EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
Dated as of November 7, 2003
by and between
RIVER ROCK ENTERTAINMENT AUTHORITY
and
CIBC WORLD MARKETS CORP.
This Registration Rights Agreement (this "Agreement") is made
and entered into as of November 7, 2003, by and among River Rock Entertainment
Authority (the "Issuer"), an unincorporated instrumentality of The Dry Creek
Rancheria Band of Pomo Indians, a federally recognized Indian Tribe and Native
American sovereign nation (the "Tribe"), and CIBC World Markets Corp. (the
"Initial Purchaser"), which has agreed to purchase the Issuer's 9 3/4% Senior
Notes due 2011 (the "Notes") pursuant to the Purchase Agreement (as defined
below).
This Agreement is made pursuant to the Purchase Agreement,
dated November 7, 2003 (the "Purchase Agreement"), by and among the Issuer, the
Tribe and the Initial Purchaser. In order to induce the Initial Purchaser to
purchase the Notes, the Issuer has agreed to provide the registration rights set
forth in this Agreement. The execution and delivery of this Agreement is a
condition to the obligations of the Initial Purchaser set forth in Section 5 of
the Purchase Agreement. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to them under the Indenture, dated as of
November 7, 2003, entered into by and among the Issuer, the Tribe and U.S. Bank
National Association, as Trustee, relating to the Notes and the Exchange Notes
(the "Indenture").
The parties hereby agree as follows:
Section 1. Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 under the Act.
Broker-Dealer: Any broker or dealer registered under the
Exchange Act.
Certificated Securities: Definitive Notes, as defined in the
Indenture.
Closing Date: The date hereof.
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Commission: The Securities and Exchange Commission.
Consummate: An Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (a) the filing and
effectiveness under the Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange Offer, (b) the
maintenance of such Exchange Offer Registration Statement continuously effective
and the keeping of the Exchange Offer open for a period not less than the period
required pursuant to Section 3(b) hereof and (c) the delivery by the Issuer to
the Registrar under the Indenture of Exchange Notes in the same aggregate
principal amount as the aggregate principal amount of Notes tendered by Holders
thereof pursuant to the Exchange Offer.
Consummation Deadline: As defined in Section 3(b) hereof.
Effectiveness Deadline: As defined in Sections 3(a) and 4(a)
hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The Issuer's 93/4% Senior Notes due 2011 to be
issued pursuant to the Indenture: (i) in the Exchange Offer or (ii) as
contemplated by Section 4 hereof.
Exchange Offer: The exchange and issuance by the Issuer of a
principal amount of Exchange Notes (which shall be registered pursuant to the
Exchange Offer Registration Statement) equal to the outstanding principal amount
of Notes that are tendered by Holders thereof in connection with such exchange
and issuance.
Exchange Offer Registration Statement: The Registration
Statement relating to the Exchange Offer, including the related Prospectus.
Exempt Resales: The transactions in which the Initial
Purchaser proposes to sell the Notes to certain "qualified institutional
buyers," as such term is defined in Rule 144A under the Act.
Filing Deadline: As defined in Sections 3(a) and 4(a) hereof.
Holders: As defined in Section 2 hereof.
Prospectus: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended, modified or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all materials
incorporated by reference into such Prospectus.
Recommencement Date: As defined in Section 6(d) hereof.
Registration Default: As defined in Section 5 hereof.
Registration Statement: Any registration statement of the
Issuer relating to (a) an Exchange Offer or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration Statement, in
each case, (i) that is filed pursuant to the provisions of this Agreement and
(ii) including the Prospectus included therein, all amendments and supplements
thereto (including post-effective amendments) and all exhibits and materials
incorporated by reference therein.
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Rule 144: Rule 144 promulgated under the Act.
Security: A Note or an Exchange Note, as the context requires.
Shelf Registration Statement: As defined in Section 4 hereof.
Suspension Notice: As defined in Section 6(d) hereof.
TIA: The Trust Indenture Act of 1939 as in effect on the date
of the Indenture.
Transfer Restricted Securities: Each (a) Security, until the
earliest to occur of (i) the date on which the Note is exchanged in the Exchange
Offer for an Exchange Note by a Holder other than a Broker-Dealer, (ii)
following the exchange by a Broker-Dealer in the Exchange Offer of a Note for an
Exchange Note, the date on which such Exchange Note is sold to a purchaser who
receives from such Broker-Dealer on or prior to the date of such sale a copy of
the Prospectus contained in the Exchange Offer Registration Statement, (iii) the
date on which such Security has been effectively registered under the Act and
disposed of in accordance with a Shelf Registration Statement, or (iv) the date
on which the Note is distributed to the public pursuant to Rule 144 under the
Act or is saleable pursuant to Rule 144(k) under the Act (or similar provisions
then in effect) and (b) Exchange Note held by a Broker-Dealer until the date on
which such Exchange Note is disposed of by a Broker-Dealer pursuant to the "Plan
of Distribution" contemplated by the Exchange Offer Registration Statement
(including the delivery of the Prospectus contained therein).
Section 2. Holders. A Person is deemed to be a holder of
Transfer Restricted Securities (each, a "Holder") whenever such Person owns
Transfer Restricted Securities.
Section 3. Registered Exchange Offer.
(a) Unless the Exchange Offer shall not be permitted by
applicable federal law or Commission policy (after the procedures set forth in
Section 6(a)(i) hereof have been complied with), the Issuer shall (i) use its
reasonable best efforts to prepare and, not later than 180 days following the
claim date (or if such day is not a Business Day, the next succeeding Business
Day) cause the Exchange Offer Registration Statement to be filed with the
Commission (such day being, for purposes of this Section 3, the "Filing
Deadline"), (ii) use its best efforts to cause such Exchange Offer Registration
Statement to become effective no later than 300 days after the Closing Date (of
if such day is not a Business Day, the next succeeding Business Day) (such day
being, for purposes of this Section 3, the "Effectiveness Deadline"), (iii) in
connection with the foregoing, (A) file all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause it
to become effective, (B) file, if applicable, a post-effective amendment to such
Exchange Offer Registration Statement pursuant to Rule 430A under the Act and
(C) cause all necessary filings, if any, in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer;
provided, however, that the Issuer shall not be required to (1) qualify as a
foreign corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required but for this Section 3(a), (2) file any general
consent to service of process or (3) subject itself to taxation in any such
jurisdiction if it is not so subject, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence the Exchange Offer. The Exchange
Offer shall be on the appropriate form permitting (i) registration of the
Exchange Notes to be offered in exchange for the Notes that are Transfer
Restricted Securities and (ii) resales of Exchange Notes by any Broker-Dealer
that tendered into the Exchange Offer Notes that such Broker-Dealer acquired for
its own account as a result of market making activities or other trading
activities (other than Notes acquired directly from the Issuer or any of its
Affiliates) as contemplated by Section 3(c) hereof.
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(b) The Issuer shall keep the Exchange Offer open for a period
of not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided, however, that in no
event shall such period be less than 20 Business Days. The Issuer shall cause
the Exchange Offer to comply with all applicable federal and state securities
laws. No securities other than the Exchange Notes shall be included in the
Exchange Offer Registration Statement. The Issuer shall use its best efforts to
cause the Exchange Offer to be Consummated on the earliest practicable date
after the Exchange Offer Registration Statement has become effective, but in no
event later than 30 Business Days thereafter (such 30th day being the
"Consummation Deadline"), unless a longer period is required by applicable
federal or state securities laws.
(c) The Issuer shall include a "Plan of Distribution" section
in the Prospectus contained in the Exchange Offer Registration Statement and
indicate therein that any Broker-Dealer who holds Transfer Restricted Securities
that were acquired for the account of such Broker-Dealer as a result of
market-making activities or other trading activities (other than Notes acquired
directly from the Issuer or any Affiliate of the Issuer), may exchange such
Transfer Restricted Securities pursuant to the Exchange Offer. Such "Plan of
Distribution" section shall also contain all other information with respect to
such sales by such Broker-Dealers that the Commission may require in order to
permit such sales pursuant thereto, but such "Plan of Distribution" shall not
name any such Broker-Dealer or disclose the amount of Transfer Restricted
Securities held by any such Broker-Dealer, except to the extent required by the
Commission as a result of a change in policy, rules or regulations after the
date of this Agreement.
Because any such Broker-Dealer may be deemed to be an
"underwriter" within the meaning of the Act and must, therefore, deliver a
prospectus meeting the requirements of the Act in connection with its initial
sale of any Exchange Notes received by such Broker-Dealer in the Exchange Offer,
the Issuer shall permit the use of the Prospectus contained in the Exchange
Offer Registration Statement by such Broker-Dealer to satisfy such prospectus
delivery requirement through the Consummation Deadline and thereafter as
provided in the remainder of this paragraph. To the extent necessary to ensure
that the prospectus contained in the Exchange Offer Registration Statement is
available for sales of Exchange Notes by any Broker-Dealer that acquired
Exchange Notes as a result of market-making or similar activities such that the
Broker-Dealer would be required to deliver a prospectus under the Act upon a
subsequent sale or other disposition of the Exchange Notes, upon receiving
notice from such Broker-Dealers of such activities, the Issuer agrees to use its
best efforts to keep the Exchange Offer Registration Statement continuously
effective, supplemented, amended and current as required by and subject to the
provisions of Sections 6(a) and 6(c) hereof and in conformity with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission, as announced from time to time, for a period of 180 days (as
extended due to events specified in Section 6(c)(i) hereof) of the date the
Exchange Offer is consummated or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
sold pursuant thereto. The Issuer shall provide sufficient copies of the latest
version of such Prospectus to such Broker-Dealers, promptly upon request, and in
no event later than one day after the date of such request, at any time during
such period.
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Section 4. Shelf Registration.
(a) Shelf Registration. If (i) the Exchange Offer is not
permitted by applicable federal law or Commission policy (after the Issuer has
complied with the procedures set forth in Section 6(a)(i) hereof) or (ii) if any
Holder of Transfer Restricted Securities shall notify the Issuer in writing
prior to the 20th day following the Consummation of the Exchange Offer that (A)
such Holder was prohibited by law or Commission policy from participating in the
Exchange Offer, (B) such Holder may not resell the Exchange Notes acquired by it
in the Exchange Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement is not
appropriate or available for such resales by such Holder or (C) such Holder is a
Broker-Dealer and holds Notes acquired directly from the Issuer or any of its
Affiliates, then the Issuer shall: (x) cause to be filed, on or prior to 45 days
after the earlier of (1) the date on which the Issuer determines that the
Exchange Offer Registration Statement need not or cannot be filed as a result of
clause (a)(i) above and (2) the date on which the Issuer receives the notice
specified in clause (a)(ii) above (such earlier date being, for purposes of this
Section 4, the "Filing Deadline"), a shelf registration statement pursuant to
Rule 415 under the Act (which may be an amendment to the Exchange Offer
Registration Statement (the "Shelf Registration Statement")) relating to all
Transfer Restricted Securities, and (y) shall use its best efforts to cause such
Shelf Registration Statement to become effective on or prior to 90 days after
the Filing Deadline for the Shelf Registration Statement (such 90th day being,
for purposes of this Section 4, the "Effectiveness Deadline").
If, after the Issuer filed an Exchange Offer Registration
Statement that satisfies the requirements of Section 3(a) hereof, the Issuer is
required to file and make effective a Shelf Registration Statement solely
because the Exchange Offer is not permitted under applicable federal law or
Commission policy (i.e., clause (a)(i) above), then the filing of the Exchange
Offer Registration Statement shall be deemed to satisfy the requirements of
clause (x) above; provided that, in such event, the Issuer shall remain
obligated to meet the Effectiveness Deadline set forth in clause (y) above.
To the extent necessary to ensure that the Shelf Registration
Statement is available for sales of Transfer Restricted Securities by the
Holders thereof entitled to the benefit of this Section 4(a) and the other
securities required to be registered therein pursuant to Section 6(b)(ii)
hereof, the Issuer shall use its best efforts to keep any Shelf Registration
Statement required by this Section 4(a) continuously effective, supplemented,
amended and current as required by and subject to the provisions of Sections
6(b) and 6(c) hereof and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission, as announced
from time to time, for a period of at least two years (as extended due to events
specified in Section 6(c)(i) hereof) following the Closing Date or such shorter
period as will terminate upon the earlier of the expiration of the period
referred to in Rule 144(k) or when all Transfer Restricted Securities covered by
such Shelf Registration Statement have been sold pursuant thereto or cease to be
outstanding, provided, however, the issuer shall not be required to keep such
Shelf Registration Statement effective where the only Transfer Restricted
Securities that have not been sold pursuant to the Shelf Registration Statement
are Transfer Restricted Securities held by Holders who would not have been able
to trigger the Issuer's Shelf Registration filing obligations pursuant to
Section 4(a)(i)(A), (B) or (C) hereof.
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(b) Provision by Holders of Certain Information in Connection
with the Shelf Registration Statement. No Holder of Transfer Restricted
Securities may include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until such Holder
furnishes to the Issuer in writing, within 20 days after receipt of a request
therefor, the information specified in Item 507 or 508, as applicable, of
Regulation S-K of the Act for use in connection with any Shelf Registration
Statement or Prospectus or preliminary Prospectus included therein and any other
information as the Issuer may reasonably request. No Holder of Transfer
Restricted Securities shall be entitled to additional interest pursuant to
Section 5 hereof unless and until such Holder shall have provided all such
information. Each selling Holder as to which any Shelf Registration Statement is
being effected agrees to furnish promptly additional information required to be
disclosed in order to make the information previously furnished to the Issuer by
such Holder not materially misleading.
Section 5. Additional interest. If (i) any Registration
Statement required by this Agreement is not filed with the Commission on or
prior to the applicable Filing Deadline, (ii) any such Registration Statement
has not been declared effective by the Commission on or prior to the applicable
Effectiveness Deadline, (iii) the Exchange Offer has not been Consummated on or
prior to the Consummation Deadline, (iv) the Shelf Registration Statement is
declared effective but thereafter, pending the announcement of a material
corporate transaction, the Issuer issues a notice that the Shelf Registration
Statement is unusable, or such notice is required under applicable securities
laws to be issued by the Issuer, and, during the period specified in Section
4(a) hereof, the aggregate number of days in any consecutive twelve-month period
for which all such notices are issued or required to be issued exceeds 45 days,
or (v) the Exchange Offer Registration Statement is filed and declared effective
but thereafter shall cease to be effective or fail to be usable for its intended
purpose without being succeeded within 5 Business Days by a post-effective
amendment to such Exchange Offer Registration Statement that cures such failure
and that is itself declared effective immediately (each such event referred to
in clauses (i) through (v), a "Registration Default"), then the Authority will
pay additional interest to each holder of Notes immediately following the
occurrence of the first Registration Default. During the first 90-day period
that a Registration Default occurs, the Authority will pay additional interest
equal to 0.25% per annum. At the beginning of the second 90-day period that a
Registration Default is continuing, the amount of additional interest will
increase by an additional 0.25% per annum until all Registration Defaults have
been cured. However, in no event will the cumulative rate of additional interest
exceed 0.50% per annum. Such additional interest will accrue only for those days
that a Registration Default occurs and is continuing. All accrued additional
interest will be paid to the holders of the Notes in the same manner as interest
payments on the Notes, with payments being made on the interest payment dates
for the Notes. Immediately following the cure of all Registration Defaults, the
accrual of additional interest will cease. The obligations of the Issuer to pay
additional interest pursuant to this Section 5 shall be the sole and exclusive
remedy available to the Holders pursuant to any provision of this Agreement or
otherwise in respect of any Registration Default.
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Section 6. Registration Procedures.
(a) Exchange Offer Registration Statement. In connection with
the Exchange Offer, the Issuer shall (x) comply with all applicable provisions
of Section 6(c) hereof, (y) use its best efforts to effect such exchange and to
permit the resale of Exchange Notes by any Broker-Dealer that tendered in the
Exchange Offer Notes that such Broker-Dealer acquired for its own account as a
result of its market-making activities or other trading activities (other than
Notes acquired directly from the Issuer or any of its Affiliates) being sold in
accordance with the intended method or methods of distribution thereof, and (z)
comply with all of the following provisions:
(i) If, following the date hereof there has been published a
change in Commission policy with respect to exchange offers such as the
Exchange Offer, that in the reasonable opinion of counsel to the Issuer
raises a substantial question as to whether the Exchange Offer is
permitted by applicable federal law, the Issuer hereby agrees to seek a
no-action letter or other favorable decision from the Commission
allowing the Issuer to Consummate an Exchange Offer for such Transfer
Restricted Securities, provided that the Issuer shall not be required
to seek such no-action letter or favorable decision if in the opinion
of Holland & Knight LLP such no-action letter or favorable decision is
not likely to be forthcoming based upon its information and experience.
The Issuer hereby agrees to pursue the issuance of such a decision to
the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission
policy. In connection with the foregoing, the Issuer hereby agrees to
take all such other actions as may be requested by the Commission or
otherwise required in connection with the issuance of such decision
(but shall not be required to take commercially unreasonable action to
effect a change of Commission policy), including without limitation (A)
participating in telephonic conferences with the Commission, (B)
delivering to the Commission staff an analysis prepared by counsel to
the Issuer setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted
and (C) diligently pursuing a resolution (which need not be favorable)
by the Commission staff of such submission.
(ii) As a condition to its participation in the Exchange
Offer, each Holder of Transfer Restricted Securities (including,
without limitation, any Holder who is a Broker-Dealer) shall furnish,
upon the request of the Issuer, prior to the Consummation of the
Exchange Offer, a written representation to the Issuer (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
Affiliate of the Issuer, (B) it is not engaged in, and does not intend
to engage in, and has no arrangement or understanding with any Person
to participate in, a distribution of the Exchange Notes to be issued in
the Exchange Offer; (C) it is acquiring the Exchange Notes in its
ordinary course of business; and (D) such other representations
reasonably requested by the Issuer. As a condition to its participation
in the Exchange Offer, each Holder using the Exchange Offer to
participate in a distribution of the Exchange Notes shall acknowledge
and agree that if the resales are of Exchange Notes obtained by such
Holder in exchange for Notes acquired directly from the Issuer or an
Affiliate thereof, it (1) could not, under Commission policy as in
effect on the date of this Agreement, rely on the position of the
Commission enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988) and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5,
1991), as interpreted in the Commission's letter to Shearman &
Sterling, dated July 2, 1993, and similar applicable no-action letters
(including, if applicable, any no-action letter obtained pursuant to
clause (i) above), and (2) must comply with the registration and
prospectus delivery requirements of the Act in connection with a
secondary resale transaction and that such a secondary resale
transaction must be covered by an effective registration statement
containing the selling security holder information required by Item 507
or 508, as applicable, of Regulation S-K.
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(iii) Prior to effectiveness of the Exchange Offer
Registration Statement, the Issuer shall provide a supplemental letter
to the Commission (A) stating that the Issuer is registering the
Exchange Offer in reliance on the position of the Commission enunciated
in Exxon Capital Holdings Corporation (available May 13, 1988) and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (available June 5, 1991), as interpreted
in the Commission's letter to Shearman & Sterling, dated July 2, 1993,
and, if applicable, any no-action letter obtained pursuant to clause
(i) above, (B) including a representation that the Issuer has not
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer and
that, to the best of the Issuer's information and belief, each Holder
participating in the Exchange Offer is acquiring the Exchange Notes in
its ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer and (C) any other undertaking or
representation required by the Commission as set forth in any no-action
letter obtained pursuant to clause (i) above, if applicable.
(b) Shelf Registration Statement. In connection with the Shelf
Registration Statement, the Issuer shall:
(i) comply with all of the provisions of Section 6(c) hereof
and use its best efforts to effect such registration to permit the sale
of the Transfer Restricted Securities being sold in accordance with the
intended method or methods of distribution thereof (as indicated in the
information furnished to the Issuer pursuant to Section 4(b) hereof),
and pursuant thereto, the Issuer will prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the
intended method or methods of distribution thereof within the time
periods specified and otherwise in accordance with the provisions
hereof; and
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(ii) issue, upon the request of any Holder or purchaser of
Notes covered by any Shelf Registration Statement contemplated by this
Agreement, Exchange Notes having an aggregate principal amount equal to
the aggregate principal amount of Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Issuer for cancellation;
the Issuer shall register Exchange Notes on the Shelf Registration
Statement for this purpose and issue the Exchange Notes to the
purchaser(s) of securities subject to the Shelf Registration Statement
in the names as such purchaser(s) shall designate.
(c) General Provisions. In connection with any Registration
Statement and any related Prospectus required by this Agreement, the Issuer
shall:
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements
for the period specified in Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence of any event that would cause any such
Registration Statement or the Prospectus contained therein (A) to
contain an untrue statement of material fact or omit to state any
material fact necessary to make the statements therein not misleading
or (B) not to be effective and usable for resale of Transfer Restricted
Securities permitted by and included in the Exchange Offer during the
period required by this Agreement, the Issuer shall file promptly an
appropriate amendment to such Registration Statement, or the related
Prospectus in the case of Clause (A), correcting such untrue statement
or curing such omission, and, with respect to Clauses (A) and (B), if
Commission review is required, use its reasonable best efforts to cause
such amendment to be declared effective as soon as practicable
thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the applicable Registration Statement as
may be necessary to keep such Registration Statement effective for the
applicable period set forth in Section 3 or 4 hereof, as the case may
be, or such shorter period as will terminate when all Transfer
Restricted Securities covered by the Registration Statement have been
sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Act, and to comply fully with Rules 424, 430A and
462, as applicable, under the Act in a timely manner; and comply with
the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of
distribution by the sellers thereof set forth in such Registration
Statement or supplement to the Prospectus;
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(iii) advise each Holder promptly and, if requested by such
Holder, confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and,
with respect to any applicable Registration Statement or any
post-effective amendment thereto, when the same has become effective,
(B) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement under the Act or of the suspension by any state
securities commission of the qualification of the Transfer Restricted
Securities for offering or sale in any jurisdiction, or the initiation
of any proceeding for any of the preceding purposes, and (D) of the
existence of any fact or the happening of any event that makes any
statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document
incorporated by reference therein untrue, or that requires the making
of any additions to or changes in the Registration Statement in order
to make the statements therein not misleading, or that requires the
making of any additions to or changes in the Prospectus in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. If at any time the Commission
shall issue any stop order suspending the effectiveness of the
Registration Statement, or any state securities commission or other
regulatory authority shall issue an order suspending the qualification
or exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Issuer shall use its best
efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) subject to Section 6(c)(i), if any fact or event
contemplated by Section 6(c)(iii)(D) hereof shall exist or have
occurred, prepare a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of Transfer
Restricted Securities, the Prospectus will not contain an untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(v) (A) in the case of a Shelf Registration Statement, upon
request of any Holder, furnish to each Holder in connection with such
exchange or sale, if any, before filing with the Commission, copies of
any Registration Statement or any Prospectus included therein or any
amendments or supplements to any such Registration Statement or
Prospectus, which documents will be subject to the review and comment
of such Holders in connection with such sale, if any, for a period of
at least five Business Days, and the Issuer will not file any such
Registration Statement or Prospectus or any amendment or supplement to
any such Registration Statement or Prospectus to which any such Holder
shall with respect to information about itself only, reasonably object
within five Business Days after the receipt thereof. The Initial
Purchaser shall be deemed to have reasonably objected to such filing if
such Registration Statement, amendment, Prospectus or supplement, as
applicable, as proposed to be filed, contains an untrue statement of a
material fact or omits to state any material fact necessary to make the
statements therein not misleading or fails to comply with the
applicable requirements of the Act; or (B) in the case of an Exchange
Offer Registration Statement, furnish to the Initial Purchaser in
connection with such exchange or sale, if any, before filing with the
Commission, copies of any Registration Statement or any Prospectus
included therein or any amendments or supplements to any such
Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Registration
Statement), which documents will be subject to the review and comment
of such Initial Purchaser in connection with such sale, if any, for a
period of at least five Business Days, and the Issuer will not file any
such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus (including
all such documents incorporated by reference) to which the Initial
Purchaser shall reasonably object within five Business Days after the
receipt thereof. The Initial Purchaser shall be deemed to have
reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omits to
state any material fact necessary to make the statements therein not
misleading or fails to comply with the applicable requirements of the
Act;
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(vi) (A) in the case of a Shelf Registration Statement, upon
request from any Holder, promptly, prior to the filing of any document
that is to be incorporated by reference into a Registration Statement
or Prospectus, provide copies of such document to each Holder in
connection with such exchange or sale, if any, make the Issuer's
representatives available for discussion of such document and other
customary due diligence matters, and include such information with
respect to such Holder in such document prior to the filing thereof as
such Holders may reasonably request; or (B) in the case of an Exchange
Offer Registration Statement, promptly, prior to the filing of any
document that is to be incorporated by reference into a Registration
Statement or Prospectus, provide copies of such document to each
Initial Purchaser in connection with such exchange or sale, if any,
make the Issuer's representatives available for discussion of such
document and other customary due diligence matters, and include such
information with respect to such Holder in such document prior to the
filing thereof as such Initial Purchaser may reasonably request;
(vii) make available, at reasonable times, for inspection by
each Holder and any attorney or accountant retained by such Holder, all
financial and other records, pertinent documents of the Issuer and the
Tribe (but only to the extent that they relate to or otherwise affect
the Issuer or the Tribe's obligations under the Indenture) and cause
the Issuer's officers, directors and employees to supply all
information, in each case in this clause (vii) as reasonably requested
by any such Holder, attorney or accountant in connection with such
Registration Statement or any post-effective amendment thereto
subsequent to the filing thereof and prior to its effectiveness;
provided, that each Holder shall keep confidential any non-public
information relating to the Issuer received by such Holder and not
disclose such information (other than to an Affiliate or prospective
purchaser who agrees to respect the confidentiality provisions of this
Section 6(c)(vii)) until such information has been made generally
available to the public unless the release of such information is
required by law or any regulatory authority, and each Holder shall sign
a confidentiality agreement in customary form if so requested by the
Issuer;
11
(viii) if requested by any Holder in connection with such
exchange or sale, promptly include in any Registration Statement or
Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information relating to such Holder as such Holder may
reasonably request to have included therein, and make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after the Issuer is notified of the matters to be
included in such Prospectus supplement or post-effective amendment;
(ix) (A) in the case of a Shelf Registration Statement, upon
request from any Holder, furnish to each Holder in connection with such
exchange or sale, without charge, at least one copy of the Registration
Statement, as first filed with the Commission, and of each amendment
thereto, including all documents incorporated by reference therein and
all exhibits (including exhibits incorporated therein by reference); or
(B) in the case of an Exchange Offer Registration Statement, furnish to
the Initial Purchaser in connection with such exchange or sale, without
charge, at least one copy of the Registration Statement, as first filed
with the Commission, and of each amendment thereto, including all
documents incorporated by reference therein and all exhibits (including
exhibits incorporated therein by reference);
(x) deliver to each Holder, without charge, as many copies of
the Prospectus (including each preliminary prospectus) and any
amendment or supplement thereto as such Persons reasonably may request;
the Issuer hereby consents to the use (in accordance with applicable
law, rules, regulations and orders) of the Prospectus and any amendment
or supplement thereto by each selling Holder in connection with the
offering and the sale of the Transfer Restricted Securities covered by
the Prospectus or any amendment or supplement thereto;
(xi) in the case of Shelf Registration, upon the request of
any Holder, enter into such agreements (including underwriting
agreements) and make such representations and warranties and take all
such other actions in connection therewith in order to expedite or
facilitate the disposition of the Transfer Restricted Securities
pursuant to any applicable Registration Statement contemplated by this
Agreement as may be reasonably requested by Holders of at least a
majority of the Transfer Restricted Securities in connection with any
sale or resale pursuant to any applicable Registration Statement. In
such connection, the Issuer shall:
(A) upon the request of the Holders of at least a
majority of the Transfer Restricted Securities, furnish (or in
the case of paragraphs (2) and (3) below, use its best efforts
to cause to be furnished) to each Holder, upon the
effectiveness of the Shelf Registration Statement, as the case
may be:
12
(1) a certificate, dated such date, signed
on behalf of the Issuer by (x) the Chief Executive
Officer or President and (y) the Chief Financial
Officer or Chief Accounting Officer in the form and
scope as are customarily made by issuers to
underwriters in underwritten offerings;
(2) an opinion, dated the date of
effectiveness of the Shelf Registration Statement, as
the case may be, of Holland & Knight LLP, counsel for
the Issuer, covering matters customarily covered in
opinions requested in underwritten offerings; and
(3) a customary comfort letter, dated as of
the date of effectiveness of the Shelf Registration
Statement, from the Issuer's independent accountants,
in the customary form and covering matters of the
type customarily covered in comfort letters to
underwriters in connection with underwritten public
offerings; and
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders and their counsel in
connection with the registration and qualification of the Transfer
Restricted Securities under the securities or Blue Sky laws of such
jurisdictions as the selling Holders may request and do any and all
other acts or things necessary or advisable to enable the disposition
in such jurisdictions of the Transfer Restricted Securities covered by
the applicable Registration Statement; provided, however, that the
Issuer shall not be required to register or qualify as a foreign
corporation where it is not now so qualified or to take any action that
would subject it to service of process in suits or to taxation, other
than as to matters and transactions relating to the Registration
Statement, in any jurisdiction where it is not now so subject;
(xiii) in connection with any sale of Transfer Restricted
Securities that will result in such securities no longer being Transfer
Restricted Securities, cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Transfer
Restricted Securities to be sold and not bearing any securities-law
related restrictive legends; and to register such Transfer Restricted
Securities in such denominations and such names as the selling Holders
may request at least two Business Days prior to any sale of such
Transfer Restricted Securities;
(xiv) use its best efforts to cause the disposition of the
Transfer Restricted Securities covered by the Registration Statement to
be registered with or approved by such other governmental agencies or
authorities as may be necessary to enable the seller or sellers thereof
to consummate the disposition of such Transfer Restricted Securities,
subject to the proviso contained in clause (xii) above;
13
(xv) provide CUSIP, ISIN and Common Code numbers for all
Transfer Restricted Securities not later than the effective date of a
Registration Statement covering such Transfer Restricted Securities and
provide the Trustee under the Indenture with certificates for the
Transfer Restricted Securities which are in a form eligible for deposit
with the Depository Trust Company;
(xvi) otherwise use its best efforts to comply with all
applicable rules and regulations of the Commission, and make generally
available to its security holders with regard to any applicable
Registration Statement, as soon as practicable, a consolidated earnings
statement meeting the requirements of Rule 158 (which need not be
audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in
paragraph (c) of Rule 158 under the Act);
(xvii) cause the Indenture to be qualified under the TIA not
later than the effective date of the first Registration Statement
required by this Agreement and, in connection therewith, cooperate with
the Trustee and the Holders to effect such changes to the Indenture as
may be required for such Indenture to be so qualified in accordance
with the terms of the TIA and execute and use its reasonable best
efforts to cause the Trustee to execute, all documents that may be
required to effect such changes and all other forms and documents
required to be filed with the Commission to enable such Indenture to be
so qualified in a timely manner; and
(xviii) following the Consummation of the Exchange Offer or
the date of effectiveness of the Shelf Registration Statement, as the
case may be, whether or not required by the Commission, file a copy of
all of the following information and reports with the Commission for
public availability within the time periods specified in the
Commission's rules and regulations (unless the Commission will not
accept such a filing) and make such information available to securities
analysts and prospective investors upon request: (A) all quarterly and
annual financial information that would be required to be contained in
a filing with the Commission on Forms 10-Q and 10-K if the Issuer were
required to file such Forms, including a "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and, with
respect to the annual information only, a report on the annual
financial statements by the Issuer's certified independent accountants;
and (B) all current reports that would be required to file such
reports.
(d) Restrictions on Holders. Each Holder agrees by acquisition
of a Transfer Restricted Security that, upon receipt of the notice referred to
in Section 6(c)(iii)(C) hereof or any notice from the Issuer of the existence of
any fact or the happening of any event of the kind described in Section
6(c)(iii)(D) hereof or, in the case of the Shelf Registration, the Issuer shall
issue a notice pending the announcement of a material business transaction that
the Shelf Registration Statement is unusable (in each case, a "Suspension
Notice"), such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
(i) such Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(iv) hereof, or (ii) such Holder is advised in
writing by the Issuer that the use of the Prospectus may be resumed, and has
received copies of any additional or supplemental filings that are incorporated
by reference in the Prospectus (in each case, the "Recommencement Date"). Each
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Issuer with more recently
dated Prospectuses or (ii) deliver to the Issuer (at the Issuer's expense) all
copies, other than permanent file copies, then in such Holder's possession of
the Prospectus covering such Transfer Restricted Securities that was current at
the time of receipt of the Suspension Notice. The time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by a number of days equal to the number of days
in the period from and including the date of delivery of the Suspension Notice
to the Recommencement Date.
14
Section 7. Registration Expenses. All expenses incident to the
Issuer's performance of or compliance with this Agreement will be borne by the
Issuer, regardless of whether a Registration Statement becomes effective,
including without limitation: (i) all registration and filing fees and expenses;
(ii) all fees and expenses of compliance with federal securities and state Blue
Sky or securities laws; (iii) all expenses of printing (including printing
certificates for the Exchange Notes to be issued in the Exchange Offer and
printing of Prospectuses), messenger and delivery services and telephone; (iv)
all fees and disbursements of counsel for the Issuer, as well as, in the case of
a Shelf Registration Statement, all reasonable fees and disbursements of one
counsel for the Holders of Transfer Restricted Securities if requested by any
Holder of Transfer Restricted Securities (which counsel for the Holders shall be
chosen by the Holders of a majority of the outstanding Transfer Restricted
Securities); (v) all application and filing fees in connection with listing the
Exchange Notes on a national securities exchange or automated quotation system
pursuant to the requirements hereof; and (vi) all fees and disbursements of
independent certified public accountants of the Issuer (including the expenses
of any special audit and comfort letters required by or incident to such
performance); (vii) all rating agency fees, if any; and (viii) all fees and
expenses relating to the qualification of the Indenture under the applicable
securities laws.
The Issuer will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Issuer.
15
Section 8. Indemnification.
(a) The Issuer agrees to indemnify and hold harmless the
Initial Purchaser, each Holder and each Person, if any, who controls the Initial
Purchaser or Holder (within the meaning of Section 15 of the Act or Section 20
of the Exchange Act), including, with respect to each such Initial Purchaser or
Holder or controlling person, its directors, agents, officers and employees,
from and against: (i) any and all loss, liability, claim, damage, expense and
action whatsoever, joint or several, as incurred, to which each such Holder,
Initial Purchaser or controlling person or any such director, agent, officer or
employee may become subject under the Securities Act, the Exchange Act or other
federal or state statutory law or regulation, or at common law or otherwise,
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement (or any amendment or
supplement thereto), 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 or based upon 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) any and all loss,
liability, claim, damage, expense or action 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 8(d) hereof) any such settlement is effected
with the written consent of the Issuer; (iii) any and all expenses whatsoever,
joint or several, as incurred (including the fees and disbursements of counsel
chosen by any indemnified party, subject to the limitations in Section 8(c)
below), reasonably incurred in investigating, preparing or defending against any
litigation or any investigation or proceeding by any 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 subparagraphs (i) and (ii)
above; provided, however, that this indemnity agreement shall not apply to any
loss, liability, claim, damage, expense or action to the extent arising out of
any untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the Issuer
by the Initial Purchaser or such Holder expressly for use in a Registration
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supplement thereto); and provided, further, that the Issuer shall not be liable
to the Initial Purchaser or any Holder, or its directors, agents, officers,
employees or any person controlling the Initial Purchaser or any such Holder,
with respect to any such untrue statement or alleged untrue statement or
omission or alleged omission made in any preliminary Prospectus to the extent
that the Issuer shall sustain the burden of proving that any such loss,
liability, claim, damage, expense or action resulted from the fact that any
Initial Purchaser or any Holder sold the Notes to a person to whom such Initial
Purchaser or Holder failed to send or give, at or prior to the written
confirmation of the sale of such Notes, a copy of the final Prospectus (as
amended or supplemented) if the Issuer has previously furnished copies thereof
to the Initial Purchaser or the Holders, as applicable (sufficiently in advance
of the Closing Date to allow for distribution of the final Prospectus in a
timely manner) and complied with their obligations under Section 6 hereof and
the loss, liability, claim, damage, expense or action of the Initial Purchaser
or any Holder resulted from an untrue statement or omission or alleged untrue
statement or omission of a material fact contained in or omitted from such
preliminary Prospectus (as amended or supplemented) which was corrected in the
final Prospectus (as amended or supplemented). The indemnity agreement set forth
in this Section 8(a) shall be in addition to any liabilities that the Issuer may
otherwise have. In the event of an underwritten offering, as contemplated by
Section 6 herein, the Issuer will also indemnify the underwriters, if any,
selling brokers, dealers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees to the same extent as provided above with respect to the
indemnification of the Holders, if requested in connection with any Registration
Statement.
16
(b) Each Holder of Transfer Restricted Securities agrees,
severally and not jointly, to indemnify and hold harmless the Issuer and other
selling Holders, and their respective directors, agents, officers and employees,
and each person, if any, who controls (within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act) the Issuer or such other selling Holders
to the same extent as the foregoing indemnity from the Issuer set forth in
clause (a) above, but only with reference to information relating to such Holder
furnished in writing to the Issuer by such Holder expressly for use in any
Registration Statement or Prospectus (or any amendment or supplement thereto).
In no event shall any Holder, its directors, agents, officers, employees or any
Person who controls such Holder be liable or responsible for any amount in
excess of the amount by which the total amount received by such Holder with
respect to its sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages that such Holder, its
directors, agents, officers, employees or any Person who controls such Holder
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party for
contribution or otherwise than under the indemnity agreement contained in this
Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and
such indemnified party seeks or intends to seek indemnity from an indemnifying
party, the indemnifying party will be entitled to participate in and, to the
extent that it shall elect, jointly with all other indemnifying parties
similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that a conflict may arise between the positions of the
indemnifying party and the indemnified party in conducting the defense of any
such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and otherwise to
participate in the defense of such action on behalf of such indemnified party.
Upon receipt of notice from the indemnifying party to such indemnified party of
such indemnifying party's election so to assume the defense of such action and
approval by the indemnified party's election so to assume the defense of such
action and approval by the indemnified party's counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal
or other expenses subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (the Issuer in the case of Section
8(a) hereof and a majority of the Holders in the case of Section 8(b) hereof),
representing the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying party.
17
The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
against any loss, claim, damage, liability, expense or action by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by this
Section 8(c), the indemnifying party agrees that it shall be liable for any
settlement of any proceeding 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
notice of the final terms of such proposed settlement as soon as practicable
prior to the settlement being entered into and (iii) such indemnifying party
shall not have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement. No indemnified party shall, without the
prior written consent of the indemnified party, effect any settlement,
compromise or consent to the entry of judgment in any pending or threatened
action, suit or proceeding in respect of which any indemnified party is or could
have been a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding.
(d) If the indemnification provided for in this Section 8 is
for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities, expenses or actions referred to therein, then each indemnifying
party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages,
liabilities, expenses or actions referred to therein (i) in such proportion as
is appropriate to reflect the relative benefits received by the Issuer, on the
one hand, and the Holders and the Initial Purchaser, on the other hand, from
their sale of Transfer Restricted Securities or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Issuer, on the one hand, and the
Holders and the Initial Purchaser, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities, expenses or actions, as well as any other relevant equitable
considerations. The relative fault of the Issuer, on the one hand, and the
Holders and the Initial Purchaser, on the other hand, shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Issuer, on the one hand, or the
Holders and the Initial Purchaser, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities, expenses or actions referred to above
shall be deemed to include, subject to the limitations set forth in Section
8(c), any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
18
The Issuer and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation (even if the Holders were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities, expenses or actions referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any matter, including any
action that could have given rise to such losses, claims, damages, liabilities,
expenses or actions. Notwithstanding the provisions of this Section 8, no
Holder, or its directors, agents, officers, employees or any Person, if any, who
controls such Holder shall be required to contribute, in the aggregate, any
amount in excess of the amount by which the total received by such Holder with
respect to the sale of Transfer Restricted Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Transfer
Restricted Securities and (ii) the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several, in proportion to the respective principal amount of
Transfer Restricted Securities held by each Holder hereunder, and not joint.
Section 9. Limited Waiver of Sovereign Immunity; Specific
Consent to Jurisdictions and other Waivers.
The Issuer does not consent to the enforcement, levy or other
execution of any judgment for money or other damages against any assets, real or
personal, of the Tribe, except that the Issuer waives its sovereign immunity
from unconsented suit or other legal proceeding, whether such suit or
proceedings be brought in law or in equity, or in administrative proceedings or
proceedings in arbitration, to permit the commencement and maintenance of any
action, by the Initial Purchaser or any Holder (or any representative of a
Holder), to interpret or enforce the terms of this Agreement, and to enforce and
execute any order, judgment or ruling resulting therefrom against any assets or
revenues of the Issuer other than real property held in trust for the Tribe by
the United States.
Notwithstanding any other provision of law or canon of
construction, the Issuer intends this waiver to be interpreted liberally to
permit the full litigation or other resolution of disputes arising under or out
of this Agreement. Without limiting the generality of the foregoing, and subject
to the foregoing, the Issuer waives its immunity from unconsented suit and other
legal proceedings to permit suit in any federal court in the State of New York,
any state court of the State of New York and all courts to which appeals
therefrom are available, and enforcement of any judgment of such court in any
court of competent jurisdiction, or arbitrators, appointed and acting under the
commercial arbitration rules of the American Arbitration Association, to:
19
(a) enforce and interpret the terms of this Agreement and
award and enforce an award of damages owing as a consequence of a breach
thereof;
(b) order the seizure and sale of any assets of the Issuer
used or held for use in the Gaming Business, other than real property held in
trust for the Tribe by the United States, or the exercise of any other remedy
available generally in the State of New York for judgment creditors;
(c) determine whether any consent or approval of the Issuer
has been improperly granted or unreasonably withheld;
(d) enforce any judgment prohibiting the Issuer from taking
any action, or mandating or obligating the Issuer to take any action; and
(e) as to a court of competent jurisdiction only, but not
arbitrators, adjudicate any claim under the Indian Civil Rights Act of 1968, 25
U.S.C. ss. 1302 (or any successor statute).
The Issuer expressly waives any right it may otherwise have to
require any matter arising hereunder be considered or heard first in any tribal
court of the Tribe, now or hereafter existing, whether because of the doctrine
of exhaustion of tribal remedies or as a matter of comity or abstention.
Section 10. Miscellaneous.
(a) No Inconsistent Agreements. The Issuer will not, on or
after the date of this Agreement, enter into any agreement with respect to its
securities that is inconsistent with the rights granted to the Holders in this
Agreement or that otherwise conflicts with the provisions hereof. The Issuer has
not previously entered into any agreement granting any registration rights with
respect to its securities to any Person. The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of the Issuer's securities under any agreement in
effect on the date hereof.
(b) Amendments and Waivers. The provisions of this Agreement
may not be amended, modified or supplemented, and waivers or consents to or
departures from the provisions hereof may not be given unless (i) in the case of
Section 5 hereof and this Section 10(b)(i), the Issuer has obtained the written
consent of Holders of all outstanding Transfer Restricted Securities and (ii) in
the case of all other provisions hereof, the Issuer has obtained the written
consent of the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities (excluding Transfer Restricted Securities held by
the Issuer or its Affiliates). Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose Transfer Restricted Securities are being tendered
pursuant to the Exchange Offer, and that does not affect directly or indirectly
the rights of other Holders whose Transfer Restricted Securities are not being
tendered pursuant to such Exchange Offer, may be given by the Holders of a
majority of the outstanding principal amount of Transfer Restricted Securities
subject to such Exchange Offer.
(c) Third Party Beneficiary. The Holders shall be third party
beneficiaries to the agreements made hereunder between the Issuer, on the one
hand, and the Initial Purchaser, on the other hand, and shall have the right to
enforce such agreements directly to the extent they may deem such enforcement
necessary or advisable to protect its rights or the rights of the Holders
hereunder.
20
(d) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail (registered or certified, return receipt requested), telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the
records of the Registrar under the Indenture, with a copy to
the Registrar under the Indenture; and
(ii) if to the Issuer:
River Rock Entertainment Authority
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Financial Officer
With copies to:
Holland & Knight LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
(iii) if to the Initial Purchaser:
CIBC World Markets Corp.
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▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when receipt acknowledged, if telecopied; and on the next business day, if
timely delivered to an air courier guaranteeing overnight delivery.
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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 and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Transfer
Restricted Securities in violation of the terms hereof or of the Purchase
Agreement or the Indenture. If any transferee of any Holder shall acquire
Transfer Restricted Securities in any manner, whether by operation of law or
otherwise, such Transfer Restricted Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Transfer Restricted
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement, including
the restrictions on resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive the benefits
hereof.
(f) Counterparts. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(h) 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.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Transfer Restricted Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
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(j) IGRA Savings Provisions. It is not the intent of the
parties hereto that this Agreement, whether considered alone, or together with
any other one or more documents, constitute a management contract within the
meaning of IGRA. Accordingly, to the extent any reasonable basis exists
therefore, each and every provision hereof shall be interpreted in a manner that
does not cause this Agreement to constitute a management contract, whether
considered alone, or together with any other one or more documents. In no event
shall any provision of this Agreement be applied, or deemed in effect or
enforceable, to the extent such provision allows any action or influence by the
Trustee or any other person that constitutes management of gaming in violation
of IGRA. Notwithstanding any other provision herein, if any term or condition
herein should cause this Agreement, alone, or together with any one or more
other documents, to constitute a management contract within the meaning of IGRA,
such provision shall be null and void without any further force and effect, with
all other provisions not similarly null and void remaining in full force and
effect. This Section shall survive as an agreement separate and apart from the
remainder of this Indenture in the event of any determination that any provision
of this Agreement causes the Agreement to constitute a management contract
within the meaning of IGRA.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
THE RIVER ROCK ENTERTAINMENT AUTHORITY
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authority Chairperson
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Secretary
CIBC WORLD MARKETS CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
