EXHIBIT 4.5
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REGISTRATION RIGHTS AGREEMENT
Dated as of March 22, 2002
by and among
RESORTS INTERNATIONAL HOTEL AND CASINO, INC.
THE GUARANTORS NAMED HEREIN
and
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
as Representative of the Initial Purchasers named herein
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
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and entered into as of March 22, 2002 by and among RESORTS INTERNATIONAL HOTEL
AND CASINO, INC., a Delaware corporation (the "Company"), each of the Guarantors
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listed in Schedule A hereto (the "Guarantors" and, together with the Company,
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the "Issuers") and XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED ("Xxxxxxx
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Xxxxx") and each other Initial Purchaser set forth on Schedule B attached hereto
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(collectively, the "Initial Purchasers"), for whom Xxxxxxx Xxxxx is acting as
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representative) (the "Representative").
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This Agreement is made pursuant to the Purchase Agreement
dated as of March 15, 2002 by and among the Company, the Guarantors and the
Initial Purchasers (the "Purchase Agreement"), which provides for, among other
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things, the sale by the Company to the Initial Purchasers of an aggregate of
$180,000,000 principal amount of the Company's Series A 11 1/2% First Mortgage
Notes due 2009 (the "Securities") and the issuance by the Guarantors to the
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Initial Purchasers of guarantees (the "Guarantees" and, together with the Notes,
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the "Securities"). In order to induce the Initial Purchasers to enter into the
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Purchase Agreement, the Issuers have agreed to provide to the Initial Purchasers
and their direct and indirect transferees the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the closing under the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following
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capitalized defined terms shall have the following meanings:
"Advice" shall have the meaning set forth in the last
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paragraph of Section 3 hereof.
"Applicable Period" shall have the meaning set forth in
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Section 3(s) hereof.
"Business Day" shall mean a day that is not a Saturday, a
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Sunday or a day on which banking institutions in New York, New York are
required or permitted to be closed.
"Company" shall have the meaning set forth in the preamble to
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this Agreement and also includes the Company's successors and permitted
assigns.
"Depository" shall mean The Depository Trust Company or any
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other depository appointed by the Company; provided, however, that such
depository must have an address in the Borough of Manhattan, in the
City of New York.
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"Effectiveness Period" shall have the meaning set forth in
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Section 2(b) hereof.
"Event Date" shall have the meaning set forth in Section 2(e)
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hereof.
"Exchange Act" shall mean the United States Securities
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Exchange Act of 1934, as amended.
"Exchange Securities" shall mean the $180,000,000 Series B 11
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1/2% First Mortgage Notes due 2009, issued by the Company and
guaranteed by the Guarantors, pursuant to, and entitled to the benefits
of, the Indenture (which shall be qualified under the TIA) and
registered pursuant to an effective Registration Statement under the
Securities Act, to be offered to Holders of Securities in exchange for
Securities pursuant to the Exchange Offer, which shall be identical to
such Securities (except that (i) interest thereon shall accrue from the
last date on which interest was paid on such Securities or, if no such
interest has been paid, from the Issue Date and (ii) the transfer
restrictions thereon shall be eliminated).
"Exchange Offer" shall mean the exchange offer by the Issuers
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of Exchange Securities for Securities pursuant to Section 2(a) hereof.
"Exchange Offer Registration" shall mean a registration under
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the Securities Act effected pursuant to Section 2(a) hereof.
"Exchange Offer Registration Statement" shall mean an exchange
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offer registration statement on an appropriate form under the
Securities Act, and all amendments and supplements to such registration
statement, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Exchange Period" shall have the meaning set forth in Section
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2(a) hereof.
"Exchange Securities" shall have the meaning set forth in
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Section 2(a) hereof.
"Guarantors" shall have the meaning set forth in the preamble
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in this Agreement.
"Holder" shall mean each of the Initial Purchasers, for so
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long as they own any Transfer Restricted Securities, each of their
direct and indirect successors, assigns and transferees who become
registered owners of Transfer Restricted Securities under the Indenture
and each Participating Broker-Dealer that holds Exchange Securities for
so long as such Participating Broker-Dealer is required to deliver a
prospectus meeting
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the requirements of the Securities Act in connection with any
resale of such Exchange Securities.
"Indenture" shall mean the Indenture relating to the
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Securities and the Exchange Securities dated as of March 22, 2002
between the Company, the Guarantors and Bankers Trust Company, as
trustee, as the same may be amended from time to time in accordance
with the terms thereof.
"Initial Purchasers" shall have the meaning set forth in the
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preamble to this Agreement.
"Inspectors" shall have the meaning set forth in Section 3(m)
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hereof.
"Issue Date" shall mean the date on which the Securities are
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originally issued.
"Issuers" shall have the meaning set forth in the preamble to
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this Agreement.
"Liquidated Damages" shall have the meaning set forth in
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Section 2(e) hereof.
"Xxxxxxx Xxxxx" shall have the meaning set forth in the
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preamble to this Agreement.
"Securities" shall have the meaning set forth in the preamble
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to this Agreement.
"Participating Broker-Dealer" shall have the meaning set forth
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in Section 3(s) hereof.
"Private Exchange" shall have the meaning set forth in Section
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2(a) hereof.
"Private Exchange Securities" shall have the meaning set forth
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in Section 2(a) hereof.
"Person" shall mean an individual, partnership, corporation,
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limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.
"Prospectus" shall mean the prospectus included in a
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Registration Statement, including any preliminary prospectus, and any
such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the terms
of the offering of any portion of the Transfer Restricted Securities
covered by a Shelf Registration Statement, and by all other amendments
and supplements to a
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prospectus, including post-effective amendments, and in each
case including all material incorporated by reference therein.
"Purchase Agreement" shall have the meaning set forth in the
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preamble to this Agreement.
"Records" shall have the meaning set forth in Section 3(m)
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hereof.
"Registration Expenses" shall mean any and all expenses
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incident to performance of or compliance by the Issuers with this
Agreement, including without limitation: (i) all applicable SEC, stock
exchange or National Association of Securities Dealers, Inc. (the
"NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or blue
sky laws (including reasonable fees and disbursements of one counsel
for the Holders that were Initial Purchasers in connection with blue
sky qualification of any of the Exchange Securities or Transfer
Restricted Securities) and compliance with the rules of the NASD, (iii)
all applicable expenses incurred by the Issuers in preparing or
assisting in preparing, word processing, printing and distributing any
Registration Statement, any Prospectus and any amendments or
supplements thereto, and in preparing or assisting in preparing any
other documents relating to the performance of and compliance with this
Agreement, (iv) the fees and disbursements of counsel for the Company
and the Guarantors and of the independent certified public accountants
of the Issuers, including the expenses of any "cold comfort" letters
required by or incident to such performance or compliance with this
Agreement, (v) the fees and expenses of the Trustee, and any exchange
agent or custodian, (vi) all fees and expenses incurred in connection
with the listing, if any, of any of the Transfer Restricted Securities
on any securities exchange or exchanges, if the Issuers, in its
discretion, elects to make any such listing, (vii) all rating agency
fees, if any, (viii) the reasonable fees and expenses of one counsel,
if any, designated in writing by the Holders to act as counsel for the
Holders of the Transfer Restricted Securities in connection with a
Shelf Registration Statement and (ix) any fees and disbursements to be
paid by the Issuers or sellers of securities and the fees and expenses
of any special experts retained by the Issuers in connection with any
Shelf Registration Statement; but excluding fees of counsel to the
Holders and (other than as set forth in (ii) and (viii) above)
underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of Transfer Restricted Securities
by a Holder.
"Registration Statement" shall mean any registration statement
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(including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement) of the Issuers which
covers any of the Transfer Restricted Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any
such Registration Statement, including post-effective amendments, in
each case
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including the Prospectus contained therein, all exhibits
thereto and all material incorporated by reference therein.
"Representative" shall have the meaning set forth in the
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preamble to this Agreement.
"SEC" shall mean the United States Securities and Exchange
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Commission.
"Securities Act" shall mean the United States Securities Act
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of 1933, as amended.
"Shelf Registration" shall mean a registration effected
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pursuant to Section 2(b) hereof.
"Shelf Registration Event" shall have the meaning set forth in
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Section 2(b) hereof.
"Shelf Registration Statement" shall mean a "shelf"
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registration statement of the Issuers relating to a "shelf" offering in
accordance with Rule 415 of the Securities Act, or any similar rule
that may be adopted by the SEC, pursuant to the provisions of Section
2(b) hereof which covers all of the Transfer Restricted Securities, on
an appropriate form under the Securities Act, and all amendments and
supplements to such registration statement, including post-effective
amendments, in each case including the Prospectus contained therein,
all exhibits thereto and all material incorporated by reference
therein.
"TIA" shall have the meaning set forth in Section 3(k) hereof.
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"Transfer Restricted Securities" shall mean each Security, if
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issued, and each Private Exchange Security, if issued; provided,
however, that each Security or Private Exchange Security, as the case
may be, shall cease to be a Transfer Restricted Security when (i) with
respect to a Security only, such Security has been exchanged by a
person other than a Participating Broker-Dealer in the Exchange Offer
for an Exchange Security which is entitled to be resold to the public
by the Holder thereof without complying with the prospectus delivery
requirements of the Securities Act, (ii) with respect to a Security
only, following the exchange by a Participating Broker-Dealer in the
Exchange Offer of a Security for an Exchange Security, such Exchange
Security is sold to a purchaser who receives from such Participating
Broker-Dealer on or prior to the date of such sale a copy of the
Prospectus contained in the Exchange Offer Registration Statement, as
amended or supplemented, (iii) such Security or Private Exchange
Security, as the case may be, has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf
Registration Statement, (iv) such Security or
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Private Exchange Security, as the case may be, is distributed to the
public pursuant to Rule 144 under the Securities Act (or any similar
provision then in force, but not Rule 144A under the Securities Act),
(v) such Security or Private Exchange Security, as the case may be,
shall have been otherwise transferred by the holder thereof and a new
security not bearing a legend restricting further transfer shall have
been delivered by the Issuers and subsequent disposition of such new
security shall not require registration or qualification under the
Securities Act or any similar state law then in force, or (vi) such
Security or Private Exchange Security, as the case may be, ceases to
be outstanding.
"Trustee" shall mean the trustee with respect to the
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Securities under the Indenture.
2. Registration Under the Securities Act.
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(a) Exchange Offer. (i) To the extent not prohibited by any
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applicable law or applicable policy of the SEC, the Company shall, for the
benefit of the Holders, at the Company's expense, (A) use its reasonable best
efforts to file with the SEC an Exchange Offer Registration Statement on an
appropriate form under the Securities Act covering the offer by the Issuers to
the Holders to exchange all of the Securities for a like aggregate principal
amount of Exchange Securities and Exchange Guarantees (collectively, the
"Exchange Securities") and (B) use its reasonable best efforts to keep such
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Registration Statement effective until the closing of the Exchange Offer. The
Issuers shall commence the Exchange Offer promptly after the Exchange Offer
Registration Statement is declared effective by the SEC and use their best
efforts to consummate the Exchange Offer no later that 240 days after the Issue
Date.
(ii) In connection with the Exchange Offer, the Company shall:
(A) mail as promptly as practicable to each Holder a
copy of the Prospectus forming part of the Exchange Offer
Registration Statement, together with an appropriate letter of
transmittal and related documents;
(B) keep the Exchange Offer open for acceptance for a
period of not less than 20 Business Days after the date notice
thereof is mailed to the Holders (such period referred to
herein as the "Exchange Period");
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(C) utilize the services of the Depository for the
Exchange Offer;
(D) permit Holders to withdraw tendered Securities at
any time prior to 5:00 p.m. (New York time) on the last
Business Day of the Exchange Period by sending to the
institution specified in the notice, a telegram, telex,
facsimile
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transmission or letter setting forth the name of such
Holder, the aggregate principal amount of Securities
delivered for exchange, and a statement that such Holder is
withdrawing its election to have such Securities exchanged;
(E) notify each Holder that any Securities not
tendered will remain outstanding and continue to accrue
interest but will not retain any rights under this Agreement
(except in the case of the Initial Purchasers and
Participating Broker-Dealers as provided herein); and
(F) otherwise comply in all material respects with
all applicable laws relating to the Exchange Offer.
(iii) If, prior to consummation of the Exchange Offer, the
Initial Purchasers hold any Securities acquired by them and having the
status of an unsold allotment in the initial distribution, the Company
shall upon the request of any Initial Purchaser shall, to the extent
not prohibited by any applicable law or applicable policy of the SEC,
simultaneously with the delivery of the Exchange Securities in the
Exchange Offer, issue and deliver to such Initial Purchaser in exchange
(the "Private Exchange") for the Securities held by such Initial
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Purchaser, a like aggregate principal amount of debt securities of the
Company, issued pursuant to, and entitled to the benefits of, the
Indenture and identical to the Exchange Securities, except that such
securities shall bear appropriate transfer restrictions (the "Private
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Exchange Securities").
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(iv) The Exchange Securities and the Private Exchange
Securities shall be issued under (A) the Indenture or (B) an indenture
identical in all material respects to the Indenture and which, in
either case, has been qualified under the TIA or is exempt from such
qualification and shall provide that the Exchange Securities (other
than the Private Exchange Securities) shall not be subject to the
transfer restrictions set forth in the Indenture. The Indenture or such
indenture shall provide that the Exchange Securities, the Private
Exchange Securities and the Securities shall vote and consent together
on all matters as one class and that none of the Exchange Securities,
the Private Exchange Securities or the Securities shall have the right
to vote or consent as a separate class on any matter. The Private
Exchange Securities shall be of the same series as, and the Issuers
shall seek to cause the CUSIP Service Bureau to issue the same CUSIP
numbers for the Private Exchange Securities as for, the Exchange
Securities issued pursuant to the Exchange Offer. The Issuers shall not
have any liability hereunder solely as a result of such Private
Exchange Securities not bearing the same CUSIP number as the Exchange
Securities.
(v) The Exchange Offer and the Private Exchange shall not be
subject to any conditions, other than (A) that in the reasonable
opinion of counsel to the Issuers, the Exchange Offer or Private
Exchange, as the case may be, does not violate applicable
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law or any applicable policy of the SEC, (B) that no action or
proceeding shall have been instituted or threatened in any court or by
any governmental agency which might materially impair the ability of
the Issuers to proceed with the Exchange Offer or the Private Exchange
nor shall any material adverse development have occurred in any such
action or proceeding with respect to the Issuers, (C) that all
governmental approvals shall have been obtained which approvals the
Issuers deems necessary for the consummation of the Exchange Offer or
Private Exchange and (D) the due tendering of Transfer Restricted
Securities in accordance with the terms of the Exchange Offer. As soon
as practicable after the close of the Exchange Offer and/or the
Private Exchange, as the case may be, the Issuers shall:
(1) accept for exchange all Securities or portions
thereof properly tendered and not validly withdrawn pursuant
to the Exchange Offer or the Private Exchange; and
(2) deliver, or cause to be delivered, to the Trustee
for cancellation all Securities or portions thereof so
accepted for exchange by the Issuers; and
(3) issue, and cause the Trustee under the Indenture
to promptly authenticate; and deliver to each Holder, an
Exchange Security or Private Exchange Security, as the case
may be, equal in principal amount to the principal amount of
the Securities surrendered by such Holder and accepted for
exchange.
(vi) To the extent not prohibited by any law or applicable
policy of the SEC, the Issuers shall use their reasonable best efforts
to complete the Exchange Offer as provided above within 240 days of the
Issue Date, and shall comply with the applicable requirements of the
Securities Act, the Exchange Act and other applicable laws in
connection with the Exchange Offer. Each Holder of Securities who
wishes to exchange such Securities for Exchange Securities in the
Exchange Offer will be required to make certain customary
representations to the Issuers in connection therewith, including (i)
that such Holder is not an affiliate of the Company within the meaning
of Rule 405 under the Securities Act, or if it is an affiliate, that it
will comply with the registration and prospectus delivery requirements
of the Securities Act to the extent applicable, (ii) that it is not a
broker-dealer tendering Transfer Restricted Securities acquired
directly from the Company for its own account, (iii) that any Exchange
Securities to be received by it will be acquired in the ordinary course
of business and (iv) that at the time of the commencement of the
Exchange Offer it has no arrangement or understanding with any Person
to participate in the distribution (within the meaning of the
Securities Act) of the Exchange Securities. Each Participating
Broker-Dealer will be required to acknowledge that it will deliver the
Prospectus included in the
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Exchange Offer Registration Statement in connection with the resale of
Exchange Securities to the extent it is subject to the prospectus
delivery requirements of the SEC. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders and otherwise facilitate the tender of
Securities in the Exchange Offer.
(vii) Upon consummation of the Exchange Offer in accordance
with this Section 2(a), the provisions of this Agreement shall continue
to apply, modified as necessary, solely with respect to Transfer
Restricted Securities that are Private Exchange Se
curities, Exchange Securities held by Participating Broker-Dealers and
Transfer Restricted Securities entitled to a Shelf Registration
pursuant to the first paragraph of Section 2(b) hereof.
(b) Shelf Registration. (i) In the event that (A) filing the
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Exchange Offer Registration Statement would not be permitted by applicable law
or SEC policy, (B) the Exchange Offer is not consummated within 240 days after
the Issue Date, (C) any Holder of Securities notifies the Company within 20
Business Days after the commencement of the Exchange Offer that (1) due to a
change in applicable law or SEC policy it is not entitled to participate in the
Exchange Offer, (2) due to a change in applicable law or SEC policy it may not
resell the Exchange Securities to be 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 (3) it is a broker-dealer and owns Securities acquired
directly from the Company or an affiliate of the Company or (D) the Holders of a
majority of the Securities may not resell the Exchange Securities to be acquired
by them in the Exchange Offer to the public without restriction under the
Securities Act and without restriction under applicable blue sky or state
securities laws (any of the events specified in (A)-(D) being a "Shelf
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Registration Event"), then the Company shall, at its cost, file as promptly as
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practicable after the date of such Shelf Registration Event and use its
reasonable best efforts to cause the Shelf Registration Statement to be declared
effective by the SEC on or prior to 240 days after the Issue Date.
(ii) No Holder of Transfer Restricted Securities may include
any of its Transfer Restricted Securities in any Shelf Registration
pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing such information as the Company may, after
conferring with counsel with regard to information relating to Holders
that would be required by the SEC to be included in such Shelf
Registration Statement or Prospectus included therein, reasonably
request for inclusion in any Shelf Registration Statement or Prospectus
included therein. Each Holder as to which any Shelf Registration is
being effected agrees to furnish to the Company all information
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with respect to such Holder necessary to make any information
previously furnished to the Company by such Holder not materially
misleading.
(iii) The Issuers agree to use its reasonable best efforts to
keep the Shelf Registration Statement continuously effective until the
second anniversary of the effective date of the Shelf Registration
Statement (or such shorter period that will terminate when all of the
Transfer Restricted Securities covered by such Shelf Registration
Statement have been sold pursuant thereto or cease to be outstanding
or otherwise cease to be Transfer Restricted Securities) (the
"Effectiveness Period"). The Issuers further agree, if necessary, to
supplement or amend the Shelf Registration Statement, if required by
the rules, regulations or instructions applicable to the registration
form used by the Issuers for such Shelf Registration Statement or by
the Securities Act or by any other rules and regulations thereunder
for shelf registrations, and the Issuers agree to furnish to the
Holders of Transfer Restricted Securities copies of any such
supplement or amendment promptly after its being used or filed with
the SEC.
(c) Expenses. The Company shall pay all Registration Expenses
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in connection with any registration pursuant to Section 2(a) or 2(b) hereof.
Each Holder shall pay all expenses of its counsel (other than as set forth
otherwise in this Agreement), all underwriting discounts and commissions and
transfer taxes, if any, relating to the sale or disposition of such Holder's
Transfer Restricted Securities pursuant to the Shelf Registration Statement.
(d) Effective Registration Statement. An Exchange Offer
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Registration Statement pursuant to Section 2(a) hereof or a Shelf Registration
Statement pursuant to Section 2(b) hereof will not be deemed to have become
effective unless it has been declared effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Transfer
Restricted Securities pursuant to an Exchange Offer Registration Statement or
Shelf Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or court,
such Registration Statement will be deemed not to have been effective during the
period of such interference, until the offering of Transfer Restricted
Securities may legally resume. The Issuers will be deemed not to have used its
reasonable best efforts to cause the Exchange Offer Registration Statement or
the Shelf Registration Statement, as the case may be, to become, or to remain,
effective during the requisite period if it voluntarily takes any action that
would result in any such Registration Statement not being declared effective or
in the Holders of Transfer Restricted Securities covered thereby not being able
to exchange or offer and sell such Transfer Restricted Securities during that
period, unless such action is required by applicable law.
(e) Liquidated Damages. (i) In the event that (A) the Issuers
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fail to consummate the Exchange Offer and the Private Exchange, to the extent
applicable, within 240 days of the Issue Date and the Shelf Registration
Statement is not declared effective within 240
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days of the Issue Date or (B) a Shelf Registration Statement is filed and
declared effective but shall thereafter cease to be effective or usable during
the periods specified herein without being immediately succeeded within 30 days
by an additional Registration Statement covering the Transfer Restricted
Securities which has been filed and declared effective (each such event referred
to in clauses (A) and (B), a "Registration Default"), then the Issuers shall pay
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liquidated damages to each Holder of Transfer Restricted Securities as to which
such Registration Default relates ("Liquidated Damages"), with respect to the
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first 90-day period (or portion thereof) while a Registration Default is
continuing immediately following the occurrence of such Registration Default, in
an amount equal to 0.25% per annum of the aggregate principal amount of the
Securities held by such Holder. The amount of Liquidated Damages will increase
by an additional 0.25% per annum of the aggregate principal amount of the
Securities for each subsequent 90-day period (or portion thereof) while a
Registration Default is continuing until all Registration Defaults have been
cured, up to an aggregate maximum amount of 1.00% per annum of the aggregate
principal amount of the Securities. Liquidated Damages shall be computed based
on the actual number of days elapsed during which any such Registration Default
exists. Following the cure of a Registration Default, the accrual of Liquidated
Damages with respect to such Registration Default will cease. Notwithstanding
anything to the contrary in this Section 2(e), the Issuers shall not be required
to pay Liquidated Damages to a Holder of Transfer Restricted Securities if such
Holder failed to comply with its obligations to make the representations set
forth in Section 2(a)(vi) or failed to provide the information reasonably
required to be provided by it, if any, pursuant to Section 3.
(ii) The Company shall notify the Trustee within five Business
Days after each and every date on which an event occurs in respect of
which Liquidated Damages is required to be paid (an "Event Date").
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Liquidated Damages shall be paid in arrears by depositing with the
Trustee, in trust, for the benefit of the Holders of Transfer
Restricted Securities, on or before the applicable semiannual interest
payment date, immediately available funds in sums sufficient to pay the
Liquidated Damages then due. The Liquidated Damages due shall be
payable in arrears on each interest payment date to the record Holder
of Securities entitled to receive the interest payment to be paid on
such date as set forth in the Indenture. Each obligation to pay
Liquidated Damages shall be deemed to accrue from, and including the
day following, the applicable Event Date.
(f) Specific Enforcement. Without limiting the remedies
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available to the Initial Purchasers and the Holders, the Issuers acknowledge
that any failure by the Issuers to comply with its obligations under Section
2(a) and Section 2(b) hereof may result in material irreparable injury to the
Initial Purchasers or the Holders for which there is no adequate remedy at law,
that it would not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the Initial Purchasers or any Holder may
obtain such
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relief as may be required to specifically enforce the Issuers' obligations under
Section 2(a) and Section 2(b) hereof.
3. Registration Procedures. In connection with the obligations
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of the Issuers with respect to the Registration Statements pursuant to Sections
2(a) and 2(b) hereof, the Issuers shall:
(a) prepare and file with the SEC a Registration Statement
or Registration Statements as prescribed by Sections 2(a) and 2(b)
hereof on the appropriate form under the Securities Act, which form (i)
shall be selected by the Company, (ii) shall, in the case of a Shelf
Registration, be available for the sale of the Transfer Restricted
Securities by the selling Holders thereof and (iii) shall comply as to
form in all material respects with the requirements of the applicable
form and include all financial statements
required by the SEC to be filed therewith; and use its reasonable best
efforts to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof. The Issuers shall
not file any Registration Statement or Prospectus or any amendments or
supplements thereto in respect of which the Holders must provide
information for inclusion therein without the Holders being afforded an
opportunity to review such documentation a reasonable time prior to the
filing of such document or if the majority of the Holders or such
Participating Broker-Dealer, as the case may be, their counsel or the
managing underwriters, if any, shall reasonably object;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be
necessary under applicable law to keep such Registration Statement
effective for the Effectiveness Period or the Applicable Period, as the
case may be; and cause each Prospectus to be supplemented by any
required prospectus supplement and as so supplemented to be filed
pursuant to Rule 424 (or any similar provision then in force) under the
Securities Act, and comply in all material respects with the provisions
of the Securities Act, the Exchange Act and the rules and regulations
promulgated thereunder applicable to it with respect to the disposition
of all securities covered by each Registration Statement during the
Effectiveness Period or the Applicable Period, as the case may be, in
accordance with the intended method or methods of distribution by the
selling Holders thereof described in this Agreement (including sales by
any Participating Broker-Dealer);
(c) in the case of a Shelf Registration, (i) notify each
Holder of Transfer Restricted Securities, at least five Business Days
prior to filing, that a Shelf Registration Statement with respect to
the Transfer Restricted Securities is being filed and advising such
Holder that the distribution of Transfer Restricted Securities will be
made in accordance with the method selected by the Holders
participating in the Shelf Registration;
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(ii) furnish to each Holder of Transfer Restricted Securities, without
charge, as many copies of each Prospectus, and any amendment or
supplement thereto and such other documents as such Holder may
reasonably request, in order to facilitate the disposition of the
Transfer Restricted Securities; and (iii) subject to the last
paragraph of Section 3 hereof, hereby consent to the use of the
Prospectus or any amendment or supplement thereto by each of the
selling Holders of Transfer Restricted Securities in connection with
the offering and sale of the Transfer Restricted Securities covered by
such Prospectus or any amendment or supplement thereto;
(d) in the case of a Shelf Registration, use its reasonable
best efforts to register or qualify, as may be required by applicable
law, the Transfer Restricted Securities under all applicable state
securities or "blue sky" laws of such jurisdictions by the time the
applicable Registration Statement is declared effective by the SEC as
any Holder of Transfer Restricted Securities covered by a Registration
Statement shall reasonably re
quest in advance of such date of effectiveness, and do any and all
other acts and things which may be reasonably necessary or advisable to
enable such Holder to consummate the disposition in each such
jurisdiction of such Transfer Restricted Securities owned by such
Holder; provided, however, that no Issuer will be required to (i)
qualify generally to do business in any jurisdiction where it is not
then so qualified, or (ii) take any action which would subject it to
general service of process or taxation in any such jurisdiction where
it is not then so subject.
(e) in the case of (i) a Shelf Registration or (ii)
Participating Broker-Dealers who have notified the Company that they
will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(t) hereof, notify each
Holder of Transfer Restricted Securities, or such Participating
Broker-Dealers, as the case may be, their counsel, if any, promptly and
confirm such notice in writing (if such notice was not originally given
in writing) (A) when a Registration Statement has become effective and
when any post-effective amendments and supplements thereto become
effective, (B) of any request by the SEC or any state securities
authority for amendments and supplements to a Registration Statement or
Prospectus or for additional information after the Registration
Statement has become effective, (C) of the issuance by the SEC or any
state securities authority of any stop order suspending the
effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (D) if the Company receives any
notification with respect to the suspension of the qualification of the
Transfer Restricted Securities to be sold by any Participating
Broker-Dealer for offer or sale in any jurisdiction or the initiation
of any proceeding for such purpose, (E) of the happening of any event
or the failure of any event to occur or the discovery of any facts or
otherwise during the Effectiveness Period or the Applicable Period, as
the case may be, which makes any statement made in such Registration
Statement or the related Prospectus untrue in any
-14-
material respect or which causes such Registration Statement or
Prospectus to omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading and (F) the Company's reasonable
determination that a post-effective amendment to the Registration
Statement would be appropriate;
(f) use its reasonable best efforts to obtain the withdrawal
at the earliest possible time of any order suspending the effectiveness
of a Registration Statement as soon as practicable;
(g) in the case of a Shelf Registration, furnish to each
Holder of Transfer Restricted Securities, without charge, at least one
conformed copy of each Registration Statement relating to such Shelf
Registration and any post-effective amendment thereto (without
documents incorporated therein by reference or exhibits thereto, unless
requested);
(h) in the case of a Shelf Registration, cooperate with the
selling Holders of Transfer Restricted Securities to facilitate the
timely preparation and delivery of certificates not bearing any
restrictive legends representing Securities covered by such Shelf
Registration to be sold and relating to the subsequent transfer of such
Securities; and cause such Securities to be in such denominations
(consistent with the provisions of the Indenture) and registered in
such names as the selling Holders may reasonably request in writing at
least three Business Days prior to the closing of any sale of Transfer
Restricted Securities;
(i) in the case of a Shelf Registration or an Exchange Offer
Registration, upon the occurrence of any circumstance contemplated by
Section 3(e)(B), 3(e)(C), 3(e)(D), 3(e)(E) or 3(e)(F) hereof, prepare a
supplement or post-effective amendment to a Registration Statement or
the related Prospectus or any document incorporated therein by
reference or file any other required document so that (subject to
Section 3(a)), as thereafter delivered to the purchasers of the
Transfer Restricted Securities to whom a Prospectus is being delivered
by a Participating Broker-Dealer who has notified the Issuers that it
will be utilizing the Prospectus contained in the Exchange Offer
Registration Statement as provided in Section 3(a) hereof, such
Prospectus will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; and to notify each Holder or Participating Broker-Dealer,
as applicable, to suspend use of the Prospectus as promptly as
practicable after the occurrence of such an event;
(j) use its reasonable best efforts to obtain a CUSIP number
for all Exchange Securities or Private Exchange Securities or
Securities, as the case may be, not
-15-
later than the effective date of a Registration Statement, and provide
the Trustee with printed certificates for the Exchange Securities or
the Private Exchange Securities, as the case may be, in a form
eligible for deposit with the Depository;
(k) (i) cause the Indenture or the indenture provided in
Section 2(a)(iv) to be qualified under the United States Trust
Indenture Act of 1939, as amended (the "TIA"), in connection with the
registration of the Transfer Restricted Securities, (ii) cooperate with
the Trustee or any trustee under such indenture and the Holders to
effect such changes to the Indenture or such indenture as may be
required for the Indenture or such indenture to be so qualified in
accordance with the terms of the TIA and (iii) execute, and use its
reasonable best efforts to cause the Trustee or any trustee under such
indenture to execute, all documents as may be required to effect such
changes, and all other forms and documents required to be filed with
the SEC to enable the Indenture or such indenture to be so qualified in
a timely manner;
(l) in the case of a Shelf Registration, enter into such
customary agreements (including underwriting agreements) and take all
such other customary and appropriate actions as are reasonably
requested by the majority of the Holders in writing in order to
expedite or facilitate the disposition of such Transfer Restricted
Securities, and in such connection, (i) make such representations and
warranties to Holders of such Transfer Restricted Securities and the
underwriters (if any) with respect to the business of the Issuers and
its subsidiaries as then conducted and the Registration Statement,
Prospectus and documents, if any, incorporated or deemed to be
incorporated by reference therein, in each case, as are customarily
made by issuers to underwriters in underwritten offerings, and confirm
the same if and when requested in writing by the Holders; (ii) if an
underwriting agreement is entered into, obtain opinions of counsel to
the Issuers in form and substance reasonably satisfactory to the
underwriters, addressed to each of the underwriters, with copies
delivered to each of the selling Holders of Transfer Restricted
Securities, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such underwriters; (iii) if an underwriting
agreement is entered into, obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the
Issuers (and, if necessary, any other independent certified public
accountants of any subsidiary of the Issuers or of any business
acquired by the Issuers for which financial statements and financial
data are, or are required to be, included in the Registration
Statement), addressed to the Issuers and each of the underwriters, with
copies to each of the selling Holders of Transfer Restricted
Securities, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters in connection
with underwritten offerings; and (iv) if an underwriting agreement is
entered into, the same shall contain indemnification provisions and
procedures substantially identical to those set forth in Section 4
hereof (or
-16-
such other provisions and procedures acceptable to the Issuers and the
Holders of a majority in aggregate principal amount of Transfer
Restricted Securities covered by such Registration Statement and the
managing underwriters) with respect to all parties to be indemnified
pursuant to said Section (including, without limitation, such selling
Holders and such underwriters). The above shall be done at each
closing in respect of the sale of Transfer Restricted Securities, or
as and to the extent required thereunder;
(m) if (i) a Shelf Registration is filed pursuant to Section
2(b) or (ii) a Prospectus contained in an Exchange Offer Registration
Statement filed pursuant to Section 2(a) is required to be delivered
under the Securities Act by any Participating Broker-Dealer who seeks
to sell Exchange Securities during the Applicable Period, make
available for inspection by each selling Holder of Transfer Restricted
Securities and each such person who would be an "underwriter" as a
result of either (A) the sale by such person of Securities covered by
such Shelf Registration Statement or (B) the sale during the Applicable
Period by a Participating Broker-Dealer of Exchange Securities
(provided that a Participating Broker-Dealer shall not be deemed to be
an underwriter solely as a result of it being required to deliver a
prospectus in connection with any resale of Exchange Securities) and
any attorney, accountant or other agent retained by any such person
(collectively, the "Inspectors"), at the offices where normally kept,
----------
during reasonable business hours, all financial and other records,
pertinent corporate documents and properties of the Company and its
subsidiaries (collectively, the "Records") as shall be reasonably
-------
necessary to enable them to exercise any applicable due diligence
responsibilities, and cause the officers, directors and employees of
the Company and its subsidiaries to supply all information in each case
reasonably requested by any such Inspector in connection with such
Registration Statement. Records which the Company determines, in good
faith, to be confidential and any Records which they notify the
Inspectors are confidential shall not be disclosed by the Inspectors to
any other Person unless (1) the disclosure of such Records is necessary
to avoid or correct a material misstatement or omission in such
Registration Statement, (2) the disclosure is necessary in connection
with any action, suit or proceeding, (3) the release of such Records is
ordered pursuant to a subpoena or other order from a court of competent
jurisdiction or (4) the information in such Records has been made
generally available to the public. Each such Holder and each such
Participating Broker-Dealer will be required to agree that information
obtained by it as a result of such inspections shall be deemed
confidential and shall not be used by it as the basis for any market
transactions in the securities of the Issuers unless and until such is
made generally available to the public. Each selling Holder of such
Transfer Restricted Securities and each such Participating
Broker-Dealer will be required to further agree that it will, upon
learning that disclosure of such Records is sought under (1) or (2)
above, give notice to the Company and allow the Company at its expense
to undertake appropriate action to prevent disclosure of the Records
deemed confidential;
-17-
(n) comply with all applicable rules and regulations of the
SEC so long as the provisions of this Agreement are applicable and make
generally available to its security holders earnings statements
satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the
Securities Act) no later than 45 days after the end of any 12-month
period (or 90 days after the end of any 12-month period if such period
is a fiscal year) (i) commencing at the end of any fiscal quarter in
which Transfer Restricted Securities are sold to underwriters in a firm
commitment or best efforts underwritten offering and (ii) if not sold
to underwriters in such an offering, commencing on the first day of the
first fiscal quarter of the Company after the effective date of a
Registration Statement, which statements shall cover said 12-month
periods;
(o) upon consummation of an Exchange Offer or a Private
Exchange, obtain an opinion of counsel to each of the Company and the
Guarantors addressed to the Trustee for the benefit of all Holders of
Transfer Restricted Securities participating in the Exchange Offer or
the Private Exchange, as the case may be, and which includes an opinion
that (i) each of the Company and the Guarantors has duly authorized,
executed and delivered the Exchange Securities and Private Exchange
Securities, and (ii) each of the Exchange Securities or the Private
Exchange Securities, as the case may be, constitute a legal, valid and
binding obligation of each of the Company and the Guarantors,
enforceable against each of the Company and the Guarantors in
accordance with its respective terms (in each case, with customary
exceptions);
(p) if an Exchange Offer or a Private Exchange is to be
consummated, upon proper delivery of Securities by Holders to the
Company (or to such other Person as directed by the Company) in
exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Company shall xxxx, or cause to be
marked, on such Securities and on the books of the Trustee, the
Security Registrar (as defined in the Indenture) and, if necessary, the
Depository, delivered by such Holders that such Securities are being
canceled in exchange for the Exchange Securities or the Private
Exchange Securities, as the case may be; but in no event shall such
Securities be marked as paid or otherwise satisfied solely as a result
of being exchanged for Exchange Securities or Private Exchange
Securities in the Exchange Offer or the Private Exchange, as the case
may be;
(q) cooperate with each seller of Transfer Restricted
Securities covered by any Registration Statement participating in the
disposition of such Transfer Restricted Securities and one counsel
acting on behalf of all such sellers in connection with the filings, if
any, required to be made with the NASD;
-18-
(r) take all other steps necessary to effect the
registration of the Transfer Restricted Securities covered by a
Registration Statement contemplated hereby;
(s) in the case of the Exchange Offer Registration Statement
(A) include in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," which section shall be reasonably
acceptable to Xxxxxxx Xxxxx on behalf of the Initial Purchasers, and
which shall contain a summary statement of the positions taken or
policies made by the staff of the SEC with respect to the potential
"underwriter" status of any broker-dealer (a "Participating
-------------
Broker-Dealer") that holds Transfer Restricted Securities acquired for
-------------
its own account as a result of market-making activities or other
trading activities and that will be the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of Exchange Securities to be
received by such broker-dealer in the Exchange Offer, whether such
positions or policies have been publicly disseminated by the staff of
the SEC or such positions or policies, in the reasonable judgment of
the Initial Purchasers, represent the prevailing views of the staff of
the SEC, including a statement that any such Participating
Broker-Dealer who receives Exchange Securities for Transfer Restricted
Securities pursuant to the Exchange Offer may be deemed a statutory
underwriter and must deliver a prospectus meeting the requirements of
the Securities Act in connection with any resale of such Exchange
Securities, (B) furnish to each Participating Broker-Dealer who has
delivered to the Issuers the notice referred to in Section 3(e),
without charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any preliminary
prospectus, and any amendment or supplement thereto, as such
Participating Broker-Dealer may reasonably request, (C) hereby consent
to the use of the Prospectus forming part of the Exchange Offer
Registration Statement or any amendment or supplement thereto, by any
Person subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with the sale
or transfer of the Exchange Securities covered by the Prospectus or any
amendment or supplement thereto, (D) use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective and to amend
and supplement the Prospectus contained therein in order to permit such
Prospectus to be lawfully delivered by all Persons subject to the
prospectus delivery requirements of the Securities Act for such period
of time as such Persons must comply with such requirements in order to
resell the Exchange Securities; provided, however, that such period
shall not be required to exceed 180 days (or such longer period if
extended pursuant to the last sentence of Section 3 hereof) (the
"Applicable Period"), and (E) include in the transmittal letter or
-----------------
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (1) the following provision:
"If the exchange offeree is a broker-dealer holding Securities
acquired for its own account as a result of market-making
activities or other
-19-
trading activities, it will deliver a prospectus meeting the
requirements of the Securities Act in connection with any
resale of Exchange Securities received in respect of such
Securities pursuant to the Exchange Offer";
and (2) a statement to the effect that by a broker-dealer making the
acknowledgment described in clause (1) and by delivering a Prospectus
in connection with the exchange of Transfer Restricted Securities, such
broker-dealer will not be deemed to admit that it is an underwriter
within the meaning of the Securities Act; and
(t) in the case of any Exchange Offer Registration
Statement, deliver, upon written request, to the Trustee and to
Participating Broker-Dealers upon consummation of the Exchange Offer
(i) an opinion of counsel satisfactory to Xxxxxxx Xxxxx on behalf of
the Initial Purchasers, and (ii) an officers' certificate containing
certifications substantially similar to those set forth in Section 5(i)
of the Purchase Agreement and such additional certifications as are
customarily delivered in a public offering of debt securities.
The Issuers may require each seller of Transfer Restricted
Securities as to which any registration is being effected to furnish to the
Issuers such information regarding such seller and the proposed distribution of
such Transfer Restricted Securities as the Issuers may from time to time
reasonably request in writing. The Issuers may exclude from such registration
the Transfer Restricted Securities of any seller who fails to furnish such
information within a reasonable time (not to exceed 15 Business Days) after
receiving such request and shall be under no obligation to compensate any such
seller for any lost income, interest or other opportunity forgone, or any
liability incurred, as a result of the Issuers' decision to exclude such seller.
In the case of (i) a Shelf Registration Statement or (ii)
Participating Broker-Dealers who have notified the Company that they will be
utilizing the Prospectus contained in the Exchange Offer Registration Statement
as provided in Section 3(t) hereof that are seeking to sell Exchange Securities
and are required to deliver Prospectuses, each Holder agrees that, upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 3(e)(B), 3(e)(C), 3(e)(D), 3(e)(E) or 3(e)(F) hereof, such
Holder or Participating Broker-Dealer, as the case may be, will forthwith
discontinue disposition of Transfer Restricted Securities or Exchange
Securities, as the case may be, pursuant to a Registration Statement until such
Holder's or Participating Broker-Dealer's, as the case may be, receipt of the
copies of the supplemented or amended Prospectus contemplated by Section 3(i)
hereof or until it is advised in writing (the "Advice") by the Company that the
------
use of the applicable Prospectus may be resumed, and, if so directed by the
Company, such Holder will deliver to the Company (at the Company's expense) all
copies in such Holder's or Participating Broker-Dealer's, as the case may be,
possession, other than permanent file copies then in
-20-
such Holder's or Participating Broker-Dealer's, as the case may be, possession,
of the Prospectus covering such Transfer Restricted Securities or Exchange
Securities, as the case may be, current at the time of receipt of such notice.
If the Company shall give any such notice to suspend the disposition of Transfer
Restricted Securities or Exchange Securities, as the case may be, pursuant to a
Registration Statement, the Company shall use its reasonable best efforts to
file and have declared effective (if an amendment) as soon as practicable an
amendment or supplement to the Registration Statement and, in the case of an
amendment, have such amendment declared effective as soon as practicable and
shall extend the period during which such Registration Statement shall be
maintained effective pursuant to this Agreement by the number of days in the
period from and including the date of the giving of such notice to and including
the date when the Company shall have made available to the Holders or
Participating Broker-Dealers, as the case may be, (A) copies of the supplemented
or amended Prospectus necessary to resume such dispositions or (B) the Advice.
4. Indemnification and Contribution. (a) The Issuers shall
--------------------------------
indemnify and hold harmless the Initial Purchasers, each Holder, each
Participating Broker-Dealer, each underwriter who participates in an offering of
Transfer Restricted Securities, their respective affiliates, and each Person, if
any, who controls any of such parties within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, as follows:
(i) against any and all loss, liability, claim, damage and
expense, whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or supplement
thereto), covering Transfer Restricted Securities or Exchange
Securities, including all documents incorporated therein by reference,
or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus
(or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense, whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 4(d) below) any such
settlement is effected with the prior written consent of the Issuers;
and
-21-
(iii) against any and all expenses, as incurred (including
reasonable fees and disbursements of one counsel (in addition to any
regulatory counsel) chosen as provided in Section 4(c) below)
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) or (ii) of this Section
4(a);
provided, however, that this indemnity does not apply to any loss, liability,
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Issuers by or on behalf of
the Initial Purchasers, such Holder, such Participating Broker-Dealer or any
underwriter with respect to such Initial Purchasers, Holder, Participating
Broker-Dealer or underwriter, as the case may be, expressly for use in the
Registration Statement (or any amendment or supplement thereto) or any
Prospectus (or any amendment or supplement thereto); provided, further, that the
foregoing indemnity with respect to a preliminary prospectus in any Shelf
Registration Statement shall not inure to the benefit of any Holder (or
to the benefit of any person controlling such Holder) from whom the person
asserting any such losses, claims, damages or liabilities purchased Transfer
Restricted Securities if (i) such untrue statement or omission or alleged untrue
statement or omission made in such preliminary prospectus was eliminated or
remedied in the final Prospectus (as amended or supplemented if the Issuers
shall have furnished any amendments or supplements thereto to such Holder prior
to confirmation for the sale of such Transfer Restricted Securities to such
person by such Holder) and (ii) a copy of the final Prospectus (as so amended
and supplemented) was not furnished to such person at or prior to the written
confirmation of the sale of such Transfer Restricted Securities to such person,
unless such failure to deliver was a result of non-compliance by the Issuers
with Section 3(c) and the claims asserted by such person do not include
allegations of other untrue statements or omissions of material facts made in
the final Prospectus which allegations are upheld in a final judgment.
(b) Each Holder agrees, severally and not jointly, to
indemnify and hold harmless the Issuers, the Initial Purchasers and the other
selling Holders and each of their respective directors and each Person, if any,
who controls any of the Issuers, the Initial Purchasers, any underwriter or any
other selling Holder within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, against any and all loss, liability, claim, damage and
reasonable expense whatsoever described in the indemnity contained in Section
4(a) hereof, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment or supplement thereto) or any Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Issuers by or on behalf of such selling Holder
-22-
with respect to such Holder expressly for use in the Registration Statement (or
any supplement thereto), or any such Prospectus (or any amendment thereto);
provided, however, that, in the case of the Shelf Registration Statement, no
such Holder shall be liable for any claims hereunder in excess of the amount of
net proceeds received by such Holder from the sale of Transfer Restricted
Securities pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which it
may have otherwise than on account of this indemnity agreement. In the case of
parties indemnified pursuant to Section 4(a) above, counsel to all the
indemnified parties shall be selected by the Initial Purchasers, and, in the
case of parties indemnified pursuant to Section 4(b) above, counsel to all the
indemnified parties shall be selected by the Issuers. An indemnifying party may
participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution is
sought under this Section 4 (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes a full and unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim 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 any indemnified party.
(d) If at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for reasonable fees and
expenses of counsel, then such indemnifying party agrees that it shall be liable
for any settlement of the nature contemplated by Section 4(a)(ii) effected
without its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall have received written notice of the terms of such
settlement at least 30 days prior to such settlement being entered into and
(iii) such indemnifying party shall not have reimbursed such indemnified party
in accordance with such request prior to the date of such settlement.
-23-
(e) (i) In order to provide for just and equitable
contribution in circumstances under which any of the indemnity provisions set
forth in this Section 4 is for any reason held to be unavailable to the
indemnified parties although applicable in accordance with its terms, the
Issuers and the Holders, as applicable, shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated by
such indemnity agreement incurred by the Issuers and the Holders; provided,
however, that no Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person that was not guilty of such fraudulent
misrepresentation. As between the Issuers and the Holders, such parties shall
contribute to such aggregate losses, liabilities, claims, damages and expenses
of the nature contemplated by such indemnity agreement in such proportion as
shall be appropriate to reflect the relative fault of the Issuers, on the one
hand, and the Holders of Transfer Restricted Securities, the Participating
Broker-Dealer or Initial Purchasers, as the case may be, on the other hand, in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant
equitable considerations.
(ii) The relative fault of the Issuers, on the one hand,
and the Holders of Transfer Restricted Securities, the Participating
Broker-Dealer or the Initial Purchasers, as the case may be, 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 the Issuers, or by the Holder of Transfer
Restricted Securities, the Participating Broker-Dealer or the Initial
Purchasers, as the case may be, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
(iii) Notwithstanding the provisions of this Section 4, no
Holder shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities sold by it
under the Shelf Registration Statement exceeds 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.
(iv) The Issuers and the Holders of the Transfer Restricted
Securities and the Initial Purchasers agree that it would not be just
and equitable if contribution pursuant to this Section 4 were
determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to
above in this Section 4.
(v) For purposes of this Section 4, each affiliate of any
Person, if any, who controls a Holder of Transfer Restricted
Securities, the Initial Purchasers or a Participating Broker-Dealer
within the meaning of Section 15 of the Securities Act or Section
-24-
20 of the Exchange Act shall have the same rights to contribution as
such other Person, and each director of the Company, each affiliate of
the Company, each executive officer of the Company who signed the
Registration Statement, and each Person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act shall have the same rights to
contribution as the Company.
5. Participation in Underwritten Registrations. No Holder may
-------------------------------------------
participate in any underwritten registration hereunder unless such Holder (i)
agrees to sell such Holder's Transfer Restricted Securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (ii) completes and executes all
reasonable questionnaires, powers of attorney, indemnities, underwriting
agreements and other documents reasonably required under the terms of such
underwriting arrangements. The Company shall be under no obligation to
compensate any Holder for lost income, interest or other opportunity foregone,
or other liability incurred, as a result of the Issuers' decision to exclude
such Holder from any underwritten registration if such Holder has not complied
with the provisions of this Section 5 in all material respects following 15
Business Days' written notice of non-compliance and the Company's decision to
exclude such Holder.
6. Selection of Underwriters. The Holders of Transfer
-------------------------
Restricted Securities covered by the Shelf Registration Statement who desire to
do so may sell the securities covered by such Shelf Registration in an
underwritten offering. In any such underwritten offering, the underwriter or
underwriters and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities covered by the Shelf Registration Statement;
provided, however, that such underwriters and managers must be reasonably
satisfactory to the Company and such Holders shall be responsible for all
underwriting commissions and discounts in connection therewith.
7. Miscellaneous.
-------------
(a) Reporting Requirement. The Issuers shall use its
---------------------
commercially reasonable efforts to file the reports required to be filed by it
under the Securities Act and the Exchange Act and the rules and regulations
adopted by the SEC thereunder in a timely manner and, if at any time the Issuers
is not required to file such reports, it shall, upon the request of any Holder
of Registrable Securities, make publicly available other information so long as
necessary to permit sales pursuant to Rule 144 and Rule 144A under the
Securities Act. The Issuers further covenant to take such further action as any
Holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions
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provided by (a) Rule 144 and Rule 144A under the Securities Act, as
such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the SEC.
(b) No Inconsistent Agreements. The rights granted to the
--------------------------
Holders hereunder do not, and will not for the term of this Agreement in any way
conflict with and are not, and will not during the term of this Agreement be
inconsistent with the rights granted to the holders of the Issuers' other issued
and outstanding securities under any other agreements entered into by the
Issuers.
(c) Amendments and Waivers. The provisions of this Agreement,
----------------------
including provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, otherwise than with the prior written consent of the Company
and a majority of the Holders; provided, however, that no amendment,
modification, or supplement or waiver or consent to the departure with respect
to the provisions of Section 4 hereof shall be effective as against any Holder
of Transfer Restricted Securities or the Company unless consented to in writing
by such Holder of Transfer Restricted Securities or the Company, as the case may
be.
(d) Notices. (i) All notices and other communications provided
-------
for or permitted hereunder shall be made in writing by hand-delivery, registered
first-class mail, facsimile, or any courier guaranteeing overnight delivery (A)
if to a Holder, at the most current address given by such Holder to the Issuers
by means of a notice given in accordance with the provisions of this Section
7(d), which address initially is, with respect to the Initial Purchasers, the
addresses set forth in the Purchase Agreement; and (B) if to the Issuers,
initially at the Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(d).
(ii) 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 is confirmed, if sent by
facsimile; and on the next Business Day, if timely delivered to an air
courier guaranteeing overnight delivery.
(iii) 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.
(e) Successors and Assigns. This Agreement shall inure to the
----------------------
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without limitation, and without the need for an
express assignment, subsequent Holders. 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
-26-
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
and such Person shall be entitled to receive the benefits hereof.
(f) Third Party Beneficiary. Each Holder shall be a third
-----------------------
party beneficiary of the agreements made hereunder between the Issuers, on the
one hand, and the Initial Purchasers, on the other hand, and shall have the
right to enforce such agreements directly to the extent it deems such
enforcement necessary or advisable to protect its rights or the rights of
Holders hereunder.
(g) Counterparts. This Agreement may be executed in any number
------------
of counterparts (including by facsimile) 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, AS APPLIED TO
CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. EACH OF THE PARTIES HERETO AGREES TO SUBMIT TO
THE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK IN ANY ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(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) Securities Held by the Company or Any of Its Affiliates.
-------------------------------------------------------
Whenever the consent or approval of Holders of a specified percentage of
Transfer Restricted Securities is required hereunder, Transfer Restricted
Securities held by the Company or any of its affiliates (as such term is defined
in Rule 405 under the Securities Act) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
IN WITNESS WHEREOF, the parties have executed this
Registration Rights Agreement as of the date first written above.
RESORTS INTERNATIONAL HOTEL AND
CASINO, INC.
By: /s/ Xxxxxx X. X'Xxxxx
-------------------------
Name: Xxxxxx X'Xxxxx
Title: Vice President
RESORTS INTERNATIONAL HOTEL, INC.
By: /s/ Xxxxxx X. X'Xxxxx
-------------------------
Name: Xxxxxx X'Xxxxx
Title: Vice President and
Secretary
NEW PIER OPERATING COMPANY, INC.
By: /s/ Xxxxxx X. X'Xxxxx
-------------------------
Name: Xxxxxx X'Xxxxx
Title: Vice President and
Secretary
Confirmed and accepted as of the date first written above:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CIBC WORLD MARKETS CORP.
DEUTSCHE BANC ALEX. XXXXX INC.
XXXXXXXXX & COMPANY, INC.
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxxx Xxxxxx
-------------------
Name: Xxxxx Xxxxxx
Title: Director
SCHEDULE A
----------
Guarantors
Resorts International Hotel, Inc.
New Pier Operating Company, Inc.
SCHEDULE B
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Initial Purchasers
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
CIBC World Markets Corp.
Deutsche Banc Alex. Xxxxx Inc.
Xxxxxxxxx & Company, Inc.
