EXHIBIT 10.38
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REGISTRATION RIGHTS AGREEMENT
Dated as of August 1, 1997
By and Among
HOLLYWOOD PARK, INC.
HOLLYWOOD PARK OPERATING COMPANY,
(the Issuers)
THE GUARANTORS (AS DEFINED HEREIN)
AND
OPPENHEIMER & CO., INC.,
BT SECURITIES CORPORATION
and
BANCAMERICA SECURITIES, INC.
(the Initial Purchasers)
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TABLE OF CONTENTS
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Page
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1. Definitions............................................................. 1
2. Exchange Offer.......................................................... 5
3. Shelf Registration...................................................... 8
4. Liquidated Damages...................................................... 10
5. Registration Procedures................................................. 11
6. Registration Expenses................................................... 19
7. Indemnification......................................................... 20
8. Rules 144 and 144A...................................................... 23
9. Underwritten Registrations.............................................. 23
10. Miscellaneous........................................................... 24
(a) No Inconsistent Agreements........................................ 24
(b) Adjustments Affecting Registrable Notes........................... 24
(c) Amendments and Waivers............................................ 24
(d) Notices........................................................... 24
(e) Successors and Assigns............................................ 26
(f) Counterparts...................................................... 26
(g) Headings.......................................................... 26
(h) Governing Law; Jurisdiction....................................... 26
(i) Severability...................................................... 26
(j) Securities Held by the Issuer or Its Affiliates................... 26
(k) Third Party Beneficiaries......................................... 27
(l) Entire Agreement.................................................. 27
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
August 1, 1997, by and among HOLLYWOOD PARK, INC., a Delaware corporation (the
"Company" or "Hollywood Park"), HOLLYWOOD PARK OPERATING COMPANY, a Delaware
corporation ("HPOC", and together with Hollywood Park, the "Issuers"), all of
the Issuers' existing direct and indirect material restricted subsidiaries (the
"Guarantors") (the Issuers and the Guarantors, collectively, the "Obligors") and
OPPENHEIMER & CO., INC., BT SECURITIES CORPORATION and BANCAMERICA SECURITIES,
INC. (each an "Initial Purchaser" and collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement dated August
1, 1997, among the Issuers, the Guarantors, and the Initial Purchasers (the
"Purchase Agreement"), relating to, among other things, the sale by the Issuers
to the Initial Purchasers of $125,000,000 in aggregate principal amount of
Series A 9 1/2% Senior Subordinated Notes due 2007 (the "Notes") of the Issuers.
In order to induce the Initial Purchasers to enter into the Purchase Agreement,
the Issuers and the Guarantors have agreed to provide to the Initial Purchasers
and the Holders (as defined herein), among other things, the registration rights
for the Notes set forth in this Agreement. The execution and delivery of this
Agreement is a condition to the performance by the Initial Purchasers of their
obligations under the Purchase Agreement.
In consideration of the forgoing premises, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Obligors hereby agree with the Initial Purchasers, for the
benefit of, as their respective interests appear, (i) the Initial Purchasers,
(ii) the holders from time to time of the Notes (including the Initial
Purchasers in such capacity, if applicable) and (iii) the Participating Broker-
Dealers (as defined below), as follows:
1. Definitions
Terms defined in the Purchase Agreement, whether directly or
indirectly by reference, and used herein without other definition shall have the
respective meanings herein assigned to such terms in the Purchase Agreement. In
addition, the following defined terms shall have the respective meanings set
forth below or in the sections of this agreement referred to below:
Advice: See Section 5 hereof.
Agreement: See the introductory paragraphs hereto.
Applicable Period: See Section 2 hereof.
Business Day: Any day other than a Saturday, Sunday or other day on
which banking institutions in New York are required or authorized by law or
executive order to be closed.
Effectiveness Date: With respect to any Registration Statement, the
date on which such Registration Statement is declared effective by the SEC.
Effectiveness Period: See Section 3 hereof.
Event Date: See Section 4 hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC promulgated thereunder.
Exchange Indenture: The Indenture, or a new indenture described in
Section 2(a) hereof, as the case may be, pursuant to which the Exchange Notes
are issued.
Exchange Notes: See Section 2 hereof.
Exchange Offer: See Section 2 hereof.
Exchange Registration Statement: See Section 2 hereof.
Fungible: With respect to any class of securities, any other
securities which would properly be considered as in the same class as, in a
class similar to, or being fungible with, the securities of the first mentioned
class.
Filing Date: (A) With respect to the Exchange Registration Statement,
forty-five (45) calendar days following the Issue Date; and (B) with respect to
the Shelf Registration Statement (which may be applicable notwithstanding the
consummation of an Exchange Offer), the 30th day after the delivery of a Shelf
Notice.
Guarantors: See the introductory paragraphs hereto.
Holder: Any holder of a Registrable Note or Registrable Notes.
Indemnified Person: See Section 7(c) hereof.
Indemnifying Person: See Section 7(c) hereof.
Indenture: The Indenture, of even date herewith, among the Issuers,
the Guarantors and The Bank of New York, 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 paragraphs hereto.
Initial Shelf Registration: See Section 3(a) hereof.
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Inspectors: See Section 5(o) hereof.
Issue Date: The Issue Date specified in the Indenture.
Issuer: See the introductory paragraphs hereto.
Liquidated Damages: See Section 4 hereof.
NASD: See Section 5(t) hereof.
Notes: See the introductory paragraphs hereto.
Obligor: See the introductory paragraphs hereto.
Participant: See Section 7(a) hereof.
Participating Broker-Dealer: See Section 2 hereof.
Person: An individual, trustee, corporation, partnership, joint stock
company, trust, limited liability company, unincorporated association, union,
business association, firm or other legal entity.
Private Exchange: See Section 2 hereof.
Private Exchange Notes: See Section 2 hereof.
Prospectus: The prospectus included in any Registration Statement
(including, without limitation, any prospectus subject to completion and a
prospectus that includes any infor mation 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, 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.
Purchase Agreement: See the introductory paragraphs hereto.
Records: See Section 5(o) hereof.
Registrable Notes: Each Note upon its original issuance and at all
times subsequent thereto, each Exchange Note as to which Section 2(c)(iv) hereof
is applicable upon original issuance and at all times subsequent thereto and
each Private Exchange Note upon original issuance thereof and at all times
subsequent thereto, until in the case of any such Note, Exchange Note or Private
Exchange Note, as the case may be, the earliest to occur of (i) a Registration
Statement (other than, with respect to any Exchange Note as to which Section
2(c)(iv) hereof is applicable, the Exchange
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Registration Statement) covering such Note, Exchange Note or such Private
Exchange Note 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 Registration Statement, (ii) such Note, Exchange Note or
Private Exchange Note, as the case may be, may at the time of determination be
sold to the public pursuant to Rule 144 promulgated under the Securities Act
without the lapse of any further time or the satisfaction of any condition,
(iii) such Note has been exchanged for an Exchange Note or Exchange Notes
pursuant to an Exchange Offer which may be resold without restriction (other
than restrictions imposed on Participating Broker-Dealers pursuant to the "Plan
of Distribution" contemplated by the Exchange Registration Statement, including
the Prospectus delivery requirements) under state and federal securities laws,
or (iv) such Note, Exchange Note or Private Exchange Note, as the case may be,
ceases to be outstanding for purposes of the Indenture.
Registration Default: See Section 4 hereof.
Registration Statement: Any registration statement of the Issuers,
including, but not limited to, the Exchange Registration Statement, filed with
the SEC pursuant to the provisions of this Agreement, including the Prospectus,
amendments and supplements to such registration 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 promulgated under the Securities Act, as such Rule
may be 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 promulgated under the Securities Act, as such
Rule may be amended from time to time, or any similar rule (other than Rule 144)
or regulation hereafter adopted by the SEC.
Rule 415: Rule 415 promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
Shelf Notice: See Section 2(c) hereof.
Shelf Registration: Either or both of the Initial Shelf Registration
and any Subsequent Shelf Registration, as the context suggests.
Subsequent Shelf Registration: See Section 3(b) hereof.
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TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The trustee under the Indenture and, if existent, the
trustee under any indenture governing the Exchange Notes and any Private
Exchange Notes.
Underwritten registration or underwritten offering: A registration in
which securities of either Issuer are sold to an underwriter for reoffering to
the public.
2. Exchange Offer
(a) The Issuers shall file with the SEC no later than the Filing Date
an offer to exchange (the "Exchange Offer") any and all of the Registrable Notes
(other than Private Exchange Notes, if any) for a like aggregate principal
amount of debt securities of the Issuers which are identi cal in all respects
to the Notes (the "Exchange Notes") except that the Exchange Notes (i) shall
have been registered pursuant to an effective Registration Statement under the
Securities Act and shall contain neither restrictive legends nor any provisions
requiring registration or payment of Liquidated Damages, (ii) shall be issued
after the Issue Date and (iii) shall be designated the Issuers' Series B 9 1/2%
Senior Subordinated Notes due 2007. The Exchange Notes shall be entitled to the
benefits of the Indenture, or a trust indenture which is identical in all
material respects 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 or to effect or maintain the qualification thereof under
the TIA) and which, in either case, has been qualified under the TIA. The
Exchange Offer shall be registered under the Securities Act on the appropriate
form (the "Exchange Registration Statement") and shall comply with all
applicable tender offer rules and regulations under the Exchange Act and other
applicable law. The Issuers shall use their best efforts (x) to cause the
Exchange Registration Statement to be declared effective under the Securities
Act as soon as reasonably practicable in order to consummate the Exchange Offer
by the required date; (y) to keep the Exchange Offer open for at least 20
Business Days (or longer if required by applicable law) after the date that
notice of the Exchange Offer is mailed to Holders; and (z) to consummate the
Exchange Offer prior to or on the 150th day following the Filing Date.
Each Holder who participates in the Exchange Offer will be required to
represent that it will acquire any Exchange Notes pursuant to the Exchange Offer
in the ordinary course of its busi ness, that at the time of the consummation
of the Exchange Offer such Holder is not engaged in, and does not intend to
engage in, and has and will have no arrangement or understanding with any Person
to participate in, the distribution of the Exchange Notes in violation of the
provisions of the Securities Act, and that such Holder is not an affiliate of
any Obligor within the meaning of the Securities Act.
Upon consummation of the Exchange Offer in accordance with this
Section 2, the provisions of this Agreement (other than this Section 2) shall
continue to apply, mutatis mutandis, solely with respect to any Registrable
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Notes that are Private Exchange Notes and Exchange Notes held by Participating
Broker-Dealers, and the Issuers shall have no further obligation to register
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Registrable Notes (other than Private Exchange Notes and other than in respect
of any Exchange Notes as to which clause 2(c)(iv) hereof applies) pursuant to
Section 3 hereof.
No securities other than the Exchange Notes shall be offered pursuant
to the Exchange Registration Statement.
(b) 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 of any broker-dealer that acquired
Notes as a result of market making activities or other trading activities (and
not directly from the Issuers or the Guarantors) and 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 expressly permit the use of the Prospectus by
all Persons subject to the prospectus delivery requirements of the Securities
Act, including, among others, 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, as described in Section
5(b)(ii) hereof, to keep the Exchange Registration Statement effective and to
amend and supplement the Prospectus contained therein in order to permit 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 is
necessary to comply with applicable law in connection with any resale of the
Exchange Notes; provided, however, that such period shall not exceed 180 days
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after the Exchange Registration Statement is declared effective (or such longer
period if extended pursuant to the last paragraph of Section 5 hereof) (the
"Applicable Period").
If, prior to consummation of the Exchange Offer, the Initial
Purchasers hold any Notes acquired by them which have, or are reasonably likely
to be determined to have, the status of an unsold allotment in the initial
distribution, or any other Holder is not entitled to participate in the Exchange
Offer because such Holder (i) is prohibited by law or SEC policy from
participating in the Exchange Offer or (ii) may not resell the Exchange Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and the Prospectus contained in the Exchange Registration Statement
is not appropriate or available for such resales, the Issuer, upon the written
request of either of the Initial Purchasers or any such Holder delivered at
least ten (10) days prior to the consummation of the Exchange Offer, shall
simultaneously with the delivery of the Exchange Notes in the Exchange Offer, or
in the case of any such request dated after the 10th day prior to the Exchange
Offer, ten (10) days after the date of such request, issue and deliver to the
Initial Purchasers and any such Holder, in exchange (the "Private Exchange") for
such Notes held by the Initial Purchasers and any such Holder, a like principal
amount of debt securities of the Issuers that are identical in all material
respects to the Exchange Notes (the "Private Exchange Notes") (and
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which are issued pursuant to the same indenture as the Exchange Notes). The
Private Exchange Notes shall bear the same CUSIP number as the Exchange Notes.
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;
(iii) permit Holders to withdraw tendered 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; and
(iv) otherwise comply in all material respects with all applicable
laws, rules and regulations, including all applicable Gaming Laws (as
defined in the Indenture).
As soon as practicable after the close of the Exchange Offer or the
Private Exchange, as the case may be, the Issuer shall:
(i) accept for exchange all Notes validly tendered and not validly
withdrawn pursuant to the Exchange Offer or the Private Exchange;
(ii) deliver to the Trustee for cancellation all Notes so accepted
for exchange; and
(iii) cause the Trustee to authenticate and deliver promptly to each
Holder of Notes which have been validly tendered and accepted for exchange,
Exchange Notes or Private Exchange Notes, as the case may be, in a
principal amount equal to the principal amount of such Notes.
Neither the Exchange Offer nor the Private Exchange shall be subject
to any conditions, except that (i) neither the Exchange Offer nor the Private
Exchange, as the case may be, shall, in the opinion of counsel to the Issuers
and the Guarantors, violate any applicable law or interpretation of the staff of
the SEC, (ii) no action or proceeding shall have been instituted or threatened
in any court or by any governmental agency which might materially impair the
ability of the Issuers to proceed with the Exchange Offer or the Private
Exchange and no material adverse development shall have occurred in any existing
action or proceeding with respect to either Issuer or the Issuers and the
Guarantors taken as a whole and (iii) all governmental approvals shall have been
obtained, including from Gaming Authorities (as defined in the Indenture), which
approvals the Issuers deem necessary for the consummation of the Exchange Offer
or Private Exchange and (iv) no cessation of trading on Nasdaq or any exchange,
nor any banking moratorium, shall have occurred,
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as a result of which the Issuers are unable to proceed with the Exchange Offer
or the Private Exchange.
The Exchange Notes and the Private Exchange Notes shall be issued
under the Exchange Indenture. The Exchange Indenture shall provide that the
Exchange Notes, the Private Exchange Notes and the Notes shall for all purposes
be treated as securities of a single class, and in particular vote and exercise
other consensual rights as a single class and that none of the Exchange Notes,
the Private Exchange Notes or the Notes will have the right to vote or exercise
other consensual rights as a separate class on any matter.
(c) If, (i) because of any change in law or in currently prevailing
interpretations of the staff of the SEC, the Issuers are not permitted to effect
an Exchange Offer, (ii) the Exchange Offer is not consummated within 150 days
after the Filing Date, (iii) Private Exchange Notes have been issued to any
Initial Purchaser or Holder pursuant to Section 2(b) herein or (iv) any Holder
notifies the Issuers that it may not resell the Exchange Notes acquired by it in
the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Registration Statement is not appropriate
or available for such resales, in any of the foregoing cases, the Issuers shall
promptly deliver to the Holders and the Trustee written notice of such
occurrence and the Issuers' resulting intention to file a Shelf Registration (a
"Shelf Notice") and shall thereupon file such Shelf Registration pursuant to
Section 3 hereof.
3. Shelf Registration
If a Shelf Notice is delivered as contemplated by Section 2(c) hereof,
then:
(a) Initial Shelf Registration. The Issuers shall file with the SEC a
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"shelf" Registration Statement for an offering to be made on a continuous basis
pursuant to Rule 415 covering all of the Registrable Notes (the "Initial Shelf
Registration") on or prior to 30 days following delivery of a Shelf Notice by
the Issuers. The Initial Shelf Registration shall be on Form S-1 or another
appropriate form permitting registration of such Registrable Notes for resale by
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 (as defined below).
The Issuers shall use their best efforts, as described in Section
5(b)(ii) hereof, to cause the Initial Shelf Registration to be declared
effective under the Securities Act prior to or on the 90th day after the
delivery of a Shelf Notice by the Issuers and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date
which is 36 months after the Effectiveness Date, subject to extension pursuant
to the last paragraph of Section 5 hereof (the "Effectiveness Period"), or such
shorter period ending when (i) all then outstanding Registrable Notes covered by
the Initial Shelf Registration have been sold in the manner contemplated by the
Initial Shelf Registration or (ii) a Subsequent Shelf Registration covering all
of the Registrable Notes has been declared effective under the Securities Act;
provided, however, that the Effectiveness
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Period shall be extended to the extent necessary to permit dealers to comply
with the applicable prospectus delivery requirements of Rule 174 under the
Securities Act and as otherwise provided herein.
So long as the Initial Shelf Registration Statement in accordance with this
Section 3 remains effective, the Issuers shall have no further obligation to
issue Exchange Notes in an Exchange Offer pursuant to Section 2 of this
Agreement, and any Liquidated Damages shall cease to accrue during such
effective period; provided that the other provisions of this Agreement shall
continue to apply as set forth in such provisions.
(b) Subsequent Shelf Registrations. If the Initial Shelf Registration
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or any Subsequent Shelf Registration ceases to be effective for any reason at
any time during the 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 effec
tiveness thereof, and in any event shall within 30 days of such cessation of
effectiveness amend the Initial Shelf Registration to obtain the withdrawal of
the order suspending the effectiveness thereof, or file an additional "shelf"
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 under the Securities Act as soon as
practicable after such filing and to keep such Registration Statement
continuously effective for a period equal to the number of days in the
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 supplement
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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 reasonably 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.
(d) Hold-Back Agreements
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(i) Restrictions on Public Sale by Holders of Registrable Notes.
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Each Holder of Registrable Notes whose Registrable Notes are (A) covered by
a Shelf Registration filed pursuant to Section 3 hereof and (B) not being
sold in the underwritten offering described below agrees, if requested
(pursuant to a timely written notice) by the managing underwriter or
underwriters in an underwritten offering, not to effect any public sale or
distribution of any securities Fungible with the class of securities
covered by such Shelf Registration, including a sale pursuant to Rule 144
or Rule 144A (except as part of such underwritten offering), during the
period beginning 10 days prior to, and ending 60 days after, the closing
date of each underwritten offering made pursuant to such Shelf
Registration, to the extent timely notified in writing by the Issuers or by
the managing underwriter or underwriters; provided, however, that each
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holder of Registrable Notes shall be subject to the hold-back restrictions
of this Section 3(d)(i) only once during the term of this Agreement.
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The foregoing provisions shall not apply to any Holder of
Registrable Notes if such Holder is prevented by applicable statute or
regulation from entering into any such agreement; provided, however, that
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any such Holder shall undertake, in its request to participate in any such
underwritten offering, not to effect any public sale or distribution of any
securities Fungible with the class of securities covered by such Shelf
Registration (except as part of such underwritten offering) during such
period unless it has provided 45 days' prior written notice of such sale or
distribution to the Issuer or the managing underwriter or underwriters, as
the case may be.
(ii) Restrictions on the Issuers and Others. Each of the Issuers
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and the Guarantors agrees (A) not to effect any public or private sale or
distribution (including, with out limitation, a sale pursuant to
Regulation D under the Securities Act) of any securities Fungible with
those covered by a Shelf Registration filed pursuant to Section 3 hereof,
or any securities convertible into or exchangeable or exercisable for such
securities, during the 10 days prior to or the 60-day period commencing on
the commencement of an underwritten public distribution of Registrable
Notes, if the managing underwriter or underwriters so requests; (B) to
include in any agreements entered into by either Issuer or any Guarantor on
or after the date of this Agreement (other than any underwriting agreement
relating to a public offering registered under the Securities Act) pursuant
to which such Issuer or Guarantor issues or agrees to issue securities
Fungible with the Notes a provision that each holder of such securities
that are Fungible with Notes issued at any time on or after the date of
this Agreement agrees not to effect any public or private sale or
distribution, or request or demand the registration, of any such securities
(or any securities convertible into or exchangeable or exercisable for such
securities) during the period referred to in clause (A) of this Section
3(d)(ii), including any sale pursuant to Rule 144 or Rule 144A; and (C) not
to grant or agree to grant any "piggy back registration" or other similar
rights to any holder of either Issuer's securities issued on or after the
date of this Agreement with respect to any Registration Statement.
4. Liquidated Damages
(a) Registration Defaults; Liquidated Damages. The Issuers and the
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Initial Purchasers acknowledge that the Holders will suffer damages if the
Issuers fail to fulfill their obligations under Section 2 or Section 3 hereof
and that it would not be feasible to ascertain the extent of such damages with
precision. Accordingly, the Issuers agree to pay, as liquidated damages,
additional interest on the Notes ("Liquidated Damages") under the circumstances
and to the extent set forth below (any such event, a "Registration Default"):
If (A) the Exchange Registration Statement has not been filed prior to
or on the Filing Date or (B) notwithstanding the consummation of an Exchange
Offer by the Issuers, the Issuers are required to file a Shelf Registration and
such Shelf Registration has not been filed prior to or on the 30th day following
the delivery to the Holders and the Trustee of a Shelf Notice or (C) if the
Issuers are unable to file an Exchange Registration Statement and are required
to file an Initial Shelf Registration, but have failed to do so prior to or on
the 30th day following the delivery to the
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Holders and the Trustee of a Shelf Notice; or (D) the Issuers have not issued
Exchanged Notes in exchange for all Notes validly tendered in accordance with
the terms of the Exchange Offer on or prior to the 150th day following the
Filing Date or (E) if applicable, the Shelf Registration has been declared
effective and such Shelf Registration ceases to be effective at any time during
the Effectiveness Period, then, in any case described in clauses (A) through (E)
above, Liquidated Damages shall accrue on the principal amount of the Notes in
an amount equal to one-half of one percent (0.50%) per annum for each $1,000 in
principal amount of Notes for the first 90 days commencing on the occurrence of
the first Registration Default, such Liquidated Damages increasing by an
additional one-quarter of one percent (0.25%) per annum for each $1,000 in
principal amount of affected Notes at the beginning of each such subsequent 90-
day period up to a maximum additional interest rate attributable to Liquidated
Damages equal to two percent (2.0%) per annum for each $1,000 in principal
amount of affected Notes, until all Registration Defaults have been cured;
provided, however, that upon the cure of all Registration Defaults hereunder
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Liquidated Damages shall cease to accrue unless and until another Registration
Default occurs.
(b) The Issuers shall notify the Trustee within one business day after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Any amounts of Liquidated
Damages due pursuant to (a) of this Section 4 will be payable in cash semi-
annually in arrears on each February 1 and August 1 (to the Holders of record on
the January 15 and July 15 immediately preceding such dates), commencing with
the first such date occurring after any such Liquidated Damages commences to
accrue. The amount of Liquidated Damages will be determined by first
multiplying the applicable Liquidated Damages rate first by the principal amount
of the Notes directly affected by the Registration Default (and, to the extent
permitted by applicable law without creating a new class of securities, only the
Notes directly affected by the Registration Default), and then multiplying the
result thereof by a fraction, the numerator of which is the number of days such
Liquidated Damages rate was applicable during such period (determined on the
basis of a 360-day year comprised of twelve 30-day months and, in the case of a
partial month, the actual number of days elapsed), and the denominator of which
is 360. By way of example, if the Exchange Registration Statement is filed and
the Exchange Offer is consummated within the specified time periods, but the
Issuers are nevertheless obligated to effect the Shelf Registration, and the
Shelf Registration Statement is not filed within the specified time period or is
not declared effective by the specified time, the Issuers and the Guarantors
shall, to the extent permitted by applicable law without creating a new class of
securities, only be obligated to pay Liquidated Damages with respect to the
Notes which the Issuers and the Guarantors were obligated to include in the
Shelf Registration Statement. Conversely, if there exists no Registration
Default with respect to the Shelf Registration Statement, but a Registration
Default occurs regarding the Exchange Offer, Liquidated Damages will, to the
extent permitted by applicable law without creating a new class of securities,
only accrue on those Notes eligible to participate in the Exchange Offer and
which were directly affected by the Registration Default.
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5. Registration Procedures
In connection with the filing of any Registration Statement pursuant
to Sections 2 or 3 hereof, the Issuers shall effect such registrations to permit
the sale of the securities covered thereby in accordance with the intended
method or methods of disposition thereof, and pursuant thereto and in connection
with any Registration Statement filed by the Issuers hereunder the Issuers and,
as applicable, the Guarantors shall:
(a) Prepare and file with the SEC prior to the Filing Date, a
Registration Statement or Registration Statements as prescribed by the
applicable provisions of Sections 2 and 3 hereof, and use their diligent best
efforts to cause each such Registration Statement to become effective and remain
effective as provided herein; provided, however, that, if (1) such filing is
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pursuant to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Registration Statement filed pursuant to Section 2 hereof 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 furnish to the Holders of the Registrable Notes covered by
such Registration Statement or each such Participating Broker-Dealer, as the
case may be, their counsel and the managing underwriters, if any, copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed (in each case
at least five Business Days prior to such filing, or such later date as is
reasonable under the circumstances). Neither the Issuers nor the Guarantors
shall file any Registration Statement or Prospectus or any amendments or
supplements thereto if any of (i) the Holders of a majority in aggregate
principal amount of the Registrable Notes covered by such Registration
Statement, (i) any such Participating Broker-Dealer, (iii) any managing
underwriters or (iv) counsel to any of the foregoing, 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 Effectiveness Period or the Applicable Period, as
the case may be; cause the related Prospectus to be supplemented by any
Prospectus supplement required by applicable law, and as so supplemented to be
filed pursu ant to Rule 424 (or any similar provisions then in force)
promulgated under the Securities Act; and comply with all of the provisions of
the Securities Act and the Exchange Act applicable to them with respect to the
disposition of the 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 and Guarantors shall be deemed not
to have used their diligent best efforts to keep a Registration Statement
effective during the Applicable Period if any of the Issuers or Guarantors
voluntarily takes any action, as a result of which Holders of the Registrable
Notes covered thereby or Participating Broker-Dealers seeking to sell Exchange
Notes would be unable to sell such Registrable Notes or such Exchange Notes
during that period unless (i) such action is required by applicable law or (ii)
such action is taken by any such Issuer or Guarantor in good faith and for valid
business reasons (not including avoidance of the Issuer's obligations
hereunder), including suspension of the
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Registration Statement or other actions taken in connection with or in
anticipation of the acquisition or divestiture of assets, material financings or
other transactions effected in good faith for valid business reasons.
(c) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, notify the selling Holders of Registrable Notes, or each
such Participating Broker-Dealer, as the case may be, their respective counsel
and the managing underwriters, if any, promptly (but in any event within two
Business Days), and confirm such notice in writing, (i) 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
Effective Date therefor has occurred (including in such notice a written
statement that any Holder may, upon request, obtain, at the sole expense of the
Issuers, 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), (ii) 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, (iii) if at
any time when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Notes or resales of Exchange Notes by
Participating Broker-Dealers the representations and warranties of the Issuers
contained in any agree ment (including any underwriting agreement),
contemplated by Section 5(m) hereof cease to be true, complete and correct in
all material respects, (iv) of the receipt by 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
purpose, (v) of the occurrence of any event, or the availability of any
information, which could render any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue or misleading in any material respect
or that requires the making of any changes in or amendments or supplements to
such Registration Statement, Prospectus or other documents so that, in the case
of the Registration Statement, it will not contain any untrue or misleading
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 or misleading
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 (vi) of any
determination by the Issuers that a post-effective amendment to a Registration
Statement would be appropriate.
(d) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, use their diligent best efforts during the Applicable
Period to prevent the issuance of any order suspending the effectiveness of a
Registration
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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 diligent best efforts during the Applicable Period to obtain the
withdrawal of any such order at the earliest possible time.
(e) If a Shelf Registration is filed pursuant to Section 3 and if
requested by the managing underwriter or underwriters (if any), the Holders of a
majority in aggregate principal amount of the Registrable Notes being sold in
connection with an underwritten offering or any Participating Broker-Dealer, (i)
promptly incorporate in a prospectus supplement or post-effective amendment such
information as the managing underwriters (if any), such Holders, any
Participating Broker-Dealer or counsel for any of them determine is reasonably
necessary 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 appropriate amendments to such Registration Statement.
(f) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, furnish to each selling Holder of Registrable Notes and
to each such Participating Broker-Dealer who so requests and to counsel and each
man aging underwriter, if any, at the sole expense of the Issuers, 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 (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, deliver to each selling Holder of Registrable Notes, or
each such Participating Broker-Dealer, as the case may be, their respective
counsel, and the underwriters, if any, at the sole expense of the Issuers, 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 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
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who seeks to sell Exchange Notes during the Applicable Period, 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 managing underwriters, if any, and their respective counsel in connection
with the registration or qualification (or exemption from such registration or
qualifica tion) of such Registrable Notes for offer and sale under the
securities or Blue Sky laws of such juris dictions within the United States as
any selling Holder, Participating Broker-Dealer, or the managing underwriter or
underwriters reasonably request; provided, however, that if Exchange Notes held
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by Participating Broker-Dealers or Registrable Notes are offered other than
through an underwritten offering, the Issuers agree to cause the Issuers'
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
State ment in accordance with applicable law; provided, however, that neither
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Issuer shall be required (A) to qualify generally to do business in any
jurisdiction wherein it is not then so qualified, (B) to take any action that
would subject it to general service of process in any such jurisdiction wherein
it is not then so subject or (C) to subject itself to taxation in excess of a
nominal dollar amount in any such jurisdiction wherein it is not then so
subject.
(i) If a Shelf Registration is filed pursuant to Section 3 hereof,
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 request.
(j) Use their diligent 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 Gaming Authorities, as may
be reasonably 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 (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is required to be delivered under the Securities
Act by any Participating Broker-Dealer who seeks to sell Exchange Notes during
the Applicable Period, upon the occurrence of any event contemplated by
paragraph 5(c)(v) or 5(c)(vi) hereof, as promptly as practicable prepare and
(subject to Section 5(a) hereof) file with the SEC, at the sole 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
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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 or misleading 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) Prior to the Effective Date of the first Registration Statement
relating to the Registrable Notes, (i) provide the Trustee with certificates for
the Registrable Notes in a form eligible for deposit with The Depository Trust
Company and (ii) provide one or more CUSIP numbers, as applicable, for the
Registrable Notes.
(m) In connection with any underwritten offering of Registrable Notes
pursuant to a Shelf Registration, enter into an underwriting agreement customary
for underwritten offerings of debt securities similar to the Notes and take all
such other actions as are reasonably requested by the managing underwriter or
underwriters in order to expedite or facilitate the registration or the disposi
tion of such Registrable Notes and, in such connection, (i) make such
representations and warranties to, and covenants with, the underwriters with
respect to the business of the Obligors as then operated 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 and guarantors to underwriters of underwritten offerings of debt
securities similar to the Notes, and confirm the same in writing if and when
requested; (ii) obtain the written opinions of counsel to the Obligors and
written updates thereof in form, scope and substance reasonably satisfactory to
the managing underwriter or underwriters, addressed to the underwriters covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by the managing
underwriter or underwriters; (iii) obtain "cold comfort" letters and updates
thereof in form, scope and substance reasonably satisfactory to the managing
underwriter or underwriters from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by any
Obligor which has become a Restricted Subsidiary under the terms of the
Indenture, for which financial statements and financial data are, or are
required to be, included or incorporated by reference 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 the managing underwriter or underwriters as
permitted by the Statement on Auditing Standards No. 72; 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 reasonable provisions and procedures acceptable to Holders
of a majority in aggregate principal amount of Registrable Notes covered by such
Registration Statement and the managing underwriter or underwriters or agents)
with respect to all parties to be indemnified pursuant thereto. The above shall
be done at each closing under such underwriting agreement, or as and to the
extent required thereunder.
(n) If (1) a Shelf Registration is filed pursuant to Section 3 hereof,
or (2) a Prospectus contained in an Exchange Registration Statement filed
pursuant to Section 2 hereof is
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required to be delivered under the Securities Act by any Participating Broker-
Dealer who seeks to sell Exchange Notes during the Applicable Period, 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 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 cor porate
documents and instruments of the Issuers and the Guarantors (collectively, the
"Records") as shall be reasonably necessary to enable the Inspectors to exercise
any applicable due diligence responsibilities, and cause the officers, directors
and employees of the Issuers and the Guarantors to supply all information
reasonably requested by any such Inspector in connection with such Registration
Statement. If the Issuers determine, in good faith, that any Records are
confidential and so notify the Inspectors, such Records shall not be disclosed
by the Inspectors unless (i) the dis closure of such Records is necessary or
advisable to avoid or correct a misstatement or omission in such Registration
Statement; provided, however, that prior notice thereof is given to the Issuers,
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and the Issuers' legal counsel and such Holder's legal counsel concur that
disclosure is required, (ii) the release of such Records is ordered pursuant to
a subpoena or other order from a court of competent jurisdiction or otherwise by
compulsion of legal process, (iii) disclosure of such Records is necessary or
advisable in connection with any action, claim, suit or proceeding, directly or
indirectly, involving or potentially involving any Inspector and arising out of,
based upon, relating to, or involving the Offering Memorandum, this Agreement,
the Purchase Agreement or the Notes, or any transactions contemplated hereby or
thereby or arising hereunder or thereunder; provided, however, that prior notice
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shall be provided as soon as practicable to the Issuers of the potential
disclosure of any such Records by such Inspector pursuant to clauses (ii) or
(iii) of this sentence to permit the Issuers to obtain a protective order (or
waive the provisions of this paragraph (n)) and that such Inspector shall keep
all such information and records confidential or (iv) the information in such
Records has been made generally available to the public or has been provided to
third parties on a non-confidential basis provided that without limiting the
--------
foregoing, no such records, information or documents shall be used by any person
or entity obtaining access thereto in connection with any market transactions in
securities of the Issuers and the Guarantors in violation of law; and provided
--------
further that the Issuers and the Guarantors shall not be required to provide any
- -------
information to the Holders or the underwriters that the Issuers and the
Guarantors are prohibited by law from disclosing;
(o) Provide an indenture trustee for the Registrable Notes or the
Exchange Notes, as the case may be, and cause the Exchange Indenture to be
qualified under the TIA not later than the Effective Date of the first
Registration Statement relating to the Registrable Notes; and in connection
therewith, cooperate with the trustee under the Exchange 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.
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(p) 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 of a Registration
Statement, which statements shall cover such 12-month periods.
(q) Upon consummation of an Exchange Offer or a Private Exchange,
obtain an opinion of counsel to the Issuers, in a form customary for comparable
underwritten transactions, 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, that the Exchange Notes or Private Exchange Notes,
as the case may be, and the related indenture constitute legal, valid and
binding obligations of the Issuers, enforceable against the Issuers in
accordance with their respective terms, subject to customary exceptions and
qualifications.
(r) 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
canceled 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.
(s) 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").
(t) Use their diligent best efforts to take all other steps necessary
or advisable to effect the registration of the Exchange Notes and/or Registrable
Notes covered by a Registration Statement contemplated hereby.
The Issuers may require each seller of Registrable Notes as to which
any registration is being effected to furnish to the Issuers such information
regarding such seller and the distribution of such Registrable Notes as the
Issuers may, from time to time, reasonably request. The Issuers may exclude
from such registration the Registrable Notes of any seller so long as such
seller fails to furnish such information within a reasonable time (and in any
event within ten Business Days) after receiving such request. Each seller of
Registrable Notes as to which any Shelf Registration 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 by such seller
not materially misleading. No Holder shall be entitled to Liquidated Damages
pursuant to Section 4 hereof if such Holder fails
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timely to provide all such reasonably requested information to the extent that
such failure, together with such failures of other Holders, is the sole reason
for assessment of Liquidated Damages.
If any such Registration Statement refers to any Holder by name or
otherwise as the holder of any securities of the Issuers, then such Holder shall
have the right to require (i) the insertion therein of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the Issuers' securities covered thereby
and that such holding does not imply that such Holder will assist in meeting any
future financial requirements of the Issuers, or (ii) in the event that such
reference to such Holder by name or otherwise is not required by the Securities
Act or any similar federal statute then in force, the deletion of the reference
to such Holder in any amendment or supplement to the Registration Statement
filed or prepared subsequent to the time that such reference ceases to be
required.
Each Holder of Registrable Notes and each Participating Broker-Dealer
agrees by acquisition of such Registrable Notes or, as the case may be, Exchange
Notes to be sold by such Participating Broker-Dealer, that, upon actual receipt
of any notice from the Issuers of the happening of any event of the kind
described in Section 5(c)(ii), 5(c)(iv), 5(c)(v), or 5(c)(vi) hereof, such
Holder or Participating Broker-Dealer will forthwith discontinue disposition of
such Registrable Notes covered by such Registration Statement or Prospectus or
Exchange Notes to be sold by such Holder or Participating Broker-Dealer, as the
case may be, until such Holder's or Participating 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 that the Issuers give any such
notice, and subsequently deliver to each Holder or Broker-Dealer copies of such
supplemented or amended Prospectus. then each Holder or Broker-Dealer will
either destroy or return to the Issuers all copies (other than permanent file
copies then in such Holder's or Broker-Dealer's possession) of any Prospectus
that, as a result of such occurrence leading to such notice, is no longer
accurate. In the event that the Issuers shall give any such notice, each of the
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 (x) the
copies of the supplemented or amended Prospectus contemplated by Section 5(k)
hereof or (y) the Advice.
6. Registration Expenses
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 with state securities or Blue Sky laws (including, without
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Notes or Exchange Notes and
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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,
by the Holders of a majority in aggregate principal amount of the Registrable
Notes included in any Registration Statement or in respect of Registrable Notes
or Exchange Notes to be sold by any Participating Broker-Dealer during the
Applicable Period, as the case may be, (iii) messenger, telephone and delivery
expenses, (iv) fees and disbursements of counsel for the Issuers and fees and
disbursements of one special counsel for all of the sellers of Registrable
Notes, (v) fees and disbursements of all independent certified public
accountants referred to in Section 5(m)(iii) hereof (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) Securities Act liability
insurance, if the Issuers desire such insurance, (vii) fees and expenses of all
other Persons retained by the Issuers, (viii) internal expenses of the Issuers
(including, without limitation, all salaries and expenses of officers and
employees of the Issuers performing legal or accounting duties), (ix) the
expense of any annual audit, (x) the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange,
if applicable, and (xi) the expenses relating to printing, word processing and
distributing all Registration Statements, underwriting agreements, indentures
and any other documents necessary in order to comply with this Agreement.
7. Indemnification
(a) In the event of a Shelf Registration or in connection with any
delivery by any Participating Broker-Dealer who seeks to sell Exchange Notes
during the Applicable Period, the Obligors agree, jointly and severally, to
indemnify and hold harmless each Holder of Registrable Notes and each
Participating Broker-Dealer selling Exchange Notes during the Applicable Period,
the officers and directors of each such Person, and each Person, if any, who
controls any such Person within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act (each, a "Participant"), from
and against any and all losses, claims, damages and liabilities (including,
without limitation, the reasonable legal fees and other expenses actually
incurred in connection with any suit, action or proceeding or any claim
asserted) caused by, arising out of or based upon any untrue or misleading
statement or alleged untrue or misleading statement of a material fact contained
in any Registration Statement (or any amendment thereto) or Prospectus (as
amended or supplemented if the Issuer shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by, arising out of
or based upon any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the case of the Prospectus in light of the circumstances under which they were
made, not misleading, except insofar as such losses, claims, damages or
liabilities are caused by any untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity with information
furnished to the Issuers in writing by any Participant expressly for use
therein; provided, however, that the Obligors will not be liable if such untrue
-------- -------
or misleading
-20-
statement or omission or alleged untrue or misleading statement or omission was
contained or made in any preliminary prospectus and corrected in the Prospectus
or any amendment or supplement thereto, or made in the Prospectus and corrected
in a supplement or amendment thereto, and the Prospectus as amended and
supplemented does not contain any other untrue or misleading statement or
omission or alleged untrue or misleading statement or omission of a material
fact that was the sub ject matter of the related proceeding and any such loss,
liability, claim, damage or expense suffered or incurred by the Participants
resulted from any action, claim or suit by any Person who purchased Registrable
Notes or Exchange Notes which are the subject thereof from such Participant and
it is established in the related proceeding that such Participant failed to
deliver or provide a copy of the Prospectus (as amended or supplemented) to such
Person with or prior to the confirmation of the sale of such Registrable Notes
or Exchange Notes sold to such Person if required by applicable law, unless such
failure to deliver or provide a copy of the Prospectus (as amended or
supplemented) was a result of noncompliance by the Issuers with Section 5 of
this Agreement.
(b) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Issuers, their directors, their officers who sign the
Registration Statement and each Person who controls the Issuers within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Issuers to each Participant,
but only with reference to information relating to such Participant furnished to
the Issuers in writing by such Participant expressly for use in any Registration
Statement or Prospectus, 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 giving rise to such obligations.
(c) If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against
any Person in respect of which indemnity may be sought pursuant to either of the
two preceding paragraphs, such Person (the "Indemnified Person") shall promptly
notify the Person against whom such indemnity may be sought (the "Indemnifying
Person") in writing, and the Indemnifying Person, upon request of the
Indemnified Person, shall retain counsel reasonably satisfactory to the
Indemnified Person to repre sent the Indemnified Person and any others the
Indemnifying Person may reasonably designate in such proceeding and shall pay
the reasonable fees and expenses actually incurred by such counsel related to
such proceeding; provided, however, that the failure to so notify the
-------- -------
Indemnifying Person shall not relieve it of any obligation or liability which it
may have hereunder or otherwise. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the
contrary, (ii) the Indemnifying Person shall have failed within a reasonable
period of time to retain counsel reasonably satisfactory to the Indemnified
Person or (iii) the named parties in any such proceeding (including any
impleaded parties) include both the Indemnifying Person and the Indemnified
Person or any affiliate and representation of both parties by the same counsel
would be inappropriate under standards of professional conduct due to actual or
potential differing interests between them, in which case the reasonable fees
and expenses of separate counsel shall be borne by the Indemnifying Party. It
is understood that the Indemnifying Person shall not, in connection with any one
such
-21-
proceeding or separate but substantially similar related proceeding in the
same jurisdiction arising out of the same general allegations, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all Indemnified Persons, and that all such reasonable fees and
expenses shall be reimbursed promptly as they are incurred. Any such separate
firm for the Participants and such control Persons of Participants shall be
designated in writing by Participants who sold a majority in interest of
Registrable Notes and Exchange Notes sold by all such Participants and
reasonably acceptable to the Issuers and any such separate firm for the Issuers,
its directors, its officers and such control Persons of the Issuers shall be
designated in writing by the Issuers and reasonably acceptable to the Holders.
The Indemnifying Person shall not be liable for any settlement of any proceeding
effected without its prior written consent (which consent shall not be
unreasonably withheld or delayed), but if settled with such consent or if there
should be a final judgment for the plaintiff for which the Indemnified Person is
entitled to indemnification pursuant to this Agreement, the Indemnifying Person
agrees to indemnify and hold harmless each Indemnified Person from and against
any loss or liability by reason of such settlement or judgment. No Indemnifying
Person shall, without the prior written consent of the Indemnified Persons
(which consent shall not be unreasonably withheld), effect any settlement or
compromise of any pending or threatened proceeding in respect of which any
Indemnified Person is or could have been a party, or indemnity could have been
sought hereunder by such Indemnified Person, unless such settlement includes an
unconditional written release of such Indemnified Person, in form and substance
reasonably satisfactory to such Indemnified Person, from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason unavailable to, or insufficient
to hold harmless, an Indemnified Person in respect of any losses, claims,
damages or liabilities referred to therein, then each Indemnifying Person under
such paragraphs, in lieu of indemnifying such Indemnified Person thereunder and
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities in such proportion as is appropriate to reflect
(i) the relative benefits received by the Indemnifying Person or Persons on the
one hand and the Indemnified Person or Persons on the other from the offering of
the Notes or (ii) if the allocation provided by the foregoing clause (i) is not
permitted by applicable law, not only such relative benefits but also the
relative fault of the Indemnifying Person or Persons on the one hand and the
Indemnified Person or Persons on the other in connection with the statements or
omis sions or alleged statements or omissions that resulted in such losses,
claims, damages or liabilities (or actions in respect thereof) as well as any
other relevant equitable considerations. The relative benefits received by the
Obligors on the one hand and any Participant on the other shall be deemed to be
in the same proportion as the total proceeds from the offering (net of discounts
and commissions but before deducting expenses) of the Notes received by the
Issuers bears to the total proceeds received by such Participant from the sale
of Registrable Notes or Exchange Notes, as the case may be. The relative fault
of the parties shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Issuer on the one hand or such Participant or such other Indemnified Person, as
the case may be, on the other, the parties' relative intent, knowledge,
-22-
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances.
(e) The parties agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by pro rata allocation
--- ----
(even if the Participants were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an Indemnified Person as a result of the losses, claims,
damages and lia bilities referred to in the immediately preceding paragraph
shall be deemed to include, subject to the limitations set forth above, any
reasonable legal or other expenses actually incurred by such Indemnified Person
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall a
Participant be required to con tribute any amount in excess of the amount by
which proceeds received by such Participant from sales of Registrable Notes or
Exchange Notes, as the case may be, exceed the amount of any damages that such
Participant has otherwise been required to pay or has paid by reason of such
untrue or alleged untrue statement or omission or alleged omission. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
Indemnified Person is entitled to indemnification or contribution under this
Section 7 shall be paid by the Indemnifying Person to the Indemnified Person as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Obligors set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any of the Initial Purchasers or any
person who controls an Initial Purchaser, the Obligors, their respective
directors or officers or any person controlling the Obligors, and (ii) any
termination of this Agreement.
(g) 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 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 adopted by the SEC thereunder in a timely manner in accordance with
the requirements of the Securities Act and the Exchange Act and, if at any time
the Issuers are not required to file such reports, they will, upon the request
of any Holder or beneficial owner of Registrable Notes, make available such
information necessary to permit sales pursuant to Rule 144A under the Securities
Act. The Issuers 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)
-23-
Rule 144(k) 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 (it being expressly understood that the foregoing shall not create any
obligation on the part of the Issuers to file periodic reports or other reports
under the Exchange Act at any time that they are not then required to file such
reports pursuant to 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
(a) 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 respective 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 rights granted
to the Holders hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of any of the Issuers' other
issued and outstanding securities under any such agreements.
(b) 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.
(c) Amendments and Waivers. The provisions of this Agreement may not
----------------------
be amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given, otherwise than with the prior written
consent of (i) the Issuers and (ii)(A) the Holders of not less than a majority
in aggregate principal amount of the then outstanding Registrable Notes and (B)
in circumstances that would adversely affect the Initial Purchasers or the
Participating Broker-Dealers, the Initial Purchasers or, as the case may be, the
Participating Broker-Dealers holding not less than a majority in aggregate
principal amount of the Notes, or, as the case may be, Exchange Notes held by
all Participating Broker-Dealers; provided, however, that Section 7 and this
-------- -------
Section 10(c) may not be amended, modified or supplemented without the prior
written consent of each Holder and each Participating Broker-Dealer (including
any person who was
-24-
a Holder or Participating Broker-Dealer of Registrable Notes or Exchange Notes,
as the case may be, disposed of pursuant to any Registration Statement) affected
by any such amendment, modification or supplement. 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.
(d) 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 and delivered by hand-delivery,
registered first-class mail, next-day air courier or facsimile:
1. if to a Holder of the Registrable Notes or any Participating
Broker-Dealer, at the most current address of such Holder or Participating
Broker-Dealer, as the case may be, set forth on the records of the
registrar under the Indenture, with a copy in like manner to the Initial
Purchasers as follows:
Oppenheimer & Co., Inc.
One World Financial Center
New York, New York 10281
Facsimile: (212) 667-8148
Attention: Corporate Finance Department
BT Securities Corporation
One Bankers Trust Plaza
New York, New York 10006
Facsimile: (212) 669-0021
Attention: Corporate Finance Department
BancAmerica Securities Corp.
231 S. LaSalle Street, 17th Floor
Chicago, Illinois 60697
Facsimile: (312) 974-0140
Attention: High Yield Origination
with copies to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304-1050
Facsimile: (415) 493-6811
Attention: Meredith S. Jackson, Esq.
-25-
2. if to the Initial Purchasers, at the respective addresses
specified in Section 10(d)(1);
3. if to the Issuers, at the address as follows:
Hollywood Park, Inc.
Hollywood Park Operating Company
1050 South Prairie Avenue
Inglewood, California 90301
Facsimile: (310) 673-2582
Attention: Investor Relations
with a copy to:
Irell & Manella
1800 Avenue of the Stars, Suite 900
Los Angeles, California 90067
Facsimile: (310) 203-7199
Attention: Alvin G. Segel, 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 mail, postage prepaid, if mailed; one business day
after being timely delivered to a next-day air courier; and when receipt is
acknowledged by the addressee, if sent by facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address and in the manner specified in such Indenture.
(e) Successors and Assigns. This Agreement shall inure to the benefit
----------------------
of and be binding upon the respective successors and assigns of each of the
parties hereto, the Holders and the Participating Broker-Dealers; provided,
--------
however, that this Agreement shall not inure to the benefit of or be binding
- -------
upon a successor or assign of a Holder unless and to the extent such successor
or assign holds Registrable Notes.
(f) 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.
(g) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
(h) GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY
---------------------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
-26-
STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WHOLLY WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW, SUBJECT TO
THE REQUIREMENTS OF APPLICABLE GAMING LAWS.
(i) 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 stipu lated 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.
(j) Securities Held by the Issuer or Its Affiliates. Whenever the
-----------------------------------------------
consent or approval of Holders of a specified percentage of Registrable Notes is
required hereunder, any 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.
(k) Third Party Beneficiaries. Holders of Registrable Notes and
-------------------------
Participating Broker-Dealers are intended third party beneficiaries of this
Agreement and this Agreement may be enforced by such Persons with the same
effect as though they were parties hereto.
(l) Entire Agreement. This Agreement, together with the Purchase
----------------
Agreement and the Indenture, is intended by the parties as a final and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein and therein and any and all prior oral or
written agreements, representations, warranties, contracts, understandings,
correspondence, conversations and memoranda between the Initial Purchasers on
the one hand and the Issuer on the other, or between or among any agents,
representatives, parents, subsidiaries, affiliates, predecessors in interest or
successors in interest with respect to the subject matter hereof and thereof are
merged herein and replaced hereby.
-27-
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ISSUERS
-------
HOLLYWOOD PARK, INC.
By:_______________________________
Name:
Title:
HOLLYWOOD PARK OPERATING COMPANY
By:_______________________________
Name:
Title:
GUARANTORS
----------
HOLLYWOOD PARK FOOD SERVICES,
INC.
By:_______________________________
Name:
Title:
HOLLYWOOD PARK FALL OPERATING
COMPANY
By:_______________________________
Name:
Title:
-28-
TURF PARADISE, INC.
By:_______________________________
Name:
Title:
HP/COMPTON, INC.
By:_______________________________
Name:
Title:
CRYSTAL PARK HOTEL AND
CASINO DEVELOPMENT COMPANY, LLC
By its Managing Member
HP/COMPTON, INC.
By:_______________________________
Name:
Title:
HP YAKAMA, INC.
By:_______________________________
Name:
Title:
BOOMTOWN, INC.
By:_______________________________
Name:
Title:
-29-
BOOMTOWN HOTEL & CASINO, INC.
By:_______________________________
Name:
Title:
LOUISIANA GAMING ENTERPRISES, INC.
By:_______________________________
Name:
Title:
LOUISIANA-I GAMING, A LOUISIANA
PARTNERSHIP IN COMMENDAM
By its General Partner
LOUISIANA GAMING ENTERPRISES, INC.
By:_______________________________
Name:
Title:
BAYVIEW YACHT CLUB, INC.
By:_______________________________
Name:
Title:
-30-
MISSISSIPPI-I GAMING, L.P.
By its General Partner
BAYVIEW YACHT CLUB, INC.
By:_______________________________
Name:
Title:
INITIAL PURCHASERS
------------------
OPPENHEIMER & CO., INC.
By:_______________________________
Name:
Title:
BT SECURITIES CORPORATION
By:_______________________________
Name:
Title:
BANCAMERICA SECURITIES, INC.
By:_______________________________
Name:
Title:
-31-