated by paragraph
(g)(v) of this Section 2.4; and, if the Company shall not so
extend such period, the Holders' request pursuant to which
such registration statement was filed shall not be counted for
purposes of the requests for registration to which the Holders
are entitled pursuant to Section 2.2 hereof.
2.5 Underwritten Offerings.
(a) Requested Underwritten Offerings. If
requested by the underwriters for any underwritten offering by
the Selling Holders pursuant to a registration requested under
Section 2.1 or 2.2, the Company shall enter into a customary
underwriting agreement with such underwriter or underwriters.
Such underwriting agreement shall be reasonably satisfactory
in form and substance to the Selling Holders and shall contain
such representations and warranties by, and such other
agreements on the part of, the Company and such other terms as
are generally prevailing in agreements of that type,
including, without limitation, such customary provisions
relating to indemnification and contribution as shall be
agreed to by the Company. The Selling Holders shall be
parties to such underwriting agreement and may, at their
option, require that any or all of the representations and
warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also
be made to and for the benefit of the Selling Holders and that
any or all of the conditions precedent to the obligations of
such underwriters under such underwriting agreement be
conditions precedent to the obligations of the Selling
Holders. No Selling Holder shall be required to make any
representations or warranties to or agreements with the
Company or the underwriters other than representations,
warranties or agreements regarding such Selling Holder, its
ownership of and title to the Registrable Securities, and its
intended method of distribution; and any liability of any
Selling Holder to any underwriter or other Person under such
underwriting agreement shall be limited to liability arising
from misstatements in or omissions from its representations
and warranties and shall be limited to an amount equal to the
net proceeds that it derives from such registration.
(b) Incidental Underwritten Offerings. In the
case of a registration pursuant to Section 2.3 hereof, if the
Company shall have determined to enter into any underwriting
agreements in connection therewith, all of the Requesting
Holders' Registrable Securities to be included in such
registration shall be subject to such underwriting agreements.
The Requesting Holders may, at their option, require that any
or all of the representations and warranties by, and the other
agreements on the part of, the Company to and for the benefit
of such underwriters shall also be made to and for the benefit
of the Requesting Holders and that any or all of the
conditions precedent to the obligations of such underwriters
under such underwriting agreement be conditions precedent to
the obligations of the Requesting Holders. No Requesting
Holder shall be required to make any representations or
warranties to or agreements with the Company or the
underwriters other than representations, warranties or
agreements regarding such Requesting Holder, its ownership of
and title to the Registrable Securities, and its intended
method of distribution; and any liability of any Requesting
Holder to any underwriter or other Person under such
underwriting agreement shall be limited to liability arising
from misstatements in or omissions from its representations
and warranties and shall be limited to an amount equal to the
net proceeds that it derives from such registration.
2.6 Preparation; Reasonable Investigation. In
connection with the preparation and filing of each
registration statement under the Securities Act pursuant to
this Agreement, the Company will give the participating
Holders, their underwriters, if any, and their respective
counsel, accountants and other representatives and agents the
opportunity to participate in the preparation of such
registration statement, each prospectus included therein or
filed with the Commission, and, to the extent practicable,
each amendment thereof or supplement thereto, and give each of
them such access to its books and records and such
opportunities to discuss the business of the Company with its
officers and employees and the independent public accountants
who have certified its financial statements, and supply all
other information reasonably requested by each of them, as
shall be necessary or appropriate, in the opinion of the
participating Holders' and such underwriters' respective
counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
2.7 Indemnification.
(a) Indemnification by the Company. The
Company agrees that in the event of any registration of any
securities of the Company under the Securities Act, the
Company shall, and hereby does, indemnify and hold harmless
each Holder, its respective directors, officers, partners,
agents and affiliates and each other Person who participates
as an underwriter in the offering or sale of such securities
and each other Person, if any, who controls such Holder or any
such underwriter within the meaning of the Securities Act,
against any losses, claims, damages, or liabilities, joint or
several, to which such Holder or any such director, officer,
partner, agent or affiliate or underwriter or controlling
Person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or
liabilities, joint or several (or actions or proceedings,
whether commenced or threatened, in respect thereof), arise
out of or are based upon (i) any untrue statement or alleged
untrue statement of any material fact contained in any
registration statement under which such securities were
registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, (ii) 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 in which they
were made not misleading, or (iii) any violation by the
Company of any Federal, state or common law rule or regulation
applicable to the Company and relating to action required of
or inaction by the Company in connection with any such
registration, and the Company shall reimburse such Holder and
each such director, officer, partner, agent or affiliate,
underwriter and controlling Person for any legal or any other
expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, liability,
action or proceeding; provided that the Company shall not be
liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged
omission made in such registration statement, any such
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement in reliance upon and in conformity
with written information furnished to the Company through an
instrument duly executed by or on behalf of the Holders or
underwriter, as the case may be, specifically stating that it
is for use in the preparation thereof; and provided, further,
that the Company shall not be liable to any Person who
participates as an underwriter in the offering or sale of
Registrable Securities or any other Person, if any, who
controls such underwriter within the meaning of the Securities
Act, in any such case to the extent that any such loss, claim,
damage, liability (or action or proceeding in respect thereof)
or expense arises out of such Person's failure to send or give
a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue
statement or alleged untrue statement or omission or alleged
omission at or prior to the written confirmation of the sale
of Registrable Securities to such Person if such statement or
omission was corrected in such final prospectus. Such
indemnity shall remain in full force regardless of any
investigation made by or on behalf of either Holder or any
such director, officer, partner, agent or affiliate or
controlling Person and shall survive the transfer of such
securities by such Holder.
(b) Indemnification by the Holders. As a
condition to including any Registrable Securities in any
registration statement, the Company shall have received an
undertaking reasonably satisfactory to it from each Holder so
including any Registrable Securities to indemnify and hold
harmless (in the same manner and to the same extent as set
forth in paragraph (a) of this Section 2.7) the Company, and
each director of the Company, each officer of the Company and
each other Person, if any, who controls the Company within the
meaning of the Securities Act, with respect to any statement
or alleged statement in or omission or alleged omission from
such registration statement, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, but only to the extent such
statement or alleged statement or omission or alleged omission
was made in reliance upon and in conformity with written
information furnished to the Company through an instrument
duly executed by such Holder specifically stating that it is
for use in the preparation of such registration statement,
preliminary prospectus, final prospectus, summary prospectus,
amendment or supplement; provided, however, that the liability
of such indemnifying party under this Section 2.7(b) shall be
limited to the amount of net proceeds received by such
indemnifying party in the offering giving rise to such
liability. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf
of the Company or any such director, officer or controlling
Person and shall survive the transfer of such securities by
such Holder.
(c) Notices of Claims, etc. Promptly after
receipt by an indemnified party of notice of the commencement
of any action or proceeding involving a claim referred to in
the preceding subsections of this Section 2.7, such
indemnified party shall, if a claim in respect thereof is to
be made against an indemnifying party, give written notice to
the latter of the commencement of such action or proceeding;
provided, however, that the failure of any indemnified party
to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding
subsections of this Section 2.7, except to the extent that the
indemnifying party is actually prejudiced by such failure to
give notice, and shall not relieve the indemnifying party from
any liability which it may have to the indemnified party
otherwise than under this Section 2.7. In case any such
action or proceeding is brought against an indemnified party,
the indemnifying party shall be entitled to participate
therein and, unless in the opinion of outside counsel to the
indemnified party a conflict of interest between such
indemnified and indemnifying parties may exist in respect of
such claim, to assume the defense thereof, jointly with any
other indemnifying party similarly notified to the extent that
it may wish, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants
in any such action or proceeding include both the indemnified
party and the indemnifying party and if in the opinion of
outside counsel to the indemnified party there may be legal
defenses available to such indemnified party and/or other
indemnified parties which are different from or in addition to
those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate
counsel to defend such action or proceeding on behalf of such
indemnified party or parties and the indemnifying party shall
be obligated to pay the fees and expenses of such separate
counsel or counsels. After notice from the indemnifying party
to such indemnified party of its election so to assume the
defense thereof and approval by the indemnified party of such
counsel, the indemnifying party shall not be liable to such
indemnified party for any legal expenses subsequently incurred
by the latter in connection with the defense thereof other
than reasonable costs of investigation (unless the proviso in
the preceding sentence shall be applicable). No indemnifying
party shall be liable for any settlement of any action or
proceeding effected without its written consent which shall
not be unreasonably withheld. No indemnifying party shall,
without the consent of the indemnified party, consent to entry
of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
(d) Contribution. If the indemnification
provided for in this Section 2.7 shall for any reason be held
by a court to be unavailable to an indemnified party under
subsection (a) or (b) hereof in respect of any loss, claim,
damage or liability, or any action in respect thereof, then,
in lieu of the amount paid or payable under subsection (a) or
(b) hereof, the indemnified party and the indemnifying party
under subsection (a) or (b) hereof shall contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating the same), (i) in such proportion as is
appropriate to reflect the relative fault of the indemnifying
party on the one hand, and the indemnified party on the other,
which resulted in such loss, claim, damage or liability, or
action in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other
relevant equitable considerations, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable
law or if the allocation provided in this clause (ii) provides
a greater amount to the indemnified party than clause (i)
above, in such proportion as shall be appropriate to reflect
not only the relative fault but also the relative benefits
received by the indemnifying party and the indemnified party
from the offering of the securities covered by such
registration statement as well as any other relevant equitable
considerations. The parties hereto agree that it would not be
just and equitable if contributions pursuant to this
Section 2.7(d) were to be determined by pro rata allocation or
by any other method of allocation which does not take into
account the equitable considerations referred to in the
preceding sentence of this Section 2.7(d). No Person guilty
of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such
fraudulent misrepresentation. The Holders' obligations to
contribute as provided in this subsection (d) are several and
not joint and shall be in proportion to the relative value of
their respective Registrable Securities covered by such
registration statement. In addition, no Person shall be
obligated to contribute hereunder any amounts in payment for
any settlement of any action or claim effected without such
Person's consent, which consent shall not be unreasonably
withheld. Notwithstanding anything in this subsection (d) to
the contrary, no indemnifying party (other than the Company)
shall be required to contribute any amount in excess of the
net proceeds received by such party from the sale of the
Registrable Securities in the offering to which the losses,
claims, damages or liabilities of the indemnified parties
relate.
(e) Other Indemnification. Indemnification
and contribution similar to that specified in the preceding
subsections of this Section 2.7 (with appropriate
modifications) shall be given by the Company and the Holders
with respect to any required registration or other
qualification of securities under any Federal, state or blue
sky law or regulation of any governmental authority other than
the Securities Act. The indemnification agreements contained
in this Section 2.7 shall be in addition to any other rights
to indemnification or contribution which any indemnified party
may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified party
and shall survive the transfer of any of the Registrable
Securities by any of the Holders.
(f) Indemnification Payments. The
indemnification and contribution required by this Section 2.7
shall be made by periodic payments of the amount thereof
during the course of the investigation or defense, as and when
bills are received or expense, loss, damage or liability is
incurred; provided, however, that such periodic payments shall
only be made upon delivery to the indemnifying party of an
agreement by the indemnified party to repay the amounts
advanced to the extent it is ultimately determined that the
indemnified party is not entitled to indemnification pursuant
to this Section 2.7 or otherwise. The parties hereto agree
that for each of them such agreement shall be deemed to be
contained herein.
2.8 Unlegended Certificates. In connection with
the offering of any Registrable Securities registered pursuant
to this Section 2, the Company shall facilitate the timely
preparation and delivery to the Holders and the underwriters,
if any, participating in such offering, of unlegended
certificates representing ownership of such Registrable
Securities being sold in such denominations and registered in
such names as requested by the Holders or such underwriters.
2.9 Limitation on Sale of Securities. If any
registration of Registrable Securities shall be in connection
with an underwritten public offering, the Company agrees
(x) not to effect any public sale or distribution of any issue
of the same class or series as the Registrable Securities
being registered in an underwritten public offering (other
than pursuant to an employee stock option, stock purchase or
similar plan, pursuant to a dividend reinvestment plan,
pursuant to a merger, exchange offer or a transaction of the
type specified in Rule 145(a) under the Securities Act or
pursuant to a "shelf" registration), any securities of the
Company similar to any such issue or any securities of the
Company or of any security convertible into or exchangeable or
exercisable for any such issue of the Company during the 15
days prior to, and during the 90-day period (or such longer
period, not in excess of 180 days, as may be reasonably
requested by the underwriter of such offering) beginning on,
the effective date of such registration statement (except as
part of such registration) and (y) that any agreement entered
into after the date of this Agreement pursuant to which the
Company issues or agrees to issue any privately placed
securities shall contain a provision under which holders of
such securities agree not to effect any public sale or
distribution of any such securities during the period referred
to in the foregoing clause (x), including any sale pursuant to
Rule 144 under the Securities Act (except as part of such
registration, if permitted).
2.10 No Required Sale. Nothing in this Agreement
shall be deemed to create an independent obligation on the
part of any of the Holders to sell any Registrable Securities
pursuant to any effective registration statement.
3. Rule 144. The Company shall take all actions
reasonably necessary to enable holders of Registrable
Securities to sell such securities without registration under
the Securities Act within the limitation of the exemptions
provided by (a) Rule 144, or (b) any similar rule or
regulation hereafter adopted by the Commission including,
without limiting the generality of the foregoing, filing on a
timely basis all reports required to be filed by the Exchange
Act. Upon the request of any Holder, the Company will deliver
to such holder a written statement as to whether it has
complied with such requirements.
4. Amendments and Waivers. This Agreement may not
be modified or amended, or any of the provisions hereof
waived, temporarily or permanently, except pursuant to the
written consent of (i) the Holders of not less than 50% of the
shares of Registrable Common Stock, (ii) the Holders of not
less than 50% of the aggregate principal amount of Registrable
Notes and (iii) the Company.
5. Adjustments. In the event of any change in the
capitalization of the Company as a result of any stock split,
stock dividend, reverse split, combination, recapitalization,
merger, consolidation, or otherwise, the provisions of this
Agreement shall be appropriately adjusted.
6. Notice. All notices and other communications
hereunder shall be in writing and, unless otherwise provided
herein, shall be deemed to have been given when received by
the party to whom such notice is to be given at its address
set forth below, or such other address for the party as shall
be specified by notice given pursuant hereto:
(a) If to any Holder, the address of such
Holder set forth on Annex A attached hereto;
(b) If to the Company, to it at:
Colorado Gaming & Entertainment Co.
1700 Lincoln, 49th Floor
Denver, CO 80203
Attention: Stephen J. Szapor, Jr.
With a copy to:
LeBoeuf, Lamb, Greene & MacRae
633 Seventeenth Street
Suite 2800
Denver, CO 80202
Attention: Thomas J. Moore
7. Assignment. This Agreement shall be binding
upon and inure to the benefit of and be enforceable by the
parties hereto and their respective successors and permitted
assigns. This Agreement may not be assigned by the Company.
Any Holder may, at its election, at any time or from time to
time, assign its rights under this Agreement, in whole or in
part, to any transferee of Registrable Securities.
8. Remedies. The parties hereto agree that money
damages or other remedy at law would not be sufficient or
adequate remedy for any breach or violation of, or a default
under, this Agreement by them and that, in addition to all
other remedies available to them, each of them shall be
entitled to an injunction restraining such breach, violation
or default or threatened breach, violation or default and to
any other equitable relief, including without limitation
specific performance, without bond or other security being
required. In any action or proceeding brought to enforce any
provision of this Agreement (including the indemnification
provisions thereof), the successful party shall be entitled to
recover reasonable attorneys' fees in addition to its costs
and expenses and any other available remedy.
9. No Inconsistent Agreements. The Company will
not, on or after the date of this Agreement, enter into any
agreement with respect to its securities which is inconsistent
with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof, other than any
customary lock-up agreement with the underwriters in
connection with any registration and offering by the Company
of its securities to the public (an "Offering") effected
hereunder, pursuant to which the Company shall agree not to
register for sale, and the Company shall agree not to sell or
otherwise dispose of, Notes, and/or Common Stock or any
securities convertible into or exercisable or exchangeable for
Common Stock, as applicable, for a specified period following
such Offering. The rights granted to the Holders hereunder do
not in any way conflict with and are not inconsistent with any
other agreements to which the Company is a party or by which
it is bound. The Company further agrees that if any other
registration rights agreement entered into after the date of
this Agreement with respect to any of its securities contains
terms which are more favorable to, or less restrictive on, the
other party thereto than the terms and conditions contained in
this Agreement are (insofar as they are applicable) to the
Holders, then the terms and conditions of this Agreement shall
immediately be deemed to have been amended without further
action by the Company or the Holders so that the Holders shall
be entitled to the benefit of any such more favorable or less
restrictive terms or conditions.
10. Headings. Headings of the sections and
paragraphs of this Agreement are for convenience only and
shall be given no substantive or interpretive effect
whatsoever.
11. Governing Law; Jurisdiction.
(a) This Agreement shall be construed and
enforced in accordance with and governed by the laws of the
State of New York, without giving effect to the conflicts of
law principles thereof.
(b) Each of the parties hereto irrevocably and
unconditionally consents to the jurisdiction of the federal
courts and courts of the state of New York situated in New
York County, New York in respect of the interpretation and
enforcement of the provisions of this Agreement, and hereby
agrees that service of process in any such action, suit or
proceeding against the other party with respect to this
Agreement may be made upon it in any manner permitted by the
laws of New York or the federal laws of the United States.
12. Counterparts. This Agreement may be executed
in any number of counterparts, each of which shall be deemed
an original, but all such counterparts shall together
constitute one and the same instrument.
13. Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any
jurisdiction shall not affect the validity or enforceability
of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that
provision, in any other jurisdiction. If any restriction or
provision of this Agreement is held unreasonable, unlawful or
unenforceable in any respect, such restriction or provision
shall be interpreted, revised or applied in a manner that
renders it lawful and enforceable to the fullest extent
possible under law.
14. Further Assurances. Each party hereto shall do
and perform or cause to be done and performed all further acts
and things and shall execute and deliver all other agreements,
certificates, instruments, and documents as any other party
hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
15. Entire Agreement; Effectiveness. This
Agreement and the other writings referred to herein or
delivered in connection herewith contain the entire agreement
among the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous arrangements or
understandings with respect thereto.
IN WITNESS WHEREOF, the undersigned have executed
this Agreement as of the date first above written.
COLORADO GAMING & ENTERTAINMENT CO.
By:________________________________
Name:
Title: