EXHIBIT 10.35
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A/B EXCHANGE
REGISTRATION RIGHTS AGREEMENT
DATED AS OF FEBRUARY 18, 1999
BY AND AMONG
HOLLYWOOD PARK, INC.
THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
AND
LEHMAN BROTHERS INC.,
CIBC OPPENHEIMER CORP.,
MORGAN STANLEY & CO. INCORPORATED,
NATIONSBANC MONTGOMERY SECURITIES LLC,
SG COWEN SECURITIES CORPORATION,
AND
WASSERSTEIN PERELLA SECURITIES, INC.
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This Registration Rights Agreement (this "Agreement") is made and entered
into as of February 18, 1999 by and among Hollywood Park, Inc., a Nevada
corporation (the "Company"), Bay St. Louis Casino Corp., a Mississippi
corporation, Bayview Yacht Club, Inc., a Mississippi corporation, Biloxi Casino
Corp., a Mississippi corporation, Boomtown Hoosier, Inc., a Nevada corporation,
Boomtown Hotel & Casino, Inc., a Nevada corporation, Boomtown, Inc., a Delaware
corporation, Casino Magic American Corp., a Minnesota corporation, Casino Magic
Corp., a Minnesota corporation, Casino Magic Finance Corp., a Mississippi
corporation, Casino One Corporation, a Mississippi corporation, Crystal Park
Hotel & Casino Development Company, LLC, a California limited liability
corporation, Hollywood Park Fall Operating Company, a Delaware corporation,
Hollywood Park Food Services, Inc., a California corporation, Hollywood Park
Operating Company, a Delaware corporation, HP Casino, Inc., a California
corporation, HP/Compton, Inc., a California corporation, HP Yakama, Inc., a
Delaware corporation, HP Yakama Consulting, Inc., a Delaware corporation,
Indiana Ventures LLC, a Nevada limited liability corporation, Louisiana Gaming
Enterprises, Inc., a Louisiana corporation, Louisiana-I Gaming, A Louisiana
Partnership in Commendam, Mardi Gras Casino Corp., a Mississippi corporation,
Mississippi-I Gaming, L.P., a Mississippi limited partnership, Pinnacle Gaming
Development Corp., a Colorado corporation, Switzerland County Development Corp.,
a Nevada corporation, Turf Paradise, Inc., an Arizona corporation (collectively,
the "Existing Guarantors"), and Lehman Brothers Inc., CIBC Oppenheimer Corp.,
Morgan Stanley & Co. Incorporated, NationsBanc Montgomery Securities LLC, SG
Cowen Securities Corporation, and Wasserstein Perella Securities, Inc.
(together, the "Initial Purchasers"), each of whom has agreed to purchase
severally and not jointly the Company's Series A 9 1/4% Senior Subordinated
Notes due 2007 (the "Series A Notes") pursuant to the Purchase Agreement (as
defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as of
February 12, 1999 (the "Purchase Agreement"), by and among the Company, the
Existing Guarantors and the Initial Purchasers. In order to induce the Initial
Purchasers to purchase the Series A Notes, the Company and the Existing
Guarantors have agreed to provide the registration rights set forth in this
Agreement. The execution and delivery of this Agreement is a condition to the
obligations of the Initial Purchasers set forth in Section 7(l)(v) of the
Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Act: The Securities Act of 1933, as amended.
Additional Guarantor: Any subsidiary of the Company that executes a
Subsidiary Guarantee under the Indenture after the date of this Agreement.
Broker-Dealer: Any broker or dealer registered under the Exchange Act.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Series B Notes to be issued in the Exchange Offer, (ii) the
maintenance of such Registration Statement continuously effective and the
keeping of the Exchange Offer open for a period not less than the minimum period
required pursuant to Section 3(b) hereof, and (iii) the delivery by the Company
to the Registrar under the Indenture of Series B Notes in the same aggregate
principal amount as the aggregate principal amount of Series A Notes that were
tendered by Holders thereof pursuant to the Exchange Offer.
Damages Payment Date: With respect to the Series A Notes, each Interest
Payment Date.
Effectiveness Target Date: As defined in Section 5.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Offer: The registration by the Company under the Act of the
Series B Notes (including the Subsidiary Guarantees) pursuant to a Registration
Statement pursuant to which the Company offers the Holders of all outstanding
Transfer Restricted Securities the opportunity to exchange all such outstanding
Transfer Restricted Securities held by such Holders for Series B Notes and
registered Subsidiary Guarantees in an aggregate principal amount equal to the
aggregate principal amount of the Transfer Restricted Securities tendered in
such exchange offer by such Holders.
Exchange Offer Registration Statement: The Registration Statement relating
to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial Purchasers propose
to sell the Series A Notes to (i) certain "qualified institutional buyers," as
such term is defined in Rule 144A under the Act, and to (ii) outside the United
States to Persons other than U.S. Persons in offshore transactions meeting the
requirements of rule 904 of Regulation S under the Act.
Guarantors: The Additional Guarantors and the Existing Guarantors.
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 8(a) hereof.
Indenture: The Indenture, dated as of February 18, 1999, among the
Company, the Existing Guarantors and The Bank of New York, as trustee (the
"Trustee"), pursuant to which the Notes are to be issued, as such Indenture is
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amended or supplemented from time to time in accordance with the terms thereof.
Initial Purchasers: As defined in the preamble hereto.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The Series A Notes and the Series B Notes.
Person: An individual, partnership, corporation, trust or unincorporated
organization, or a government or agency or political subdivision thereof.
Prospectus: The prospectus included in a Registration Statement including,
without limitation, a Market-Maker Prospectus, as amended or supplemented by any
prospectus supplement and by all other amendments thereto, including post-
effective amendments, and all material incorporated by reference into such
Prospectus.
Record Holder: With respect to any Damages Payment Date relating to Notes,
each Person who is a Holder of Notes on the record date with respect to the
Interest Payment Date on which such Damages Payment Date shall occur.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any Registration Statement of the Company relating
to (a) an offering of Series B Notes pursuant to an Exchange Offer or (b) the
registration for resale of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions of this
Agreement, in each case including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Series B Notes: The Company's Series B 9 1/4% Senior Subordinated Notes
due 2007 to be issued pursuant to the Indenture in the Exchange Offer.
Shelf Filing Deadline: As defined in Section 4 hereof.
Shelf Registration Statement: As defined in Section 4 hereof.
Subsidiary Guarantee: The Guarantee by a Guarantor of the Company's
obligations under the Notes and Indenture.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb) as
in effect on the date of the Indenture.
Transfer Restricted Securities: Each Note (including the Subsidiary
Guarantees), until the earliest to occur of (a) the date on which such Note is
exchanged in the Exchange Offer and entitled to be resold to the public by the
Holder thereof without complying with the prospectus delivery requirements of
the Act, (b) the date on which such Note (including the Subsidiary Guarantees)
has been effectively registered under the Act and disposed of in accordance with
a
Shelf Registration Statement and (c) the date on which such Note (including
the Subsidiary Guarantees) may be distributed to the public pursuant to Rule 144
under the Act or by a Broker-Dealer pursuant to the "Plan of Distribution"
contemplated by the Exchange Offer Registration Statement (including delivery of
the Prospectus contained therein).
Underwritten Registration or Underwritten Offering: A registration in
which securities of the Company are sold to an underwriter for reoffering to the
public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) Transfer Restricted Securities. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) Holders of Transfer Restricted Securities. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "Holder") whenever such
Person owns Transfer Restricted Securities.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a)(i)
below have been complied with), the Company and the Guarantors shall (i) cause
to be filed with the Commission as soon as practicable after the Closing Date,
but in no event later than 45 days after the Closing Date, a Registration
Statement under the Act relating to the Series B Notes (including the Subsidiary
Guarantees) and the Exchange Offer, (ii) use best efforts to cause such
Registration Statement to become effective at the earliest possible time, but in
no event later than 150 days after the Closing Date, (iii) in connection with
the foregoing, file (A) all pre-effective amendments to such Registration
Statement as may be necessary in order to cause such Registration Statement to
become effective, (B) file, if applicable, a post-effective amendment to such
Registration Statement pursuant to Rule 430A under the Act and (C) cause all
necessary filings in connection with the registration and qualification of the
Series B Notes (including the Subsidiary Guarantees) to be made under the Blue
Sky laws of such jurisdictions as are necessary to permit Consummation of the
Exchange Offer (subject to the limitations of Section 6(d)(x)), and (iv) upon
the effectiveness of such Registration Statement, commence and Consummate the
Exchange Offer. The Exchange Offer shall be on the appropriate form permitting
registration of the Series B Notes (including the Subsidiary Guarantees) to be
offered in exchange for the Notes that are Transfer Restricted Securities and to
permit resales of Notes held by Broker-Dealers (other than unsold allotments
held by the Initial Purchasers) as contemplated by Section 3(c) below.
(b) The Company and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 20 business
days. The Company and the Guarantors shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No securities other than
the Notes
(including the Subsidiary Guarantees) shall be included in the
Exchange Offer Registration Statement. The Company and the Guarantors shall use
their best efforts to cause the Exchange Offer to be Consummated on the earliest
practicable date after the Exchange Offer Registration Statement has become
effective, but in no event later than 30 business days thereafter.
(c) The Company and the Guarantors shall indicate in a "Plan of
Distribution" section contained in the Prospectus contained in the Exchange
Offer Registration Statement that any Broker-Dealer who holds Series A Notes
that are Transfer Restricted Securities and that were acquired for its own
account as a result of market-making activities or other trading activities
(other than Transfer Restricted Securities acquired directly from the Company),
may exchange such Series A Notes pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Notes held by any such
Broker-Dealer, except to the extent required by the Commission. See Shearman &
Sterling no-action letter (available July 2, 1993).
The Company and the Guarantors shall use their best efforts to keep the
Exchange Offer Registration Statement continuously effective, supplemented and
amended as required by the provisions of Section 6(d) below to the extent
necessary to ensure that it is available for resales of Notes acquired by
Broker-Dealers for their own accounts as a result of market-making activities or
other trading activities (other than Transfer Restricted Securities acquired
directly from the Company), and to ensure that it conforms with the requirements
of this Agreement, the Act and the policies, rules and regulations of the
Commission as announced from time to time, for the lesser of (i) a period of 180
days from the date on which the Exchange Offer Registration Statement is
declared effective or (ii) such period of time as such Broker-Dealer must comply
with the prospectus delivery requirements of the Act in order to resell the
Series B Notes received in exchange for Series A Notes acquired for their own
account as a result of such market-making or other trading activities; subject
in the case of either clause (i) or (ii), to any suspension of the effectiveness
or usability of the Exchange Offer Registration Statement or the Prospectus
contained therein pursuant to Section 6(d)(i) hereof..
The Company and the Guarantors shall provide sufficient copies of the
latest version of such Prospectus to Broker-Dealers promptly upon request at any
time during such period in order to facilitate such resales. The Initial
Purchasers shall use reasonable efforts to ensure that Broker-Dealers effecting
such resales cooperate with the Company in responding to inquiries by the
Company as to whether such Series B Notes have been disposed of pursuant to such
Prospectus.
Upon Consummation of the Exchange Offer in accordance with this Section 3,
subject to Section 4(a), the Company shall have no further obligation to
register Transfer Restricted Securities pursuant to Section 4 of this Agreement
or, with respect to Transfer Restricted Securities not tendered in the Exchange
Offer, to register Series B Notes in another Exchange Offer pursuant to Section
3 of this Agreement; provided that the other provisions of this Agreement shall
continue to apply as set forth in such provisions.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Company and the Guarantors are not
required to file an Exchange Offer Registration Statement or to Consummate the
Exchange Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a)(i) below have
been complied with) or (ii) if any Holder of Transfer Restricted Securities that
is a "qualified institutional buyer," as such term is defined in Rule 144A under
the Act shall notify the Company prior to the 20th business day following the
Consummation of the Exchange Offer that such Holder alone or together with
holders who hold in the aggregate at least $1.0 million in principal amount of
Series A Notes (A) was prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) may not resell the Series B Notes
acquired by it in the Exchange Offer to the public without delivering a
prospectus and that the Prospectus contained in the Exchange Offer Registration
Statement is not appropriate or available for such resales by such Holder, or
(C) is a Broker-Dealer and holds Series A Notes acquired directly from the
Company or one of its affiliates, then the Company and the Guarantors shall:
(x) cause to be filed a shelf Registration Statement pursuant to Rule
415 under the Act, which may be an amendment to the Exchange Offer
Registration Statement (in either event, the "Shelf Registration
Statement") on or prior to the earliest to occur of (1) the 30th day after
the date on which the Company determines that it is not required to file
the Exchange Offer Registration Statement, or permitted to Consummate the
Exchange Offer and (2) the 30th day after the date on which the Company
receives notice from a Holder of Transfer Restricted Securities as
contemplated by clause (ii) of paragraph (a) above (such earliest date
being the "Shelf Filing Deadline"), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities the Holders
of which shall have provided the information required pursuant to Section
4(b) hereof; and
(y) use their best efforts to cause such Shelf Registration Statement
to be declared effective by the Commission on or before the 90th day after
the Shelf Filing Deadline.
The Company and the Guarantors shall use their best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (d) hereof to the extent
necessary to ensure that it is available for resales of Notes by the Holders of
Transfer Restricted Securities entitled to the benefit of this Section 4(a), and
to ensure that it conforms with the requirements of this Agreement, the Act and
the policies, rules and regulations of the Commission as announced from time to
time, for a period of at least two years following the Closing Date or such
shorter period that will terminate when all Notes covered by the Shelf
Registration Statement have been sold pursuant to the Shelf Registration
Statement or become eligible for resale pursuant to Rule 144 without volume or
other restrictions, subject to any suspension of the effectiveness or usability
of the Shelf Registration Statement or the Prospectus contained therein pursuant
to Section 6(d)(i) hereof.
Upon the filing of the Shelf Registration Statement in accordance with this
Section 4, the Company shall have no further obligation to register Series B
Notes in an Exchange Offer
pursuant to Section 3 of this Agreement; provided that the other provisions of
this Agreement shall continue to apply as set forth in such provisions.
(b) Provision by Holders of Certain Information in Connection with the
Shelf Registration Statement. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 business days after receipt of a request
therefor, such information as the Company may reasonably request for use in
connection with any Shelf Registration Statement or Prospectus or preliminary
Prospectus included therein. No Holder of Transfer Restricted Securities shall
be entitled to Liquidated Damages pursuant to Section 5 hereof unless and until
such Holder shall have used its best efforts to provide all such reasonably
requested information. Each Holder as to which any Shelf Registration Statement
is being effected agrees to furnish promptly to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not materially misleading and shall promptly
supply such other information as the Company may from time to time reasonably
request.
SECTION 5. LIQUIDATED DAMAGES
If (i) any of the Registration Statements required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
sections 3(a) and 4(a), as applicable, (ii) any of such required Registration
Statements has not been declared effective by the Commission on or prior to the
date specified for such effectiveness in sections 3(a) and 4(a), as applicable,
(the "Effectiveness Target Date"), (iii) the Exchange Offer has not been
Consummated within 30 business days after the Effectiveness Target Date with
respect to the Exchange Offer Registration Statement or (iv) any Registration
Statement required by this Agreement is filed and declared effective but shall
thereafter cease to be effective or fail to be usable for its intended purpose
for the requisite period without being succeeded immediately by a post-effective
amendment to such Registration Statement that cures such failure and that is
itself immediately declared effective (each such event referred to in clauses
(i) through (iv), a "Registration Default"), the Company and the Guarantors
jointly and severally agree to pay liquidated damages to each Holder of Transfer
Restricted Securities with respect to the first 90-day period immediately
following the occurrence of the first Registration Default, in an amount equal
to $.05 per week per $1,000 principal amount of Transfer Restricted Securities
held by such Holder for each week or portion thereof that the Registration
Default continues. The amount of the liquidated damages shall increase by an
additional $.05 per week per $1,000 in principal amount of Transfer Restricted
Securities with respect to each subsequent 90-day period until all Registration
Defaults have been cured, up to a maximum amount of liquidated damages of $.50
per week per $1,000 principal amount of Transfer Restricted Securities. All
accrued liquidated damages shall be paid to Record Holders by the Company and
the Guarantors by wire transfer of immediately available funds or by federal
funds check on each Damages Payment Date, as provided in the Indenture.
Following the cure of all Registration Defaults relating to any particular
Transfer Restricted Securities, the accrual of liquidated damages with respect
to such Transfer Restricted Securities will cease. The applicable Registration
Default will be deemed cured (1) upon the filing of the required Registration
Statement in the case of clause (i) above,
(2) upon the effectiveness of such required Registration Statement in the case
of clause (ii) above, (3) upon the Consummation of the Exchange Offer in the
case of clause (iii) above and (4) in the case of clause (iv), upon the cure
provided therein.
All payment obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Transfer Restricted
Security at the time such security ceases to be a Transfer Restricted Security
shall survive until such time as all such payment obligations with respect to
such Security shall have been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with the
Exchange Offer, the Company and the Guarantors shall comply with all of the
provisions of Section 6(d) below, shall use their best efforts to effect such
exchange to permit the sale of Transfer Restricted Securities being sold in
accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company and the
Guarantors there is a question as to whether the Exchange Offer is
permitted by applicable federal law, the Company and the Guarantors hereby
agree to seek a no-action letter or other favorable decision from the
Commission allowing the Company and the Guarantors to Consummate an
Exchange Offer for such Series A Notes. The Company and the Guarantors
hereby agree to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable
action to effect a change of Commission policy. The Company and the
Guarantors hereby agree however, to (A) participate in telephonic
conferences with the Commission, (B) deliver to the Commission staff an
analysis prepared by counsel to the Company and the Guarantors setting
forth the legal bases, if any, upon which such counsel has concluded that
such an Exchange Offer should be permitted and (C) diligently pursue a
resolution (which need not be favorable and which need not be a written
resolution) by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange Offer pursuant
to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company and the
Guarantors (which may be contained in the letter of transmittal
contemplated by the Exchange Offer Registration Statement) to the effect
that (A) it is not an affiliate of the Company, (B) it is not engaged in,
and does not intend to engage in, and has no arrangement or understanding
with any person to participate in, a distribution of the Series B Notes to
be issued in the Exchange Offer and (C) it is acquiring the Series B Notes
in its ordinary course of business. In addition, all such Holders of
Transfer Restricted Securities shall otherwise cooperate in the Company's
and the Guarantors' preparations for the Exchange Offer. Each Holder hereby
acknowledges and agrees that any Broker-Dealer who acquired Series A Notes
directly from the Company or any affiliate of the Company or the Guarantors
and any such Holder intending to use the
Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and
Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted
in the Commission's letter to Shearman & Sterling dated July 2, 1993, and
similar no-action letters (including any no-action letter obtained pursuant
to clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a secondary
resale transaction and that such a secondary resale transaction should be
covered by an effective Registration Statement containing the selling
security holder information required by Item 507 or 508, as applicable, of
Regulation S-K if the resales are of Series B Notes obtained by such Holder
in exchange for Series A Notes acquired by such Holder directly from the
Company.
(iii) Prior to effectiveness of the Exchange Offer Registration
Statement, the Company and the Guarantors shall provide a supplemental
letter to the Commission (A) stating that the Company and the Guarantors
are registering the Exchange Offer in reliance on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available May
13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) and, if
applicable, any no-action letter obtained pursuant to clause (i) above and
(B) including a representation that neither the Company nor any Guarantor
has entered into any arrangement or understanding with any Person to
distribute the Series B Notes to be received in the Exchange Offer and
that, to the best of the Company's and each Guarantor's information and
belief, each Holder participating in the Exchange Offer is acquiring the
Series B Notes in its ordinary course of business and has no arrangement or
understanding with any Person to participate in the distribution of the
Series B Notes received in the Exchange Offer.
(iv) The Company and the Guarantors will furnish to each Initial
Purchaser and its counsel the Exchange Offer Registration Statement and all
amendments and supplements thereto before filing such documents with the
Commission, and such documents will be subject to the reasonable review and
comment of each Initial Purchaser and its counsel.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Company and the Guarantors shall comply with all the
provisions of Section 6(d) below and shall use their best efforts to effect such
registration to permit the sale of the Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
pursuant thereto the Company and the Guarantors will as expeditiously as
possible prepare and file with the Commission a Registration Statement relating
to the registration on any appropriate form under the Act, which form shall be
available for the sale of the Transfer Restricted Securities in accordance with
the intended method or methods of distribution thereof within the time periods
and otherwise in accordance with the provisions hereof.
(c) [Intentionally omitted.]
(d) General Provisions. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company and the Guarantors shall:
(i) use their best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
(including, if required by the Act or any regulation thereunder, financial
statements of any Guarantors) for the period specified in Section 3 or 4 of
this Agreement, as applicable; upon the occurrence of any event that would
cause any such Registration Statement or the Prospectus contained therein
(A) to contain a material misstatement or omission or (B) not to be
effective and usable for resale of Transfer Restricted Securities during
the period required by this Agreement, the Company and the Guarantors shall
file promptly an appropriate amendment to such Registration Statement, in
the case of clause (A), correcting any such misstatement or omission, and,
in the case of either clause (A) or (B), use their best efforts to cause
such amendment to be declared effective and such Registration Statement and
the related Prospectus to become usable for their intended purpose(s) as
soon as practicable thereafter. Notwithstanding the foregoing, at any time
after Consummation of the Exchange Offer, the Company and the Guarantors
may allow the Exchange Offer Registration Statement (if otherwise required
to keep it effective) or the Shelf Registration Statement and the related
Prospectus to cease to become effective and usable if (x) the board of
directors of the Company determines in good faith that it is in the best
interests of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company and the Guarantors, and the Company mails
notification to the Holders within five business days after the Board of
Directors makes such determination, or (y) the Prospectus contained in the
Exchange Offer Registration Statement or the Shelf Registration Statement,
as the case may be, contains an untrue statement of the material fact or
omits to state a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; provided that 180-day period referred to in Section 3(c) during
which the Exchange Offer Registration Statement is required to be effective
and usable or the two-year period referred to in Section 4(a) hereof during
which the Shelf Registration Statement is required to be effective and
usable shall be extended by the number of days during which such
Registration Statement was not effective or usable pursuant to the
foregoing provisions (which such extension shall be the Holders' sole
remedy hereunder);
(ii) prepare and file with the Commission such amendments and post-
effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as applicable; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act, and to comply fully with
the applicable provisions of Rules 424, 430A and 462 under the Act
in a timely manner; and comply with the provisions of the Act with respect
to the disposition of all securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders of Transfer
Restricted Securities promptly and, if requested by such Persons, to
confirm such advice in writing, (A) when the Prospectus or any Prospectus
supplement or post-effective amendment has been filed, and, with respect to
any Registration Statement or any post-effective amendment thereto, when
the same has become effective, (B) of any request by the Commission for
amendments to the Registration Statement or amendments or supplements to
the Prospectus or for additional information relating thereto, (C) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement under the Act or of the suspension by any
state securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation of
any proceeding for any of the preceding purposes, (D) of the existence of
any fact or the happening of any event that makes any statement of a
material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes
in the Registration Statement or the Prospectus in order to make the
statements therein not misleading or that requires the making of any
additions to or changes in the Prospectus in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the
Transfer Restricted Securities under state securities or Blue Sky laws, the
Company and the Guarantors shall use their best efforts to obtain the
withdrawal or lifting of such order at the earliest possible time;
(iv) furnish to each of the selling Holders of Transfer Restricted
Securities and each of the underwriter(s), if any, before filing with the
Commission, copies of any Shelf Registration Statement or any Prospectus
included therein or any amendments or supplements to any such Registration
Statement or Prospectus, which documents will be subject to the reasonable
review and comment of such Holders and underwriter(s), if any, for a period
of at least five business days, and the Company and the Guarantors will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including all
such documents incorporated by reference) if a selling Holder of Transfer
Restricted Securities covered by such Registration Statement or the
underwriter(s), if any, shall not have had an opportunity to participate in
the preparation thereof;
(v) make available at reasonable times at the Company's principal place
of business for inspection by the selling Holders of Transfer Restricted
Securities, any underwriter participating in any disposition pursuant to
such Registration Statement, and
any single firm of attorneys or any single accounting firm retained by such
selling Holders or any of the underwriter(s) who shall certify to the
Company and the Guarantors that they have a current intention to sell
Transfer Restricted Securities pursuant to a Shelf Registration Statement
such financial and other information of the Company and the Guarantors as
reasonably requested and cause the Company's and the Guarantors' officers,
directors and employees to respond to such inquiries as shall be reasonably
necessary, in the reasonable judgment of counsel to such Holders, to
conduct a reasonable investigation; provided, however, that each such party
shall be required to maintain in confidence and not to disclose to any
other person any information or records reasonably designated by the
Company in writing as being confidential, until such time as (A) such
information becomes a matter of public record (whether by virtue of its
inclusion in such Registration Statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant to the subpoena
or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such order,
and only after such person shall have given the Company prompt prior
written notice of such requirement), or (C) subject to the Company's right
under the last sentence of Section 6(d)(i) to suspend the effectiveness or
usability of such Registration Statement or Prospectus, such information is
required to be set forth in such Registration Statement or the Prospectus
included therein or in an amendment to such Registration Statement or an
amendment or supplement to such Prospectus in order that such Registration
Statement, Prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading and provided further, that appropriate
arrangements are made, to the extent required by applicable anti-trust law,
to limit access to such records, information or documents to
representatives of the Holders who are not officers or employees of the
Holders; and provided further 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 Company or the Guarantors in violation of law; and
provided further that the Company and the Guarantors shall not be required
to provide any information to the Holders or the underwriters that the
Company and the Guarantors are prohibited by law from disclosing;
(vi) if requested by any selling Holders of Transfer Restricted
Securities or the underwriter(s), if any, promptly incorporate in any Shelf
Registration Statement or Prospectus, pursuant to a supplement or post-
effective amendment if necessary, such information as such selling Holders
and underwriter(s), if any, may reasonably request to have included
therein, including, without limitation (in the case of underwriters) and
solely with respect to (in the case of selling Holders), information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities information with respect to the principal amount of Transfer
Restricted Securities being sold to such underwriter(s), the purchase price
being paid therefor and any other terms of the offering of the Transfer
Restricted Securities to be sold in such offering; and make all required
filings of such Prospectus supplement or post-effective amendment as soon
as practicable after the
Company is notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(vii) furnish to each selling Holder of Transfer Restricted Securities
and each of the underwriter(s), if any, without charge, at least one copy
of the Shelf Registration Statement, as first filed with the Commission,
and of each amendment thereto, including all documents incorporated by
reference therein and all exhibits (including exhibits incorporated therein
by reference);
(viii) deliver to each selling Holder of Transfer Restricted Securities
and each of the underwriter(s), if any, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such Persons reasonably may request; the Company and
the Guarantors hereby consent to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of
the underwriter(s), if any, in connection with the offering and the sale of
the Transfer Restricted Securities covered by the Prospectus or any
amendment or supplement thereto;
(ix) enter into such agreements (including an underwriting agreement),
and make such representations and warranties, and take all such other
actions in connection therewith in order to expedite or facilitate the
disposition of the Transfer Restricted Securities pursuant to any
Registration Statement contemplated by this Agreement, all to such extent
as may be customarily and reasonably requested by the Initial Purchasers
or, in the case of registration for resale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement, by any Holder or
Holders of Transfer Restricted Securities who hold at least $25 million in
aggregate principal amount of such class of Transfer Restricted Securities;
provided, that, the Company and the Guarantors shall not be required to
enter into any such agreement more than once with respect to all of the
Transfer Restricted Securities and, in the case of a Shelf Registration
Statement, may delay entering into such agreement if the Board of Directors
of the Company determines in good faith that it is in the best interests of
the Company and the Guarantors not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company and the Guarantors; and whether or not an
underwriting agreement is entered into and whether or not the registration
is an Underwritten Registration, the Company and the Guarantors shall:
(A) furnish to the Initial Purchaser, the Holders of Transfer
Restricted Securities who hold at least $25 million in aggregate
principal amount of such class of Transfer Restricted Securities (in
the case of a Shelf Registration Statement), and each underwriter, if
any, in such substance and scope as they may request and as are
customarily made in connection with an offering of debt securities
pursuant to a Registration Statement (i) upon the effective date of
any Registration Statement (and if such Registration Statement
contemplates an Underwritten Offering of Transfer Restricted
Securities, upon the date of the
closing under the underwriting agreement related thereto) and (ii)
upon the filing of any amendment or supplement to any Registration
Statement:
(1) a certificate, dated the date of effectiveness of
the Shelf Registration Statement signed by (y) the respective
Chairman of the Board, the respective President or any Vice
President and (z) the respective Chief Financial Officer of the
Company and each of the Guarantors confirming, as of the date
thereof, the matters set forth in paragraph (j) of Section 7 of
the Purchase Agreement and such other matters as such parties
may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement, as the case may be, of counsel for
the Company covering the matters set forth in paragraph (d) of
Section 7 of the Purchase Agreement and such other matters as
such parties may reasonably request, and in any event including
a statement to the effect that in the course of the preparation
of such Registration Statement and the related Prospectus, such
counsel participated in conferences with certain officers and
employees of the Company, representatives of the independent
public accountants for the Company and representatives of the
underwriters, if any, and their counsel at which the contents of
the Registration Statement and related matters were discussed
and, although such counsel need not pass upon or assume
responsibility for the accuracy, completeness or fairness of the
statements contained or incorporated by reference in such
Registration Statement or the related Prospectus, no facts have
come to such counsel's attention that lead it to believe that
the Registration Statement, at the time such Registration
Statement or any post-effective amendment thereto became
effective, contained or contains an untrue statement of a
material fact or omitted or omits 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. Such counsel need not assume any
responsibility for or independently verify the accuracy,
completeness or fairness of the financial statements and
schedules and other financial data included or incorporated in
any Registration Statement or related Prospectus and need
express no view as to the accounting or financial records from
which such financial statements, schedules and data are derived;
and
(3) a customary comfort letter, the date of
effectiveness of the Shelf Registration Statement, as the case
may be, from the Company's independent accountants, in the
customary form and covering matters of the type customarily
covered in comfort letters by underwriters in connection with
primary underwritten offerings, to the extent permitted by
relevant accounting industry rules and guidelines (including the
Statement on Accounting Standards No. 72), and affirming the
matters set forth in
the comfort letters delivered pursuant to
Section 7 of the Purchase Agreement, without exception;
(B) set forth in full or incorporated by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with
clause (A) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company and the Guarantors pursuant to this clause (x), if any.
(x) prior to any public offering of Transfer Restricted Securities,
cooperate with the selling Holders of Transfer Restricted Securities, the
underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under
the securities or Blue Sky laws of such jurisdictions as the selling
Holders of Transfer Restricted Securities or underwriter(s) may reasonably
request and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Transfer
Restricted Securities, covered by the Shelf Registration Statement filed
pursuant to Section 4 hereof; provided, however, that the Company and the
Guarantors shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to the service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration Statement,
in any jurisdiction where it is not now so subject;
(xi) shall issue, upon the request of any Holder of Series A Notes
covered by the Shelf Registration Statement, Series B Notes, having an
aggregate principal amount equal to the aggregate principal amount of
Series A Notes surrendered to the Company by such Holder in exchange
therefor or being sold by such Holder; such Series B Notes to be registered
in the name of such Holder or in the name of the purchaser(s) of such
Notes, as the case may be; in return, the Series A Notes held by such
Holder shall be surrendered to the Company for cancellation;
(xii) in connection with any sale of Transfer Restricted Securities that
will result in such securities no longer being Transfer Restricted
Securities, cooperate with the selling Holders of Transfer Restricted
Securities and the underwriter(s), if any, to facilitate the timely
preparation and delivery of certificates representing Transfer Restricted
Securities to be sold and not bearing any restrictive legends; and enable
such Transfer Restricted Securities to be in such denominations and
registered in such names as the Holders or the underwriter(s), if any, may
request at least two business days prior to any sale of Transfer Restricted
Securities made by such underwriter(s);
(xiii) use its best efforts to cause the Transfer Restricted Securities
covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities as may be necessary to
enable the seller or sellers thereof or the
underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in clause (xi)
above;
(xiv) if any fact or event contemplated by clause (d)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective
amendment to the Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein not misleading;
(xv) use their best efforts to provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of the Registration
Statement and provide the Trustee under the Indenture with printed
certificates for the Transfer Restricted Securities which are in a form
eligible for deposit with the Depository Trust Company;
(xvi) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is
required to be retained in accordance with the rules and regulations of the
NASD;
(xvii) otherwise use their best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to
its security holders, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be audited)
for the twelve-month period (A) commencing at the end of any fiscal quarter
in which Transfer Restricted Securities are sold to underwriters in a firm
or best efforts Underwritten Offering or (B) if not sold to underwriters in
such an offering, beginning with the first month of the Company's first
fiscal quarter commencing after the effective date of the Registration
Statement;
(xviii) cause the Indenture to be qualified under the TIA not later than
the effective date of the first Registration Statement required by this
Agreement, and, in connection therewith, cooperate with the Trustee and the
Holders of Notes to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of the
TIA; and execute, and use its best efforts to cause the Trustee to execute,
all documents that may be required to effect such changes and all other
forms and documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner;
(xix) provide promptly to each Holder upon request each document filed
with the Commission pursuant to the requirements of Section 13 and Section
15 of the Exchange Act; and
(xx) cause each Additional Guarantor upon the creation or acquisition by
the Company of such Additional Guarantor, to execute a counterpart to this
Agreement in the
form attached hereto as Annex A and to deliver such counterpart to the
Initial Purchasers no later than five business days following the execution
thereof.
Each Holder agrees by acquisition of a Transfer Restricted Security that,
upon receipt of any notice from the Company of the existence of any fact of the
kind described in Section 6(d)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies of
the supplemented or amended Prospectus contemplated by Section 6(d)(xiv) hereof,
or until it is advised in writing (the "Advice") by the Company that the use of
the Prospectus may be resumed, and has received copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities, that was current at the time of receipt of such notice. In the
event the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(d)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(d)(xiv) hereof or
shall have received the Advice (which such extensions shall be the Holders' sole
remedy hereunder).
The Company and the Guarantors may require each Holder of Transfer
Restricted Securities as to which any registration is being effected to furnish
to the Company such information regarding such Holder and such Holder's intended
method of distribution of the applicable Transfer Restricted Securities as the
Company may from time to time reasonably request in writing, but only to the
extent that such information is required in order to comply with the Act. The
Company may exclude from such registration Transfer Restricted Securities of any
selling Holder so long as such Holder fails to furnish such information within a
reasonable time (and in any event within ten business days) after receiving such
request. Each such Holder agrees to notify the Company as promptly as
practicable of (i) any inaccuracy or change in information previously furnished
by such Holder to the Company or (ii) the occurrence of any event, in either
case, as a result of which any Prospectus relating to such registration contains
or would contain an untrue statement of a material fact regarding such Holder or
such Holder's intended method of distribution of the applicable Transfer
Restricted Securities or omits to state any material fact regarding such Holder
or such Holder's intended method of distribution of the applicable Transfer
Restricted Securities required to be stated therein or necessary to make the
statements therein not misleading and promptly to furnish to the Company any
additional information required to correct and update any previously furnish to
the Company any additional information required to correct and update any
previously furnished information or required so that such Prospectus shall not
contain, with respect to such Holder or the distribution of the applicable
Transfer Restricted Securities an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading.
SECTION 7. REGISTRATION EXPENSES
All expenses incident to the Company's and the Guarantors' performance of
or compliance with this Agreement will be borne by the Company regardless of
whether a Registration Statement becomes effective, including without
limitation: (i) all registration and filing fees and expenses (including
filings made by any Initial Purchaser or Holder with the NASD (and, if
applicable, the fees and expenses of any "qualified independent underwriter" and
its counsel that may be required by the rules and regulations of the NASD));
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Series B Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Company and the Guarantors and all
reasonable fees and disbursements of one special counsel for all the Holders of
Transfer Restricted Securities; and (v) all fees and disbursements of
independent certified public accountants of the Company (including the expenses
of any special audit and comfort letters required by or incident to such
performance); provided, however, that in no event shall the Company or the
Guarantors be responsible for any underwriting discounts, commissions or fees
attributable to the sale or other disposition of Transfer Restricted Securities.
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
SECTION 8. INDEMNIFICATION
(a) The Company and the Guarantors shall, jointly and severally, indemnify
and hold harmless each selling Holder of Transfer Restricted Securities whose
Transfer Restricted Securities are included in any Registration Statement, its
officers and employees and each person, if any, who controls any such Holders,
within the meaning of the Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which that
Holder, officer, employee or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained (A) in any Registration Statement
or Prospectus or in any amendment or supplement thereto or (B) in any blue sky
application or other document prepared or executed by the Company or any
Guarantor (or based upon any written information furnished by the Company or any
Guarantor) specifically for the purpose of qualifying any or all of the Notes
under the securities laws of any state or other jurisdiction (any such
application, document or information being hereinafter called a "Blue Sky
Application"), or (ii) the omission or alleged omission to state in any
Registration Statement or Prospectus, or in any amendment or supplement thereto,
or in any Blue Sky Application any material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Holder and each such officer, employee or controlling person promptly upon
demand for any legal or other expenses reasonably incurred by that Holder,
officer, employee or controlling person in connection with investigating or
defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company and the
Guarantors shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made (i) in any Registration Statement or Prospectus, or in any such amendment
or supplement, or in any Blue Sky Application, in reliance upon and in
conformity with written information concerning such Holder furnished to the
Company by or on behalf of any Holder specifically for inclusion therein, or
(ii) in the preliminary Prospectus or the final Prospectus, as the case may be,
if a copy of the final Prospectus (as then amended or supplemented and provided
by the Company) was not sent or given by or on behalf of such Holder to the
person asserting any such loss, claim, damage, liability or expense, at or prior
to the written confirmation of the sale of the Transfer Restricted Securities
and the final Prospectus (as then amended or supplemented) could have corrected
such untrue or alleged untrue statement or such omission or alleged omission.
The foregoing indemnity agreement is in addition to any liability which the
Company and the Guarantors may otherwise have to any Holder or to any officer,
employee or controlling person of that Holder.
(b) Each Holder, severally and not jointly, shall indemnify and hold
harmless the Company and the Guarantors, their respective officers and
employees, each of their respective directors, and each person, if any, who
controls the Company or the Guarantors within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company, the Guarantors or any such
director, officer or controlling person may become subject, under the Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out
of, or is based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained (A) in any Registration Statement or Prospectus, or in
any amendment or supplement thereto, or (B) in any Blue Sky Application or (ii)
the omission or alleged omission to state in any Registration Statement or
Prospectus, or in any amendment or supplement thereto, or in any Blue Sky
Application any material fact required to be stated therein or necessary to make
the statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information concerning
such Holders furnished to the Company by or on behalf of that Holder
specifically for inclusion therein, and shall reimburse the Company, the
Guarantors and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company, the Guarantors or any such
director, officer or controlling person in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred. The foregoing indemnity agreement is in
addition to any liability which any Holder may otherwise have to the Company,
the Guarantors or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability
which it may have under this Section 8 except to the extent it has been
materially prejudiced by such failure and, provided further, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have to an indemnified party otherwise than under this Section 8. If any
such claim or action shall be brought against an indemnified party, and it shall
notify the indemnifying party thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof; provided, however, any indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of the
indemnified party unless (i) the employment thereof has been specifically
authorized by the indemnifying party in writing, (ii) such indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party and in the reasonable judgment of such
counsel it is advisable, under applicable standards of professional conduct, for
such indemnified party to employ separate counsel or (iii) the indemnifying
party has failed to assume the defense of such action and employ counsel
reasonably satisfactory to the indemnified party, in which case, if such
indemnified party notifies the indemnifying party in writing that it elects to
employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to one local counsel) at any time for all such indemnified parties, if
the indemnified parties under this Section 8 consist of Holders or any of their
respective officers, employees or controlling persons, or by the Company, if the
indemnified parties under this Section consist of the Company, the Guarantors or
any of their respective directors, officers, employees or controlling persons.
No indemnifying party shall (i) without the prior written consent of the
indemnified parties (which consent shall not be unreasonably withheld), settle
or compromise or consent to the entry of any judgment with respect to any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent includes an unconditional release
of each indemnified party from all liability arising out of such claim, action,
suit or proceeding, or (ii) be liable for any settlement of any such action
effected without its written consent (which consent shall not be unreasonably
withheld), but if settled with the consent of the indemnifying party or if there
be a final judgment of the plaintiff in any such action, the indemnifying party
agrees to indemnify and hold harmless any indemnified party from and against any
loss or liability by reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein,
then each indemnifying party shall, in lieu of indemnifying such indemnified
party, contribute to the amount paid or payable by such indemnified party as a
result of such loss, claim, damage or liability, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Guarantors, on the one hand, and the Holders on
the other, from the offering of the Notes or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Guarantors, on the one
hand and the Holders on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Guarantors, on the one hand and the
Holders on the other with respect to such offering shall be deemed to be in the
same proportion as the total net proceeds from the offering of the Series A
Notes purchased under the Purchase Agreement (before deducting expenses)
received by the Company and the Guarantors, on the one hand, bears to the total
proceeds received by the Holders with respect to the Transfer Restricted
Securities sold pursuant to the Registration Statement, on the other hand. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Guarantors or
the Holders, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Guarantors and the Holders agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were to be determined
by pro rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to herein. The amount paid or payable by
an indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Section shall be deemed to
include, for purposes of this Section 8(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section 8(d), no Holder shall be required to contribute any amount in excess of
the amount by which the proceeds received by it in connection with its sale of
Transfer Restricted Securities exceeds the amount of any damages which such
Holder has otherwise paid or become liable to pay by reason of any 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. The Holders' obligations to
contribute as provided in this Section 8(d) are several and not joint.
SECTION 9. RULE 144A
The Company and each Guarantor hereby agrees with each Holder of Transfer
Restricted Securities, during any period in which the Company or such Guarantor
is not subject to Section 13 or 15(d) of the Exchange Act within the two-year
period following the Closing Date, to make available to any Holder or beneficial
owner of Transfer Restricted Securities or any Holder upon its request, in
connection with any sale thereof and any prospective purchaser of such Transfer
Restricted Securities from such Holder or beneficial owner, the information
required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder unless
such Holder (a) agrees to sell such Holder's Transfer Restricted Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements, lock-up letters and other documents required under the terms of such
underwriting arrangements.
SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering at such Holders' expense. In any such
Underwritten Offering, the investment banker or investment bankers and manager
or managers that will administer the offering will be selected by the Holders of
a majority in aggregate principal amount of the Transfer Restricted Securities
included in such offering; provided, that such investment bankers and managers
must be reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) Remedies. The Company and the Guarantors agree that monetary damages
(other than the liquidated damages contemplated hereby) would not be adequate
compensation for any loss incurred by reason of a breach by it of the provisions
of this Agreement and hereby agree to waive the defense in any action for
specific performance (other than in connection with a breach or alleged breach
for which Liquidated Damages are otherwise provided) that a remedy at law would
be adequate.
(b) No Inconsistent Agreements. Neither the Company nor any Guarantor will,
on or after the date of this Agreement, enter into any agreement with respect to
its securities that is inconsistent with the rights granted to the Holders in
this Agreement or otherwise conflicts with the provisions hereof. Except as
disclosed in the final Offering Memorandum, neither the Company nor any
Guarantor has previously entered into any agreement granting any registration
rights with respect to its securities to any Person. 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 the Company's or any Guarantor's securities
under any agreement in effect on the date hereof.
(c) Adjustments Affecting the Notes. The Company and the Guarantors will
not take any action, or permit any change to occur, with respect to the Notes
that would materially and adversely affect the ability of the Holders to
Consummate any Exchange Offer.
(d) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the
provisions hereof may not be given unless the Company has obtained the written
consent of Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities. Notwithstanding the foregoing, a waiver or consent to
departure from the provisions hereof that relates exclusively to the rights of
Holders whose securities are being tendered pursuant to the Exchange Offer or
registered pursuant to the Shelf Registration Statement and that does not affect
directly or indirectly the rights of other Holders whose securities are not
being tendered pursuant to such Exchange Offer or registered pursuant to the
Shelf Registration Statement, respectively, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
being tendered or registered, as applicable.
(e) Third Party Beneficiary. The Holders shall be third party beneficiaries
to the agreements made hereunder between the Company, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent they may deem such enforcement necessary or
advisable to protect their rights or the rights of Holders hereunder.
(f) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company or the Guarantors:
Hollywood Park, Inc.
1050 South Prairie Avenue
P.O. Box 369
Inglewood, CA 90306-0369
Telecopier No.: 310/671-4460
Attention: G. Michael Finnigan
With a copy to:
Irell & Manella LLP
1800 Avenue of the Stars, Suite 900
Los Angeles, CA 90067-4276
Telecopier No.: 310/203-7199
Attention: Alvin G. Segel, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
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 specified in the Indenture.
(g) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders; 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 acquired Transfer Restricted Securities from such
Holder.
(h) 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.
(i) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(k) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(l) Entire Agreement. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company and the
Guarantors with respect to the Transfer Restricted Securities. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
[Signature pages follow]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
HOLLYWOOD PARK, INC.
By: /s/ G. Michal Finnigan
-----------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
GUARANTORS:
BAY ST. LOUIS CASINO CORP.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Vice President
BAYVIEW YACHT CLUB, INC.
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Vice President
BILOXI CASINO CORP.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Vice President
BOOMTOWN HOOSIER, INC.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Vice President
BOOMTOWN HOTEL & CASINO, INC.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Vice President
BOOMTOWN, INC.
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Vice President
CASINO MAGIC AMERICAN CORP.
By: /s/ G. Michael Finnigan
--------------------------
Name: G. Michael Finnigan
Title: Vice President
CASINO MAGIC CORP.
By: /s/ G. Michael Finnigan
--------------------------
Name: G. Michael Finnigan
Title: Vice President
CASINO MAGIC FINANCE CORP.
By: /s/ G. Michael Finnigan
--------------------------
Name: G. Michael Finnigan
Title: Vice President
CASINO ONE CORPORATION
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Vice President
CRYSTAL PARK HOTEL & CASINO
DEVELOPMENT COMPANY, LLC
By its Manager
HP/COMPTON, INC.
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
HOLLYWOOD PARK FALL OPERATING
COMPANY
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Executive Vice President
HOLLYWOOD PARK FOOD SERVICES, INC.
By: /s/ G. Michael Finnigan
--------------------------
Name: G. Michael Finnigan
Title: Executive Vice President
HOLLYWOOD PARK OPERATING COMPANY
By: /s/ G. Michael Finnigan
--------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
HP CASINO, INC.
By: /s/ G. Michael Finnigan
---------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
HP/COMPTON, INC.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
HP YAKAMA, INC.
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Vice President
HP YAKAMA CONSULTING, INC.
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Vice President
INDIANA VENTURES LLC
By its Managing Member
BOOMTOWN HOOSIER, INC.
BY: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
LOUISIANA GAMING ENTERPRISES, INC.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
LOUISIANA-I GAMING, A LOUISIANA
PARTNERSHIP IN COMMENDAM
By its General Partner
LOUISIANA GAMING ENTERPRISES, INC.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Chief Financial Officer
MARDI GRAS CASINO CORP.
By: /s/ G. Michael Finnigan
---------------------------
Name: G. Michael Finnigan
Title: Vice President
MISSISSIPPI I-GAMING, L.P.
By its General Partner
BAYVIEW YACHT CLUB, INC.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: Vice President
PINNACLE GAMING DEVELOPMENT CORP.
By: /s/ G. Michael Finnigan
------------------------
Name: G. Michael Finnigan
Title: President
SWITZERLAND COUNTY DEVELOPMENT
CORP.
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Vice President
TURF PARADISE, INC.
By: /s/ G. Michael Finnigan
-------------------------
Name: G. Michael Finnigan
Title: Vice President
LEHMAN BROTHERS INC.
CIBC OPPENHEIMER CORP.
MORGAN STANLEY & CO. INCORPORATED
NATIONSBANC MONTGOMERY SECURITIES LLC
SG COWEN SECURITIES CORPORATION
WASSERSTEIN PERELLA SECURITIES, INC.
BY LEHMAN BROTHERS INC.
By: /s/ Raymond C. Mikulich
---------------------------
Authorized Representative
Annex A
-------
Counterpart To Registration Rights Agreement
--------------------------------------------
The undersigned hereby absolutely, unconditionally and irrevocably agrees
(as a "Guarantor") to use best efforts to include its Subsidiary Guarantee in
any Registration Statement required to be filed by the Company and the
Guarantors pursuant to the Registration Rights Agreement, dated as of February
18, 1999, (the "Registration Rights Agreement") by and among Hollywood Park,
Inc., a Nevada corporation, the guarantors named therein, Lehman Brothers Inc.,
CIBC Oppenheimer Corp., Morgan Stanley & Co. Incorporated, NationsBanc
Montgomery Securities LLC, SG Cowen Securities Corporation, and Wasserstein
Perella Securities, Inc.; to use best efforts to cause such Registration
Statement to become effective as specified in the Registration Rights Agreement;
and to otherwise be bound by the terms and provisions of the Registration Rights
Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Counterpart as of
February 18, 1999.
[NAME]
By:
---------------------------
Name:
Title: