REGISTRATION RIGHTS AGREEMENT, dated as of June 7,
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, as amended, of the Company, BWBH,
Inc. ("BWBH"), BWCC, Inc. ("BWCC") and Millsite 27, Inc.
("Millsite 27") (the "Plan of Reorganization"). 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, BWCC, Millsite, and Silver Hawk
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.
"Indenture" means the Indenture among the Company, the
Guarantors and Fleet National Bank, 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, no securities (other than Registrable Securities) shall be
included among the securities covered by such registration (i)
if, in connection with an underwritten offering by any Selling
Holders of Registrable Securities, 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 (if any) 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") in the following order of priority: (i) all of the
securities proposed by the Company to be sold for its own account
(if any); (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 bests 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 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), 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:
Le Boeuf, 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 Company hereby represents
and warrants that 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:
KEYSTONE HIGH INCOME BOND FUND (B-4)
By:____________________________
Name:
Title:
KEYSTONE STRATEGIC INCOME FUND
By:____________________________
Name:
Title:
KEYSTONE SMALL COMPANY GROWTH FUND (S-4)
By:____________________________
Name:
Title:
EQUIFAX INC. U.S. RETIREMENT INCOME PLAN
TRUST, AMPEX RETIREMENT MASTER TRUST AND
BUFFALO COLOR MASTER TRUST
By: KEYSTONE FIXED INCOME ADVISERS,
INC., as investment manager
By:____________________________
Name:
Title:
PAINEWEBBER STRATEGIC INCOME FUND, a
Series of PaineWebber Securities Trust
By:____________________________
Name:
Title:
MANAGED HIGH YIELD FUND INC.
By:____________________________
Name:
Title:
PAINEWEBBER HIGH INCOME FUND, a Series
of PaineWebber Managed Investments Trust
By:____________________________
Name:
Title:
ALL-AMERICAN TERM TRUST INC.
By:____________________________
Name:
Title:
PAINEWEBBER OFFSHORE FUNDS, PLC - THE
HIGH INCOME FUND
By: MITCHELL HUTCHINS ASSET MANAGEMENT
INC., the discretionary investment
advisor
By:____________________________
Thomas J. Libassi
Senior Vice President
THE MAINSTAY FUNDS, on behalf of its
HIGH YIELD CORPORATE BOND FUND series
By: MACKAY-SHIELDS FINANCIAL
CORPORATION, its Investment Advisor
By:____________________________
Name: Jeffrey B. Platt
Title: Director
BROWN & WILLIAMSON HIGH YIELD ACCOUNT
By: MACKAY-SHIELDS FINANCIAL
CORPORATION, its Investment Advisor
By:____________________________
Name: Jeffrey B. Platt
Title: Director
NEW YORK LIFE MFA SERIES FUND, INC.,
on behalf of its HIGH YIELD CORPORATE
BOND FUND PORTFOLIO
By: MACKAY-SHIELDS FINANCIAL
CORPORATION, its Investment Advisor
By:____________________________
Name: Jeffrey B. Platt
Title: Director
SC FUNDAMENTAL VALUE FUND LP
By:____________________________
Name:
Title:
SC FUNDAMENTAL VALUE FUND BVI, LIMITED
By:____________________________
Name:
Title:
ANNEX A
1. Keystone High Income Bond Fund (B-4)
2. Keystone Strategic Income Fund
3. Keystone Small Company Growth Fund (S-4)
4. Equifax Inc. U.S. Retirement Income Plan Trust
5. Ampex Retirement Master Trust
6. Buffalo Color Master Trust
7. PaineWebber Strategic Income Fund, a series of PaineWebber
Securities Trust
8. Managed High Yield Fund Inc.
9. PaineWebber High Income Fund, a series of PaineWebber
Managed Investments Trust
10. All-American Term Trust Inc.
11. PaineWebber Offshore Funds, Plc - The High Income Fund
12. The Mainstay Funds, on behalf of its High Yield Corporate
Bond Fund Series
13. Brown & Williamson High Yield Account
14. New York Life Mfa Series Fund, Inc., on behalf of its High
Yield Corporate Bond Fund Portfolio
15. SC Fundamental Value Fund LP
16. SC Fundamental Value Fund BVI, Limited