Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
DATED AS OF APRIL 29, 2002
BETWEEN
PRIME HOSPITALITY CORP.
AND
BEAR, STEARNS & CO. INC.
The Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of April 29, 2002, between Prime Hospitality Corp., a Delaware
corporation (the "ISSUER"), and Bear, Stearns & Co. Inc. ("INITIAL PURCHASER"),
which has agreed to purchase the Issuer's 8 3/8% Senior Subordinated Notes Due
2012 (the " NOTES").
This Agreement is made pursuant to the Purchase Agreement, dated April
16, 2002 (the "PURCHASE Agreement"), between the Issuer and the Initial
Purchaser. In order to induce the Initial Purchaser to purchase the Notes, the
Issuer has 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 Purchaser set forth in Section 9 of the Purchase
Agreement. Capitalized terms used herein and not otherwise defined shall have
the meanings assigned to them the Indenture, dated April 29, 2002, between the
Issuer and Wells Fargo Bank Minnesota, NA, as Trustee, relating to the Notes and
the Exchange Notes (the "INDENTURE").
The parties hereby agree as follows:
1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BROKER-DEALER: Any broker or dealer registered under the Exchange Act.
CERTIFICATED SECURITIES: Definitive Notes, as defined in the Indenture.
CLOSING DATE: The date hereof.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: An Exchange Offer shall be deemed "Consummated" for
purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Issuer to
the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Notes tendered by Holders
thereof pursuant to the Exchange Offer.
CONSUMMATION DEADLINE: As defined in Section 3(b) hereof.
EFFECTIVENESS DEADLINE: As defined in Section 3(a) and 4(a)(y) hereof.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
EXCHANGE NOTES: The Issuer's 8 3/8% Exchange Senior Subordinated Notes
due 2012 to be issued pursuant to the Indenture in the Exchange Offer.
EXCHANGE OFFER: The exchange and issuance by the Issuer of a principal
amount of Exchange Notes (which shall be registered pursuant to the Exchange
Offer Registration Statement) equal to the outstanding principal amount of Notes
that are tendered by Holders in connection with such exchange and issuance.
EXCHANGE OFFER REGISTRATION STATEMENT: The Registration Statement
relating to the Exchange Offer, including the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial Purchaser
proposes to sell the Notes to certain "qualified institutional buyers," as such
term is defined in Rule 144A under the Act and pursuant to Regulation S under
the Act.
FILING DEADLINE: As defined in Sections 3(a) and 4(a)(x) hereof.
HOLDERS: As defined in Section 2 hereof.
LIQUIDATED DAMAGES: As defined in Section 5 hereof.
PROSPECTUS: The prospectus included in a Registration Statement at the
time such Registration Statement is declared effective, 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.
RECOMMENCEMENT DATE: As defined in Section 6(e) hereof.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of the Issuer
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, in each case, (i) that is filed pursuant to
the provisions of this Agreement and (ii) including the Prospectus included
therein, all amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference therein.
REGULATION S: Regulation S promulgated under the Act.
RULE 144: Rule 144 promulgated under the Act.
SHELF REGISTRATION STATEMENT: As defined in Section 4 hereof.
SUSPENSION NOTICE: As defined in Section 6(e) hereof.
TIA: The Trust Indenture Act of 1939 (15 U.S.C. Section 77aaa-77bbbb)
as in effect on the date of the Indenture.
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TRANSFER RESTRICTED SECURITIES: Each Note, until (i) the date on which
such Note has been exchanged by a person other than a Broker-Dealer for an
Exchange Note in the Exchange Offer; (ii) following the exchange by a
Broker-Dealer in the Exchange Offer of a Note for an Exchange Note, the date on
which such Exchange Note is sold to a purchaser who receives from such
Broker-Dealer on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement; (iii) the date on which
such Note has been effectively registered under the Act and disposed of in
accordance with the Shelf Registration Statement; or (iv) the date on which such
Note is distributed to the public pursuant to Rule 144 under the Act.
2. HOLDERS
A Person is deemed to be a holder of Transfer Restricted Securities
(each, a "HOLDER") whenever such Person owns Transfer Restricted Securities.
3. REGISTERED EXCHANGE OFFER
(a) After the procedures set forth in Section 6(a)(i) below
have been complied with, the Issuer shall (i) file the Exchange Offer
Registration Statement with the Commission on or prior to 60 days after
the Closing Date (such 60th day being the "FILING DEADLINE"), (ii) use
its best efforts to have the Exchange Offer Registration Statement
declared effective by the Commission on or prior to 120 days after the
Closing Date (such 120th day being the "EFFECTIVENESS DEADLINE"), (iii)
in connection with the foregoing, (A) file all pre-effective amendments
to such Exchange Offer Registration Statement as may be necessary in
order to cause it to be declared effective, (B) file, if applicable, a
post-effective amendment to such Exchange Offer Registration Statement
pursuant to Rule 430A under the Act and (C) cause all necessary
filings, if any, in connection with the registration and qualification
of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange
Offer, and (iv) unless the Exchange Offer would not be permitted by
applicable law or Commission policy, (A) the Issuer will commence the
Exchange Offer; and (B) use its best efforts to issue on or prior to 30
business days, or longer, if required by the federal securities laws
(such 30th or later day being the "CONSUMMATION DEADLINE"), after the
date on which the Exchange Offer Registration Statement was declared
effective by the Commission, Exchange Notes in exchange for all Notes
tendered prior thereto in the Exchange Offer. The Exchange Offer shall
be on the appropriate form permitting (i) registration of the Exchange
Notes to be offered in exchange for the Notes that are Transfer
Restricted Securities and (ii) resales of Exchange Notes by
Broker-Dealers that tendered into the Exchange Offer Notes that such
Broker-Dealer acquired for its own account as a result of market-making
activities or other trading activities (other than Notes acquired
directly from the Issuer or any of their Affiliates) as contemplated by
Section 3(c) below.
(b) The Issuer shall use its best efforts to 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 Issuer shall
cause the Exchange
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Offer to comply with all applicable federal and state securities laws.
No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement.
(c) The Issuer shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration
Statement and indicate therein that any Broker-Dealer who holds
Transfer Restricted Securities that were acquired for the account of
such Broker-Dealer as a result of market-making activities or other
trading activities (other than Notes acquired directly from the Issuer
or any Affiliate of the Issuer), may exchange such Transfer Restricted
Securities 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
Transfer Restricted Securities held by any such Broker-Dealer, except
to the extent required by the Commission as a result of a change in
policy, rules or regulations after the date of this Agreement. See the
Shearman & Sterling no-action letter (available July 2, 1993).
Because such Broker-Dealer may be deemed to be an "underwriter" within
the meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any Exchange
Notes received by such Broker-Dealer in the Exchange Offer, the Issuer shall
permit the use of the Prospectus contained in the Exchange Offer Registration
Statement by such Broker-Dealer to satisfy such prospectus delivery requirement.
To the extent necessary to ensure that the prospectus contained in the Exchange
Offer Registration Statement is available for sales of Exchange Notes by
Broker-Dealers, the Issuer agrees to use its best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented, amended and
current as required by and subject to the provisions of Section 6(a) and Section
6 (c) hereof and in conformity 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 180 days from the Consummation Deadline or such shorter
period as will terminate when all Transfer Restricted Securities covered by such
Registration Statement have been sold pursuant thereto. The Issuer shall provide
sufficient copies of the latest version of such Prospectus to such
Broker-Dealers, promptly upon request, and in no event later than one day after
such request, at any time during such period.
4. SHELF REGISTRATION
(a) Shelf Registration. If (i) the Issuer is not (A) required
to file the Exchange Offer Registration Statement or (B) permitted to
Consummate the Exchange Offer because the Exchange Offer is not
permitted by applicable law or Commission policy (after the Issuer has
complied with the procedures set forth in Section 6(a)(i) below) or
(ii) if any Holder of Transfer Restricted Securities notifies the
Issuer prior to the 20th day following the Consummation of the Exchange
Offer that (A) it is prohibited by law or Commission policy from
participating in the Exchange Offer or (B) that it may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public
without delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or available
for such resales by such Holder or (C) such Holder is a Broker-Dealer
and owns Notes acquired directly from the Issuer or any of their
Affiliates,
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then the Issuer shall file with the Commission a Shelf Registration
Statement (as defined below) to cover resales of the Notes by the
Holders of the Notes. If the Issuer is obligated to file the Shelf
Registration Statement, the Issuer will use its best efforts to:
(x) cause to be filed the Shelf Registration Statement with the
Commission, on or prior to 60 days after such filing obligation arises, (such
60th day being the "FILING DEADLINE"), pursuant to Rule 415 under the Act (which
may be an amendment to the Exchange Offer Registration Statement) (the "SHELF
REGISTRATION STATEMENT"), relating to all Transfer Restricted Securities, and
(y) cause such Shelf Registration Statement to be declared effective by
the Commission on or prior to 120 days after the obligation arises for the Shelf
Registration Statement (such 120th day the "EFFECTIVENESS Deadline").
To the extent necessary to ensure that the Shelf Registration Statement
is available for sales of Transfer Restricted Securities by the Holders thereof
entitled to the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the Issuer shall
use its best efforts to keep any Shelf Registration Statement required by this
Section 4(a) continuously effective, supplemented, amended and current as
required by and subject to the provisions of Section 6(b) and Section 6(c)
hereof and in conformity 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 (as extended pursuant to Section
6(c)(i) hereof) following the Closing Date, or such shorter period as will
terminate when all Transfer Restricted Securities covered by such Shelf
Registration Statement have been sold pursuant thereto.
(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 Issuer in writing, within 10
business days after receipt of a request therefor, the information
specified in Item 507 or Item 508 of Regulation S-K, as applicable, of
the Act 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
provided all such information. Each selling Holder agrees to promptly
furnish additional information required to be disclosed in order to
make the information previously furnished to the Issuer by such Holder
not materially misleading.
5. LIQUIDATED DAMAGES
If (i) the Issuer fails to file any Registration Statement required by
this Agreement on or before the date specified for such filing, (ii) any of such
Registration Statements is not declared effective by the Commission on or prior
to the date specified for such effectiveness (the "EFFECTIVENESS TARGET DATE"),
(iii) the Issuer fails to Consummate the Exchange Offer within 30 business days
of the Effectiveness Target Date or (iv) any Registration Statement required by
this Agreement is declared effective but thereafter ceases to be effective or
usable for its
5
intended purpose during the period specified herein (each such event referred to
in clauses (i) through (iv), a "REGISTRATION DEFAULT"), then the Issuer agrees
to pay liquidated damages for such Registration Default ("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 $0.05 per week per $1,000 in principal amount of
Transfer Restricted Securities held by such Holder. The amount of the Liquidated
Damages shall increase by an additional $0.05 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 $0.50 per week per $1,000 in principal amount of
Transfer Restricted Securities. Notwithstanding anything to the contrary set
forth herein, (1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (i)
above, (2) upon the effectiveness of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the case of (ii)
above, (3) upon Consummation of the Exchange Offer, in the case of (iii) above,
or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
Liquidated Damages payable with respect to the Transfer Restricted Securities as
a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued Liquidated Damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes.
6. REGISTRATION PROCEDURES
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Issuer shall (x) comply with all applicable
provisions of Section 6(c) below, (y) use its best efforts to effect
such exchange of tendered Notes and to permit the resale of Exchange
Notes by Broker-Dealers that tendered in the Exchange Offer Notes that
such Broker-Dealer acquired for its own account as a result of its
market-making activities or other trading activities (other than Notes
acquired directly from the Issuer or any of their Affiliates) being
sold in accordance with the intended method or methods of distribution
thereof, and (z) comply with all of the following provisions:
(i) If, following the date hereof there has been
announced a change in Commission policy with respect to exchange offers
such as the Exchange Offer, that in the reasonable opinion of counsel
to the Issuer raises a substantial question as to whether the Exchange
Offer is permitted by applicable federal law, the Issuer hereby agrees
to seek a no-action letter or other favorable decision from the
Commission allowing the Issuer to Consummate an Exchange Offer for such
Transfer Restricted Securities. The Issuer hereby agrees to pursue the
issuance of such a decision to the Commission staff level. In
connection with the foregoing, the Issuer hereby agrees to take all
such other actions as may be requested by the Commission or otherwise
required in connection with the issuance of such decision, including
without limitation (A) participating in telephonic conferences with the
Commission, (B) delivering to the Commission staff an analysis prepared
by counsel to the Issuer setting forth the legal bases, if any, upon
which such
6
counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursuing a resolution (which need not be favorable)
by the Commission staff.
(ii) As a condition to its participation in the
Exchange Offer, each Holder of Transfer Restricted Securities
(including, without limitation, any Holder who is a Broker-Dealer)
shall furnish, upon the request of the Issuer, prior to the
Consummation of the Exchange Offer, a written representation to the
Issuer (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 Issuer, (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
Exchange Notes to be issued in the Exchange Offer and (C) it is
acquiring the Exchange Notes in its ordinary course of business. In
addition, all such Holders of Transfer Restricted Securities shall
otherwise cooperate with the Issuer in the preparation of the Exchange
Offer. As a condition to its participation in the Exchange Offer each
Holder using the Exchange Offer to participate in a distribution of the
Exchange Notes shall acknowledge and agree that, if the resales are of
Exchange Notes obtained by such Holder in exchange for Notes acquired
directly from the Issuer or an Affiliate thereof, it (1) could not,
under Commission policy as in effect on the date of this Agreement,
rely on the position of the Commission enunciated in Exxon Capital
Holdings Corporation (available May 13, 1988) and Morgan Stanley and
Co., Inc. (available June 5, 1991), as interpreted in the Commission's
letter to Shearman & Sterling dated July 2, 1993, and similar no-action
letters (including, if applicable, 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 must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or Item 508, as applicable, of
Regulation S-K.
(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuer shall provide a supplemental letter
to the Commission (A) stating that the Issuer is 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) as interpreted in the
Commission's letter to Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that neither any Issuer nor any
Guarantor 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 Issuer's and each Guarantor's
information and belief, each Holder participating 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
and (C) any other undertaking or representation required by the
Commission as set forth in any no-action letter obtained pursuant to
clause (i) above, if applicable.
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(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuer shall:
(i) comply with all the provisions of Section 6(c)
below and use its reasonable 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
(as indicated in the information furnished to the Issuer pursuant to
Section 4(b) hereof), and pursuant thereto the Issuer will 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, and
(ii) issue, upon the request of any Holder or
purchaser of Notes covered by any Shelf Registration Statement
contemplated by this Agreement, Exchange Notes having an aggregate
principal amount equal to the aggregate principal amount of Notes sold
pursuant to the Shelf Registration Statement and surrendered to the
Issuer for cancellation; the Issuer shall register Exchange Notes on
the Shelf Registration Statement for this purpose and issue the
Exchange Notes to the purchasers of securities subject to the Shelf
Registration Statement in the names as such purchasers shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the
Issuer shall:
(i) use its reasonable best efforts to keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or Section 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 an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein not
misleading or (B) not to be effective and usable for resale of Transfer
Restricted Securities during the period required by this Agreement, the
Issuer shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if Commission review is
required, use its reasonable best efforts to cause such amendment to be
declared effective as soon as practicable. Notwithstanding the
foregoing, the Issuer may allow the Shelf Registration Statement and
the related Prospectus to cease to become effective and usable if (x)
the board of directors of the Issuer determines in good faith that it
is in the best interests of the Issuer not to disclose the existence of
or facts surrounding any proposed or pending material corporate
transaction involving the Issuer and the Issuer notifies the Holders
within two business days after such board of directors makes such
determination, or (y) the Prospectus contained in the Shelf
Registration Statement contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make the
statements made therein, in light of the circumstances under which they
were made, not misleading; provided that 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
8
extended by the number of days during which such Registration Statement
was not effective or usable pursuant to the foregoing provisions;
(ii) prepare and file with the Commission such
amendments and post-effective amendments to the applicable Registration
Statement as may be necessary to keep such Registration Statement
effective for the applicable period set forth in Section 3 or Section 4
hereof, as the case may be; 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 Rules 424,
430A and 462, as applicable, 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) subject to Section 6(c)(i), if any fact or
event contemplated by Section 6(d)(i)(D) below 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, in the light of the
circumstances under which they were made, not misleading;
(iv) in connection with any sale of Transfer
Restricted Securities that will result in such securities no longer
being Transfer Restricted Securities, cooperate with the Holders to
facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing
any restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the selling Holders
may request at least two business days prior to such sale of Transfer
Restricted Securities;
(v) use its best efforts to cause the disposition of
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 to consummate the disposition of such Transfer
Restricted Securities, subject to the proviso contained in Section 6
(d)(ix) below;
(vi) provide a CUSIP number for all Transfer
Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted Securities 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;
(vii) otherwise use its best efforts to comply with
all applicable rules and regulations of the Commission, and make
generally available to its security holders with regard to any
applicable Registration Statement, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158
(which need not
9
be audited) covering a twelve-month period beginning after the
effective date of the Registration Statement (as such term is defined
in paragraph (c) of Rule 158 under the Act);
(viii) 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 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; and
(ix) provide promptly to each Holder, upon request,
each document filed with the Commission pursuant to the requirements of
Section 13 or Section 15(d) of the Exchange Act.
(d) Additional Provisions Applicable to Shelf Registration
Statements. In connection with any Shelf Registration Statement and any
related Prospectus required by this Agreement, the Issuer shall:
(i) advise each selling Holder promptly and, if
requested by such Holder, 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 applicable Shelf 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 Shelf 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 Shelf 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
Shelf 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 Shelf Registration Statement 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 the 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 Issuer shall use its reasonable best efforts to obtain
the withdrawal or lifting of such order at the earliest possible time;
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(ii) if requested in writing, furnish to each selling
Holder in connection with such sale, 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 Shelf Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Shelf Registration Statement), which documents will be subject to the
review and comment of such Holders in connection with such sale, if
any, for a period of at least five business days, and the Issuer will
not file any such Shelf Registration Statement or Prospectus or any
amendment or supplement to any such Shelf Registration Statement or
Prospectus (including all such documents incorporated by reference) to
which such Holders shall reasonably object within five business days
after the receipt thereof. A selling Holder shall be deemed to have
reasonably objected to such filing if such Shelf Registration
Statement, amendment, Prospectus or supplement, as applicable, as
proposed to be filed, contains an untrue statement of a material fact
or omits to state any material fact necessary to make the statements
therein not misleading or fails to comply with the applicable
requirements of the Act;
(iii) promptly prior to the filing of any document
that is to be incorporated by reference into a Shelf Registration
Statement or Prospectus, provide copies of such document to each
selling Holder in connection with such sale, if any, make the Issuer's
representatives available for discussion of such document and other
customary due diligence matters, and include such information in such
document prior to the filing thereof as such Holders may reasonably
request;
(iv) make available, at reasonable times, for
inspection by each selling Holder and any attorney or accountant
retained by such Holders, all financial and other records, pertinent
corporate documents of the Issuer and cause the Issuer's directors and
employees to supply all information reasonably requested by any such
Holder, attorney or accountant in connection with such Registration
Statement or any post-effective amendment thereto subsequent to the
filing thereof and prior to its effectiveness;
(v) if requested by any selling Holders in connection
with such sale, promptly include in any Shelf Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information as such Holders may reasonably request to
have included therein, including, without limitation, information
relating to the "Plan of Distribution" of the Transfer Restricted
Securities; and make all required filings of such Prospectus supplement
or post-effective amendment as soon as practicable after the Issuer is
notified of the matters to be included in such Prospectus supplement or
post-effective amendment;
(vi) furnish to each selling Holder in connection
with such sale, 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);
11
(vii) deliver to each selling Holder 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 Issuer hereby consents to the use (in
accordance with law) of the Prospectus and any amendment or supplement
thereto by each selling Holder in connection with the offering and the
sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
(viii) upon the request of any selling Holder, enter
into such agreements (including underwriting agreements) 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 applicable
Registration Statement contemplated by this Agreement as may be
reasonably requested by any such Holder in connection with any sale or
resale pursuant to any Shelf Registration Statement. In such
connection, the Issuer shall:
(A) upon request of any selling Holder, furnish (or
in the case of paragraphs (2) and (3), use its reasonable best
efforts to cause to be furnished) to each Holder, upon the
effectiveness of an underwritten Shelf Registration Statement:
(1) a certificate, dated such date, signed
on behalf of the Issuer by (x) the President or any
Vice President and (y) a principal financial or
accounting officer of such Issuer, confirming, as of
the date thereof, matters similar to those set forth
in Sections 9(a), 9(b), 9(c) and 9(d) of the Purchase
Agreement (as the same may be applicable to the Shelf
Registration Statement) and such other similar
matters as such Holders may reasonably request;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement, of
counsel for the Issuer covering matters similar to
those set forth in paragraph (f) of Section 9 of the
Purchase Agreement and such other matters as such
Holder may reasonably request, and in any event
including a statement to the effect that such counsel
has participated in conferences with officers and
other representatives of the Issuer, representatives
of the independent public accountants for the Issuer
and have considered the matters required to be stated
therein and the statements contained therein,
although such counsel has not independently verified
the accuracy, completeness or fairness of such
statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality
to a large extent upon the opinions of officers and
other representatives of the Issuer), no facts came
to such counsel's attention that caused such counsel
to believe that the Shelf Registration Statement, at
the time such Shelf Registration Statement or any
post-effective amendment thereto became effective,
contained an untrue statement of a material fact or
omitted to state a material fact required to be
stated
12
therein or necessary to make the statements therein
not misleading, or that the Prospectus contained in
such Shelf Registration Statement as of its date
contained an untrue statement of a material fact or
omitted to state a material fact necessary in order
to make the statements therein, in the light of the
circumstances under which they were made, not
misleading. Without limiting the foregoing, such
counsel may state further that such counsel assumes
no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of
the financial statements, notes and schedules and
other financial data included in any Shelf
Registration Statement contemplated by this Agreement
or the related Prospectus; and
(3) a customary comfort letter, dated the
date of effectiveness of the Shelf Registration
Statement, from the Issuer's independent accountants,
in the customary form and covering matters of the
type customarily covered in comfort letters to
underwriters in connection with underwritten
offerings; and
(B) deliver such other documents and certificates as
may be reasonably requested by the selling Holders to evidence
compliance with the matters covered in clause (A) above and
with any customary conditions contained in any agreement
entered into by the Issuer pursuant to this clause (viii);
(ix) prior to any public offering of Transfer
Restricted Securities, cooperate with the selling Holders and their
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 may request and do any and
all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities
covered by the Shelf Registration Statement; provided, however, that
neither any Issuer nor any Guarantor shall 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 Shelf Registration Statement, in any jurisdiction where
it is not now so subject.
(e) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice
referred to in Section 6(d)(i)(C) or any notice from the Issuer of the
existence of any fact of the kind described in Section 6(d)(i)(D)
hereof (in each case, a "SUSPENSION NOTICE"), such Holder will
forthwith discontinue disposition of Transfer Restricted Securities
pursuant to the Shelf Registration Statement until (i) such Holder has
received copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(iii) hereof, or (ii) such Holder is advised in writing
by the Issuer 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 (in each case, the
"RECOMMENCEMENT DATE"). Each Holder receiving a Suspension Notice
hereby agrees that it will either (i) destroy any
13
Prospectuses, other than permanent file copies, then in such Holder's
possession which have been replaced by the Issuer with more recently
dated Prospectuses or (ii) deliver to the Issuer (at the Issuer'
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 the Suspension
Notice. The time period regarding the effectiveness of such Shelf
Registration Statement set forth in Section 4 hereof shall be extended
by a number of days equal to the number of days in the period from and
including the date of delivery of the Suspension Notice to the date of
delivery of the Recommencement Date.
7. REGISTRATION EXPENSES
(a) All expenses incident to the Issuer's performance of or
compliance with this Agreement will be borne by the Issuer, regardless
of whether a Registration Statement becomes effective, including
without limitation: (i) all registration and filing fees and expenses;
(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 Exchange 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 Issuer; (v) all application and filing fees in connection with
listing the Exchange Notes on a national securities exchange or
automated quotation system pursuant to the requirements hereof; (vi)
all fees and disbursements of independent certified public accountants
of the Issuer (including the expenses of any special audit and comfort
letters required by or incident to such performance); and (vii) all
fees and expenses of the Trustee and any exchange agent (including all
fees and expenses of their counsel).
The Issuer will, in any event, bear its 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
Issuer.
(b) In connection with any Registration Statement required by
this Agreement (including, without limitation, the Exchange Offer
Registration Statement and the Shelf Registration Statement), the
Issuer will reimburse the Initial Purchaser and the Holders of Transfer
Restricted Securities who are tendering Notes into in the Exchange
Offer and/or selling or reselling Notes or Exchange Notes pursuant to
the "Plan of Distribution" contained in the Exchange Offer Registration
Statement or the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who
shall be Latham & Watkins, unless another firm shall be chosen by the
Holders of a majority in principal amount of the Transfer Restricted
Securities for whose benefit such Registration Statement is being
prepared.
8. INDEMNIFICATION
(a) The Issuer agrees to indemnify and hold harmless each
Holder, its directors, officers and each Person, if any, who controls
such Holder (within the meaning of
14
Section 15 of the Act or Section 20 of the Exchange Act), from and
against any and all losses, claims, damages, liabilities, judgments
(including without limitation, any legal or other reasonable expenses
incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or
alleged untrue statement of a material fact contained in any
Registration Statement, preliminary prospectus or Prospectus (or any
amendment or supplement thereto) provided by the Issuer to any Holder
or any prospective purchaser of Exchange Notes or registered Notes, or
caused by any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
liabilities or judgments are caused by an untrue statement or omission
or alleged untrue statement or omission that is based upon information
relating to any Holder furnished in writing to the Issuer by such
Holder.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuer and their directors and
officers, and each person, if any, who controls (within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act) the Issuer to
the same extent as the foregoing indemnity from the Issuer set forth in
section (a) above, but only with reference to information relating to
such Holder furnished in writing to the Issuer by such Holder expressly
for use in any Registration Statement. In no event shall any Holder,
its directors, officers or any Person who controls such Holder be
liable or responsible for any amount in excess of the amount by which
the total amount received by such Holder with respect to its sale of
Transfer Restricted Securities pursuant to a Registration Statement
exceeds (i) the amount paid by such Holder for such Transfer Restricted
Securities and (ii) the amount of any damages that such Holder, its
directors, officers or any Person who controls such Holder has
otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission.
(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or
Section 8(b) (the "INDEMNIFIED PARTY"), the indemnified party shall
promptly notify the person against whom such indemnity may be sought
(the "INDEMNIFYING PERSON") in writing and the indemnifying party shall
assume the defense of such action, including the employment of counsel
reasonably satisfactory to the indemnified party and the payment of all
fees and expenses of such counsel, as incurred (except that in the case
of any action in respect of which indemnity may be sought pursuant to
both Sections 8(a) and 8(b), a Holder shall not be required to assume
the defense of such action pursuant to this Section 8(c), but may
employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be
at the expense of the Holder). Any indemnified party shall have the
right to employ separate counsel in any such action and 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 of
such counsel shall have been specifically authorized in writing by the
indemnifying party, (ii) the indemnifying party shall have failed to
assume the defense of such action or employ counsel reasonably
satisfactory to the indemnified party or (iii) the named parties to any
such action (including any impleaded parties) include both the
indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such
15
counsel and shall have provided notice to the indemnifying party of
such advice of 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 that the assertion of any such
different or additional defense by the indemnified party would be
inconsistent with the defenses asserted by the indemnifying party (in
which case the indemnifying party shall not have the right to assume
the defense of such action on behalf of the indemnified party). In any
such case, the indemnifying party shall not, in connection with any one
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 any local counsel)
for all indemnified parties and all such reasonable fees and expenses
shall be reimbursed as they are incurred. Such firm shall be designated
in writing by a majority of the Holders, in the case of the parties
indemnified pursuant to Section 8(a), and by the Issuer in the case of
parties indemnified pursuant to Section 8(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and
against any and all losses, claims, damages, liabilities and judgments
by reason of any settlement of any action effected with its written
consent which consent shall not be unreasonably withheld. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement or compromise of, or consent
to the entry of judgment with respect to, any pending or threatened
action in respect of which the indemnified party is or could have been
a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise
or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the
subject matter of such action and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
(d) To the extent that the indemnification provided for in
this Section 8 is unavailable to an indemnified party in respect of any
losses, claims, damages, liabilities or judgments referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages,
liabilities or judgments (i) in such proportion as is appropriate to
reflect the relative benefits received by the Issuer, on the one hand,
and the Holders, on the other hand, from the sale of Transfer
Restricted Securities or (ii) if the allocation provided by clause
8(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause 8(d)(i) above but also the relative fault of the Issuer, on the
one hand, and of the Holders, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Issuer, on the one hand, and
of the Holders, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material
fact relates to information supplied by such Issuer or such Guarantor,
on the one hand, or by the Holders, on the other hand, and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages,
liabilities and judgments referred to above shall be deemed to
16
include, subject to the limitations set forth in the second paragraph
of Section 8(a), any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending
any action or claim.
The Issuer and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were 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 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 the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities
or judgments. Notwithstanding the provisions of this Section 8, no Holder, its
directors, its officers or any Person, if any, who controls such Holder shall be
required to contribute, in the aggregate, any amount in excess of the amount by
which the total received by such Holder with respect to the sale of Transfer
Restricted Securities pursuant to a Registration Statement exceeds (i) the
amount paid by such Holder for such Transfer Restricted Securities and (ii) the
amount of any damages which such Holder has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(d) are several in
proportion to the respective principal amount of Transfer Restricted Securities
held by each Holder hereunder and not joint.
9. RULE 144A AND RULE 144
The Issuer agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding and during any period in which such
Issuer or such Guarantor (i) is not subject to Section 13 or 15(d) of the
Exchange Act, to make available, upon request of any Holder, to such Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
designated by 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, and (ii) is subject to Section 13 or 15 (d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Transfer Restricted Securities pursuant to Rule
144.
10. MISCELLANEOUS
(a) Remedies. The Issuer acknowledges and agrees that any
failure by the Issuer to comply with its obligations under Sections 3
and 4 hereof may result in material irreparable injury to the Initial
Purchaser or the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchaser or any Holder may obtain such relief as may be required to
specifically enforce the Issuer's obligations under
17
Sections 3 and 4 hereof. The Issuer further agrees to waive the defense
in any action for specific performance that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Issuer will not, 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. The Issuer has not 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 Issuer's securities under any agreement in effect on the
date hereof.
(c) 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 (i)
in the case of Section 5 hereof and this Section 10(c)(i), the Issuer
have obtained the written consent of Holders of all outstanding
Transfer Restricted Securities and (ii) in the case of all other
provisions hereof, the Issuer have obtained the written consent of
Holders of a majority of the outstanding principal amount of Transfer
Restricted Securities (excluding Transfer Restricted Securities held by
the Issuer or their Affiliates). Notwithstanding the foregoing, a
waiver or consent to departure from the provisions hereof that relates
exclusively to the rights of Holders whose Transfer Restricted
Securities are being tendered pursuant to the Exchange Offer, and that
does not affect directly or indirectly the rights of other Holders
whose Transfer Restricted Securities are not being tendered pursuant to
such Exchange Offer, may be given by the Holders of a majority of the
outstanding principal amount of Transfer Restricted Securities subject
to such Exchange Offer.
(d) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer, on
the one hand, and the Initial Purchaser, 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 its rights
or the rights of Holders hereunder.
(e) 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 Issuer:
18
Prime Hospitality Corp.
700 Route 46 East
P.O. Box 2700
Fairfield, New Jersey 07007-2700
Attention: Joseph Bernadino, Esq.
With a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019
Telecopier No.: 212-728-8111
Attention: Michael A. Schwartz
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 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.
(f) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of
the parties, including without limitation and without the need for an
express assignment, subsequent Holders; provided that nothing herein
shall be deemed to permit any assignment, transfer or other disposition
of Transfer Restricted Securities in violation of the terms hereof or
of the Purchase Agreement or the Indenture. If any transferee of any
Holder shall acquire Transfer Restricted Securities in any manner,
whether by operation of law or otherwise, such Transfer Restricted
Securities shall be held subject to all of the terms of this Agreement,
and by taking and holding such Transfer Restricted Securities such
Person shall be conclusively deemed to have agreed to be bound by and
to perform all of the terms and provisions of this Agreement, including
the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled
to receive the benefits hereof.
(g) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same
agreement.
(h) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect
the meaning hereof.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO THE CONFLICT OF LAW RULES THEREOF.
19
(j) 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.
(k) Entire Agreement. This 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 with respect to the Transfer Restricted
Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
20
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ISSUER:
PRIME HOSPITALITY CORP.
By: ____________________________________
Name:
Title:
INITIAL PURCHASER:
BEAR, STEARNS & CO. INC.
By: ___________________________
Name:
Title: