EXHIBIT II.I
SECOND AMENDED AND RESTATED
EXCHANGE AND REGISTRATION RIGHTS AGREEMENT
SECOND AMENDED AND RESTATED EXCHANGE AND REGISTRATION RIGHTS AGREEMENT,
dated as of October 7, 1996, by and among ▇▇▇▇▇ Hotels & Casino Resorts, Inc., a
Delaware corporation (the "Company"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), ▇▇▇▇▇ Casinos,
Inc., a New Jersey corporation wholly owned by ▇▇▇▇▇ ("TCI") and ▇▇▇▇▇ Casinos
II, Inc., a Delaware corporation wholly owned by ▇▇▇▇▇ ("TCI-II").
WHEREAS, the Company and ▇▇▇▇▇ entered into that certain Exchange and
Registration Rights Agreement (the "Initial Agreement"), dated as of June 12,
1995, relating to the conversion of limited partnership interests in ▇▇▇▇▇
Hotels & Casino Resorts Holdings, L.P. (the "Partnership") into shares of Common
Stock (as defined below) of the Company and registration rights with respect
thereto;
WHEREAS, in connection with the acquisition by the Partnership of ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ Associates ("Taj Associates") and the other transactions related thereto,
the Company, ▇▇▇▇▇ and TCI entered into that certain Amended and Restated
Exchange and Registration Rights Agreement (the "First Amended Agreement"),
dated as of April 17, 1996, relating to (i) the contribution by ▇▇▇▇▇ to ▇▇▇▇▇
Atlantic City Associates ("▇▇▇▇▇ ▇▇") (on behalf, and at the direction, of the
Partnership) of 50% of the outstanding capital stock of The ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Corporation, ("TTMC"), which held a .01% general partnership interest in Taj
Associates,(ii) the contribution by TCI to ▇▇▇▇▇ ▇▇ (on behalf, and at the
direction, of the Partnership) of its 49.995% general partnership interest in
Taj Associates, (iii) the issuance of limited partnership interests in the
Partnership to each of ▇▇▇▇▇ and TCI in consideration of such contributions by
each of ▇▇▇▇▇ and TCI and (iv) the conversion of such limited partnership
interests in the Partnership into shares of Common Stock and registration rights
with respect thereto;
WHEREAS, in connection with the acquisition by the Partnership of all of
the equity interests of Trump's Castle Associates, L.P. ("Castle Associates")
and the other transactions related thereto, (i) ▇▇▇▇▇ is contributing to the
Partnership his 61.5% equity interest in Castle Associates and (ii) TCI-II is
contributing to the Partnership its 37.5% equity interest in Castle Associates;
WHEREAS, pursuant to the First Amended Agreement, ▇▇▇▇▇ and TCI were issued
certain exchange rights and registration rights in connection with their limited
partnership interests in the Partnership;
WHEREAS, the Company has agreed to ▇▇▇▇▇ ▇▇▇▇▇, TCI and TCI-II the exchange
rights and registration rights set forth below in
connection with their limited partnership interests in the Partnership; and
WHEREAS, the Company, ▇▇▇▇▇ and TCI have agreed to amend and restate the
First Amended Agreement in its entirety and to add TCI-II as a party.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I.
DEFINITIONS
Section 1.1. Reference to Partnership Agreement. Capitalized terms used
herein and not otherwise defined herein shall have the meaning ascribed to them
in the Third Amended and Restated Agreement of Limited Partnership of the
Partnership, dated as of October 7, 1996 (the "Partnership Agreement").
Section 1.2. CERTAIN DEFINITIONS. Except as otherwise herein expressly
provided, the following terms and phrases shall have the meanings as set forth
below:
"Aggregate Conversion Number" means the sum of the Conversion Numbers of
each Optionee.
"Agreement" means this Amended and Restated Exchange and Registration
Rights Agreement.
"Common Stock" means the common stock, par value $.01 per share of the
Company, and any securities into which the Common Stock has been converted or
exchanged whether pursuant to a Recapitalization Event, Merger or otherwise.
"Company" has the meaning ascribed thereto in the Preamble hereto.
"Conversion Number" means the aggregate number of shares of Common Stock
issuable upon the exercise of an Optionee's entire Exchange Right, which number
shall initially be 10,300,456 with respect to ▇▇▇▇▇, 1,407,017 with respect to
TCI and 2,211,250 with respect to TCI-II and which numbers shall be adjusted as
provided in Article II.
"Conversion Partner" means an Optionee other than (i) ▇▇▇▇▇, (ii) TCI,
(iii) TCI-II and (iv) any Permitted Holder with respect to ▇▇▇▇▇.
"Conversion Right" has the meaning set forth in Section 2.2 hereof.
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"Determination" has the meaning ascribed thereto in Section 2.7 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC thereunder, all as the same shall be in
effect at the relevant time.
"Exchange Right" has the meaning set forth in Section 2.1 hereof.
"HSR" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as
amended.
"Letter of Transmittal" means the form of letter attached hereto and made a
part hereof pursuant to which an Optionee may tender his Partnership Interests
in exchange for shares of Common Stock.
"Option" means, collectively, the Conversion Right and the Exchange Right.
"Optionee" means (i) ▇▇▇▇▇, (ii) TCI, (iii) TCI-II and (iv) each assignee
of Partnership Interests of ▇▇▇▇▇, TCI and TCI-II and any subsequent assignee.
"Partnership" has the meaning ascribed thereto in the recitals hereto.
"Partnership Agreement" has the meaning ascribed thereto in the recitals
hereto.
"Recapitalization Event" has the meaning set forth in Section 2.4(b)
hereof.
"Registrable Securities" shall mean, collectively, (i) the Common Stock
issued or issuable upon exercise of the Options and (ii) any securities issued
or issuable with respect to such shares of Common Stock by way of stock
dividend, stock split, in connection with a combination of shares,
recapitalization, merger, consolidation or other reorganization or otherwise.
"Registration Expenses" means all expenses required to be disclosed in Item
13 of Part II of the Form S-1 registration statement, or in a comparable section
of any similar form permitting an underwritten public offering, as well as
expenses of underwriters customarily reimbursed by issuers for selling
stockholders and reasonable fees and expenses of one counsel for all selling
stockholders (in respect of a demand registration) and any underwriter (for both
a demand and piggyback registration), but not including underwriting discounts
and commissions and transfer taxes.
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"Rights" means any rights, options, warrants or convertible securities (or
rights, options or warrants to purchase convertible securities) containing the
right to subscribe for or purchase shares of Common Stock.
"SEC" means the Securities and Exchange Commission and any successor
agency.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as the same shall be in effect
at the relevant time.
"Settlement Date" has the meaning ascribed thereto in Section 4.1(a)
hereof.
"Special Dividend Record Date" has the meaning set forth in the Company's
Amended and Restated Certificate of Incorporation.
"Stop Order" means, with respect to any registration of the Registrable
Securities or any portion thereof effected pursuant to this Agreement, any stop
order, injunction or other order or requirement of the SEC or any other
governmental or administrative agency, or any act by any court preventing or
otherwise limiting the sale of any Registrable Securities pursuant to such
registration.
"TCI" has the meaning ascribed thereto in the Preamble hereto.
"TCI-II" has the meaning ascribed thereto in the Preamble hereto.
"▇▇▇▇▇" has the meaning ascribed thereto in the Preamble hereto.
Section 1.3. RULES OF CONSTRUCTION. In this Agreement, whenever the context
so indicates, the singular or plural number, and the masculine, feminine or
neuter gender shall each be deemed to include the other, and the terms "he" and
"him" shall refer to an Optionee. Words such as "herein," "hereinafter," and
"hereunder" refer to this Agreement as a whole and not merely to a subdivision
in which such words appear unless the context otherwise requires.
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ARTICLE II.
The Option
Section 2.1. THE EXCHANGE RIGHT. Each Optionee shall have the right (the
"Exchange Right"), exercisable at any time, to require the Company to exchange
shares of Common Stock for all or any portion of the properly tendered
Partnership Interests owned by such Optionee.
Section 2.2. THE CONVERSION RIGHT. The Company (acting through a majority
of the Special Committee) shall have the right (the "Conversion Right"),
exercisable at any time, to require a Conversion Partner to exchange all or any
portion of the Partnership Interests owned by such Conversion Partner for shares
of Common Stock.
Section 2.3. SHARES ISSUABLE UPON EXCHANGE. The number of shares of Common
Stock to be issued by the Company to an Optionee upon exercise of an Exchange
Right or Conversion Right shall be equal to the product of (a) a fraction, (i)
the numerator of which is the Percentage Interest of the Partnership Interests
with respect to which the Option is exercised and (ii) the denominator of which
is the aggregate Percentage Interest of the outstanding Partnership Interests
held by such Optionee immediately prior to such exercise, multiplied by (b) such
Optionee's Conversion Number.
Section 2.4. ADJUSTMENT OF THE CONVERSION NUMBER. The Conversion Number
shall be adjusted as provided in this Section 2.4 as follows:
(a) An Optionee's Conversion Number shall be reduced by the number of
shares of Common Stock issued upon any exercise of its Option. Upon an
assignment of Partnership Interests by an Optionee in accordance with the
terms of the Partnership Agreement, such Optionee's Conversion Number shall
be reduced appropriately, and the Conversion Number of the assignee of such
Partnership Interests shall be equal to the amount of such reduction, or in
the case of an assignee who is also a holder of Partnership Interests, such
assignee's Conversion Number shall increase by the amount of such
reduction.
(b) Except in respect of transactions described in paragraph (c)
below, in case the Company shall (i) pay a dividend on the Common Stock in
additional shares of equity securities of the Company, (ii) subdivide or
reclassify its Common Stock, (iii) combine its outstanding shares of Common
Stock into a smaller number of shares of Common Stock, or (iv) issue by
reclassification of its Common Stock other securities of the Company (each
a "Recapitalization Event"), each Optionee's Conversion Number immediately
prior to the
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Recapitalization Event shall be adjusted such that the Conversion Number
after the Recapitalization Event shall equal, the kind and amount of shares
and other securities and property which the Optionees would have owned or
have been entitled to receive after the happening of such Recapitalization
Event had all of the Options been exercised immediately prior to such
Recapitalization Event (or any record date with respect thereto). Any
adjustment made pursuant to this paragraph (b) shall become effective
immediately after the effective date of such event and such adjustment
shall be retroactive to the record date, if any, for such event.
(c) In case the Company shall issue Rights pro rata to all holders of
Common Stock, and the consideration payable upon exercise or conversion of
any such Right to acquire one share of Common Stock is less than the
Current Market Price on the date of and immediately prior to such issuance
of Rights, then upon the expiration of the period during which such Rights
may be exercised or converted (the "Rights Exercise Period") each
Optionee's Conversion Number immediately prior to such expiration shall be
adjusted to be that number of shares of Common Stock equal to the product
of (i) such Optionee's Conversion Number immediately prior to such
expiration and (ii) a fraction, (A) the numerator of which is equal to the
sum of (I) the total number of shares of Common Stock outstanding
immediately prior to such issuance and (II) the number of shares of Common
Stock issued upon exercise or conversion of such Rights and (B) the
denominator of which is equal to the sum of (I) the total number of shares
of Common Stock outstanding immediately prior to such issuance and (II) the
number of shares of Common Stock which the aggregate consideration payable
upon exercise or conversion of such Rights would purchase at the Current
Market Price on the date of issuance of the Rights; provided, however, in
no event shall such fraction be less than one. If an Option is exercised
during the period commencing on the record date for the issuance of the
Rights and ending on the expiration of the Rights Exercise Period, then (r)
the Conversion Number upon such exercise shall be adjusted as provided in
this Section 2.4(c), as if such exercise date were the end of the Rights
Exercise Period, utilizing for purposes of clause (ii)(A)(II) the number of
shares of Common Stock issued upon exercise or conversion of Rights as of
such date; provided, further, that in no event shall the fraction in clause
(ii) be less than one; and (s) at the end of the Rights Exercise Period,
the Optionee shall be issued an additional number of shares equal to the
excess, if any, of the number of shares of Common Stock which would have
been issued had such Option been exercised at the end of the Rights
Exercise Period over the number of shares actually issued upon exercise of
the Option.
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(d) In case the Percentage Interest of the Partnership Interests held
by an Optionee shall increase as the result of the contribution by such
Optionee of additional consideration or otherwise to the Partnership (a
"Contribution"), then the Conversion Number shall be adjusted such that (i)
such Optionee's Conversion Number immediately after the Contribution
divided by the sum of the number of outstanding shares of Common Stock plus
the new Aggregate Conversion Number shall equal (ii) the product of (A) a
fraction, (I) the numerator of which is the aggregate Percentage Interest
of such Optionee immediately after the Contribution, and (II) the
denominator of which is the aggregate Percentage Interest of such Optionee
immediately prior to the Contribution, and (B) a fraction, (I) the
numerator of which is such Optionee's Conversion Number immediately prior
to the Contribution, and (II) the denominator of which is the sum of the
Aggregate Conversion Number immediately prior to the Contribution and the
number of outstanding shares of Common Stock.
(e) In case of any consolidation or merger of the Company with or into
another entity as a result of which the holders of Common Stock become
holders of other shares or securities of the Company or of another entity
or person, or such holders receive cash or other assets, or in case of any
sale or conveyance to another person of the property, assets or business of
the Company as an entirety or substantially as an entirety, the Company or
such successor or purchasing entity or person, as the case may be, shall
execute with the Optionees an agreement that (i) the Optionees shall have
the right thereafter to receive upon exercise of their Options the kind and
amount of shares and other securities and property which it would have
owned or have been entitled to receive after the happening of such
consolidation, merger, sale or conveyance had its Option been exercised
immediately prior to such action and (ii) that this Agreement, including,
without limitation, the registration rights in Article V hereof, shall
continue in full force and effect notwithstanding the consummation of such
transaction and that such person or entity shall assume the obligations of
the Company hereunder. The agreements referred to in this Section 2.4(e)
shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in the other provisions in this
Section 2.4. The provisions of this Section 2.4(e) shall similarly apply to
successive consolidations, mergers, sales or conveyances.
Section 2.5. COMPANY'S COVENANT REGARDING CERTAIN RIGHTS OFFERINGS. The
Company covenants and agrees that it shall not issue Rights pro rata to all
holders of Common Stock, unless such Rights are exercisable or convertible for a
period not in excess of sixty (60) days from their date of issuance.
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Section 2.6. RESERVATION. The Company shall at all times reserve and keep
available out of its authorized but unissued Common Stock the full number of
shares of Common Stock deliverable at such time upon the exercise of the Options
and shall take all such action and obtain all such permits or orders as may be
necessary to enable the Company lawfully to issue such Common Stock upon the
exercise of the Option and to cause such Common Stock to be fully paid and
nonassessable.
Section 2.7. DETERMINATION OF NUMBER OF SHARES. The Company shall calculate
(each calculation, a "Determination") the number of shares of Common Stock to be
issued upon the exercise of an Option pursuant to this Agreement in connection
with such exercise. After each exercise of an Option, the Company shall promptly
provide the Optionees a report, certified by the Chief Financial Officer of the
Company and its independent public accountants, setting forth the Determination,
and setting forth in reasonable detail the method of calculation and the facts
upon which such calculation is based. Each Determination will be made by the
Company in good faith and in accordance with the provisions hereof. The Company
shall, at any time upon the written request of an Optionee, furnish to such
Optionee a like report setting forth the number of shares of Common Stock
issuable upon the exercise of an Option and showing in reasonable detail the
derivation of such number of shares of Common Stock.
Section 2.8. CONTINUOUS OFFER. This Agreement is a continuous offer and may
not be withdrawn, changed or modified by the Company or a Conversion Partner
without the prior written consent of the Company and each Optionee.
ARTICLE III.
Procedure for Exercising the Option
Section 3.1. THE EXERCISE OF THE EXCHANGE RIGHT.
(a) Each Optionee desiring to exercise his Exchange Right with respect
to all or a portion of his Partnership Interests may do so by delivering to
the Company, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Attn:
Corporate Secretary (or such other address as the Company shall provide in
writing to each Optionee) a completed and duly executed Letter of
Transmittal and any other documents required by the Letter of Transmittal.
(b) The tender of Partnership Interests pursuant to this Section 3.1
shall constitute a binding agreement between the tendering Optionee and the
Company and will not be subject to withdrawal or change except with the
consent of the Company.
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(c) All questions as to the validity and form of any tender of
Partnership Interests upon the exercise of the Option will be determined in
good faith by the Company.
Section 3.2. REPRESENTATION OF OPTIONEE. Any exercise of an Exchange Right
hereunder by an Optionee shall constitute a representation by such Optionee that
it is acquiring the Common Stock to be issued upon the exercise of the Exchange
Right for purposes of investment and not with a view to distribution (without
any limitation of any rights such Person may have under Article V hereof) in
violation of any federal or state securities laws.
Section 3.3. THE EXERCISE OF THE CONVERSION RIGHT.
(a) If the Company exercises the Conversion Right with respect to all
or a portion of the Partnership Interests of a Conversion Partner, the
Company may do so by delivering to the Conversion Partner at his address
appearing on the books of the Partnership, a notice setting forth (i) the
Company's election to exercise the Conversion Right, (ii) the portion of
the Partnership Interest with respect to which the Conversion Right is
exercised, and (iii) that delivery of shares of Common Stock as the
consideration for the Partnership Interest subject to the Conversion Right
shall not be made until the Conversion Partner has submitted a duly
completed Letter of Transmittal and any other documents required by the
Letter of Transmittal, which Letter of Transmittal and other documents
shall be completed and delivered promptly to the Company.
(b) All questions as to the validity and form of any tender of
Partnership Interests upon the exercise of the Conversion Right will be
determined in good faith by the Company.
ARTICLE IV.
Settlement of the Option
Section 4.1. SETTLEMENT OF THE OPTION.
(a) Upon the terms and subject to the conditions of this Agreement,
the Company will issue shares of Common Stock for Partnership Interests
properly tendered on that date (the "Settlement Date") which is the later
of: (i) the expiration of three (3) Business Days from the date that the
Company receives the tender of the Partnership Interests in proper form and
meeting all of the requirements of this Agreement, which requirements may
be waived by the Company in connection with a Conversion Right, (ii) the
earlier of (A) ten (10) Business Days after the exercise of the Exchange
Right, or (B) one day after the Special Dividend
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Record Date, and (iii) the expiration or termination of the waiting period
applicable to each tender, if any, under HSR. The Optionee shall be deemed
to be the record holder of the Common Stock issuable upon exercise of the
Option on the Settlement Date, notwithstanding the fact that certificates
with respect to such shares of Common Stock may not have been issued on
such date.
(b) Upon the exercise of an Option, the General Partner shall use its
reasonable best efforts (including, without limitation, forming and
properly capitalizing a subsidiary for the purpose of holding all or a
portion of the Partnership Interests being transferred upon exercise of the
Option) and cooperate with the remaining Optionees to the extent necessary
to preserve the treatment of the Partnership as a pass-through entity for
federal tax purposes.
(c) Each tender and the issuance of Common Stock with respect thereto
will be subject to any change in securities or other applicable law
imposing limits or conditions on such tender or the issuance of Common
Stock with respect thereto.
(d) Payment for the Partnership Interests tendered pursuant to this
Agreement will be made only after timely receipt by the Company of (i)
Certificates of Interest with respect to such Partnership Interests, duly
completed and executed by the Partnership in the name of the Optionee and
duly endorsed by the Optionee for transfer to, or accompanied by stock
powers duly executed by the Optionee in favor of, the Company, (ii) a
properly completed and duly executed Letter of Transmittal and (iii) any
other documents required by the Letter of Transmittal.
Section 4.2. TAX WITHHOLDING. Unless an exception applies under applicable
law and regulations, the Company will be required to withhold, and will
withhold, 31 percent (or such other amount as applicable law may require) of the
gross proceeds (including dollar equivalent of shares of Common Stock) paid to a
tendering Optionee unless the Optionee provides his tax identification number
(employer identification number or Social Security Number) and certifies that
such number is correct.
Section 4.3. RIGHTS AS PARTNER/STOCKHOLDER.
(a) No Optionee shall, by virtue of this Agreement, have any rights as
a stockholder of the Company until such time as that person becomes a
holder of record of shares of Common Stock.
(b) The Company, effective as of the Settlement Date with respect to
any tendered Partnership Interest, assumes all obligations related to the
tendered Partnership Interest
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and will hold the Person tendering that Partnership Interest harmless from
any such obligations other than with respect to any breach of any
representation contained in the Letter of Transmittal to be delivered in
connection with the exercise of rights pursuant to this Agreement.
(c) Until the Settlement Date, each tendering Optionee shall continue
to own his respective tendered Partnership Interests, and will continue to
be treated as the holder of such tendered Partnership Interests for all
purposes of the Partnership Agreement, including, without limitation, for
purposes of voting, consent, allocations and distributions (subject only to
reasonable accounting conventions adopted by the Partnership for purposes
of determining the partners' varying percentage interests in the
Partnership during the taxable year). Tendered Partnership Interests will
be transferred to the Company only upon receipt by the tendering Optionee
of Common Stock in payment in full therefor.
Section 4.4. HSR. If in connection with the exercise of an Option, such
Optionee is required to file a notification form pursuant to the HSR, then as
promptly as practicable, and in any event within ten (10) Business Days
following the exercise of the Option, such Optionee and the Company shall each
prepare and file, or shall cause its "ultimate parent" (as defined in the HSR)
to prepare and file, any required notification and report form under the HSR, in
connection with the transactions contemplated hereby, the filing fees for which
shall be borne by the Company. Such Optionee and the Company shall, or shall
cause their ultimate parents to, request early termination of the waiting period
with respect to such filing and to respond with reasonable diligence to any
request for additional information made in response to such filings.
ARTICLE V.
Registration Rights
Section 5.1. REGISTRATION ON DEMAND.
(a) Upon written notice to the Company from holders of at least twenty
percent (20%) of the Registrable Securities, determined as if the Exchange
Right had been fully exercised, of their desire to cause a registration of
the Registrable Securities, the Company shall (i) inform the other holders
of Registrable Securities (at least 30 days prior to the proposed filing of
any registration statement), such notice to state the identity of the
holders requesting registration and the number of Registrable Securities
proposed to be sold thereby, and take appropriate action, on a reasonably
timely basis, to file with the SEC a registration statement on the
appropriate form covering all Registrable Securities specified in such
demand and by such
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other holders (by notice given to the Company within 15 days after the date
the Company notified them of such demand), (ii) use best efforts to cause
such registration statement to become effective under the Securities Act
and (iii) use best efforts to qualify such resale under those state
securities laws reasonably requested by the holders of a majority of
Registrable Securities to be included in such registration; provided,
however, that such effort shall not require the Company to qualify as a
foreign corporation or subject itself to taxation in any jurisdiction where
it is not already so qualified or subject. The Company shall be obligated
to effect four (4) registrations pursuant to this Section 5.1. The Company
shall be obligated to effect any registration pursuant to this Section 5.1
as promptly as practicable upon receipt from the requisite number of
holders of Registrable Securities of the notice requesting such
registration; provided, however, that the Company shall have the right to
delay any registration pursuant to this Section 5.1 for one period of up to
thirty (30) days if the Board of Directors of the Company shall have
determined (and passed a resolution to such effect) that to effectuate such
registration at such time would materially and adversely affect the Company
and be materially detrimental to the business and operations thereof (a
"Blackout Determination"), which period may be extended for an additional
thirty (30) days upon a second Blackout Determination upon the expiration
of the first thirty (30) day period.
(b) The Company will be obligated to pay all Registration Expenses
with respect to the registrations pursuant to this Section 5.1.
(c) Registrable Securities will cease to be such when (i) a
registration statement covering such Registrable Securities has been
declared effective and they have been disposed of pursuant to such
effective registration statement, (ii) such Registrable Securities shall
have been otherwise transferred, and the Company shall have delivered new
certificates or other evidences of ownership for them not subject to any
stop transfer order or other restriction on transfer and not bearing a
legend restricting transfer in the absence of an effective registration or
an exemption from the registration requirements of the Securities Act and
subsequent disposition of them shall not require registration or
qualification of them under the Securities Act or any similar state law
then in force, or (iii) such Registrable Securities shall have ceased to be
outstanding.
(d) A registration requested pursuant to this Section 5.1 will not be
deemed to have been effected unless it has been declared effective by the
SEC and the Company has complied with all of its obligations under this
Agreement with respect thereto (without regard to the use of best
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efforts or the like); provided that, such registration will be deemed not
to have been effected if after such registration has become effective, the
offering of the Registrable Securities (or any portion thereof) pursuant to
such registration is withdrawn or is or becomes the subject of any Stop
Order. If (i) a registration requested pursuant to this Section 5.1 is
deemed not to have been effected or (ii) the registration requested
pursuant to this Section 5.1 does not remain effective for a period of at
least 360 days, then (x) such requested registration shall not be deemed to
be an effective registration pursuant to this Section 5.1 and (y) such
requested registration shall not reduce the number of registrations the
Company shall be obligated to effect pursuant to this Section 5.1.
(e) Any offering of Registrable Securities contemplated by this
Section 5.1 shall, unless the holders of a majority of the Registrable
Securities to be included in such offering determine otherwise, be a firm
commitment underwritten offering and the managing underwriter for such
offering shall be chosen by the holders of a majority of the Registrable
Securities to be included therein, which managing underwriter shall be
reasonably acceptable to the Company.
(f) The Company shall not, without the prior written consent of the
holders of a majority of the Registrable Securities to be included in any
registration requested pursuant to this Section 5.1, include in such
registration, any other securities of the Company; provided, however, that
the Company may include in any such registration any securities to the
extent that the inclusion of such securities does not have the effect
referred to in Section 5.1(g) hereof and so long as the sale of such
securities is included in the underwriting of the Registrable Securities
and the same underwriters are used.
(g) If the managing underwriter in a public offering to be effected
pursuant to the provisions of this Section 5.1 advises the Company and the
holders of the Registrable Securities in writing that, in its opinion,
inclusion in the registration of the total amount of securities requested
to be registered will materially and adversely affect the offering price of
such securities or will materially and adversely affect the market for such
securities, then, to the extent necessary, up to the entire amount of any
securities proposed to be included in such registration which are not
Registrable Securities shall be eliminated.
(h) The Company shall not be required to register Registrable
Securities which, together with any other securities to be included in such
registration, have a value, based on the proposed offering price, of less
than $2,000,000.
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Section 5.2. INCIDENTAL REGISTRATION.
(a) If the Company intends to file a registration statement on Form
▇-▇, ▇-▇ or S-3 (or other appropriate form) for the registration of an
offering of equity securities with the SEC, the Company shall notify each
of the holders of record of Registrable Securities at least 30 days prior
to each such filing of the Company's intention to file such a registration
statement, such notice shall state the number of shares of equity
securities proposed to be registered thereby. If any holder of Registrable
Securities notifies the Company within ten days after receipt of such
notice from the Company of its desire to have included in such registration
statement any of its Registrable Securities, then the Company shall cause
the Company to include such shares in such registration statement. The
Company shall pay all the Registration Expenses of such registration.
(b) The Company may in its discretion withdraw any registration
statement filed pursuant to this Section 5.2 subsequent to its filing
without liability to the holders of Registrable Securities.
(c) In the event that the managing underwriter for any such offering
described in this Section 5.2 notifies the Company that, in good faith, it
is able to proceed with the proposed offering only with respect to a
smaller number of securities (the "Maximum Number") than the total number
of Registrable Securities proposed to be offered by such holders and
securities proposed to be offered by the Company and all others entitled to
registration rights under such registration statement, then the Company
shall reduce the number of securities held by persons (the "Piggyback
Holders") other than the Company and persons exercising demand registration
rights to be included in such registration, to the extent necessary to
reduce the number of securities to be included in such registration to an
amount equal to the Maximum Number. Such amount will be allocated pro rata
in accordance with the number of securities proposed to be offered by each
Piggyback Holder (including the holders of Registrable Securities).
Section 5.3. INDEMNITY AND CONTRIBUTION.
(a) In connection with a registration statement filed with the SEC
pursuant to this Article V, the Company shall provide each holder of
Registrable Securities included in such registration statement, each
officer and director of any thereof, and each person who controls such
holder within the meaning of Section 15 of the Securities Act and Section
20 of the Exchange Act, with indemnification against any losses, claims,
damages or liabilities, reasonable attorneys
-14-
fees, costs or expenses and costs and expenses of investigating and
defending any such claims (collectively "Damages"), joint or several, to
which any of them may become subject under the federal securities laws, or
otherwise, in form and substance as is customarily given to underwriters in
an underwritten offering of securities. Each holder including Registrable
Securities in any such registration statement agrees that it shall
indemnify the Company, each officer and director thereof, and each person
who controls the Company within the meaning of Section 15 of the Securities
Act and Section 20 of the Exchange Act, against any Damages, in form and
substance as is customarily given by selling shareholders to a publicly
held corporation in an underwritten public offering of securities, but only
to the extent that such Damages (or proceedings in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained, on the effective date thereof, in any
registration statement under which such securities are registered under the
Securities Act, in any preliminary prospectus or final prospectus contained
therein or in any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, which, in each such case, has been made in or
omitted from such registration statement, said preliminary or final
prospectus or said amendment or supplement, solely in reliance upon, and in
conformity with, written information furnished to the Company by such
holder of Registrable Securities.
(b) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section
5.3(a) is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms, each of the
Company and the holders of the Registrable Securities included in such
registration shall contribute to the aggregate Damages contemplated by said
indemnity agreement incurred by each of the Company and such holders of the
Registrable Securities, as incurred, in such proportions as is appropriate
to reflect the relative fault of the Company and such holders of the
Registrable Securities in connection with the statements or omissions which
resulted in such Damages. The relative fault of the Company and such
holders of Registrable Securities shall be determined by reference to,
among other things, whether the untrue or alleged untrue statements of a
material fact or the omission or alleged omission to state a material fact
was supplied by the Company or one or more of the holders of Registrable
Securities, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
-15-
(c) In no event shall a holder of Registrable Securities be liable for
indemnification or contribution pursuant to this Article V in excess of the
net proceeds received upon the sale of such Registrable Securities.
Section 5.4. CERTAIN PROCEDURES. The Company shall provide each holder of
Registrable Securities included in any registration with a "cold comfort" letter
from the Company's independent public accountants, in customary form covering
those matters customarily covered by a "cold comfort" letter with respect to any
such registration statement and addressed to such holder, and the Company shall
use its best efforts to execute and deliver with underwriters for the offering
covered by any such registration statement, an underwriting agreement in form
and substance customarily executed for public offerings of common stock. Any
holder of Registrable Securities that includes shares in the registration shall
also be a party to such underwriting agreement.
Section 5.5. RULE 144 REPORTING. With a view to making available to the
holders of Registrable Securities the benefits of certain rules and regulations
of the SEC which may permit the sale of the Registrable Securities to the public
without registration, the Company agrees to, at all times:
(a) make and keep available current public information concerning the
Company as those terms are understood and defined in Rule 144 under the
Securities Act ("Rule 144");
(b) file with the SEC in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(c) furnish to each holder of Registrable Securities forthwith, upon
such holder's request, a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 and of the
Securities Act and the Exchange Act, a copy of the most recent annual or
quarterly report of the Company and such other reports and documents so
filed by the Company as such holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing it to sell any such
securities without registration.
Section 5.6. LOCK-UPS. After receipt of any notice pursuant to Section 5.1
or 5.2 hereof, each holder of Registrable Securities and the Company shall not
demand or request a registration of securities of the Company or otherwise offer
or sell securities until the later of (i) 90 days after the effective date of
the registration statement in respect of which such notice was given, (ii) 150
days after the date such notice was given or (iii) the date such registration
statement is withdrawn by the Company. To the extent requested by the managing
underwriter in respect of an offering of securities of
-16-
the Company described in this Article V, each holder of Registrable Securities
and the Company shall agree to refrain from selling or offering to sell any
securities of the Company within 120 days after the effective date of any
registration statement described herein; provided, however, that any pledgee of
Registrable Securities shall not be bound by this requirement in connection with
a private sale by it of its collateral. Nothing in this Section 5.6 shall
preclude the Company from issuing shares of Registrable Securities upon exercise
of an Option.
Section 5.7. NO INCONSISTENT PROVISIONS. The Company shall not, without the
prior written consent of the holders of a majority of the Registrable Securities
include, or grant to any Person the right to request the Company to include, in
such registration, any other securities of the Company that are inconsistent
with the priorities, rights and privileges of the holders of Registrable
Securities contained in this Agreement.
ARTICLE VI.
Miscellaneous
Section 6.1. WAIVER, AMENDMENT. Neither this Agreement nor any provisions
hereof shall be waived, modified, changed, discharged or terminated except by an
instrument in writing signed by the party against whom any waiver, modification,
change, discharge or termination is sought.
Section 6.2. ASSIGNABILITY. Neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by either an Optionee or the Company, without the prior written
consent of the other parties; provided, however, that the rights granted to an
Optionee hereunder shall automatically be assigned in connection with an
assignment of Partnership Interests or Registrable Securities; provided,
further, that the rights granted hereunder may be assigned to, and exercised by,
a secured creditor to whom an Optionee has pledged Partnership Interests or
Registrable Securities.
Section 6.3. ENTIRE AGREEMENT. This Agreement sets forth the entire
agreement and understanding of the parties hereto with respect to the
transactions contemplated hereby and supersedes any and all prior agreements and
understandings relating to the subject matter hereof. No representation, promise
or statement of intention has been made by any party hereto which is not
embodied in this Agreement or the written statements, certificates, exhibits or
other documents delivered pursuant hereto or in connection with the transactions
contemplated hereby, and no party hereto shall be bound by or liable for any
alleged representation, promise or statement of intention not set forth herein
or therein. The documents referred to in the immediately preceding sentence are
-17-
incorporated by reference herein and shall be deemed a part of this Agreement.
By executing and delivering this Agreement, the Company, ▇▇▇▇▇ and TCI agree to
the termination of the First Amended Agreement and to the amendment and
restatement thereof by this Agreement.
Section 6.4. SEVERABILITY. If any provision of this Agreement or the
application of any such provision to any person or circumstance shall be held
invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, this Agreement shall continue in full force and effect without
said provision; provided that, no such severance of provision shall be effective
if it materially changes the economic benefit of this Agreement to any Person.
Section 6.5. SECTION AND OTHER HEADINGS. The section headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 6.6. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, regardless of
the law that might be applied under principles of conflicts of law.
Section 6.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which together shall be deemed to be one and the same
agreement.
Section 6.8. SPECIFIC PERFORMANCE. Without limiting or waiving in any
respect any rights or remedies of an Optionee under this Agreement, or now or
hereinafter existing at law or in equity or by statute, the Company agrees that
the Optionees shall be entitled to seek specific performance of the obligations
to be performed by the Company in accordance with the provisions of this
Agreement.
Section 6.9. NOTICE. Each notice, demand, request, request for approval,
consent, approval, disapproval, designation or other communication (each of the
foregoing being referred to herein as a "notice") required or desired to be
given or made under this Agreement shall be in writing (except as otherwise
provided in this Agreement), and shall be effective and deemed to have been
received (i) when delivered in person, (ii) when sent by facsimile transmission
with receipt acknowledged, (iii) three (3) days after having been mailed by
certified or registered United States mail, postage prepaid, return receipt
requested, or (iv) the next business day after having been sent by a nationally
recognized overnight mail or courier service, receipt requested (a) if to any
Optionee, at such address or to the telefax number as such Optionee shall have
furnished the Company in writing, or (b) if to the Company, at the address of
its principal executive
-18-
offices and addressed to the attention of the Corporate Secretary, or at such
other address or to the telefax number as the Company shall have furnished to
each Optionee.
-19-
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and date first set forth above.
▇▇▇▇▇ HOTELS & CASINO RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Executive Vice President
▇▇▇▇▇ CASINOS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ CASINOS II, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
-20-
LETTER OF TRANSMITTAL
To Tender Partnership Interests
Pursuant to the Second Amended and Restated Exchange and
Registration Rights Agreement
Dated as of October 7, 1996
of
▇▇▇▇▇ Hotels & Casino Resorts, Inc.
TO: ▇▇▇▇▇ Hotels & Casino Resorts, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Corporate Secretary
Description of Partnership Interests
--------------------------------------------------------------------------------
Names(s) and Address(es) Partnership Interest Certificate(s)
of Registered Owners Enclosed (Attach additional list if
necessary)
Partnership Partnership Partnership
Interest Interests Interests
Certificate Represented Being
Number(s) by Tendered
Partnership
Interest
Certificate(s)
--------------------------------------------------
Total
Unless otherwise indicated, it will be assumed that all Partnership Interests
evidenced by any Partnership Interest Certificate(s) delivered to the Company
are being tendered. If, for any reason, Partnership Interest Certificates are
not being issued by ▇▇▇▇▇ Hotels & Casino Resorts Holdings, L.P., all provisions
in this Letter of Transmittal referring thereto shall be of no effect. See
instruction 4.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Gentlemen:
The undersigned hereby tenders to ▇▇▇▇▇ Hotels & Casino Resorts, Inc., a
Delaware corporation (the "Company"), the above-described Partnership Interests
as defined in the Company's Second Amended and Restated Exchange and
Registration Rights Agreement dated as of October 7, 1996 (the "Agreement") in
accordance with the terms and conditions of the Agreement and this Letter of
Transmittal (which together constitutes the "Tender"), receipt of which is
hereby acknowledged. All terms used herein but not defined herein are used as
defined in the Agreement.
Subject to, and effective upon, payment (i.e., issuance of shares of Common
Stock) for the Partnership Interests tendered herewith, the undersigned hereby
assigns and transfers to the Company all right, title and interest in and to all
the Partnership Interests that are being tendered hereby and irrevocably
constitutes and appoints the Company (the "Agent"), with full power of
substitution (such power of attorney being deemed to be an irrevocable power
coupled with an interest), to (a) present such Partnership Interests for
transfer on the Partnership's books and (b) receive all rights, privileges and
benefits, and any and all obligations and liabilities appertaining thereto and
otherwise exercise all rights of beneficial ownership of such Partnership
Interests, all in accordance with the terms of the Tender.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, sell, assign and transfer the tendered
Partnership Interests and that upon payment, the Company will acquire
unencumbered title thereto, free and clear of all liens, restrictions, charges
and encumbrances and the same will not be subject to any adverse claim. The
undersigned will, upon request, execute any additional documents deemed by the
Agent or the Company to be reasonably necessary or desirable to complete the
sale, assignment and transfer of the tendered Partnership Interests. If not sold
pursuant to an effective registration statement, the shares of Common Stock
issued will bear an appropriate legend indicating that such shares have not been
registered under the Securities Act and resale of such Common Stock is
restricted under applicable securities laws.
All authority conferred or agreed to be conferred in this Letter of
Transmittal shall not be affected by, and shall survive, the death or incapacity
of the undersigned, and any obligation of the undersigned hereunder shall be
binding upon the successors, assigns, heirs, executors, administrators and legal
representatives of the undersigned. Except as stated in the Agreement, this
Tender is irrevocable.
The undersigned understands that a tender of Partnership Interests pursuant
to the Agreement constitutes a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Agreement.
Unless otherwise indicated under "Special Delivery Instructions", please
mail the shares of Common Stock for the purchase price and/or return the
Partnership Interest Certificate for Partnership Interests not tendered (and
accompanying documents, as appropriate) to the address(es) of the registered
holder(s) appearing under "Description of Partnership Interests."
In the event that the Special Delivery Instructions are completed, please
issue the shares of Common Stock for the purchase price and any Certificate for
Partnership Interests not tendered in the name of the registered holder(s) and
transmit the same to the person or persons so indicated.
The Company, effective as of the Settlement Date (as defined in the
Agreement), will assume all obligations related to the tendered Partnership
Interests and will hold the undersigned harmless from such obligations,
including any liabilities, demands, claims, actions or causes of action,
assessments, losses, fines, penalties, costs, damages and expenses as a result
of or arising out of the ownership of such tendered Partnership Interests.
The Company and the undersigned agree that they will cooperate with each
other and will make, execute, acknowledge, deliver, record and file, or cause to
be made, executed, acknowledged, delivered, recorded and filed, at such times
and places as the other may reasonably deem necessary, all other and further
documents and instruments, and will take all other and further actions, as the
other may reasonably request from time to time in order to effectuate the
purposes and provisions of the tender made pursuant to this Letter of
Transmittal.
-2-
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 5 and 6)
--------------------------------------------------------------------------------
To be completed ONLY if (a) the Certificate of Interests includes Partnership
Interests not tendered and/or (b) shares of Common Stock for the purchase price
of Partnership Interests purchased are to be sent (i) to someone other than the
undersigned or (ii) to the undersigned at an address other than that above.
Mail [ ] Certificate(s) for shares of Common Stock
[ ] Certificate of Interests for Partnership
Interests not tendered
To:
Name _________________________________________________________
(please print)
Address ______________________________________________________
______________________________________________________________
(include Zip Code)
______________________________________________________________
______________________________________________________________
(Tax Identification or Social Security Number)
--------------------------------------------------------------------------------
SIGN HERE
Complete Substitute Form W-9 included
________________________________________________________________________________
________________________________________________________________________________
(Signature(s) of holder of Partnership Interests)
(Must be signed by registered holder(s) as name(s) appear(s) on Partnership
Interest Certificate(s). If signature is by trustees, executors, administrators,
guardians, attorneys-in-fact, officers of corporations or others acting in a
fiduciary or representative capacity, please set forth full title and see
instruction 5.
Dated___________________________________________________________
Name(s)_________________________________________________________
(please print)
Capacity
(Full Title)__________________________________________________
Address_________________________________________________________
________________________________________________________________
(include Zip Code)
Area Code and Tel. No.__________________________________________
Tax Identification or
Social Security No.___________________________________________
(Complete Substitute Form W-9)
Guarantee of Signature(s)
(See Instruction 1)
Authorized Signature____________________________________________
Name of Firm____________________________________________________
Dated___________________________________________________________
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Amended and Restated
Exchange and Registration Rights Agreement
1. GUARANTEE OF SIGNATURE. No signature guarantee on this Letter of
Transmittal is required unless the registered holder of the Partnership
Interests has completed the box entitled "Special Delivery Instructions". In
such case all signatures on this Letter of Transmittal must be guaranteed by a
member firm of any registered national securities exchange in the United States
or of the National Association of Securities Dealers, Inc. or by a commercial
bank or trust company (not a savings bank or a savings and loan association)
having an office, branch or agency in the United States.
2. DELIVERY OF LETTER OF TRANSMITTAL AND PARTNERSHIP INTEREST
CERTIFICATE(s). This Letter of Transmittal is to be completed by the holder of
Partnership Interests. Partnership Interest Certificate(s) for all Partnership
Interests as well as a properly completed and duly executed Letter of
Transmittal, and any other documents required by this Letter of Transmittal,
must be received by the Agent.
No alternative, conditional or contingent tenders will be accepted.
3. INADEQUATE SPACE. If the space provided herein is inadequate, the
Partnership Interest Certificate numbers and/or other information required
should be listed on a separate schedule attached hereto.
4. PARTIAL TENDERS. If fewer than all the Partnership Interests evidenced
by any Certificate submitted are to be tendered, fill in the Percentage Interest
represented by the Partnership Interests which are to be tendered in the box
entitled "Units of Partnership Interests Being Tendered." In such case, a new
Partnership Interest Certificate for the remainder of the Partnership Interests
that was evidenced by old certificate(s) will be sent to the registered holder,
unless otherwise provided in the appropriate box on this Letter of Transmittal,
as soon as practicable. All Partnership Interests represented by Partnership
Interest Certificate(s) delivered to the Agent will be deemed to have been
tendered unless otherwise indicated.
5. SIGNATURES ON LETTER OF TRANSMITTAL. The signature must correspond with
the name as written on the face of the Partnership Interest Certificate(s)
without any change whatsoever.
If any of the Partnership Interests tendered hereby are owned of record by
two or more joint owners, all such owners must sign the Letter of Transmittal.
If any tendered Partnership Interests are registered in different names on
several Partnership Interest Certificates, it will be necessary to complete,
sign and submit as many separate Letters of Transmittal as there are different
registrations of Partnership Interest Certificates.
If this Letter of Transmittal is signed by trustees, executors,
administrators, guardians, attorneys-in-fact, officers of corporations or others
acting in a fiduciary or representative capacity, each person should so indicate
when signing, and proper evidence satisfactory to the Agent of their authority
so to act must be submitted.
6. SPECIAL DELIVERY INSTRUCTIONS. If Partnership Interest Certificate(s)
for unpurchased Partnership Interests are to be returned to a person other than
the signer of this Letter of Transmittal or if a certificate for shares of
Common Stock is to be sent to someone other than the signer of this Letter of
Transmittal or to an address other than that shown above, the appropriate boxes
on this letter of Transmittal should be completed.
7. WAIVER OF CONDITIONS. The Company reserves the right to waive any of the
specified conditions of the Tender in the case of the Partnership Interests
tendered.
8. BACK-UP WITHHOLDING. Under the Federal income tax law, a person
surrendering Partnership Interests must provide the Agent with his correct
taxpayer identification number ("TIN") on Substitute Form W-9 below unless an
exemption applies. If the correct TIN is not provided, a $50 penalty may be
imposed by the Internal Revenue Service and payments made in exchange for the
surrendered Partnership Interests may be subject to back-up withholding of that
rate provided by the Federal income tax law (such rate being at the date hereof,
31%).
The TIN that must be provided is that of the registered holder of the
Partnership Interests. The TIN for an individual is his social security number.
9. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Questions and requests for
assistance or additional copies of the Agreement and the Letter of Transmittal
may be directed to the Agent at the address set forth above.
-2-
IMPORTANT TAX INFORMATION
Under Federal income tax laws, a holder whose tendered Partnership
interests are accepted for payment is required by law to provide the Agent (as
payer) with his correct taxpayer identification number on Substitute Form W-9
below. If such holder is an individual, the taxpayer identification number is
his social security number. If the Agent is not provided with the correct
taxpayer identification number, the holder may be subject to a $50 penalty
imposed by the Internal Revenue Service. In addition, payments that are made to
such holder with respect to Partnership Interests purchased pursuant to the
Tender may be subject to back-up withholding.
If back-up withholding applies, the Agent is required to withhold that rate
provided by the Federal income tax law (such rate being at the date hereof, 31%)
of any such payments made to the holder of Partnership Interests. Shares of
Common Stock otherwise deliverable hereunder may, at the expense (and with all
risk of loss for the account) of the undersigned, be sold to pay such amounts.
Back-up withholding is not an additional tax. Rather, the tax liability of
persons subject to back-up withholding will be reduced by the amount of tax
withheld. If withholding results in an overpayment of taxes, a refund may be
obtained.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent back-up withholding on payments that are made to a holder of
Partnership Interests purchased pursuant to the Tender, the holder is required
to notify the Agent of his correct taxpayer identification number by completing
the form below certifying that the taxpayer identification number provided on
Substitute Form W-9 is correct.
WHAT NUMBER TO GIVE THE AGENT
The holder is required to give the Agent the social security number or
employer identification number of the record owner of the Partnership Interests.
PAYER'S NAME: ▇▇▇▇▇ Hotels & Casino Resorts, Inc.
================================================================================
Substitute | Part 1 -- Please provide your TIN | Social Security
Form W-9 | in the box at right and certify | Number/Employer
| by signing and dating below | Identification
| | Number__________
--------------------------------------------------------------------------------
Department | Certification -- Under the penalties of |
of the | Perjury, (i) I certify that the |
Treasury/ | information provided on this form is true, |
Internal | correct and complete and (ii) I am not |
Revenue | subject to backup withholding because: (a) |
Service | I am exempt from backup withholding, or |
| (b) I have not been notified by the |
| Internal Revenue Service (IRS) that I am |
| subject to backup withholding as a result |
| of a failure to report all interest or |
| dividends, or (c) the IRS has notified me |
| that I am no longer subject to backup |
| withholding. |
--------------------------------------------------------------------------------
| |
| Signature ____________________ | Date __________
| |
================================================================================
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACK-UP WITHHOLDING
OF THAT RATE PROVIDED BY THE FEDERAL INCOME TAX LAW (SUCH RATE BEING AT
THE DATE HEREOF, 31%) OF ANY PAYMENTS MADE TO YOU UNDER THE AMENDED AND
RESTATED EXCHANGE AND REGISTRATION RIGHTS AGREEMENT OF ▇▇▇▇▇ HOTELS &
CASINO RESORTS, INC.
