REGISTRATION RIGHTS AGREEMENT
Dated as of July 15, 1997
by and among
AMERISTAR CASINOS, INC.
as Issuer
and
AMERISTAR CASINO COUNCIL BLUFFS, INC.,
A.C. FOOD SERVICES, INC.,
AC HOTEL CORP.,
AMERISTAR CASINO LAS VEGAS, INC.,
AMERISTAR CASINO VICKSBURG, INC.
and
CACTUS PETE'S, INC.
as Guarantors
and
BEAR, STEARNS & CO. INC.,
BT SECURITIES CORPORATION
and
FIRST CHICAGO CAPITAL MARKETS, INC.
as Initial Purchasers
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is
made and entered into as of July 15, 1997, among AMERISTAR
CASINOS, INC., a Nevada corporation (the "Issuer"), and AMERISTAR
CASINO COUNCIL BLUFFS, INC., an Iowa corporation ("ACCBI"), A.C.
FOOD SERVICES, INC., a Nevada corporation, AC HOTEL CORP., a
Mississippi corporation, AMERISTAR CASINO LAS VEGAS, INC., a
Nevada corporation, AMERISTAR CASINO VICKSBURG, INC., a
Mississippi corporation, and CACTUS PETE'S, INC., a Nevada
corporation ("CPI"), (together, the "Guarantors") and BEAR,
STEARNS & CO. INC., BT SECURITIES CORPORATION and FIRST CHICAGO
CAPITAL MARKETS, INC. (together, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement,
dated July 10, 1997, among the Issuer, the Guarantors and the
Initial Purchasers (the "Purchase Agreement"), which provides for
the sale by the Issuer to the Initial Purchasers of $100,000,000
aggregate principal amount of 10 1/2% Senior Subordinated Notes
due 2004 Series A (the "Initial Notes"). The Issuer's
obligation's under, among other things, the Initial Notes, are
guaranteed by the Guarantors (or, in the case of CPI and ACCBI,
will be so guaranteed upon the receipt of all requisite approvals
under Gaming Laws (as defined in the Purchase Agreement) (as in
effect from time to time, the "Subsidiary Guarantees"). In order
to induce the Initial Purchasers to enter into the Purchase
Agreement, the Issuer has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees,
among other things, the registration rights for the Initial Notes
set forth in this Agreement. The execution of this Agreement is
a condition to the closing of the transactions contemplated by
the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have
the following meanings (and, unless otherwise indicated,
capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Purchase Agreement):
Applicable Period: See Section 2(f) hereof.
Business Day: Any day except a Saturday, Sunday or other
day in the City of New York, or in the city of the corporate
trust office of the Trustee, on which banks are authorized to
close.
Closing Date: The Closing Date as defined in the Purchase
Agreement.
Direct Broker - Dealer Buyer: See Section 2(b) hereof.
Effectiveness Period: See Section 3(a) hereof.
Effectiveness Target Date: The 180th day following the
Closing Date.
Exchange Act: The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated
thereunder, and any succeeding provisions thereto.
Exchange Notes: See Section 2(a) hereof.
Exchange Offer: See Section 2(a) hereof.
Exchange Offer Registration Statement: See
Section 2(a) hereof.
Filing Date: The 60th day after the Closing Date.
Holder: Any holder of Transfer Restricted Securities.
Indemnified Party: See Section 7 hereof.
Indemnifying Party: See Section 7 hereof.
Indenture: The Indenture, dated as of July 15, 1997, by and
among the Issuer, the Initial Guarantors, and First Trust
National Association, as Trustee, pursuant to which the Initial
Notes are being issued, as amended or supplemented from time to
time in accordance with the terms thereof.
Initial Guarantors: Each of the Guarantors except for CPI.
Initial Notes: See the introductory paragraphs to this
Agreement.
Initial Purchasers: See the introductory paragraph to this
Agreement.
Inspectors: See Section 5(m) hereof.
Issuer: See the introductory paragraph of this Agreement.
Issuer Affiliate: See Section 2(b) hereof.
Liquidated Damages: See Section 4(a) hereof.
Participating Broker-Dealer: Any broker-dealer (as defined
in the Exchange Act), other than a Direct Broker-Dealer Buyer,
that is a Holder or beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of Initial Notes acquired for its own
account as a result of market-making activities or other trading
activities that are tendered for exchange in the Exchange Offer
and that thereafter holds Exchange Notes issued in exchange
therefor.
Person or person: An individual, trustee, corporation,
partnership, joint stock company, trust, unincorporated
association, union, business association, limited liability
company, limited liability partnership, firm or other legal
entity.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, any prospectus subject
to completion and a prospectus that includes any information
previously omitted from a prospectus filed as part of an
effective registration statement in reliance upon Rule 430A
promulgated under the Securities Act), as amended or supplemented
by any prospectus supplement, with respect to the terms of the
offering of any portion of the Exchange Notes and/or the Transfer
Restricted Securities (as applicable), covered by such
Registration Statement, and all other amendments and supplements
to the Prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated
by reference in such Prospectus.
Purchaser Indemnitee: See Section 7 hereof.
Records: See Section 5(m) hereof.
Registration Default: See Section 4(a) hereof.
Registration Statement: Any registration statement of the
Issuer and the Guarantors, including, but not limited to, the
Exchange Offer Registration Statement, the Shelf Registration
Statement or a registration statement of the Issuer that
otherwise covers any of the Transfer Restricted Securities
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 pursuant to the Securities
Act, as currently in effect, as such rule may be amended from
time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A: Rule 144A promulgated pursuant to the Securities
Act, as currently in effect, as such rule may be amended from
time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 415: Rule 415 promulgated pursuant to 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, and
any succeeding provisions thereto.
Shelf Notice: See Section 2(g) hereof.
Shelf Registration Statement: See Section 3(a) hereof.
TIA: The Trust Indenture Act of 1939, as amended, and the
rules and regulations of the SEC promulgated thereunder.
Transfer Restricted Securities: The Initial Notes upon
original issuance thereof and at all times subsequent thereto,
until (i) a Registration Statement covering such Initial Notes
has been declared effective by the SEC and such Initial Notes
have been disposed of in accordance with such effective
Registration Statement, (ii) such Initial Notes are sold in
compliance with Rule 144 or (iii) such Initial Notes cease to be
outstanding.
Trustee: The trustee under the Indenture and, if existent,
the trustee under any indenture governing the Exchange Notes.
Underwritten registration or underwritten offering: A
registration in which securities of the Issuer are sold to an
underwriter for reoffering to the public.
2. Exchange Offer
(a) The Issuer and the Guarantors agree to file with the
SEC as soon as practicable after the Closing Date, but in no
event later than the Filing Date, an offer to exchange (the
"Exchange Offer"), any and all of the Transfer Restricted
Securities for a like aggregate principal amount of debt
securities of the Issuer as guaranteed by Subsidiary Guarantees
in effect from time to time (subject to, in the case of CPI and
ACCBI, the receipt of all requisite approvals under Gaming Laws)
(the "Exchange Notes"), which Exchange Notes will be
(i) substantially identical in all material respects to the
Initial Notes, except that such Exchange Notes will not contain
terms with respect to transfer restrictions, registration rights
or the obligation to pay any Liquidated Damages, (ii) entitled to
the benefits of the Indenture or a trust indenture which is
identical to the Indenture (other than such changes to the
Indenture or any such identical trust indenture as are necessary
to comply with any requirements of the SEC or to effect or
maintain the qualification thereof under the TIA), and which, in
either case, has been qualified under the TIA, and
(iii) registered pursuant to an effective Registration Statement
in compliance with the Securities Act. The Exchange Offer will
be registered pursuant to the Securities Act on an appropriate
form of Registration Statement (the "Exchange Offer Registration
Statement"), and will comply with all applicable tender offer
rules and regulations promulgated pursuant to the Exchange Act
and shall be duly registered or qualified pursuant to all
applicable state securities or Blue Sky laws. The Exchange Offer
shall not be subject to any condition, other than that the
Exchange Offer does not violate any applicable law, policy or
interpretation of the staff of the SEC. No securities shall be
included in the Exchange Offer Registration Statement other than
the Exchange Notes. The Issuer and the Guarantors agree to
(x) use their best efforts to cause the Exchange Offer
Registration Statement to be declared effective and to cause the
Exchange Offer to be consummated on or prior to the Effectiveness
Target Date and (y) keep the Exchange Offer open for not less
than 20 Business Days (or such longer period required by
applicable law), after the date that the notice of the Exchange
Offer referred to below is mailed to Holders.
(b) Each Holder who participates in the Exchange Offer will
be required to represent (which representation may be contained
in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) that (i) any Exchange Notes received by
it will be acquired in the ordinary course of its business,
(ii) at the time of the consummation of the Exchange Offer such
Holder is not engaged in, and does not intend to engage in, and
has no arrangement or
understanding with any person to participate in, the distribution
of the Exchange Notes, and (iii) such Holder is not (1) an
"affiliate" of the Issuer or any Guarantor (an "Issuer
Affiliate") or, (2) an Initial Purchaser or any other broker-
dealer that acquired such Transfer Restricted Securities directly
from the Issuer or any Guarantor or any Issuer Affiliate for
resale pursuant to Rule 144A, Regulation S or another available
exemption from the registration requirements of the Securities
Act (a "Direct Broker-Dealer Buyer"). As used herein,
"affiliate" shall be as defined in Rule 405 under the Securities
Act. Each Holder hereby acknowledges and agrees that any Issuer
Affiliate, any Direct Broker-Dealer Buyer, 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 (i) could not under SEC policy as in effect on the date of
this Agreement participate in the Exchange Offer, and (ii) must
comply with the registration and prospectus delivery requirements
of the Securities Act in connection with a secondary resale
transaction and that such a secondary resale transaction of such
Holder's Initial Notes should be covered by an effective
registration statement containing the selling security holder and
other information required by Item 507 and 508, as applicable, of
Regulation S-K under the Securities Act.
(c) Prior to the effectiveness of the Exchange Offer
Registration Statement, the Issuer and the Guarantors shall
provide a supplemental letter to the SEC (a) stating that the
Issuer and the Guarantors are seeking to register the Exchange
Offer on the basis of the position of the SEC enunciated in
Morgan Stanley and Co., Inc. (available June 5, 1991), Exxon
Capital Holdings Corporation (available May 13, 1988), and
Shearman & Sterling (available July 2, 1993), and similar no-
action letters and (B) including a representation that none of
the Issuer or the Guarantors has entered into any arrangement or
understanding with any person to distribute the Exchange Notes to
be received in the Exchange Offer and that, to the best of each
of the Issuer's and the Guarantors' knowledge, each Holder
intending to participate in the Exchange Offer is acquiring the
Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any person to participate in
the distribution of the Exchange Notes received in the Exchange
Offer.
(d) The Issuer and the Guarantors hereby agree for a period
of at least 180 days after consummation of the Exchange Offer to
make available, upon written request therefor, a prospectus
meeting the requirements of the Securities Act to any
Participating Broker-Dealer for use in connection with resales of
Exchange Notes. Upon consummation of the Exchange Offer in
accordance with this Agreement, the Issuer and the Guarantors
shall have no further obligation to register Transfer Restricted
Securities pursuant to Section 3 of this Agreement, unless the
Issuer and the Guarantors are otherwise obligated to file a Shelf
Registration Statement pursuant to Section 3 hereof.
(e) The Issuer and the Guarantors shall include within the
Prospectus contained in the Exchange Offer 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
Participating Broker-Dealer with respect to the Exchange Notes.
Such "Plan of Distribution" section shall also allow the use of
the Prospectus by all persons subject to the prospectus delivery
requirements of the Securities Act, including all Participating
Broker-Dealers, and include a
statement describing the means by which Participating Broker-
Dealers may resell the Exchange Notes.
(f) The Issuer and the Guarantors shall use their best
efforts to keep the Exchange Offer 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
such persons must comply with such requirements in order to
resell the Exchange Notes; provided that such period shall not
exceed 180 days after consummation of the Exchange Offer (or such
longer period if extended pursuant to Section 5(j) hereof) (the
"Applicable Period").
In connection with the Exchange Offer, the Issuer and the
Guarantors shall:
(i) mail as promptly as practicable to each Holder a
copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter
of transmittal and related documents;
(ii) utilize the services of a depositary for the
Exchange Offer with an address in the Borough of Manhattan,
The City of New York; and
(iii) permit Holders to withdraw tendered Initial
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 by sending to the institution and at the
address (located in the Borough of Manhattan, The City of
New York) specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Transfer Restricted
Securities delivered for exchange and a statement that such
Holder is withdrawing his or her election to have such
Transfer Restricted Securities exchanged.
As soon as practicable after the close of the Exchange
Offer, the Issuer and the Guarantors shall:
(i) accept for exchange all Initial Notes validly
tendered and not validly withdrawn in accordance with the
Exchange Offer;
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Initial Notes so accepted for exchange;
and
(iii) cause the Trustee to authenticate and deliver
promptly to each Holder of Initial Notes, Exchange Notes
equal in principal amount to the Initial Notes of such
Holder so accepted for exchange.
(g) If (1) prior to the consummation of the Exchange Offer,
applicable interpretations of the staff of the SEC do not permit
the Issuer and the Guarantors to effect the Exchange Offer,
(2) for any other reason the Exchange Offer is not consummated on
or prior to the Effectiveness Target Date, or (3) any Holder of
Transfer Restricted Securities shall notify the Issuer within 20
Business Days of the consummation of the Exchange Offer (and
confirm such notice in writing
within five Business Days thereafter) that such Holder is a
Direct Broker-Dealer Buyer, then the Issuer and the Guarantors
shall promptly deliver to the Holders of any Transfer Restricted
Securities and the Trustee written notice thereof (the "Shelf
Notice"), and the Issuer and the Guarantors shall file a
Registration Statement pursuant to Section 3 hereof. Following
the delivery to the Holders of Transfer Restricted Securities of
a Shelf Notice, the Issuer and the Guarantors shall not have any
further obligation to conduct the Exchange Offer pursuant to this
Section 2(g), provided, that the Issuer and the Guarantors shall
have the right, nonetheless, to proceed to consummate the
Exchange Offer notwithstanding their obligation pursuant to this
Section 2(g) (and, upon such consummation, any obligation to file
a Shelf Registration Statement arising from clause (1) or (2)
(but not clause (3)) of this Section 2(g) shall terminate) and
provided that any Shelf Notice delivered to the Holders of
Transfer Restricted Securities pursuant to clause (3) of this
Section 2(g) shall result in the termination of the obligations
of the Issuer and the Guarantors to conduct the Exchange Offer
only with respect to the Holders described in clause (3) of this
Section 2(g).
3. Shelf Registration Statement
If the Issuer and the Guarantors are required to deliver a
Shelf Notice as contemplated by Section 2(g) hereof, then:
(a) Shelf Registration Statement. The Issuer and the
Guarantors shall prepare and file with the SEC, as promptly as
practicable following the Shelf Notice, a Registration Statement
for an offering to be made on a continuous basis pursuant to Rule
415 covering all of the Transfer Restricted Securities, which
registration statement, if the Shelf Notice is given pursuant to
Section 2(g)(1) or (2), may be an amendment to the Exchange Offer
Registration Statement (the "Shelf Registration Statement"). The
Shelf Registration Statement shall be on Form S-1 or another
appropriate form permitting registration of the Transfer
Restricted Securities for resale by the Holders in the manner or
manners reasonably designated by them (including, without
limitation, one or more underwritten offerings). The Issuer and
the Guarantors shall not permit any securities other than the
Transfer Restricted Securities to be included in the Shelf
Registration Statement. The Issuer and the Guarantors shall use
their best efforts, as described in Section 5(b) hereof, to cause
the Shelf Registration Statement to be declared effective
pursuant to the Securities Act as promptly as practicable after
the filing of such Shelf Registration Statement, but in no event
later than the Effectiveness Target Date (or in the case of a
Shelf Registration Statement filed pursuant to Section 2(g)(3)
hereof, by the later of the Effectiveness Target Date or 60 days
of receipt by the Issuer of the notice contemplated by
Section 2g)(3)), and to keep the Shelf Registration Statement
continuously effective under the Securities Act until the earlier
of (i) the date which is 24 months after the Closing Date,
(ii) the date that all Transfer Restricted Securities covered by
the Shelf Registration Statement have been sold in the manner set
forth and as contemplated in the Shelf Registration Statement or
(iii) the date that there ceases to be securities outstanding
that constitute Transfer Restricted Securities (the
"Effectiveness Period").
(b) Supplements and Amendments. The Issuer and the
Guarantors shall use their best efforts to keep the Shelf
Registration Statement continuously effective by supplementing
and amending the Shelf Registration Statement if required by the
rules, regulations or instructions
applicable to the registration form used for such Shelf
Registration Statement, if required by the Securities Act, or if
reasonably requested by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities covered by
such Registration Statement or by any underwriter of such
Transfer Restricted Securities.
4. Liquidated Damages
(a) The Issuer, the Guarantors and the Initial Purchasers
agree that the Holders of Transfer Restricted Securities will
suffer damages if the Issuer and the Guarantors fail to fulfill
their obligations pursuant to Section 2 or Section 3 hereof and
that it would not be possible to ascertain the extent of such
damages. Accordingly, in the event of such failure by the Issuer
and the Guarantors to fulfill such obligations, the Issuer agrees
to pay liquidated damages ("Liquidated Damages") to each Holder
of Transfer Restricted Securities under the circumstances and to
the extent set forth below:
(i) if neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement has been
filed with the SEC on or prior to the Filing Date; or
(ii) if neither the Exchange Offer Registration
Statement nor the Shelf Registration Statement is declared
effective by the SEC on or prior to the Effectiveness Target
Date; or
(iii) if an Exchange Offer Registration Statement
is declared effective by the SEC, and on or prior to the
earlier of (A) 45 days following the effectiveness thereof
or (B) the Effectiveness Target Date, the Issuer and the
Guarantors have not exchanged Exchange Notes for all Initial
Notes validly tendered in accordance with the terms of the
Exchange Offer; or
(iv) the Shelf Registration Statement has been declared
effective by the SEC and such Shelf Registration Statement
ceases to be effective or usable at any time during the
Effectiveness Period;
(any of the foregoing, a "Registration Default"), then,
during the first 90-day period following such Registration
Default, the Issuer shall pay to each Holder of Transfer
Restricted Securities, accruing from the date of the first
such Registration Default (or if such Registration Default
has been cured, from the date of the next Registration
Default), Liquidated Damages in an amount equal to one-half
of one percent (0.5%) per annum of the principal amount of
Transfer Restricted Securities held by such Holder during
the first 90-day period immediately following the occurrence
of such Registration Default.
The amount of such Liquidated Damages will increase by an
additional one-half of one percent (0.5%) per annum of the
principal amount of Transfer Restricted Securities during each
subsequent 90-day period until all Registration Defaults have
been cured; provided, however, that Liquidated Damages shall not
at any time exceed two percent (2.0%) per annum of the principal
amount of Transfer Restricted Securities (regardless of whether
one or more than one
Registration Defaults has occurred and is continuing). Following
the cure of all Registration Defaults relating to any Transfer
Restricted Securities, the accrual of Liquidated Damages with
respect to such Transfer Restricted Securities will cease. A
Registration Default under clause (i) above shall be cured on the
date that either the Exchange Offer Registration Statement or the
Shelf Registration Statement is filed with the SEC; a
Registration Default under clause (ii) above shall be cured on
the date that either the Exchange Offer Registration Statement or
the Shelf Registration Statement is declared effective by the
SEC; a Registration Default under clause (iii) above shall be
cured on the earlier of the date (A) the Exchange Offer is
consummated or (B) a Shelf Registration Statement is declared
effective; and a Registration Default under clause (iv) above
shall be cured on the earlier of (A) the date that the post-
effective amendment curing the deficiency in the Shelf
Registration Statement is declared effective or (B) the
Effectiveness Period expires.
(b) The Issuer and the Guarantors shall notify the Trustee
within one Business Day after each and every date on which a
Registration Default first occurs. Payment of Liquidated
Damages, if any, will initially be due at the offices of the
Paying Agent (as defined in the Indenture), provided that, at the
option of the Issuer and the Guarantors, Liquidated Damages may
be paid by check mailed to Holders at their registered addresses,
provided further that (i) all payments with respect to Global
Notes (as defined in the Indenture) are required to be made in
same day funds in accordance with the policies of the Depository
(as defined in the Indenture) and (ii) all payments with respect
to Notes, the Holders of which have given wire transfer
instructions to the Issuers and the Guarantors, will be required
to be made by wire transfer of immediately available funds to the
accounts specified by such Holders. Liquidated Damages shall be
paid on or before the semi-annual interest payment date provided
in the Indenture and on each payment date provided in the
Indenture including, without limitation, whether upon redemption,
maturity (by acceleration or otherwise) or purchase upon a Change
of Control. Each obligation to pay Liquidated Damages shall be
deemed to commence accruing on the date of the applicable
Registration Default and to cease accruing when all Registration
Defaults have been cured. In no event shall the Issuer pay
Liquidated Damages in excess of the applicable maximum amount set
forth above, regardless of whether one or multiple Registration
Defaults exist.
(c) The parties hereto agree that the Liquidated Damages
provided for in this Section 4 constitute a reasonable estimate
of the damages that will be suffered by Holders by reason of the
failure to file the Exchange Offer Registration Statement or the
Shelf Registration Statement, the failure of the Exchange Offer
Registration Statement or the Shelf Registration Statement to be
declared effective, the failure to consummate the Exchange Offer
or the failure of the Shelf Registration Statement to remain
effective, as the case may be, in accordance with this Agreement.
(d) The Issuer hereby designates, with respect to each Gem
Note (as defined in the Indenture), all Liquidated Damages, if
any, payable hereunder as "Senior Indebtedness," as such term is
defined in such Gem Note.
5.
Registration Procedures
In connection with the registration of any Exchange Notes or
Transfer Restricted Securities pursuant to Sections 2 or 3
hereof, the Issuer and the Guarantors shall effect such
registration to permit the exchange of such Exchange Notes for
Initial Notes or the sale of such Transfer Restricted Securities
(as applicable), in accordance with the intended method or
methods of exchange or disposition thereof, and pursuant thereto
the Issuer and the Guarantors shall:
(a) prepare and file with the SEC a Registration Statement
or Registration Statements as prescribed by Section 2 or
Section 3 hereof, and use their best efforts to cause such
Registration Statement to become effective and remain effective
as provided herein; provided that, if (1) such filing is pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Offer 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 Issuer and the Guarantors shall furnish to and afford the
Holders of the Transfer Restricted Securities and each such
Participating Broker-Dealer, as the case may be, covered by such
Registration Statement, their counsel and the managing
underwriters, if any, a reasonable opportunity to review copies
of all such documents (including copies of any documents to be
incorporated by reference therein and all exhibits thereto),
proposed to be filed (at least 5 Business Days prior to such
filing, or such later date as is reasonable under the
circumstances). The Issuer and the Guarantors shall not file any
Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders, pursuant to
this Agreement, must be afforded an opportunity to review prior
to the filing of such document, if the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities
covered by such Registration Statement, or such Participating
Broker-Dealer, as the case may be, their counsel, or the managing
underwriters, if any, shall reasonably object on a timely basis
(except that documents filed as exhibits that are incorporated by
reference or deemed to be incorporated by reference shall not be
subject to such objections);
(b) prepare and file with the SEC such amendments and post-
effective amendments to each Shelf Registration Statement or
Exchange Offer 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, or such shorter period as will terminate when
all Transfer Restricted Securities covered by such Registration
Statement have been sold; cause the related Prospectus to be
supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar
provisions then in force), under the Securities Act; and comply
with the provisions of the Securities Act, the Exchange Act and
the rules and regulations of the SEC promulgated thereunder with
respect to the disposition of all securities covered by such
Registration Statement, as so amended, or in such Prospectus, as
so supplemented, and with respect to the subsequent resale of any
Initial Notes being sold by a Participating Broker-Dealer covered
by any such Prospectus; the Issuer and the Guarantors shall be
deemed not to have used their best efforts to keep a Registration
Statement effective during the Applicable Period or the
Effectiveness Period or otherwise when required to use their best
efforts under Sections 2, 3 and 5 hereof if any of the Issuer or
any of the Guarantors
voluntarily takes any action that would result in selling Holders
of the Transfer Restricted Securities covered thereby or
Participating Broker-Dealers seeking to sell Exchange Notes not
being able to sell such Transfer Restricted Securities or such
Exchange Notes during that period, unless (i) such action is
required by applicable law, or (ii) such action is taken by it in
good faith and for valid business reasons (not including
avoidance of its obligations hereunder), including the
acquisition or divestiture of assets or the preservation of the
confidentiality of information the disclosure of which may have a
material adverse effect on the assets, business, financial
condition or prospects of the Issuer, the Guarantors and any
other direct or indirect subsidiary of the Issuer, taken as a
whole;
(c) if (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Offer 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
Transfer Restricted Securities, or each known Participating
Broker-Dealer, as the case may be, their counsel and the managing
underwriters, if any, promptly and confirm such notice in
writing, (i) when a Prospectus, any prospectus supplement or post-
effective amendment has been filed, and, with respect to a
Registration Statement or any post-effective amendment, when the
same has become effective (including in such notice a written
statement that any Holder may, upon request, obtain, without
charge, one conformed copy of such Registration Statement or post-
effective amendment including financial statements and schedules,
documents incorporated or deemed to be incorporated by reference
and exhibits), (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
Transfer Restricted Securities the representations and warranties
of the Issuer and the Guarantors contained in any agreement
(including any underwriting agreement) contemplated by
Section 5(l) hereof cease to be true and correct in any material
respect, (iv) of the receipt by the Issuer or the Guarantors of
any notification with respect to the suspension of the
qualification or exemption from qualification of a Registration
Statement or any of the Transfer Restricted Securities or the
Exchange Notes to be sold by any Participating Broker-Dealer for
offer or sale in any jurisdiction, or the initiation of any
proceeding for such purpose, (v) of the happening of any event or
any information becoming known that makes any statement made in
such Registration Statement or related Prospectus or any document
incorporated or deemed to be incorporated therein by reference
untrue in any material respect or that requires the making of any
changes in such Registration Statement, Prospectus or documents
so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to
make the statements therein not misleading, and that in the case
of the Prospectus, it will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not
misleading, and (vi) of the reasonable determination of the
Issuer or any Guarantor that a post-effective amendment to a
Registration Statement would be appropriate;
(d) if (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Offer 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 best efforts to prevent
the issuance of any order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending
the use of a Prospectus or suspending the qualification (or
exemption from qualification), of any of the Transfer Restricted
Securities or the Exchange Notes (as applicable), to be sold by
any Participating Broker-Dealer, for sale in any jurisdiction,
and, if any such order is issued, to use their best efforts to
obtain the withdrawal of any such order at the earliest possible
moment;
(e) if a Shelf Registration Statement is filed pursuant to
Section 3 hereof and if requested by the managing underwriters,
if any, or the Holders of a majority in aggregate principal
amount of the Transfer Restricted Securities being sold in
connection with an underwritten offering, (i) promptly
incorporate in a prospectus supplement or post-effective
amendment such information relating to underwriters, if any, any
Holder of Transfer Restricted Securities or the plan of
distribution of the Transfer Restricted Securities as the
managing underwriter, if any, or such Holders may reasonably
request to be included therein, (ii) make all required filings of
such prospectus supplement or such post-effective amendment as
soon as practicable after any of the Issuer and the Guarantors
has received notification of the matters to be incorporated in
such prospectus supplement or post-effective amendment pursuant
to clause (i), and (iii) supplement or make amendments to such
Registration Statement with such information as is required in
connection with any request made pursuant to clause (i);
(f) if (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Offer 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
Transfer Restricted Securities and to each such Participating
Broker-Dealer who so requests and to counsel and each managing
underwriter, if any, without charge, one conformed copy of the
Registration Statement or Registration Statements and each post-
effective amendment thereto, including financial statements and
schedules, and, if requested, all documents incorporated or
deemed to be incorporated therein by reference and all exhibits;
(g) if (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Offer 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
Transfer Restricted Securities, or each such Participating Broker-
Dealer, as the case may be, its counsel, and the underwriters, if
any, without charge, as many copies of the Prospectus or
Prospectuses (including each form of preliminary Prospectus), and
each amendment or supplement thereto and any documents
incorporated by reference therein, as such Persons may reasonably
request; and, subject to the last paragraph of this Section 5
hereof, the Issuer and the Guarantors hereby consent to the use
of such Prospectus and each amendment or supplement thereto by
each of the selling Holders of Transfer Restricted Securities or
each such Participating
Broker-Dealer, as the case may be, and their underwriters or
agents, if any, and dealers, if any, in connection with the
offering and sale of the Transfer Restricted Securities 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 Transfer Restricted
Securities or any delivery of a Prospectus contained in the
Exchange Offer Registration Statement by any Participating Broker-
Dealer who seeks to sell Exchange Notes during the Applicable
Period, to use their reasonable best efforts to register or
qualify, and to cooperate with the selling Holders of Transfer
Restricted Securities or each such Participating Broker-Dealer,
as the case may be, the underwriters, if any, and their
respective counsel in connection with the registration or
qualification (or exemption from such registration or
qualification), of such Transfer Restricted Securities for offer
and sale under the securities or Blue Sky laws of such
jurisdictions as any selling Holder, Participating Broker-Dealer,
or the managing underwriters reasonably request in writing; 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 Transfer Restricted
Securities covered by the applicable Registration Statement;
provided that none of the Issuer or the Guarantors shall be
required to (A) qualify generally to do business in any
jurisdiction where it is not then so qualified, (B) take any
action that would subject it to general service of process in any
such jurisdiction where it is not then so subject or (C) subject
it to taxation in any such jurisdiction where it is not so
subject;
(i) if a Shelf Registration Statement is filed pursuant to
Section 3 hereof, cooperate with the selling Holders of Transfer
Restricted Securities and the managing underwriters, if any, to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold, which
certificates shall not bear any restrictive legends with respect
to transfer and shall be in a form eligible for deposit with The
Depository Trust Company, ("DTC"), and enable such Transfer
Restricted Securities to be in such denominations and registered
in such names as the managing underwriters, if any, or Holders
may reasonably request at least two Business Days prior to any
sale of the Transfer Restricted Securities;
(j) if (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Offer 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) above, as promptly
as practicable prepare and (subject to Section 5(a) hereof) file
with the SEC, at the expense of the Issuer and the Guarantors, a
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 Transfer Restricted Securities being sold
thereunder or to the purchasers of the Exchange Notes to whom
such Prospectus will be delivered by a Participating Broker-
Dealer, any such Prospectus will not contain an untrue statement
of a material fact or omit to state a material fact required to
be stated
therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading;
provided, however, that:
(A) the Issuer and the Guarantors may delay such
preparation and filing of such supplement or post-
effective amendment pursuant to this Section 5(j) if
(i) such action is required by applicable law, or (ii)
such action is taken by them in good faith and for
valid business reasons (not including avoidance of
their obligations hereunder), including the acquisition
or divestiture of assets or the preservation of the
confidentiality of information the disclosure of which
may have a material adverse effect on the assets,
business, financial condition or prospects of the
Issuer, the Guarantors and any other direct or indirect
subsidiaries of the Issuer, taken as a whole (in any
such case, an "Amendment Delay");
(B) the Issuer and the Guarantors may effect, in the
aggregate, no more than one Amendment Delay during the
Applicable Period and such Amendment Delay shall be for
no longer than 45 Business Days;
(C) the Issuer and the Guarantors may effect, in the
aggregate, no more than two Amendment Delays during the
Effectiveness Period, provided that no more than one
Amendment Delay shall be effected during any twelve-
month period, and each such Amendment Delay shall be
for no longer than 45 Business Days; and
(D) to the extent that the Issuer and the Guarantors
effect one or more Amendment Delays, the duration of
the Effectiveness Period (if such duration is
determined pursuant to clause (i) of the definition
thereof) or the maximum duration of the Applicable
Period, as the case may be, shall be extended for the
aggregate amount of time that any such Amendment Delays
were in effect;
(k) prior to the effective date of the first Registration
Statement relating to the Transfer Restricted Securities,
(i) provide the Trustee with certificates for the Transfer
Restricted Securities in a form eligible for deposit with DTC and
(ii) use their best efforts to provide a CUSIP number for the
Transfer Restricted Securities;
(1) in connection with an underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement,
enter into an underwriting agreement as is customary in
underwritten offerings and take all such other actions as are
reasonably requested by the managing underwriters in order to
expedite or facilitate the registration or the disposition of
such Transfer Restricted Securities, and in such connection,
(i) make such representations and warranties to the underwriters,
with respect to the business of the Issuer and the Guarantors,
the Registration Statement, Prospectus and documents, if any,
incorporated or deemed to be incorporated by reference therein,
in each case, as are customarily made by issuers to underwriters
in underwritten offerings, and confirm the same if and when
requested; (ii) obtain opinions of counsel to the Issuer and the
Guarantors and updates thereof in form and substance reasonably
satisfactory to the managing 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 underwriters; (iii) obtain "cold
comfort" letters and updates thereof in form and substance
reasonably satisfactory to the managing underwriters from the
Independent certified public accountants of the Issuer and the
Guarantors (and, if necessary, any other independent certified
public accountants with respect to any business for which
financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each of
the underwriters, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters in connection with underwritten offerings and
such other matters as are reasonably requested by underwriters as
permitted by 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 provisions and
procedures acceptable to Holders of a majority in aggregate
principal amount of outstanding Transfer Restricted Securities
covered by such Registration Statement and the managing
underwriters or agents), with respect to all parties to be
indemnified pursuant to said Section. The above shall be done at
each closing under such underwriting agreement, or as and to the
extent required thereunder;
(m) if (1) a Shelf Registration Statement is filed pursuant
to Section 3 hereof, or (2) a Prospectus contained in an Exchange
Offer 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, make available for inspection by
any selling Holder of such Transfer Restricted Securities being
sold, or each such Participating Broker-Dealer, as the case may
be, any underwriter participating in any such disposition of
Transfer Restricted Securities, if any, and any attorney,
accountant or other agent retained by any such selling Holder or
each such Participating Broker-Dealer, as the case may be, or
underwriter (collectively, the "Inspectors"), at the offices
where normally kept, during reasonable business hours, all
financial and other records, pertinent corporate documents and
properties of the Issuer and the Guarantors (collectively, the
"Records"), solely as shall be reasonably necessary to enable
them to exercise any applicable due diligence responsibilities,
and cause the officers, directors and employees of the Issuer and
the Guarantors and any of their respective subsidiaries to supply
all information in each case reasonably requested by any such
Inspector in connection with such Registration Statement, subject
to such reasonable confidentiality requirements as the Issuer,
the Guarantors or any of their respective subsidiaries may impose
with respect thereto;
(n) provide an indenture trustee for the Transfer
Restricted Securities or the Exchange Notes, as the case may be,
and cause the Indenture to be qualified under the TIA not later
than the effective date of the Exchange Offer or the first
Registration Statement relating to the Transfer Restricted
Securities; and in connection therewith, cooperate with the
trustee under any such indenture and the Holders of the Transfer
Restricted Securities, 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 customary
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;
(o) comply with all applicable rules and regulations of the
SEC and, as soon as reasonably practicable, make generally
available to the holders of Exchange Notes and the Holders, if
any, consolidated earning statements of the Issuer that satisfy
the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder;
(p) If an Exchange Offer is to be consummated, upon
delivery of the Transfer Restricted Securities by Holders to the
Issuer or the Guarantors (or to such other Person as directed by
the Issuer and the Guarantors), in exchange for the Exchange
Notes, the Issuer or the Guarantors shall mark, or cause to be
marked, on such Transfer Restricted Securities that such Transfer
Restricted Securities are being cancelled in exchange for the
Exchange Notes; in no event shall such Transfer Restricted
Securities be marked as paid or otherwise satisfied.
(q) reasonably cooperate with each seller of Transfer
Restricted Securities covered by any Registration Statement and
each underwriter, if any, participating in the disposition of
such Transfer Restricted Securities and their respective counsel
in connection with any filings required to be made with the
National Association of Securities Dealers, Inc. (the "NASD");
(r) use their best efforts to take all other steps
necessary to effect the registration of the Transfer Restricted
Securities or the Exchange Notes covered by a Registration
Statement contemplated hereby; and
(s) use their best efforts to cause the Transfer Restricted
Securities or the Exchange Notes, as applicable, covered by an
effective registration statement required by Section 2 or
Section 3 hereof to be rated with the appropriate rating
agencies, if so requested by the Holders of a majority in
aggregate principal amount of Transfer Restricted Securities
relating to such registration statement or the managing
underwriters in connection therewith, if any.
The Issuer and the Guarantors may require each seller of
Transfer Restricted Securities or Participating Broker-Dealer as
to which any registration is being effected to furnish to the
Issuer and the Guarantors such information regarding such seller
or Participating Broker-Dealer and the distribution of such
Transfer Restricted Securities or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, as required
to be included in a Registration Statement prepared in accordance
with the Securities Act or as the Issuer and the Guarantors may,
from time to time, reasonably request. The Issuer and the
Guarantors may exclude from such registration the Transfer
Restricted Securities or Exchange Notes of any seller or
Participating Broker-Dealer, as the case may be, who fails to
furnish such information within a reasonable time after receiving
such request.
Each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer agrees by acquisition of such
Transfer Restricted Securities or Exchange Notes to be sold by
such Participating Broker-Dealer, as the case may be, that, upon
receipt of' any notice from the Issuer 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 shall forthwith
discontinue disposition of such Transfer Restricted Securities
covered by such Registration Statement or Prospectus or such
Exchange Notes to be sold by such Participating Broker-Dealer, as
the case may be, until such Holder's receipt of the
copies of the supplemented or amended Prospectus contemplated by
Section 5(j) hereof, or until it is advised in writing by the
Issuer that the use of the applicable Prospectus may be resumed,
and has received copies of any amendments or supplements thereto.
6. Registration Expenses
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuer and the Guarantors
shall be borne by the Issuer and the Guarantors, whether or not
the Exchange Offer or a Shelf Registration Statement 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
Transfer Restricted Securities or Exchange Notes (x) where the
Holders of Transfer Restricted Securities are located, in the
case of the Exchange Notes, or (y) as provided in
Section 5(h) hereof, in the case of Transfer Restricted
Securities 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 Transfer Restricted Securities or Exchange Notes in a form
eligible for deposit with DTC and of printing Prospectuses if the
printing of Prospectuses is requested by the managing
underwriters, if any, or, in respect of Transfer Restricted
Securities or Exchange Notes to be sold by any Participating
Broker-Dealer during the Applicable Period, by the Holders of a
majority in aggregate principal amount of the Transfer Restricted
Securities included in any Registration Statement or of such
Exchange Notes, as the case may be), (iii) messenger, telephone
and delivery expenses, (iv) fees and disbursements of counsel for
the Issuer and the Guarantors, (v) fees and disbursements of all
independent certified public accountants referred to in
Section 5(l)(iii) hereof (including, without limitation, the
expenses of any special audit and "cold comfort" letters required
by or incident to such performance), (vi) rating agency fees,
(vii) Securities Act liability insurance, if the Issuer or any of
the Guarantors desires such insurance, (viii) fees and expenses
of all other Persons retained by the Issuer and the Guarantors,
(ix) internal expenses of the Issuer and the Guarantors
(including, without limitation, all salaries and expenses of
officers and employees of the Issuer and the Guarantors
performing legal or accounting duties), (x) the expense of any
annual audit and (xi) the fees and expenses incurred in
connection with the listing of the securities to be registered on
any securities exchange. Nothing contained in this Section 6
shall create an obligation on the part of the Issuer or any
Guarantor to pay or reimburse any Holder for any underwriting
commission or discount or accountable or non-accountable expense
reimbursement attributable to any such Holder's Transfer
Restricted Securities included in an underwritten offering
pursuant to a Registration Statement filed in accordance with the
terms of this Agreement, or to guarantee such Holder any profit
or proceeds from the sale of such Notes.
(b) In connection with any Shelf Registration Statement
hereunder, the Issuer and the Guarantors shall reimburse the
Holders of the Transfer Restricted Securities being registered in
such registration for the reasonable fees and disbursements of
not more than one counsel (in addition to appropriate local
counsel), chosen by the Holders of a majority in aggregate
principal amount of the Transfer Restricted Securities to be
included in such Registration Statement.
7.
Indemnification
The Issuer and the Guarantors agree to indemnify and hold
harmless (i) each Initial Purchaser or each Holder of Transfer
Restricted Securities, each initial Holder of Exchange Notes and
each Participating Broker-Dealer, (ii) each person, if any, who
controls (within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act), any such Person (any of
the persons referred to in this clause (ii) being hereinafter
referred to as a "controlling person"), and (iii) the respective
officers, directors, partners, employees, representatives and
agents of any of such Person or any controlling person (any
person referred to in clause (i), (ii) or (iii) may hereinafter
be referred to as an "Purchaser Indemnitee"), to the fullest
extent lawful, from and against any and all losses, claims,
damages, judgments, actions, out-of-pocket expenses, and other
liabilities (the "Liabilities"), including without limitation and
as incurred, reimbursement of all reasonable costs of
investigating, preparing, pursuing or defending any claim or
action, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, including the reasonable
fees and expenses of counsel to any Purchaser Indemnitee, joint
or several, directly or indirectly related to, based upon,
arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement or Prospectus (as amended or supplemented
if the Issuer and the Guarantors shall have furnished to such
Purchaser Indemnitee any amendments or supplements thereto), or
any preliminary prospectus, or any omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except
insofar as such Liabilities arise out of or are based upon
(i) any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with
information relating to any Purchaser Indemnitee furnished to the
Issuer and the Guarantors or any underwriter in writing by such
Purchaser Indemnitee expressly for use therein, or (h) any untrue
statement contained in or omission from a preliminary prospectus
if a copy of the Prospectus (as then amended or supplemented, if
the Issuer and the Guarantors shall have furnished to or on
behalf of the Holder participating in the distribution relating
to the relevant Registration Statement any amendments or
supplements thereto) was not sent or given by or on behalf of
such Holder to the person asserting any such Liabilities who
purchased Initial Notes, if such Prospectus (or Prospectus as
amended or supplemented) is required by law to be sent or given
at or prior to the written confirmation of the sale of such
Initial Notes to such person and the untrue statement contained
in or omission from such preliminary prospectus was completely
corrected in the Prospectus (or the Prospectus as amended or
supplemented). The Issuer and the Guarantors shall notify the
Holders promptly of the institution, threat or assertion of any
claim, proceeding (including any governmental investigation), or
litigation of which it shall have become aware in connection with
the matters addressed by this Agreement which involves the
Issuer, the Guarantors or an Purchaser Indemnitee.
In connection with any Registration Statement in which a
Holder of Transfer Restricted Securities or a Participating
Broker-Dealer is participating, such Holder of Transfer
Restricted Securities or Participating Broker-Dealer agrees,
severally and not jointly, to indemnify and hold harmless the
Issuer, the Guarantors, each person who controls the Issuer or
any Guarantor within the meaning of Section 15 of the Securities
Act or Section 20(a) of the Exchange Act and the
respective partners, directors, officers, members,
representatives, employees and agents of such person or
controlling person to the same extent as the foregoing indemnity
from the Issuer and the Guarantors to each Purchaser Indemnitee,
but only with reference to information relating to such Purchaser
Indemnitee furnished to the Issuer or any Guarantor in writing by
such Purchaser Indemnitee expressly for use in any Registration
Statement or Prospectus, any amendment or supplement thereto, or
any preliminary Prospectus. The liability of any Purchaser
Indemnitee pursuant to this paragraph shall in no event exceed
the net proceeds received by such Purchaser Indemnitee from sales
of Transfer Restricted Securities giving rise to such
obligations.
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 Party"), shall promptly notify the
person against whom such indemnity may be sought (the
"Indemnifying Party"), in writing of the commencement thereof
(but the failure to so notify an Indemnifying Party shall not
relieve it from any liability which it may have under this
Section 7), and the Indemnifying Party, upon request of the
Indemnified Party, shall retain counsel reasonably satisfactory
to the Indemnified Party to represent the Indemnified Party and
any others the Indemnifying Party may reasonably designate in
such proceeding and shall pay the reasonable fees and expenses
actually incurred by such counsel related to such proceeding.
Notwithstanding the foregoing, in any such proceeding, any
Indemnified Party 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 Party, unless (i) the Indemnifying Party and
the Indemnified Party shall have mutually agreed in writing to
the contrary, (h) the Indemnifying Party failed within a
reasonable time after notice of commencement of the action to
assume the defense and employ counsel reasonably satisfactory to
the Indemnified Party or (iii) the named parties to any such
action (including any impleaded parties), include both such
Indemnified Party and the Indemnifying Party, or any affiliate of
the Indemnifying Party, and such Indemnified Party shall have
been reasonably advised by counsel that, either (x) there may be
one or more legal defenses available to it which are different
from or additional to those available to the Indemnifying Party
or such affiliate of the Indemnifying Party or (y) a conflict may
exist between such Indemnified Party and the Indemnifying Party
or such affiliate of the Indemnifying Party (in which case the
Indemnifying Party shall not have the right to assume the defense
of such action on behalf of such Indemnified Party, it being
understood, however, that 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 fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel), for all such indemnified
parties, which firm shall be designated in writing by those
indemnified parties who sold a majority in outstanding aggregate
principal amount of Transfer Restricted Securities sold by all
such indemnified parties and any such separate firm for the
Issuer and the Guarantors, the directors, the officers and such
control persons of the Issuer and the Guarantors as shall be
designated in writing by the Issuer and the Guarantors. The
Indemnifying Party shall not be liable for any settlement of any
proceeding effected without its written consent, which consent
shall not be unreasonably withheld, but if settled with such
consent or if there be a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify any Indemnified Party from
and against any loss or liability by reason of such
settlement or judgment. No Indemnifying Party shall, without the
prior written consent of the Indemnified Party, effect any
settlement of any pending or threatened proceeding in respect of
which any Indemnified Party is or could have been a party and
indemnity could have been sought hereunder by such Indemnified
Party, unless such settlement includes an unconditional release
of such Indemnified Party from all liability on claims that are
the subject matter of such proceeding.
If the indemnification provided for in the first and second
paragraphs of this Section 7 is for any reason held to be
unavailable to an Indemnified Party in respect of any Liabilities
referred to therein (other than by reason of the exceptions
provided therein) or is insufficient to hold harmless a party
indemnified thereunder, then each Indemnifying Party under such
paragraphs, in lieu of indemnifying such Indemnified Party
thereunder, shall contribute to the amount paid or payable by
such Indemnified Party as a result of such Liabilities (i) in
such proportion as is appropriate to reflect the relative
benefits of the Indemnified Party on the one hand and the
Indemnifying Party(ies) on the other in connection with the
statements or omissions that resulted in such Liabilities, 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 Indemnifying
Party(ies) and the Indemnified Party, as well as any other
relevant equitable considerations. The relative fault of the
Issuer and the Guarantors on the one hand and any Purchaser
Indemnitees on the other 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 and the Guarantors or by such Purchaser Indemnitees and
the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
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 such indemnified parties 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 Party as
a result of any Liabilities 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 Party in
connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this Section 7, in no
event shall a Purchaser Indemnitee be required to contribute any
amount in excess of the amount by which proceeds received by such
Purchaser Indemnitee from sales of Transfer Restricted Securities
or Exchange Notes exceeds the amount of any damages that such
Purchaser Indemnitee has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged
omission. For purposes of this Section 7, each person, if any,
who controls (within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act) an Initial Purchaser, a Holder
of Transfer Restricted Securities, an initial Holder of Exchange
Notes or a Participating Broker-Dealer shall have the same rights
to contribution as such Initial Purchaser, such Holder of
Transfer Restricted Securities, such initial Holder of Exchange
Notes or such Participating Broker-Dealer, as the case may be,
and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act) the
Issuer, any Guarantor, and each officer, director, partner,
employee, representative, agent or manager of
each of the Issuer and the Guarantors shall have the same rights
to contribution as the Issuer and the Guarantors. Any party
entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made
against another party or parties, notify each party or parties
from whom contribution may be sought, but the omission to so
notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation
it or they may have under this Section 7 or otherwise. 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 indemnity and contribution agreements contained in this
Section 7 will be in addition to any liability which the
indemnifying parties may otherwise have to the indemnified
parties referred to above. The Purchaser Indemnitee's
obligations to contribute pursuant to this Section 7 are several
in proportion to the respective principal amount of Initial Notes
sold by each of the Purchaser Indemnitees hereunder and not
joint.
8. Rules 144 and 144A
Each of the Issuer and the Guarantors covenants that it will
file the reports, if any, required to be filed by it pursuant to
the Securities Act and the Exchange Act and the rules and
regulations adopted by the SEC thereunder in a timely manner and,
if at any time the Issuer or any Guarantor is not required to
file such reports, it will, upon the request of any Holder of
Transfer Restricted Securities, make available information with
respect to it required by Rule 144 and Rule 144A under the
Securities Act in order to permit sales pursuant to Rule 144 and
Rule 144A. The Issuer and the Guarantors further covenant that
they will take such further action as any Holder of Transfer
Restricted Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Transfer
Restricted Securities without registration under the Securities
Act within the limitation of the exemptions provided by (a) Rule
144 and Rule 144A or (b) any similar rule or regulation hereafter
adopted by the SEC. The Issuer agrees to cause each Guarantor to
comply with its obligations, if any, hereunder.
9. Underwritten Registrations
(a) If any of the Transfer Restricted Securities covered by
any Shelf Registration Statement 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 Transfer Restricted Securities included
in such offering and shall be reasonably acceptable to the Issuer
and the Guarantors.
No Holder of Transfer Restricted Securities 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 questionnaires, powers of
attorney, indemnities, underwriting agreements and other
documents required under the terms of such underwriting
arrangements.
(b) Each Holder of Transfer Restricted Securities agrees,
if requested (pursuant to a timely written notice), by the
managing underwriters in an underwritten offering or by a
placement agent in a private offering of the Issuer's debt
securities, not to effect any private sale or distribution
(including a sale pursuant to Rule 144(k) or Rule 144A under the
Securities Act, but excluding non-public sales to any of its
affiliates, officers, directors, employees and controlling
persons) of any of the Initial Notes except pursuant to an
Exchange Offer, other than in compliance with applicable
securities laws and in no event during the period beginning 10
days prior to, and ending 90 days after, the closing date of the
underwritten offering.
The foregoing provisions shall not apply to any Holder of
Transfer Restricted Securities if such Holder is prevented by
applicable statute or regulation from entering into any such
agreement.
10. Miscellaneous
(a) Remedies. In the event of a breach by the Issuer and
the Guarantors of any of their obligations under this Agreement,
each Holder of Transfer Restricted Securities and each
Participating Broker-Dealer holding Exchange Notes, in addition
to being entitled to exercise all rights provided herein, in the
Indenture or, in the case of the Initial Purchasers, in the
Purchase Agreement, or granted by law, including recovery of
damages, will be entitled to specific performance of its rights
under this Agreement. Subject to Section 4, the Issuer and the
Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by any
of them of any of the provisions of this Agreement and hereby
further agree that, in the event of any action for specific
performance in respect of such breach, they shall waive the
defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given, unless
the Issuer and the Guarantors have obtained the written consent
of holders of at least a majority of the then outstanding
aggregate principal amount of Transfer Restricted Securities and
Exchange Notes held by Participating Broker-Dealers taken as one
class. Notwithstanding the foregoing, a waiver or consent to or
departure from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders and
Participating Broker-Dealers holding Exchange 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 and Participating Broker-
Dealers holding Exchange Notes may be given by holders of at
least a majority in aggregate principal amount of the Transfer
Restricted Securities and Exchange Notes held by Participating
Broker-Dealers being sold by such Holders and Participating
Broker-Dealers pursuant to such Registration Statement; provided
that the provisions of this sentence may not be amended, modified
or supplemented except in accordance with the provisions of the
immediately preceding sentence.
(c) Notices. All notices and other communications
(including, without limitation, any notices or other
communications to the Trustee), provided for or permitted
hereunder shall be made in writing by hand-delivery, registered
first-class mail, next-day air courier or telecopier:
(i) if to a Holder of Transfer Restricted Securities,
at the most current address given by the Trustee to the
Issuer; and
(ii) if to the Issuer or any Guarantor, c/o Ameristar
Casinos, Inc., 3773 Howard Hughes Parkway, Suite 490 South,
Las Vegas, Nevada 89109, Attention: Thomas M. Steinbauer,
Senior Vice President and Chief Financial Officer, and Brian
E. Katz, Senior Vice President, telecopier: 702-369-8860.
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 nationally recognized next-day air courier, if
made by next-day air courier; and when receipt is acknowledged by
the addressee, if telecopied on a Business Day on such Business
Day, if not on a Business Day, on the first Business Day
thereafter.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to
the Trustee under the Indenture at the address specified in such
Indenture.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of
each of the parties hereto, including, without limitation and
without the need for an express assignment or assumption,
subsequent Holders of Transfer Restricted Securities. The Issuer
and the Guarantors agree that the Holders of Transfer Restricted
Securities and Participating Broker-Dealers holding Exchange
Notes shall be third party beneficiaries to the agreements made
hereunder by the Initial Purchasers and the Issuer and the
Guarantors, and each Holder and Participating Broker-Dealer shall
have the right to enforce such agreements directly to the extent
it deems such enforcement necessary or advisable to protect its
rights hereunder; provided, however, that such Holder or
Participating Broker-Dealer fulfills all of its obligations
hereunder.
(e) 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.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE
STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF
LAW. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS TO
THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT
SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN
RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT, AND IRREVOCABLY ACCEPTS FOR ITSELF
AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
THE JURISDICTION OF THE AFORESAID COURTS. EACH OF THE PARTIES
HERETO IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION THAT IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY
CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent
jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions
set forth herein shall remain in full force and effect and shall
in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an
alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the
intention of the parties hereto 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.
(i) Entire Agreement. This Agreement, together with the
Purchase Agreement, is intended by the parties hereto as a final
expression of their agreement, and is intended to be a complete
and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein
and therein.
(j) Transfer Restricted Securities Held by the Issuer or
its Affiliates. Whenever the consent or approval of Holders of a
specified percentage of Transfer Restricted Securities is
required hereunder, Transfer Restricted Securities held by the
Issuer or its 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) Survival. This Agreement is intended to survive the
consummation of the transactions contemplated by the Purchase
Agreement. The indemnification and contribution obligations
under Section 7 of this Agreement shall survive the termination
of the Issuer's obligations under Sections 2 and 3 of this
Agreement.
(l) Liability of ACCBI. Notwithstanding any other
provision herein to the contrary, ACCBI shall have no obligation
or liability hereunder prior to the time, if at all, that this
Agreement shall have been approved by the Iowa Racing and Gaming
Commission.
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
ISSUER
AMERISTAR CASINOS, INC.
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Senior Vice President
GUARANTORS
AMERISTAR CASINO COUNCIL
BLUFFS, INC.
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
A.C. FOOD SERVICES, INC.
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
AC HOTEL CORP.
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
AMERISTAR CASINO LAS VEGAS, INC.
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
AMERISTAR CASINO VICKSBURG, INC.
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
CACTUS PETE'S, INC.
By: /s/ Thomas M. Steinbauer
Name: Thomas M. Steinbauer
Title: Vice President
INITIAL PURCHASERS
BEAR, STEARNS & CO. INC.
By: /s/ J. Andrew Bugas
Name: J. Andrew Bugas
Title:Senior Managing Director
BT SECURITIES CORPORATION
By: /s/ Michael Apfel
Name: Michael Apfel
Title: Vice President
FIRST CHICAGO CAPITAL MARKETS,
INC.
By: /s/ C. Victor Manny
Name: C. Victor Manny
Title: Managing Director