EXHIBIT 4.2
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is dated as of
July 31, 1996, by and among Eldorado Resorts LLC, a Nevada limited-liability
company (the "Company"), and Eldorado Capital Corp., a Nevada corporation
("Capital" and, together with the Company, the "Issuers"), and each of Bear,
Stearns & Co. Inc., Wasserstein Perella Securities, Inc. and BA Securities, Inc.
(the "Initial Purchasers").
This Agreement is entered into in connection with the Purchase
Agreement, dated as of July 25, 1996, between the Issuers and the Initial
Purchasers (the "Purchase Agreement") relating to the sale by the Issuers to the
Initial Purchasers of $100,000,000 aggregate principal amount of the Issuers' 10
1/2% Senior Subordinated Notes due 2006 (the "Notes"). In order to induce the
Initial Purchasers to enter into the Purchase Agreement, the Issuers have agreed
to provide the registration rights set forth in this Agreement for the equal
benefit of the Initial Purchasers and their respective direct and indirect
transferees. The execution and delivery of this Agreement is a condition to the
Initial Purchasers' obligation to purchase the Notes under the Purchase
Agreement.
The parties hereby agree as follows:
1. Definitions
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As used in this Agreement, the following terms shall have the
following meanings:
Additional Interest: See Section 4.
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Advice: See Section 5.
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Affiliates: Of any specified Person means any other Person directly
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or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including, with correlative meanings, the terms "controlling," "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that
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Beneficial Ownership of 10% or more of the voting securities of a Person shall
be deemed to be control.
Applicable Period: See Section 2.
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Broker-Dealer: Any broker or dealer registered under the Exchange
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Act.
Business Day: Any day other than a Saturday, or Sunday or a day on
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which banking institutions in The City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
Closing Date: The Closing Date as defined in the
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Purchase Agreement.
Company: See the introductory paragraph to this Agreement.
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Effectiveness Date: The 180th day after the Closing Date.
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Event Date: See Section 4.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and
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the rules and regulations of the SEC promulgated thereunder.
Exchange Notes: Debt securities of the Issuers, which are
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substantially identical to the Notes (and which are entitled to the benefits of
the Indenture or a trust indenture which is substantially identical to the
Indenture (other than such changes to the Indenture or any such identical trust
indenture as are necessary to comply with any requirements of the SEC to effect
or maintain the qualification thereof under the TIA) and which, in either case,
has been qualified under the TIA, except that the Exchange Notes shall have been
registered pursuant to an effective Registration Statement under the Securities
Act and shall contain no restrictive legends thereon.
Exchange Offer: See Section 2.
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Exchange Registration Statement: See Section 2.
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Exchange Notes: See Section 2.
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Filing Date: The 45th day after the Closing Date.
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Holder: Any holder of Registrable Notes.
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Indenture: The Indenture, dated as of July 31, 1996, between the
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Issuers and Fleet National Bank, a national banking association, as trustee,
pursuant to which the Notes are being issued, as amended or supplemented from
time to time in accordance with the terms thereof.
Initial Purchasers: See the introductory paragraph to this Agreement.
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Initial Shelf Registration: See Section 3.
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Liquidated Damages: See Section 4.
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Notes: See the introductory paragraphs to this Agreement.
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Participating Broker-Dealers: See Section 2.
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Person: An individual, trustee, limited-liability company,
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corporation, partnership, joint stock company, trust, unincorporated
association, union, business association, firm or other legal entity.
Private Exchange: See Section 2.
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Private Exchange Notes: See Section 2.
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Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, any prospectus subject to completion and a
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Registrable Notes covered by such Registration Statement, and all other
amendments and supplements to the Prospectus, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Registrable Notes: Each Note upon original issuance of the Notes and
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at all times subsequent thereto and, if issued, each Private Exchange Note,
until in the case of each such Note or each such Private Exchange Note, as the
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case may be, (i) either (a) the Note is exchanged in the Exchange Offer and the
Exchange Note can be resold to the public by the Holder thereof without
complying with the prospectus delivery requirements of the Securities Act, or
(b) the Note is exchanged in the Private Exchange and the Private Exchange Note
is sold to a purchaser who receives from the Holder thereof on or prior to the
date of such sale a copy of the Prospectus contained in the Exchange
Registration Statement, (ii) a Shelf Registration Statement covering such Note
or Private Exchange Note, as the case may be, has been declared effective by the
SEC and such Note or such Private Exchange Note, as the case may be, has been
disposed of in accordance with such effective Shelf Registration Statement, or
(iii) such Note or such Private Exchange Note, as the case may be, is sold to
the public in compliance with Rule 144.
Registration Statement: Any registration statement of the Issuers,
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including but not limited to the Exchange Registration Statement, that covers
any of the Registrable Notes pursuant to the provisions of this Agreement,
including the Prospectus, amendments and supplements to such registration
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statement, including post-effective amendments, all exhibits, and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act.
Rule 144A: Rule 144A under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC providing for offers and sales of
securities made in compliance therewith resulting in offers and sales by
subsequent holders that are not affiliates of an issuer of such securities being
free of the registration and prospectus delivery requirements of the Securities
Act if made in compliance with such rule.
Rule 415: Rule 415 under the Securities Act, as such Rule may be
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amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
SEC: The Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, and the rules
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and regulations of the SEC promulgated thereunder.
Shelf Effectiveness Date: See Section 3.
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Shelf Effectiveness Period: See Section 3.
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Shelf Filing Date: See Section 3.
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Shelf Notice: See Section 3.
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Shelf Registration: The Initial Shelf Registration and any Subsequent
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Shelf Registration as such terms are defined in Section 3.
Subsequent Shelf Registration: See Section 3.
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TIA: The Trust Indenture Act of 1939, as amended.
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Trustee: The trustee under the Indenture and, if existent, the
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trustee under any indenture governing the Exchange Notes and Private Exchange
Notes (if any).
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Underwritten registration or underwritten offering: A registration in
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which securities of the Issuers are sold to an underwriter for reoffering to the
public.
2. Exchange Offer
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(a) The Issuers agree to prepare and, to the extent not prohibited by
law or applicable SEC policy, file with the SEC on or prior to the Filing Date,
an offer to exchange (the "Exchange Offer") any and all of the Registrable
Notes, other than the Private Exchange Notes, if any, for a like aggregate
principal amount of the Exchange Notes. The Exchange Offer will be registered
under the Securities Act on the appropriate form (the "Exchange Registration
Statement") and will comply with all applicable federal and state securities
laws and state gaming regulations, including, but not limited to, the tender
offer rules and regulations under the Exchange Act.
The Issuers agree to use their best efforts to (i) cause the Exchange
Registration Statement to become effective under the Securities Act on or before
the Effectiveness Date; (ii) keep the Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date that the
Prospectus is first sent or given to Holders; and (iii) consummate the Exchange
Offer on or prior to the 30th Business Day following the date on which the
Exchange Registration Statement is declared effective. No securities other than
the Registrable Notes shall be included in the Exchange Registration Statement.
(b) In connection with the Exchange Offer, the Issuers shall:
(i) mail to each Holder a copy of the Prospectus forming part of
the Exchange Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) utilize the services of a depositary for the Exchange Offer
with an address in the Borough of Manhattan, The City of New
York; and
(iii) permit Holders to withdraw tendered Registrable Notes at any
time prior to the close of business, New York time, on the
last Business Day on which the Exchange Offer shall remain
open.
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(c) As soon as practicable after the close of the Exchange Offer or
the Private Exchange, as the case may be, the Issuers shall:
(i) accept for exchange all Registrable Notes tendered and not
validly withdrawn pursuant to the Exchange Offer or the
Private Exchange;
(ii) deliver to the Trustee for cancellation all Registrable
Notes so accepted for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to
each Holder of Notes, Exchange Notes or Private Exchange
Notes, as the case may be, equal in principal amount to the
Registrable Notes of such Holder so accepted for exchange.
(d) Each Holder who participates in the Exchange Offer will be
required to represent that (i) any Exchange Notes received by it will be
acquired in the ordinary course of its business, (ii) at the time of the
consummation of the Exchange Offer such Holder will have no arrangement or
understanding with any Person to participate in the distribution (within the
meaning of the Securities Act) of the Exchange Notes, and (iii) such Holder is
not an Affiliate of the Issuers.
(e) The Issuers shall include within the Prospectus contained in the
Exchange Registration Statement a section entitled "Plan of Distribution,"
reasonably acceptable to the Initial Purchasers, which shall contain a summary
statement of the positions taken or policies made by the Staff of the SEC with
respect to the potential "underwriter" status (under the Securities Act) of any
Broker-Dealer that is the beneficial owner (as defined in Rule 13d-3 under the
Exchange Act) of Exchange Notes received by such Broker-Dealer in the Exchange
Offer (a "Participating Broker-Dealer"), whether such positions or policies have
been publicly disseminated by the Staff of the SEC or such positions or
policies, in the judgment of the Initial Purchasers, represent the prevailing
views of the Staff of the SEC. Such "Plan of Distribution" section shall also,
to the extent permitted by applicable SEC policies, allow the use of the
Prospectus included in the Exchange Registration Statement by all Persons
subject to the prospectus delivery requirements of the Securities Act,
including, but not limited to, all Participating Broker-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Notes.
The Issuers shall use their best efforts (i) to keep the Exchange
Registration Statement effective and to amend and supplement the Prospectus
contained therein, in order to permit
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such Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period of time
as such Persons must comply with such requirements in order to resell the
Exchange Notes, provided that such period shall not exceed 180 days (or such
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longer period if extended pursuant to the last paragraph of Section 5) (the
"Applicable Period").
(f) If, immediately prior to the commencement or consummation of the
Exchange Offer, the Initial Purchasers hold any Notes acquired by them and
having the status as an unsold allotment in the initial distribution, the
Issuers, upon the request of the Initial Purchasers and simultaneously with
delivery of the Exchange Notes upon consummation of the Exchange Offer, shall
issue and deliver to the Initial Purchasers, in exchange (the "Private
Exchange") for such Notes held by the Initial Purchasers, a like principal
amount of debt securities of the Issuers that are issued pursuant to the same
indenture as the Exchange Notes and are identical to the Exchange Notes, except
for the existence of restrictions on transfer thereof under the Securities Act
and the securities laws of the several states of the United States (the "Private
Exchange Notes"). The Private Exchange Notes shall bear the same CUSIP number
as the Exchange Notes.
(g) Interest plus Liquidated Damages, if any, on the Exchange Notes
and Private Exchange Notes will accrue from the last interest payment date on
which interest plus Liquidated Damages, if any, was paid by the Issuers on the
Notes surrendered in exchange therefor or, if no interest has been paid on the
Notes, from the date of original issue.
(h) The Exchange Notes and the Private Exchange Notes may be issued
under (i) the Indenture or (ii) an indenture substantially identical to the
Indenture, which in either event will provide that the Exchange Notes will not
be subject to the transfer restrictions set forth in the Indenture, and that the
Exchange Notes, the Private Exchange Notes and the Notes will vote and consent
together on all matters as one class and that neither the Exchange Notes, the
Private Exchange Notes nor the Notes will have the right to vote or consent as a
separate class on any matter.
3. Shelf Registration
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If (i) the Issuers are not required to file an Exchange Registration
Statement or to consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or SEC policy, or (ii) any Holder of Registrable
Notes notifies (a "Shelf Notice") the Issuers in writing on or prior to the 20th
Business Day following consummation of the Exchange Offer (A) that based upon
the advice of counsel such Holder is prohibited by applicable law or SEC policy
from participating in the
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Exchange Offer, or (B) that based upon the advice of counsel such Holder may not
resell the Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a Prospectus and that the Prospectus contained in the
Exchange Registration Statement is not appropriate or available for such resales
by such Holder, or (C) that such Holder is a Broker-Dealer and holds Registrable
Notes acquired directly from the Issuers or one of their Affiliates, then:
(a) Initial Shelf Registration. The Issuers shall promptly prepare
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and file with the SEC a Registration Statement for an offering to be made
on a continuous basis pursuant to Rule 415 covering all such Registrable
Notes of each Holder who supplied information as required pursuant this
Section 3 (the "Initial Shelf Registration"). The Issuers shall (i) file
with the SEC the Initial Shelf Registration on or prior to the earliest to
occur of the following (the date of such occurrence being referred to
herein as the "Shelf Filing Date"): (A) the 60th day after the date on
which the Issuers reasonably determine that they are not required to file
the Exchange Registration Statement in accordance with this Agreement, (B)
the 60th day after the date on which the Issuers receive a Shelf Notice and
(C) the 120th day after the Closing Date, and (ii) use their best efforts
to cause such Initial Shelf Registration Statement to be declared effective
by the SEC on or before the 30th day after the Shelf Filing Date (the
"Shelf Effectiveness Date") and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the date which is 36
months from the Shelf Effectiveness Date (subject to extension pursuant to
the last paragraph of Section 5 hereof) (the "Shelf Effectiveness Period"),
or such shorter period ending when (1) all Registrable Notes covered by the
Initial Shelf Registration have been sold in the manner set forth and as
contemplated in the Initial Shelf Registration, (2) a Subsequent Shelf
Registration covering all of the Registrable Notes has been declared
effective under the Securities Act or (3) during any period in which all
Registrable Notes may be sold pursuant to Rule 144(k) under the Securities
Act.
The Initial Shelf Registration shall be on the appropriate form
permitting registration of such Registrable Notes for resale by such
Holders in the manner or manners designated by them (including, without
limitation, one or more underwritten offerings). The Issuers shall not
permit any securities other than the Registrable Notes to be included in
the Initial Shelf Registration or any Subsequent Shelf Registration.
No Holder of Registrable Notes may include any of its Registrable
Notes in any Shelf Registration pursuant to this
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Agreement unless and until such Holder furnishes to the Issuers, in
writing, within 20 Business Days after receipt of a request therefor (which
request shall be given by the Issuers at the earliest practicable time),
such information as the Issuers may reasonably request for use in
connection with any Shelf Registration or Prospectus or preliminary
prospectus included therein. No Holder of Registrable Notes shall be
entitled to Liquidated Damages pursuant to Section 4 hereof unless and
until such Holder shall have used its best efforts to provide all such
reasonably requested information. Each Holder as to which any Shelf
Registration is being effected agrees to furnish promptly to the Issuers
all information to be disclosed in order to make the information previously
furnished to the Issuers by such Holder not materially misleading.
(b) Subsequent Shelf Registrations. If the Initial Shelf
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Registration or any Subsequent Shelf Registration ceases to be effective for any
reason at any time during the Shelf Effectiveness Period (other than because of
the sale of all of the securities registered thereunder), the Issuers shall use
their best efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 45 days of such cessation
of effectiveness amend the Shelf Registration in a manner reasonably expected to
obtain the withdrawal of the order suspending the effectiveness thereof, or file
an additional Registration Statement pursuant to Rule 415 covering all of the
Registrable Notes (a "Subsequent Shelf Registration"). If a Subsequent Shelf
Registration is filed, the Issuers shall use their best efforts to cause the
Subsequent Shelf Registration to be declared effective as soon as practicable
after such filing and to keep such Subsequent Registration Statement
continuously effective for a period equal to the number of days in the Shelf
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration or any Subsequent Shelf Registration was previously
continuously effective.
(c) Supplements and Amendments. The Issuers shall promptly
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supplement and amend the Shelf Registration if required by the rules,
regulations or instructions applicable to the registration form used for such
Shelf Registration, if required by the Securities Act, or if requested by the
Holders of a majority in aggregate principal amount of the Registrable Notes
covered by such Registration Statement or by any underwriter of such Registrable
Notes.
4. Liquidated Damages
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(a) The Issuers and the Initial Purchasers agree that the Holders of
Registrable Notes will suffer damages if the Issuers fail to fulfill their
obligations under Section 2 or Section 3 hereof and that ascertaining the extent
of such damages
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with precision would not be feasible. Accordingly, the Issuers jointly and
severally agree to pay liquidated damages in the form of additional interest on
the Notes, Exchange Notes and Private Exchange Notes held by each Holder
("Liquidated Damages"), if:
(i) any Registration Statement required by this Agreement is not
filed with the SEC on or prior to the date specified for such filing in
this Agreement,
(ii) any of such Registration Statements has not been declared
effective by the SEC on or prior to the date specified for such
effectiveness in this Agreement (the "Effectiveness Target Date"),
(iii) the Exchange Offer has not been consummated within 30 Business
Days after the Effectiveness Target Date with respect to the Exchange
Registration Statement, or
(iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail
to be usable for its intended purpose without being succeeded immediately
by a post-effective amendment to such Registration Statement, or by a
Subsequent Shelf Registration, as the case may be, that cures such failure
and that is itself immediately declared effective;
(each such event in clauses (i) through (iv) above being referred to herein as a
"Registration Default"). Such additional interest comprising Liquidated Damages
shall be an amount equal to (A) with respect to the first 90-day period
immediately following the occurrence of a Registration Default, $.05 per week
per $1,000 principal amount of the Notes, Exchange Notes and Private Exchange
Notes held by such Holder for each week or portion thereof that any Registration
Default continues, plus (B) an additional $.05 per week per $1,000 in principal
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amount of the Notes, Exchange Notes and Private Exchange Notes with respect to
each 90-day period subsequent to the first 90-day period, until all Registration
Defaults have been cured, up to an amount equal to $.40 per week per $1,000
principal amount of the Notes, Exchange Notes and Private Exchange Notes of such
Holder.
(b) The Issuers shall notify the Trustee within one Business Day
after each and every date on which a Registration Default occurs. All accrued
Liquidated Damages shall be paid by the Issuers on or before each applicable
semi-annual interest payment date to Holders of record of the Notes, Exchange
Notes and Private Exchange Notes in the same manner as interest is payable
pursuant to the terms of the Indenture or the indenture provided for in Section
2(h) hereof. Each obligation to pay Liquidated Damages shall be deemed to
accrue beginning on the day of the applicable Registration Default. Following
the cure of
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all Registration Defaults, the accrual of Liquidated Damages will cease until
the next Registration Default, if any.
5. Registration Procedures
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In connection with the registration of any Registrable Notes pursuant to
Sections 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of such Registrable Notes in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Issuers shall:
(a) Prepare and file with the SEC on or prior to the Filing Date or
Shelf Filing Date, as applicable, a Registration Statement or Registration
Statements as prescribed by Section 2 or 3, and to use their best efforts
to cause each such Registration Statement to become effective and remain
effective as provided herein, provided that, if (i) such filing is pursuant
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to Section 3, or (ii) a Prospectus contained in an Exchange Registration
Statement filed pursuant to Section 2 is required to be delivered under the
Securities Act by any Participating Broker-Dealer who seeks to sell
Exchange Notes during the Applicable Period, before filing any Registration
Statement or Prospectus or any amendments or supplements thereto, the
Issuers shall, if requested, furnish to and afford the Holders of the
Registrable Notes and each such Participating Broker-Dealer (the "Selling
Holders"), as the case may be, covered by such Registration Statement, one
special counsel for the Selling Holders (the "Holders Counsel") and the
managing underwriters, if any, a reasonable opportunity to review copies of
all such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (at least
5 Business Days prior to such filing). The Issuers shall not file any
Registration Statement or Prospectus or any amendments or supplements
thereto in respect of which the Holders must be afforded an opportunity to
review prior to the filing of such document, if the Holders of a majority
in aggregate principal amount of the Registrable Notes covered by such
Registration Statement, or such Participating Broker-Dealer, as the case
may be, the Holders Counsel, or the managing underwriters, if any, shall
reasonably object.
(b) Prepare and file with the SEC such amendments and post-effective
amendments to each Shelf Registration or Exchange Registration Statement,
as the case may be, as may be necessary to keep such Registration Statement
continuously effective for the Shelf Effectiveness Period or the Applicable
Period, as the case may be; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the
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Securities Act, the Exchange Act and the rules and regulations of the SEC
promulgated thereunder applicable to it with respect to the disposition of
all securities covered by such Registration Statement as so amended or in
such Prospectus as so supplemented and with respect to the subsequent
resale of any securities being sold by a Participating Broker-Dealer
covered by any such Prospectus. The Issuers shall be deemed not to have
used their best efforts to keep a Registration Statement effective during
the Applicable Period if either of them voluntarily takes any action that
would result in selling Holders of the Registrable Notes covered thereby or
Participating Broker-Dealers seeking to sell Private Exchange Notes not
being able to sell such Registrable Notes or such Private Exchange Notes
during that period unless such action is required by applicable law.
(c) If (i) a Shelf Registration is filed pursuant to Section 3, or
(ii) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, in either case of (i) or (ii) notify the selling
Holders of Registrable Notes, or each such Participating Broker-Dealer, as
the case may be, the Holders Counsel and the managing underwriters, if any,
promptly (but in any event within two Business Days), and confirm such
notice in writing, (A) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective (including in such notice a written statement that any
Holder may, upon request, obtain, without charge, one conformed copy of
such Registration Statement or post-effective amendment including financial
statements and schedules, documents incorporated or deemed to be
incorporated by reference and exhibits), (B) of the issuance by the SEC of
any stop order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any preliminary prospectus
or the initiation of any proceedings for that purpose, (C) if at any time
when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes the representations and
warranties of the Issuers contained in any agreement (including any
underwriting agreement) contemplated by Section 5(n) hereof cease to be
true and correct, (D) of the receipt by any of the Issuers of any
notification with respect to the suspension of the qualification or
exemption from qualification of a Registration Statement or any of the
Registrable Notes or the Exchange Notes to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction, or the initiation or
threatening of any proceeding for such
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purpose, (E) of the happening of any event or any information becoming
known that makes any statement made in such Registration Statement or
related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in such Registration Statement,
Prospectus or documents so that, in the case of the Registration Statement,
it will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, and that in the case of the
Prospectus, it will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which
they were made, not misleading, and (F) of the Issuers' reasonable
determination that a post-effective amendment to a Registration Statement
would be appropriate.
(d) If (i) a Shelf Registration is filed pursuant to Section 3, or
(ii) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, in either case of (i) or (ii) use their best efforts
to prevent the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of
a Prospectus or suspending the qualification (or exemption from
qualification) of any of the Registrable Notes or the Exchange Notes to be
sold by any Participating Broker-Dealer, for sale in any jurisdiction, and,
if any such order is issued, to use their best efforts to obtain the
withdrawal of any such order at the earliest possible moment.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriters, if any, or the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold
in connection with an underwritten offering, (i) promptly incorporate in a
prospectus supplement or post-effective amendment such information as the
managing underwriters, if any, or such Holders or counsel reasonably
request to be included therein, (ii) make all required filings of such
prospectus supplement or such post-effective amendment as soon as
practicable after the Issuers have received notification of the matters to
be incorporated in such prospectus supplement or post-effective amendment
and (iii) supplement or make amendments to such Registration Statement,
provided that the Issuers shall not be required to take actions that in the
opinion of counsel for the Issuers are in violation of applicable law.
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(f) If (i) a Shelf Registration is filed pursuant to Section 3, or
(ii) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period in either case of (i) or (ii), furnish to each
selling Holder of Registrable Notes and to each such Participating Broker-
Dealer who so requests and to the Holders Counsel and each managing
underwriter, if any, without charge, one conformed copy of the Registration
Statement or Registration Statements and each post-effective amendment
thereto, including financial statements and schedules, and, if requested,
all documents incorporated or deemed to be incorporated therein by
reference and all exhibits.
(g) If (i) a Shelf Registration is filed pursuant to Section 3, or
(ii) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, in either case of (i) or (ii) deliver to each
selling Holder of Registrable Notes, or each such Participating Broker-
Dealer, as the case may be, their counsel, and the underwriters, if any,
without charge, as many copies of the Prospectus or Prospectuses (including
each form of preliminary prospectus) and each amendment or supplement
thereto and any documents incorporated by reference therein as such Persons
may reasonably request, and, subject to the last paragraph of this Section
5, the Issuers hereby consent to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders of
Registrable Notes or by each such Participating Broker-Dealer, as the case
may be, and the underwriters or agents (if any), and dealers (if any), in
connection with the offering and sale of the Registrable Notes covered by
or the sale by Participating Broker-Dealers of the Exchange Notes pursuant
to such Prospectus and any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Notes or any delivery
of a Prospectus contained in the Exchange Registration Statement by any
Participating Broker-Dealer who seeks to sell Exchange Notes during the
Applicable Period, to use their best efforts to register or qualify, and to
cooperate with the selling Holders of Registrable Notes or each such
Participating Broker-Dealer, as the case may be, the underwriters, if any,
and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of
such Registrable Notes for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any selling Holder,
Participating
-14-
Broker-Dealer, or the managing underwriters reasonably request in writing
as are reasonably necessary to permit the offer and sale of such Notes in
such jurisdictions, provided that where Exchange Notes held by
--------
Participating Broker-Dealers or Registrable Notes are offered other than
through an underwritten offering, the Issuers agree to cause their counsel
to perform Blue Sky investigations and file registrations and
qualifications required to be filed pursuant to this Section 5(h); keep
each such registration or qualification (or exemption therefrom) effective
during the period such Registration Statement is required to be kept
effective and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Exchange
Notes held by Participating Broker-Dealers or the Registrable Notes covered
by the applicable Registration Statement, provided that neither of the
--------
Issuers shall be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, take any action that would
subject it to general service of process in any such jurisdiction where it
is not then so subject or subject itself to taxation in excess of a nominal
dollar amount in any such jurisdiction.
(i) If a Shelf Registration is filed pursuant to Section 3, cooperate
with the selling Holders of Registrable Notes and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Notes to be sold, which certificates
shall not bear any restrictive legends and shall be in a form eligible for
deposit with The Depository Trust Company; and enable such Registrable
Notes to be in such denominations and registered in such names as the
managing underwriters, if any, or Holders may reasonably request.
(j) Use their best efforts to cause the Registrable Notes covered by
the Registration Statement to be registered with or approved by such other
governmental agencies or authorities, including without limitation any
applicable gaming regulators, as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition
of such Registrable Notes, except as may be required solely as a
consequence of the nature of such selling Holder's business, in which case
the Issuers will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals.
(k) If (i) a Shelf Registration is filed pursuant to Section 3, or
(ii) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes
-15-
during the Applicable Period, in either case of (i) or (ii), upon the
occurrence of any event contemplated by clauses (E) or (F) of Section 5(c)
hereof, as promptly as practicable prepare and (subject to Section 5(a)
hereof) file with the SEC, at the expense of the Issuers, a supplement or
post-effective amendment to the Registration Statement or a supplement to
the related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, or file any other required document so
that, as thereafter delivered to the purchasers of the Registrable Notes
being sold thereunder or to the purchasers of the Exchange Notes to whom
such Prospectus will be delivered by a Participating Broker-Dealer; any
such Prospectus will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading.
(l) Use their best efforts to cause the Registrable Notes covered by
a Registration Statement or the Exchange Notes, as the case may be, to be
rated with the appropriate rating agencies, if so requested by the Holders
of a majority in aggregate principal amount of Registrable Notes covered by
such Registration Statement or the Exchange Notes, as the case may be, or
the managing underwriters, if any.
(m) Prior to the effective date under the Securities Act of the first
Registration Statement relating to the Registrable Notes, (i) provide the
Trustee with printed certificates for the Registrable Notes in a form
eligible for deposit with The Depository Trust Company and (ii) provide a
CUSIP number for the Registrable Notes.
(n) In the event of an underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement as
is customary in underwritten offerings of debt securities similar to the
Notes and take all such other actions as are reasonably requested by the
managing underwriters in order to expedite or facilitate the registration
or the disposition of such Registrable Notes, and in such connection, (i)
make such representations and warranties to the underwriters, with respect
to the business of the Issuers and their subsidiaries and the Registration
Statement, Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily made by
issuers to underwriters in underwritten offerings of debt securities
similar to the Notes, and confirm the same if and when requested; (ii)
obtain opinions of counsel to the Issuers and updates thereof in form and
substance reasonably satisfactory to the managing underwriters, addressed
to the
-16-
underwriters covering the matters customarily covered in opinions requested
in underwritten offerings and such other matters as may be reasonably
requested by underwriters; (iii) obtain "cold comfort" letters and updates
thereof in form and substance reasonably satisfactory to the managing
underwriters from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuers or of any business acquired by
the Issuers for which financial statements and financial data are, or are
required to be, included in the Registration Statement), addressed to each
of the underwriters, such letters to be in customary form and covering
matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters as reasonably
requested by underwriters; and (iv) if an underwriting agreement is entered
into, the same shall contain indemnification provisions and procedures no
less favorable than those set forth in Section 7 hereof (or such other
provisions and procedures acceptable to Holders of a majority in aggregate
principal amount of Registrable Notes covered by such Registration
Statement and the managing underwriters or agents) with respect to all
parties to be indemnified pursuant to said Section. The above shall be
done at each closing under such underwriting agreement, or as and to the
extent required thereunder.
(o) If (i) a Shelf Registration is filed pursuant to Section 3, or
(ii) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act
by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, in either case of (i) or (ii), make available for
inspection by any selling Holder of such Registrable Notes being sold, or
each such Participating Broker-Dealer, as the case may be, any underwriter
participating in any such disposition of Registrable Notes, if any, and any
attorney, accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or underwriter
(collectively, the "Inspectors"), at the offices where normally kept,
during reasonable business hours, all financial and other records,
pertinent organizational documents and properties of the Issuers and their
respective subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise any applicable due
diligence responsibilities, and cause the officers, directors and employees
of the Issuers and their subsidiaries to supply all information in each
case reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Issuers determine, in good
faith, to be confidential and any Records which they notify the Inspectors
are confidential shall not
-17-
be disclosed by the Inspectors unless (A) based upon the advice of counsel
the disclosure of such Records is necessary to avoid or correct a
misstatement or omission in such Registration Statement, (B) the release of
such Records is ordered pursuant to a subpoena or other order from a court
of competent jurisdiction or (C) the information in such Records has been
made generally available to the public other than as a result of disclosure
or failure to safeguard by such Inspector. Each selling Holder of such
Registrable Notes and each such Participating Broker-Dealer will be
required to agree that information obtained by it as a result of such
inspections shall be deemed confidential and shall not be used by it as the
basis for any market transactions in the securities of the Issuers unless
and until such information is made generally available to the public. Each
selling Holder of such Registrable Notes and each such Participating
Broker-Dealer will be required to further agree that it will, upon learning
that disclosure of such Records is sought in a court of competent
jurisdiction, give notice to the Issuers and allow the Issuers to undertake
appropriate action to prevent disclosure of the Records deemed confidential
at the Issuers' expense.
(p) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Indenture or the trust
indenture provided for in Section 2(h) hereof, as the case may be, to be
qualified under the TIA not later than the effective date of the Exchange
Offer or the first Registration Statement relating to the Registrable
Notes; and in connection therewith, cooperate with the trustee under any
such indenture and the holders of the Registrable Notes, to effect such
changes to such indenture as may be required for such indenture to be so
qualified in accordance with the terms of the TIA; and execute, and use
their best efforts to cause such trustee to execute, all documents as may
be required to effect such changes, and all other forms and documents
required to be filed with the SEC to enable such indenture to be so
qualified in a timely manner.
(q) Comply with all applicable rules and regulations of the SEC and
make generally available to their security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 days after the end of any 12-month period (or 90 days
after the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Notes are
sold to underwriters in a firm commitment or best efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Issuers
after the effective date
-18-
of a Registration Statement, which statements shall cover said 12-month
periods.
(r) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuers addressed to the Trustee for
the benefit of all Holders of Registrable Notes participating in the
Exchange Offer or the Private Exchange, as the case may be, and which
includes an opinion that (i) each of the Issuers has duly authorized,
executed and delivered the Exchange Notes and Private Exchange Notes and
the related indenture, (ii) each of the Exchange Notes or the Private
Exchange Notes, as the case may be, and related indenture constitute a
legal, valid and binding obligation of the Issuers, enforceable against the
Issuers in accordance with its respective terms (with customary exceptions)
and (iii) each of the Exchange Notes or the Private Exchange Notes, as the
case may be, are entitled to the benefits the Indenture or the indenture
provided for Section 2(h) hereof.
(s) If an Exchange Offer or a Private Exchange is to be consummated,
upon delivery of the Registrable Notes by Holders to the Issuers (or to
such other Person as directed by the Issuers) in exchange for the Exchange
Notes or the Private Exchange Notes, as the case may be, the Issuers shall
mark, or cause to be marked, on such Registrable Notes that such
Registrable Notes are being cancelled in exchange for the Exchange Notes or
the Private Exchange Notes, as the case may be; in no event shall such
Registrable Notes be marked as paid or otherwise satisfied.
(t) Cooperate with each seller of Registrable Notes covered by any
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Notes and their respective counsel in
connection with any filings required to be made with the National
Association of Securities Dealers, Inc. (the "NASD").
(u) Use their best efforts to take all other steps necessary to
effect the registration of the Registrable Notes covered by a Registration
Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes or
Participating Broker-Dealer as to which any registration is being effected to
furnish to the Issuers such information regarding such seller or Participating
Broker-Dealer and the distribution of such Registrable Notes or Exchange Notes
to be sold by such Participating Broker-Dealer, as the case may be, as the
Issuers may, from time to time, reasonably request including, without
limitation, a written representation to the Issuers (which may be contained in
the letter of transmittal contemplated by the Exchange Registration Statement or
Shelf Registration, as
-19-
applicable) stating that (A) it is not an Affiliate of the Issuers, (B) the
amount of Registrable Notes held by such Holder prior to the Exchange Offer, (C)
the amount of Registrable Notes owned by such Holder to be exchanged in the
Exchange Offer and representing that such Holder is not engaged in, and does not
intend to engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued and (D) it is
acquiring the Exchange Notes in its ordinary course of business. The Issuers
may exclude from such registration the Registrable Notes of any seller or
Participating Broker-Dealer who unreasonably fails to furnish such information
within 20 Business Days after receiving such request. Each Seller as to which
any Shelf Registration Statement is being effected agrees to furnish promptly to
the Issuers all information required to be disclosed in order to make the
information previously furnished to the Issuers not materially misleading.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon receipt of any
notice from the Issuers of the happening of any event of the kind described in
clauses (B), (D), (E) or (F) or Section 5(c) hereof, such Holder will forthwith
discontinue disposition of such Registrable Notes covered by such Registration
Statement or Prospectus or Exchange Notes to be sold by such Participating
Broker-Dealer, as the case may be, and dissemination of such Prospectus until
such Holder's or Broker-Dealer's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 5(k) hereof, or until it is advised
in writing (the "Advice") by the Issuers that the use of the applicable
Prospectus may be resumed, and has received copies of any amendments or
supplements thereto. In the event the Issuers shall give any such notice, each
of the Shelf Effectiveness Period and the Applicable Period shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable Notes
covered by such Registration Statement or Exchange Notes to be sold by such
Participating Broker-Dealer, as the case may be, shall have received (i) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k) or
(ii) the Advice.
6. Registration Expenses
---------------------
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers shall be borne by the Issuers,
whether or not the Exchange Offer or a Shelf Registration is filed or becomes
effective, including, without limitation, (i) all registration and filing fees
(including, without limitation, (A) fees with respect to filings required to be
made with the NASD in connection with an underwritten offering and (B) fees and
expenses of compliance
-20-
with state securities or Blue Sky laws (including, without limitation,
reasonable fees and disbursements of their counsel in connection with Blue Sky
qualifications of the Registrable Notes or Exchange Notes and determination of
the eligibility of the Registrable Notes or Exchange Notes for investment under
the laws of such jurisdictions (x) where the holders of Registrable Notes are
located, in the case of the Exchange Notes, or (y) as provided in Section 5(h)
hereof, in the case of Registrable Notes or Exchange Notes to be sold by a
Participating Broker-Dealer during the Applicable Period)), (ii) printing
expenses (including, without limitation, expenses of printing certificates for
Registrable Notes or Exchange Notes in a form eligible for deposit with The
Depository Trust Company and of printing prospectuses if the printing of
prospectuses is requested by the managing underwriters, if any, or, in respect
of Registrable Notes or Exchange Notes to be sold by any Participating Broker-
Dealer during the Applicable Period, by the Holders of a majority in aggregate
principal amount of the Registrable Notes included in any Registration Statement
or Notes, as the case may be), (iii) reasonable messenger, telephone and
delivery expenses, (iv) fees and disbursements for the Issuers and reasonable
fees and disbursements of the Holders Counsel (subject to the provisions of
Section 6(b) hereof), (v) fees and all independent certified public accountants
referred to in clause (iii) of Section 5(n) (including, without limitation, the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance), (vi) the fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Rule 2720(c) of the National Association of Securities Dealers,
Inc., (vii) rating agency fees, (viii) Securities Act liability insurance, if
the Issuers desire such insurance, (ix) fees and expenses of all other Persons
retained by the Issuers, (x) internal expenses of the Issuers (including,
without limitation, all salaries and expenses of officers and employees of the
Issuers performing legal or accounting duties), (xi) the expense of any annual
audit, (xii) the fees and expenses incurred in connection with the listing of
the securities to be registered on any securities exchange and (xiii) the
expenses relating to printing, word processing and distributing all Registration
Statements, underwriting agreements, securities sales agreements, indentures and
any other documents necessary in order to comply with this Agreement.
(b) In connection with any Shelf Registration hereunder, the Issuers
shall reimburse the Holders of the Registrable Notes being registered in such
registration for the reasonable fees and disbursements of one Holders Counsel
(in addition to one appropriate local counsel) chosen by the Holders of a
majority in aggregate principal amount of the Registrable Notes to be included
in such Registration Statement and other out-of-pocket expenses of the Holders
of Registrable Notes
-21-
incurred in connection with the registration of the Registrable Notes.
7. Indemnification
---------------
(a) The Issuers, jointly and severally, agree to indemnify and hold
harmless each Holder of Registrable Notes and each Participating Broker-Dealer
selling Exchange Notes during the Applicable Period, the directors, officers,
employees and agents of each such Person, and each Person, if any, who controls
any such Person within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act (each a "Participant") from and against any and
all losses, claims, liabilities, expenses and damages (including any and all
investigative, legal and other expenses reasonably incurred in connection with,
and any amount paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they, or any of them, may become subject under the
Securities Act, the Exchange Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus or any amendment or supplement thereto or
any preliminary prospectus or the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make the
statements in it not misleading, provided that (i) a Participant will not be
entitled to any such indemnification hereunder to the extent that such loss,
claim, liability, expense or damage arises from and is based on an untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with information relating to such Participant furnished in
writing to the Issuers by such Participant expressly for inclusion therein and
(ii) the foregoing indemnity with respect to any untrue statement contained or
in omission from a preliminary prospectus or prospectus shall not inure to the
benefit of any Participant (or any person controlling such Participant), from
whom the person asserting any such loss, liability, claim, damage or expense
purchased any of the Notes which are the subject thereof if it is finally
judicially determined that (A) such loss, liability, claim, damage or expense
relates solely to such untrue statement of material fact contained in, or such
omission of a material fact from, such preliminary prospectus or prospectus and
such Participant failed to deliver a copy of the prospectus or any amendment or
supplement thereto to such person at or prior to the confirmation of the sale of
Notes to such person and (B) the untrue statement or omission of a material fact
contained in such preliminary prospectus or prospectus was corrected in the
prospectus or any such amendment or supplement.
-22-
(b) Each Participant will indemnify and hold harmless the Issuers,
each Person, if any, who controls the Issuers within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, each member of the
board of managers or directors, as applicable, of the Issuers and each officer
of the Issuers to the same extent as the foregoing indemnity from the Issuers to
each Participant, but only insofar as losses, claims, liabilities, expenses or
damages arise out of or are based on any untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to such Participant furnished in writing to the Issuers by
such Participant expressly for use in any Registration Statement or Prospectus
or any amendment or supplement thereto or any preliminary prospectus. The
liability of any Participant under this paragraph shall in no event exceed the
proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as applicable, giving rise to such obligations.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement of
any action against such party in respect of which a claim is to be made against
an indemnifying party or parties under this Section 7, notify each such
indemnifying party of the commencement of such action, enclosing a copy of all
papers served, but the omission so to notify such indemnifying party will not
relieve it from any liability that it may have to any indemnified party under
the foregoing provisions of this Section 7 unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or defenses by the
indemnifying party. If any such action is brought against any indemnified party
and it notifies the indemnifying party of its commencement, the indemnifying
party will be entitled to participate in and, to the extent that it elects by
delivering written notice to the indemnified party promptly after receiving
notice of the commencement of the action from the indemnified party, jointly
with any other indemnifying party similarly notified, to assume the defense of
the action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below and
except for the reasonable costs of investigation subsequently incurred by the
indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (1) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (2) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it that are different from or in addition to those
available to the indemnifying party or (3) the indemnifying party has not in
fact
-23-
employed counsel to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. An indemnifying party
will not be liable for any settlement of any action or claim effected without
its written consent (which consent will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but for
any reason is held to be unavailable from the Issuers or any Participant, the
Issuers and each Participant will contribute to the total losses, claims,
liabilities, expenses and damages (including any investigative, legal and other
expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Issuers from Persons other than a
Participant, such as Persons who control the Issuers within the meaning of the
Securities Act, officers of the Issuers and directors of the Issuers, who also
may be liable for contribution) to which the Issuers and each Participant may be
subject in such proportion as is appropriate to reflect the relative benefits
received by the Issuers, on the one hand, and such Participant, on the other,
and, if such allocation is not permitted by applicable law or indemnification is
not available as a result of the indemnifying party not having received notice
as provided in this Section 7, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Issuers, on the one hand, and such Participant, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Issuers, on one
hand, and each Participant, on the other hand, shall be deemed to be in the same
proportion as (i) the total proceeds from the offering of the Notes (net of
discounts but before deducting expenses) received by the issuers and (ii) the
total proceeds received by such Participant upon the sale of the Notes giving
rise to such indemnification obligation. The relative fault of the Issuers, on
the one hand, and of any Participant, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission
-24-
to state a material fact relates to information supplied by the Issuers or such
Participant and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Issuers
and each Participant agree that it would not be just and equitable if
contributions pursuant to this Section 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 herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section 7(d)
shall be deemed to include, for purpose of this Section 7(d), any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7(d), a Participant shall not be required to
contribute any amount in excess of the amount by which proceeds received by such
Participant from sales of Registrable Notes exceeds the amount of any damages
that such Participant has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission, and no
Person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) will be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 7(d), any Person who controls a party to this Agreement within the
meaning of the Securities Act will have the same rights to contribution as that
party, and the respective officers, directors, managers, partners, members,
employees, representatives and agent of any party to this Agreement will have
the same rights to contribution as such party, subject in each case to the
provisions hereof. Any party entitled to contribution, promptly after receipt
of notice of commencement of any action against such party in respect of which a
claim for contribution may be made under this Section 7(d), will notify any such
party or parties from whom contribution may be sought, but the omission so to
notify will not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have under this Section 7(d).
No party will be liable for contribution with respect to any action or claim
settled without its written consent (which consent will not be unreasonably
withheld).
(e) The indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the indemnifying persons
may otherwise have to the indemnified persons referred to above.
8. Rules 144 and 144A
------------------
The Issuers jointly and severally covenant that they will file the
reports required to be filed by them under the Securities Act and the Exchange
Act and the rules and regulations
-25-
adopted by the SEC thereunder in a timely manner and, if at any time the Issuers
are not required to file such reports, they will, upon the request of any Holder
of Registrable Notes or any Participating Broker-Dealer who seeks to sell
Exchange Notes, make publicly available other information so long as necessary
to permit sales pursuant to Rule 144 and Rule 144A under the Securities Act.
The Issuers jointly and severally further covenant that they will take such
further action as any Holder of Registrable Notes may reasonably request, all to
the extent required from time to time to enable such Holder to sell Registrable
Notes without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 and Rule 144A under the Securities Act, as
such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC. Nothing required in this Section 8
shall require the Issuers to register any of their securities under the Exchange
Act.
9. Underwritten Registrations
--------------------------
If any of the Registrable Notes covered by any Shelf Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Notes included in such offering and reasonably acceptable to the Issuers.
No Holder of Registrable Notes may participate in any underwritten
registration hereunder unless such Holder (a) agrees to sell such Holder's
Registrable Notes on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents required under the terms of such
underwriting arrangements.
10. Miscellaneous
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(a) Remedies. In the event of a breach by the Issuers of any of
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their obligations under this Agreement, each Holder of Registrable Notes, in
addition to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchasers, in the Purchase Agreement
or granted by law, including recovery of damages, will be entitled to specific
performance of its rights under this Agreement. The Issuers agree that monetary
damages would not be adequate compensation for any loss incurred by reason of a
breach by them of any of the provisions of this Agreement and hereby further
agrees that, in the event of any action for specific performance in respect of
such breach, they shall waive the defense that a remedy at law would be
adequate.
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(b) No Inconsistent Agreements. The Issuers have not, as of the date
--------------------------
hereof, and the Issuers shall not, after the date of this Agreement, enter into
any agreement with respect to any of their securities that is inconsistent with
the rights granted to the Holders of Registrable Notes in this Agreement or
otherwise conflicts with the provisions hereof. The Issuers have not entered or
will not enter into any agreement with respect to any of their securities which
will grant to any Person piggy-back rights with respect to a Registration
Statement to be filed pursuant to the terms of this Agreement.
(c) Adjustments Affecting Registrable Notes. The Issuers shall not,
---------------------------------------
directly or indirectly, take any action with respect to the Registrable Notes as
a class that would adversely affect the ability of the Holders of Registrable
Notes to include such Registrable Notes in a registration undertaken pursuant to
this Agreement.
(d) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Registrable Notes. Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Notes whose securities are
being sold pursuant to a Registration Statement and that does not directly or
indirectly affect, impair, limit or compromise the rights of other Holders of
Registrable Notes may be given by Holders of at least a majority in aggregate
principal amount of the Registrable Notes being sold by such Holders pursuant to
such Registration Statement, provided that the provisions of this sentence may
--------
not be amended, modified or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(e) Notices. All notices and other communications (including without
-------
limitation any notices or other communications to the Trustee) provided for or
permitted hereunder shall be made in writing by hand-delivery, registered first-
class mail, next-day air courier or telecopier:
(i) if to a Holder of Registrable Notes, at the most current address
given by the Trustee to the Issuers; and
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(ii) if to the Issuers, at:
Eldorado Resorts LLC
Eldorado Capital Corp.
345 North Virginia Street
Reno, Nevada 89501
Telecopy No.: (702) 786-7513
Attention: Robert M. Jones
with copies to:
Latham & Watkins
633 West Fifth Street, Suite 4000
Los Angeles, California 90017
Telecopy No.: (213) 891-8763
Attention: Pamela B. Kelly, Esq.
and
McDonald Carano Wilson McCune
Bergin Frankovich & Hicks LLP
24 Ridge Street, 4th Floor
Reno, Nevada 89501
Telecopy No.: (702) 786-9532
Attention: John Frankovich, Esq.
All such notices and communications shall be deemed to have been duly
given when delivered by hand, if personally delivered; five Business Days after
being deposited in the postage prepaid, if mailed; one Business Day after being
timely delivered to a next-day air courier; and when receipt is acknowledged by
the addressee, if telecopied.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in such Indenture.
(f) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders of Registrable Notes; provided, that, with
respect to the indemnity and contribution agreements in Section 7, each Holder
of Registrable Notes subsequent to the Initial Purchasers shall be bound by the
terms thereof if (i) such Holder elects to include Registrable Notes in a Shelf
Registration and (ii) such Holder is advised expressly by the Issuers of the
provisions contained in Section 7 and that such Holder's election to include
Registrable Notes in a Shelf Registration shall be deemed such Holder's
agreement to be bound by such provisions.
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(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO THE
JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(j) Severability. If any term, provision, covenant or restriction of
------------
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
(k) Entire Agreement. This Agreement, together with the Notes, the
----------------
Purchase Agreement and the Indenture, is intended by the parties as a final
expression of their agreement, and is intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein.
(l) Notes Held by the Issuers or Their Affiliates. Whenever the
---------------------------------------------
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, Registrable Notes held by the Issuers or their affiliates
(as such term is defined in Rule 405 under the Securities Act) shall not be
counted in determining whether such consent or approval was given by the Holders
of such required percentage.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ELDORADO RESORTS LLC
By: /s/ Donald L. Carano
-------------------------------
Donald L. Carano
Chief Executive Officer,
President and Presiding
Manager
By: /s/ Raymond J. Poncia, Jr.
-------------------------------
Raymond J. Poncia, Jr.
Representative of Hotel Casino
Management, Inc., Manager
ELDORADO CAPITAL CORP.
By: /s/ Donald L. Carano
-------------------------------
Donald L. Carano
President
By: /s/ Raymond J. Poncia, Jr.
-------------------------------
Raymond J. Poncia, Jr.
Vice President
BEAR, STEARNS & CO. INC.
By: /s/ Paul C. Yates
-------------------------------
Name: Paul C. Yates
Title: Managing Director
WASSERSTEIN PERELLA SECURITIES, INC.
By: /s/ James C. Kingsbury
-------------------------------
Name:
Title:
BA SECURITIES, INC.
By: /s/ Mark S. Dawley
-------------------------------
Name: MARK S. DAWLEY
Title SENIOR MANAGING DIRECTOR
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