EXHIBIT 4.5
THE MAJESTIC STAR CASINO, LLC
THE MAJESTIC STAR CAPITAL CORP.
$260,000,000 9 1/2% SENIOR SECURED NOTES DUE 2010
REGISTRATION RIGHTS AGREEMENT
October 7, 2003
XXXXXXXXX & COMPANY, INC.
XXXXX FARGO SECURITIES, LLC
c/x Xxxxxxxxx & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
The Majestic Star Casino, LLC, an Indiana limited liability
company (the "COMPANY"), and The Majestic Star Casino Capital Corp., an Indiana
corporation ("CAPITAL," and together with the Company, the "ISSUERS"), are
issuing and selling to Xxxxxxxxx & Company, Inc. and Xxxxx Fargo Securities, LLC
(collectively, the "INITIAL PURCHASERS"), upon the terms set forth in a purchase
agreement, dated as of September 26, 2003 (the "PURCHASE AGREEMENT"),
$260,000,000 aggregate principal amount at maturity of the Issuers' 9 1/2%
Senior Secured Notes due 2010, Series A, including the Guarantees (as defined
below) endorsed thereon (the "NOTES"). As an inducement to the Initial
Purchasers to enter into the Purchase Agreement, the Issuers and each of the
guarantors (the "GUARANTORS") signatory to the Purchase Agreement jointly and
severally agree with the Initial Purchasers, for the benefit of the holders of
the Securities (as defined below) (including, without limitation, the Initial
Purchasers), as follows:
1. DEFINITIONS.
Capitalized terms used herein without definition shall have
their respective meanings set forth in the Purchase Agreement. As used in this
Agreement, the following terms shall have the following meanings:
ADVICE: See the last paragraph of Section 6.
AGREEMENT: This Registration Rights Agreement.
APPLICABLE PERIOD: See Section 2(f).
BUSINESS DAY: Any day, other than a Saturday, a Sunday or a
day on which banking institutions in the City of New York or at a place of
payment are authorized by law, regulation or executive order to remained closed.
CLOSING DATE: October 7, 2003.
CONTROLLING PERSON: See Section 8(a).
DTC: See Section 6(i).
EFFECTIVENESS DATE: The 180th day following the Closing Date.
EFFECTIVENESS PERIOD: See Section 3(a).
EVENT: See Section 4(a).
EVENT DATE: See Section 4(a).
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
EXCHANGE OFFER: See Section 2(a).
EXCHANGE OFFER REGISTRATION STATEMENT: See Section 2(a).
EXCHANGE SECURITIES: 9 1/2% Senior Secured Notes due 2010,
Series B, of the Issuers, including the guarantees endorsed thereon, identical
in all respects to the Notes and the Guarantees, except for references to series
and restrictive legends.
FILING DATE: The 60th day following the Closing Date.
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GUARANTEES: The full and unconditional guarantee, on a senior
secured basis by the Guarantors, as to payment of principal, interest, premium,
if any, and the Weekly Liquidated Damages Amount, if any, with respect to the
Notes.
HOLDER: Each holder of Registrable Securities.
HOLDER INDEMNIFIED PARTIES: See Section 8(a).
INDEMNIFIED PARTY: See Section 8(c).
INDEMNIFYING PARTIES: See Section 8(c).
INDENTURE: The Indenture, dated as of the date hereof, by and
among the Issuers, the Guarantors and The Bank of New York, as trustee, pursuant
to which the Notes are being issued, as amended or supplemented from time to
time, in accordance with the terms thereof.
INITIAL SHELF REGISTRATION: See Section 3(a).
LOSSES: See Section 8(a).
MAXIMUM CONTRIBUTION AMOUNT: See Section 8(d).
NASD: The National Association of Securities Dealers, Inc.
PARTICIPATING BROKER-DEALER: See Section 2(f).
PERSON: An individual, trustee, corporation, limited liability
company, partnership, limited liability partnership, joint stock company, joint
venture, trust, unincorporated organization or association, government or any
agency or political subdivision thereof, union, business association, firm or
other entity.
PRIVATE EXCHANGE: See Section 2(g).
PRIVATE EXCHANGE SECURITIES: See Section 2(g).
PROSPECTUS: The prospectus included in a Registration
Statement at the time that such Registration Statement is declared effective
(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A under the Securities Act), as amended or
supplemented by any prospectus supplement with respect to the terms of the
offering of any portion of the Securities covered by such Registration
Statement, and all other amendments and supplements
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to the Prospectus, including post-effective amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such
Prospectus.
REGISTRABLE SECURITIES: Any of the Notes, the Private Exchange
Securities and the Exchange Securities received in the Exchange Offer that may
not be sold without restriction under federal or state securities law.
REGISTRATION STATEMENT: Any registration statement of either
of the Issuers that covers any of the Securities and that is filed pursuant to
the provisions of this Agreement, including the Prospectus included therein, all
amendments and supplements to such registration statement and Prospectus
(including post-effective amendments), all exhibits thereto and all material
incorporated by reference or deemed to be incorporated by reference therein.
RULE 144: Rule 144 under the Securities Act, as such rule may
be amended from time to time, or any similar rule (other than Rule 144A) or
regulation hereafter adopted by the SEC.
RULE 144A: Rule 144A under the Securities Act, as such rule
may be amended from time to time, or any similar rule (other than Rule 144) or
regulation hereafter adopted by the SEC.
RULE 415: Rule 415 under the Securities Act, as such rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
SEC: The Securities and Exchange Commission.
SECURITIES: The Notes, the Private Exchange Securities and the
Exchange Securities, collectively.
SECURITIES ACT: The Securities Act of 1933, as amended, and
the rules and regulations of the SEC promulgated thereunder.
SHELF EFFECTIVENESS DATE: With respect to a Shelf
Registration, the 90th day after the filing of such Shelf Registration.
SHELF FILING DATE: With respect to a Shelf Registration, the
60th day following (i) in the case of an Initial Shelf Registration, delivery of
the Shelf Notice triggering the obligation to file such Initial Shelf
Registration, and (ii) in the case of a Subsequent Shelf Registration, the
cessation of effectiveness of the prior Shelf Registration.
SHELF NOTICE: See Section 2(i).
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SHELF REGISTRATION: The Initial Shelf Registration and any
Subsequent Shelf Registration.
SPECIAL COUNSEL: Counsel chosen by the holders of a majority
in aggregate principal amount of Securities.
SUBSEQUENT SHELF REGISTRATION: See Section 3(b).
TIA: The Trust Indenture Act of 1939, as amended.
TRUSTEE: The trustee under the Indenture and, if any, the
trustee under any indenture governing the Exchange Securities or the Private
Exchange Securities.
UNDERWRITTEN REGISTRATION OR UNDERWRITTEN OFFERING: A
registration in which securities of either of the Issuers are sold to an
underwriter for reoffering to the public.
WEEKLY LIQUIDATED DAMAGES AMOUNT: With respect to any Event,
an amount per week per $1,000 principal amount of Registrable Securities equal
to $0.05 for the first 90-day period immediately following the applicable Event
Date, increasing by an additional $0.05 per week per $1,000 principal amount of
Registrable Securities with respect to each subsequent 90-day period, up to a
maximum amount of $0.20 per week per $1,000 principal amount of Registrable
Securities.
2. EXCHANGE OFFER.
(a) The Issuers and the Guarantors shall:
(i) prepare and file with the SEC promptly after the date
hereof, but in no event later than the Filing Date, a registration statement
(the "EXCHANGE OFFER REGISTRATION STATEMENT") on an appropriate form under the
Securities Act with respect to a proposed offer (the "EXCHANGE OFFER") to the
Holders to issue and deliver to such Holders, in exchange for the Notes, a like
aggregate principal amount of Exchange Securities;
(ii) use their respective reasonable best efforts to cause
the Exchange Offer Registration Statement to become effective as promptly as
practicable after the filing thereof, but in no event later than the
Effectiveness Date;
(iii) use their respective reasonable best efforts to keep
the Exchange Offer Registration Statement effective until the consummation of
the Exchange Offer pursuant to its terms; and
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(iv) unless the Exchange Offer would not be permitted by a
policy of the SEC, commence the Exchange Offer and use their respective
reasonable best efforts to, on the earliest practicable date after the Exchange
Offer Registration Statement is declared effective, but in no event later than
30 days thereafter, consummate the Exchange Offer and issue Exchange Securities
in exchange for all Notes tendered prior thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than that the
Exchange Offer does not violate applicable law or any applicable interpretation
of the staff of the SEC.
(b) The Exchange Securities shall be issued under, and entitled to
the benefits of, the Indenture or a trust indenture that is identical to the
Indenture (other than such changes as are necessary to comply with any
requirements of the SEC to effect or maintain the qualification thereof under
the TIA).
(c) In connection with the Exchange Offer, the Issuers and the
Guarantors shall:
(i) mail to each Holder a copy of the Prospectus forming
part of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal that is an exhibit to the Exchange Offer Registration
Statement, and any related documents;
(ii) keep the Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders (or longer if
required by applicable law);
(iii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New York;
(iv) permit Holders to withdraw tendered Notes at any time
prior to the close of business, New York time, on the last Business Day on which
the Exchange Offer shall remain open; and
(v) otherwise comply with all laws applicable to the
Exchange Offer.
(d) As soon as practicable after the close of the Exchange Offer,
the Issuers and the Guarantors shall:
(i) accept for exchange all Notes validly tendered and
not validly withdrawn pursuant to the Exchange Offer;
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(ii) deliver to the Trustee for cancellation all Notes so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and
deliver to each Holder of Notes, Exchange Securities equal in aggregate
principal amount to the Notes of such Holder so accepted for exchange.
(e) Interest on each Exchange Security and each Private Exchange
Security will accrue from the last interest payment date on which interest was
paid on the Notes surrendered in exchange therefor or, if no interest has been
paid on the Notes, from the date of original issue of the Notes. Each Exchange
Security and each Private Exchange Security shall bear interest at the rate set
forth thereon; provided, that interest with respect to the period prior to the
issuance thereof shall accrue at the rate or rates borne by the Notes
surrendered in exchange therefor from time to time during such period.
(f) The Issuers and the Guarantors shall include within the
Prospectus contained in the Exchange Offer Registration Statement a section
entitled "Plan of Distribution," containing 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 that is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of Exchange Securities received by
such broker-dealer in the Exchange Offer (a "PARTICIPATING BROKER-DEALER"). Such
"Plan of Distribution" section shall also allow the use of the Prospectus by all
Persons subject to the prospectus delivery requirements of the Securities Act,
including (without limitation) all Participating Brokers-Dealers, and include a
statement describing the means by which Participating Broker-Dealers may resell
the Exchange Securities. The Issuers and the Guarantors shall use their
respective reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective and to amend and supplement the Prospectus to
be lawfully delivered by all Persons subject to the prospectus delivery
requirement of the Securities Act for the shorter of : (i) such period of time
as such Persons must comply with such requirements in order to resell the
Exchange Securities and (ii) the period ending when all Registrable Securities
covered by the Exchange Offer Registration Statement have been sold pursuant
thereto (the "APPLICABLE PERIOD").
(g) If, prior to consummation of the Exchange Offer, any Initial
Purchaser holds any Notes acquired by it and having the status as an unsold
allotment in the initial distribution of the Notes, the Issuers and the
Guarantors shall, upon the request of such Initial Purchaser, simultaneously
with the delivery of the Exchange Securities in the Exchange Offer, issue
(pursuant to the same indenture as the Exchange Securities and subject to
transfer restrictions thereon) and deliver to the Initial Purchaser, in exchange
for the Notes held by such Initial Purchaser (the
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"PRIVATE EXCHANGE"), a like principal amount of debt securities of the Issuers,
including guarantees endorsed thereon, that are identical to the Exchange
Securities (the "PRIVATE EXCHANGE SECURITIES"). The Private Exchange Securities
shall bear the same CUSIP number as the Exchange Securities.
(h) The Issuers may require each Holder participating in the
Exchange Offer to represent to the Issuers and the Guarantors that, at the time
of the consummation of the Exchange Offer: (i) any Exchange Securities received
by such Holder in the Exchange Offer will be acquired in the ordinary course of
its business; (ii) such Holder will have no arrangement or understanding with
any Person to participate in the distribution of the Exchange Securities within
the meaning of the Securities Act or resale of the Exchange Securities in
violation of the Securities Act; (iii) if such Holder is not a broker-dealer,
that it is not engaged in and does not intend to engage in, the distribution of
the Exchange Securities; (iv) if such Holder is a broker-dealer that will
receive Exchange Securities for its own account in exchange for Notes that were
acquired as a result of market-making or other trading activities, that it will
deliver a prospectus, as required by law, in connection with any resale of such
Exchange Securities; and (v) if such Holder is an affiliate of either of the
Issuers, that it will comply with the registration and prospectus delivery
requirements of the Securities Act applicable to it.
(i) If: (i) prior to the consummation of the Exchange Offer,
either of the Issuers or the Holders of a majority in aggregate principal amount
of Registrable Securities determines in its or their reasonable judgment that
the Exchange Securities would not, upon receipt, be tradeable by the Holders
thereof without restriction under the Securities Act and the Exchange Act and
without material restrictions under applicable Blue Sky or state securities
laws; (ii) applicable interpretations of the staff of the SEC would not permit
the consummation of the Exchange Offer prior to the Effectiveness Date; (iii)
subsequent to the consummation of the Private Exchange, any Holder of Private
Exchange Securities so requests; (iv) the Exchange Offer is not consummated
within 210 days of the Closing Date for any reason; or (v) in the case of (A)
any Holder prohibited by law or SEC policy from participating in the Exchange
Offer, (B) any Holder participating in the Exchange Offer that receives Exchange
Securities that may not be sold without restriction under state and federal
securities laws (other than due solely to the status of such Holder as an
affiliate of either of the Issuers within the meaning of the Securities Act) or
(C) any broker-dealer that holds Notes acquired directly from the Issuers or any
of their respective affiliates and, in each such case contemplated by this
clause (v), such Holder notifies the Issuers within 20 Business Days of
consummation of the Exchange Offer, then the Issuers shall promptly (and in any
event within five Business Days) deliver to the Holders (or in the case of an
occurrence of any event described in clause (v) of this Section 2(i), to any
such Holder) and the Trustee notice thereof (the "SHELF NOTICE") and shall as
promptly as possible thereafter (but
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in no event later than the Shelf Filing Date) file an Initial Shelf Registration
pursuant to Section 3; provided, that no Holder (other than the Initial
Purchasers) shall be entitled to have Securities held by it covered by such
Shelf Registration unless such Holder agrees to be bound by all of the
provisions of this Agreement applicable to such Holder.
3. SHELF REGISTRATION.
If a Shelf Notice is required to be delivered pursuant to clause (i),
(ii) or (iii) or (iv) of Section 2(i), then this Section 3 shall apply to all
Registrable Securities. Otherwise, upon consummation of the Exchange Offer in
accordance with Section 2, the provisions of this Section 3 shall apply solely
with respect to (i) Notes held by any Holder thereof prohibited by law or SEC
policy from participating in the Exchange Offer, (ii) Notes held by any
broker-dealer that acquired such Notes directly from the Issuers or any of their
respective affiliates, and (iii) Exchange Securities that are not freely
tradeable, in each case, as contemplated by clause (v) of Section 2(i).
(a) Initial Shelf Registration. The Issuers and the Guarantors
shall prepare and file with the SEC a Registration Statement for an offering to
be made on a continuous basis pursuant to Rule 415 covering all of the
Registrable Securities (the "INITIAL SHELF REGISTRATION"), subject to the
Issuers' right pursuant to Section 3(c) to exclude the Registrable Securities of
Holders which have not provided the information required to be furnished by such
Holders pursuant to Section 3(c). The Issuers and the Guarantors shall file with
the SEC the Initial Shelf Registration as promptly as possible following the
occurrence of the event described in Section 2(i) which triggered such filing
obligation, but in no event later than the Shelf Filing Date. The Initial Shelf
Registration shall be on Form S-1 or another appropriate form permitting
registration of such Registrable Securities for resale by such Holders in the
manner or manners designated by them (including, without limitation, one or more
underwritten offerings). The Issuers and the Guarantors (i) shall not permit any
securities other than the Registrable Securities to be included in any Shelf
Registration, and (ii) shall use their respective reasonable best efforts to
cause the Initial Shelf Registration to be declared effective under the
Securities Act as promptly as practicable after the filing thereof (but in no
event later than the Shelf Effectiveness Date) and to keep the Initial Shelf
Registration continuously effective under the Securities Act until the date that
is 24 months after the date it is declared effective (subject to extension
pursuant to the last paragraph of Section 6) (the "EFFECTIVENESS PERIOD"), or
such shorter period ending when (i) all Registrable Securities covered by the
Initial Shelf Registration have been sold, (ii) a Subsequent Shelf Registration
covering all of the Registrable Securities has been declared effective under the
Securities Act, (iii) such Registrable Securities are eligible for
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resale pursuant to Rule 144(k) under the Securities Act or (iv) there cease to
be any outstanding Registrable Securities.
(b) Subsequent Shelf Registrations. If any Shelf Registration
ceases to be effective for any reason at any time during the Effectiveness
Period (other than because of the sale of all of the Registrable Securities
registered thereunder), the Issuers and the Guarantors shall use their
respective reasonable best efforts to obtain the prompt withdrawal of any order
suspending the effectiveness thereof, and in any event shall within 30 days of
such cessation of effectiveness file an amendment to the Shelf Registration in a
manner reasonably expected to obtain the withdrawal of the order suspending the
effectiveness thereof, or file an additional "shelf" Registration Statement
pursuant to Rule 415 covering all of the Registrable Securities (a "SUBSEQUENT
SHELF REGISTRATION"). If a Subsequent Shelf Registration is filed, the Issuers
and the Guarantors shall use their respective reasonable best efforts to cause
the Subsequent Shelf Registration to be declared effective as promptly as
practicable after such filing and to keep such Subsequent Shelf Registration
continuously effective for a period equal to the number of days in the
Effectiveness Period less the aggregate number of days during which the Initial
Shelf Registration, and any previously filed Subsequent Shelf Registration, was
previously effective.
(c) Provision of Information. The Issuers and the Guarantors may
exclude from any Shelf Registration the Registrable Securities of any Holder
who, without a reasonable basis, fails to furnish to the Issuers in writing,
within 20 days after receipt of a written request therefor, the information
specified in Item 507 or 508, as applicable, of Regulation S-K under the
Securities Act for use in connection with any Shelf Registration or Prospectus
or preliminary prospectus included therein. No such Holder shall be entitled to
liquidated damages pursuant to Section 4 unless and until such Holder shall have
provided all such information. Each Holder whose Registrable Securities are to
be included in a Shelf Registration Statement agrees to promptly furnish to the
Issuers all additional information required to be disclosed in order to make the
information previously furnished to the Issuers by such Holder not materially
misleading.
4. LIQUIDATED DAMAGES.
(a) The Issuers and the Guarantors acknowledge and agree that the
Holders will suffer damages, and that it would not be feasible to ascertain the
extent of such damages with precision, if the Issuers and the Guarantors fail to
fulfill their respective obligations hereunder. Accordingly, in the event of
such failure, the Issuers and the Guarantors jointly and severally agree to pay
liquidated damages to each Holder under the circumstances and to the extent set
forth below:
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(i) if the Exchange Offer Registration Statement has not
been filed with the SEC on or prior to the Filing Date;
(ii) if the Exchange Offer Registration Statement is not
declared effective by the SEC on or prior to the Effectiveness Date; or
(iii) if the Issuers and the Guarantors have not exchanged
Exchange Securities for all Notes validly tendered in accordance with the terms
of the Exchange Offer within 30 days after the date on which the Exchange Offer
Registration Statement is declared effective by the SEC;
(iv) if obligated to file an Initial Shelf Registration
and the Issuers and the Guarantors fail to file such Initial Shelf Registration
with the SEC on or prior to Shelf Filing Date;
(v) if an Initial Shelf Registration is filed and such
Initial Shelf Registration is not declared effective on or prior to the Shelf
Effectiveness Date; or
(vi) if a Shelf Registration is filed and declared
effective by the SEC but thereafter ceases to be effective without being
succeeded within 30 days by a Subsequent Shelf Registration filed and declared
effective;
(each of the foregoing an "EVENT," and the date on which the Event occurs being
referred to herein as an "EVENT DATE").
Upon the occurrence of any Event, the Issuers shall pay, or cause to be
paid (and the Guarantors hereby guarantee the payment of), in addition to
amounts otherwise due under the Indenture and the Registrable Securities, as
liquidated damages, and not as a penalty, to each Holder for each weekly period
beginning on the Event Date an amount equal to the Weekly Liquidated Damages
Amount per $1,000 principal amount of Registrable Securities held by such
Holder; provided, that such liquidated damages will, in each case, cease to
accrue (subject to the occurrence of another Event) on the date on which all
Events have been cured. An Event under clause (i) above shall be cured on the
date that the Exchange Offer Registration Statement (or, if an Initial Shelf
Registration is required to be filed pursuant to clause (i), (ii) or (iii) of
Section 2(i), the date that such Initial Shelf Registration) is filed with the
SEC; an Event under clause (ii) above shall be cured on the date that the
Exchange Offer Registration Statement (or, if an Initial Shelf Registration is
required to be filed pursuant to clause (i), (ii) or (iii) of Section 2(i), the
date that such Initial Shelf Registration) is declared effective by the SEC; an
Event under clause (iii) above shall be cured on the earlier of the date (A) the
Exchange Offer is consummated with respect to all Notes validly tendered or (B)
the Issuers deliver a Shelf Notice to the Holders and the Trustee pursuant to
clause (i),
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(ii) or (iii) of Section 2(i); an Event under clause (iv) above shall be cured
on the date that such Initial Shelf Registration is filed with the SEC; an Event
under clause (v) above shall be cured on the date that such Initial Shelf
Registration is declared effective by the SEC; and an Event under clause (vi)
above shall be cured on the earlier of (1) the date on which the applicable
Shelf Registration is no longer subject to an order suspending the effectiveness
thereof or proceedings relating thereto or (2) a new Subsequent Shelf
Registration is declared effective.
(b) The Issuers shall notify the Trustee within five Business Days
after each Event Date. The Issuers shall pay the liquidated damages due on the
Registrable Securities by depositing with the Trustee, in trust, for the benefit
of the Holders thereof, by 12:00 noon, New York City time, on or before the
applicable semi-annual interest payment date for the Registrable Securities,
immediately available funds in sums sufficient to pay the liquidated damages
then due. The liquidated damages amount due shall be payable in the same manner
as interest payments on the Notes on each interest payment date to the record
Holder entitled to receive the interest payment to be made on such date as set
forth in the Indenture.
5. GAMING CONSENTS.
Prior to consummating the Exchange Offer or filing the Initial Shelf
Registration, as the case may be, the Issuers and the Guarantors shall make or
obtain all Permits necessary or desirable for the consummation of the
transactions contemplated hereby, including without limitation, the Exchange
Offer, and the required approvals of the Indiana Gaming Commission, the
Mississippi Gaming Commission, the Colorado Limited Gaming Control Commission
and the Colorado Division of Gaming or any other applicable gaming authorities,
for the pledge of, or any negative pledge on, the membership interests in the
Company, Majestic Investor, LLC, Majestic Investor Holdings, LLC, Majestic
Investor Capital Corp., Xxxxxx Mississippi Gaming, LLC and Xxxxxx Colorado
Gaming, LLC and the capital stock of Capital.
6. REGISTRATION PROCEDURES.
In connection with the registration of any Securities pursuant to
Sections 2 or 3, the Issuers and the Guarantors shall effect such registrations
to permit the sale of such Securities in accordance with the intended method or
methods of disposition thereof, and pursuant thereto the Issuers and the
Guarantors shall:
(a) Prepare and file with the SEC, as soon as practicable after
the date hereof but in any event on or prior to the Filing Date, with respect to
an Exchange Offer Registration Statement, and on or prior to the Shelf Filing
Date, with respect to a Shelf Registration, as prescribed by Sections 2 and 3,
respectively, and use their
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respective reasonable best efforts to cause each such Registration Statement to
become effective and remain continuously effective as provided in this
Agreement; provided, that if (i) such filing is pursuant to Section 3 or (ii) a
Prospectus contained in an Exchange Offer Registration Statement filed pursuant
to Section 2 is required to be delivered under the Securities Act by any
Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, before filing any Registration Statement or Prospectus or any
amendments or supplements thereto, (A) the Issuers shall notify the Holders of
the Registrable Securities covered by such Registration Statement, their Special
Counsel, each Participating Broker-Dealer, the managing underwriters, if any,
and their counsel of such filing at least five Business Days prior to making
such filing, (B) if requested, the Issuers and the Guarantors shall furnish to
and afford the Holders of the Registrable Securities covered by such
Registration Statement, their Special Counsel, each Participating Broker-Dealer,
the managing underwriters, if any, and their counsel a reasonable opportunity to
review, and shall make available for inspection by such Persons, copies of all
such documents (including copies of any documents to be incorporated by
reference therein and all exhibits thereto) proposed to be filed and such
financial and other information and books and records of the Issuers and the
Guarantors, as shall be necessary, in the opinion of Special Counsel and the
respective counsels to such Participating Broker-Dealers and underwriters, to
conduct a reasonable due diligence investigation within the meaning of the
Securities Act, and (C) the Issuers and the Guarantors shall cause the members,
managers, officers, directors and employees of the Issuers and the Guarantors,
and counsel and independent certified public accountants of the Issuers and the
Guarantors, to respond to such inquiries, as shall be necessary, in the opinion
of Special Counsel and the respective counsels to such Participating
Broker-Dealers and underwriters, to conduct a reasonable due diligence
investigation within the meaning of the Securities Act. The Issuers and the
Guarantors may require each Holder to agree in writing to keep confidential any
non-public information relating to the Issuers and the Guarantors received by
such Holder, to refrain from using such information as the basis for any market
transactions in the securities of the Issuers and not to disclose such
information (other than to an affiliate or prospective purchaser who agrees in
writing to respect the confidentiality provisions of this Section 6(a)) until
such information has been made generally available to the public unless the
release of such information is required by law or necessary to respond to
inquiries of regulatory authorities. The Issuers and the Guarantors shall not
file any Registration Statement or Prospectus or any amendments or supplements
thereto which the Holders must be afforded an opportunity to review prior to the
filing of such document, if the Holders of a majority in aggregate principal
amount of the Registrable Securities covered by such Registration Statement,
their Special Counsel, any Participating Broker-Dealer or the managing
underwriters, if any, or their counsel shall reasonably object to such filing
within five Business Days after receipt of the Issuers' notice of filing
described above in this Section 6(a). A Holder shall be deemed to have
reasonably objected to such
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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 Securities Act.
(b) Provide an indenture trustee for the Registrable Securities or
the Exchange Securities, as the case may be, and cause the Indenture (or other
indenture relating to the Registrable Securities) to be qualified under the TIA
not later than the effective date of the first Registration Statement; in
connection therewith, effect such changes to such indenture as may be required
for such indenture to be so qualified in accordance with the terms of the TIA;
and execute, and use their respective reasonable best efforts to cause such
trustee 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 such
indenture to be so qualified in a timely manner.
(c) Prepare and file with the SEC such pre-effective amendments
and post-effective amendments to the Registration Statement as may be necessary
in order to cause the Registration Statement to become effective and to keep
such Registration Statement continuously effective for the time periods required
hereby; cause the related Prospectus to be supplemented by any Prospectus
supplement required by Applicable Law, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act, and comply fully with Rules 424, 430A and 462, as applicable,
under the Securities Act in a timely manner; and comply in all material respects
with the provisions of the Securities Act and the Exchange Act applicable
thereto with respect to the disposition of all securities covered by such
Registration Statement, as so amended, or in such Prospectus, as so
supplemented, in accordance with the intended methods of distribution set forth
in such Registration Statement, as so amended, and such Prospectus, as so
supplemented.
(d) Furnish to such selling Holders and Participating
Broker-Dealers who so request (i) upon the Issuers' and the Guarantors' receipt,
a copy of the order of the SEC declaring such Registration Statement and any
post-effective amendment thereto effective, (ii) such reasonable number of
copies of such Registration Statement and of each amendment and supplement
thereto (in each case including any documents incorporated therein by reference
and all exhibits (including exhibits incorporated by reference) to such
Registration Statement and each such amendment and supplement), (iii) such
reasonable number of copies of the Prospectus included in such Registration
Statement (including each preliminary prospectus and each supplement thereto),
and such reasonable number of copies of the final Prospectus as filed by the
Issuers and the Guarantors pursuant to Rule 424(b) under the Securities Act, in
conformity with the requirements of the Securities Act, and (iv) such other
documents (including any amendments and supplements required to be filed
14
pursuant to Section 6(c) and any documents incorporated therein by reference and
all exhibits thereto, including exhibits incorporated by reference), as any such
Person may reasonably request. The Issuers and the Guarantors hereby consent to
the use (in accordance with Applicable Law) of the Prospectus by each of the
selling Holders of Registrable Securities and by each such Participating
Broker-Dealer, as the case may be, and the underwriters or agents, if any, and
dealers (if any), in connection with the offering and sale of the Registrable
Securities covered by, or the sale by Participating Broker-Dealers of the
Exchange Securities pursuant to, such Prospectus and any amendment or supplement
thereto.
(e) If (A) a Shelf Registration is filed pursuant to Section 3 or
(B) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, notify the selling Holders of Registrable Securities, their
Special Counsel, each Participating Broker-Dealer and the managing underwriters,
if any, promptly (but in any event within five Business Days), and, if requested
by such Person, confirm such notice in writing, (i) when a Prospectus or any
Prospectus supplement or Registration Statement or post-effective amendment has
been filed, and, with respect to a Registration Statement or any post-effective
amendment, when the same has become effective under the Securities Act, (ii) of
the issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or of any order preventing or suspending the use of any
Prospectus or the initiation of any proceedings for that purpose, (iii) if, at
any time when a Prospectus is required by the Securities Act to be delivered in
connection with sales of the Registrable Securities, the representations and
warranties of the Issuers and the Guarantors contained in any agreement
(including any underwriting agreement) contemplated by Section 6(n) below cease
to be true and correct in any material respect, (iv) of the receipt by the
Issuers or any of the Guarantors of any notification with respect to the
suspension of the qualification or exemption from qualification of a
Registration Statement or any of the Registrable Securities or the Exchange
Securities to be sold by any Participating Broker-Dealer for offer or sale in
any jurisdiction, or the contemplation, initiation or threatening of any
proceeding for such purpose, (v) of the happening of any event that makes any
statement made in such Registration Statement or related Prospectus or any
document incorporated or deemed to be incorporated therein by reference to be
untrue in any material respect or that requires the making of any additions to
or changes in such Registration Statement, Prospectus or documents so that it
will not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements were made,
not misleading, (vi) of the Issuers' and the Guarantors' reasonable
determination that a post-effective amendment to a Registration Statement would
be appropriate, and (vii) of any
15
request by the SEC for amendments to the Registration Statement or supplements
to the Prospectus or for additional information relating thereto.
(f) Use their respective reasonable best efforts to register or
qualify, and, if applicable, to cooperate with the selling Holders of
Registrable Securities, the underwriters, if any, and their respective counsel
in connection with the registration or qualification (or exemption from such
registration or qualification) of, Registrable Securities to be included in a
Registration Statement for offer and sale under the securities or Blue Sky laws
of such jurisdictions within the United States as any selling Holder,
Participating Broker-Dealer or the managing underwriters reasonably request in
writing; and, if Securities are offered other than through an Underwritten
Offering, the Issuers and the Guarantors shall cause their respective counsel to
perform Blue Sky investigations and file registrations and qualifications
required to be filed pursuant to this Section 6(f) at the expense of the Issuers
and the Guarantors; keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Securities
covered by the applicable Registration Statement; provided, however, that none
of the Issuers or the Guarantors shall be required to (i) register or qualify
generally to do business in any jurisdiction where it is not then so qualified,
(ii) take any action that would subject it to general service of process in any
jurisdiction where it is not then so subject or (iii) take any action that would
subject it to general taxation in respect of doing business in any such
jurisdiction where it is not then so subject.
(g) Use their respective reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of a Registration Statement
or preventing or suspending the use of a Prospectus or suspending the
qualification (or exemption from qualification) of any of the Securities for
sale in any jurisdiction, and, if any such order is issued, use their respective
reasonable best efforts to obtain the withdrawal or lifting of any such order at
the earliest possible time.
(h) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, and if requested by the managing underwriters, if any, such
Participating Broker-Dealer or the Holders of a majority in aggregate principal
amount of the Registrable Securities, (A) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, or such Holders reasonably request to be included therein
as required to comply with any Applicable Law and (B) make all required filings
of such Prospectus supplement or such post-effective amendment as soon as
practicable after the Issuers and the Guarantors have
16
received notification of such matters required by Applicable Law to be
incorporated in such Prospectus supplement or post-effective amendment.
(i) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, cooperate with the selling Holders, such Participating
Broker-Dealer and the managing underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable Securities to
be sold, which certificates shall not bear any restrictive legends and shall be
in a form eligible for deposit with The Depository Trust Company ("DTC"); and
enable such Registrable Securities to be in such denominations and registered in
such names as the managing underwriters, if any, such Participating
Broker-Dealer or the Holders may request.
(j) If (i) a Shelf Registration is filed pursuant to Section 3 or
(ii) a Prospectus contained in an Exchange Offer Registration Statement filed
pursuant to Section 2 is required to be delivered under the Securities Act by
any Participating Broker-Dealer who seeks to sell Exchange Securities during the
Applicable Period, upon the occurrence of any event contemplated by Section
6(e)(v), 6(e)(vi) or 6(e)(vii), as promptly as practicable prepare a
post-effective amendment to the Registration Statement, a supplement to the
related Prospectus or a supplement or amendment to any such document
incorporated or deemed to be incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers of
the Registrable Securities being sold thereunder or to the purchasers of the
Exchange Securities to whom such Prospectus will be delivered by a Participating
Broker-Dealer, such Prospectus will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, and, if SEC review is required, use their
respective reasonable best efforts to cause such post-effective amendment to be
declared effective as soon as practicable.
(k) Use their respective reasonable best efforts to cause the
Securities covered by a Registration Statement to be rated with the appropriate
rating agencies, if appropriate, and if so requested by the holders of a
majority in aggregate principal amount of Securities covered by such
Registration Statement or the managing underwriters, if any.
(l) Prior to the effective date of the first Registration
Statement relating to the Securities, (i) provide the applicable trustee with
printed certificates for the Securities in a form eligible for deposit with DTC
and (ii) provide a CUSIP number for each of the Securities.
17
(m) Use their respective reasonable best efforts to cause all
Securities covered by such Registration Statement to be listed on each
securities exchange, if any, on which similar debt securities issued by the
Issuers are then listed.
(n) If a Shelf Registration is filed pursuant to Section 3, enter
into such agreements (including, an underwriting agreement in form, scope and
substance as is customary in Underwritten Offerings) and take all such other
actions in connection therewith (including those reasonably requested by the
managing underwriters, if any, or the Holders of a majority in aggregate
principal amount of Registrable Securities being sold) in order to expedite or
facilitate the registration or the disposition of such Registrable Securities,
and in such connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an Underwritten Registration, (i) make
such representations and warranties to the Holders and the underwriters, if any,
with respect to the business of the Issuers and their respective subsidiaries,
and the Registration Statement, Prospectus and documents, if any, incorporated
or deemed to be incorporated by reference therein, in each case, in form,
substance and scope as are customarily made by issuers to underwriters in
Underwritten Offerings, and confirm the same if and when reasonably requested;
(ii) obtain opinions of counsel to the Issuers and the Guarantors and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the Holders of
a majority in aggregate principal amount of the Registrable Securities being
sold), addressed to each selling Holder and each of the underwriters, if any,
covering the matters customarily covered in opinions requested in Underwritten
Offerings; (iii) obtain "cold comfort" letters and updates thereof (which
letters and updates (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters) from the independent certified public
accountants of the Issuers and the Guarantors (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 each of the underwriters and each selling Holder, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with Underwritten Offerings and
such other matters as reasonably requested by underwriters; and (iv) deliver
such documents and certificates as may be reasonably requested by the Holders of
a majority in principal amount of the Registrable Securities being sold and the
managing underwriters, if any, to evidence the continued validity of the
representations and warranties of the Issuers and the Guarantors and their
respective subsidiaries made pursuant to clause (i) above and to evidence
compliance with any conditions contained in the underwriting agreement or other
similar agreement entered into by the Issuers and the Guarantors.
18
(o) Comply with all applicable rules and regulations of the SEC
and make generally available to their respective 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 on
the first day of the fiscal quarter following each fiscal quarter in which
Registrable 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 Issuers
after the effective date of a Registration Statement, which statements shall
cover said 12-month periods.
(p) Upon consummation of an Exchange Offer or Private Exchange,
obtain an opinion of counsel to the Issuers and the Guarantors (in form, scope
and substance reasonably satisfactory to the Initial Purchasers), addressed to
all Holders participating in the Exchange Offer or Private Exchange, as the case
may be, to the effect that (i) the Issuers and the Guarantors have duly
authorized, executed and delivered the Exchange Securities or the Private
Exchange Securities, as the case may be, and the Indenture, (ii) the Exchange
Securities or the Private Exchange Securities, as the case may be, and the
Indenture constitute legal, valid and binding obligations of the Issuers and the
Guarantors, enforceable against the Issuers and the Guarantors in accordance
with their respective terms, except as such enforcement may be subject to (A)
applicable bankruptcy, insolvency, reorganization, moratorium and similar laws
affecting creditors' rights and remedies generally and (B) general principles of
equity (regardless of whether such enforcement is sought in a proceeding in
equity or at law), and (iii) all obligations of the Issuers and the Guarantors
under the Exchange Securities or the Private Exchange Securities, as the case
may be, and the Indenture are secured by Xxxxx (as defined in the Indenture) on
the assets securing the obligations of the Issuers and the Guarantors under the
Notes and the Indenture immediately prior to the consummation of such Exchange
Offer or Private Exchange, as the case may be.
(q) If an Exchange Offer or Private Exchange is to be consummated,
upon delivery of the Registrable Securities by such Holders to the Issuers and
the Guarantors (or to such other Person as directed by the Issuers and the
Guarantors) in exchange for the Exchange Securities or the Private Exchange
Securities, as the case may be, the Issuers and the Guarantors shall mark, or
caused to be marked, on such Registrable Securities that such Registrable
Securities are being cancelled in exchange for the Exchange Securities or the
Private Exchange Securities, as the case may be, and in no event shall such
Registrable Securities be marked as paid or otherwise satisfied.
19
(r) Cooperate with each seller of Registrable Securities covered
by any Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made with the NASD.
(s) Use their respective reasonable best efforts to take all other
steps necessary to effect the registration of the Registrable Securities covered
by a Registration Statement contemplated hereby.
Each Holder and each Participating Broker-Dealer agrees by acquisition
of such Registrable Securities or Exchange Securities that, upon receipt of
written notice from the Issuers and the Guarantors of the happening of any event
of the kind described in Section 6(e)(ii), 6(e)(iv), 6(e)(v), 6(e)(vi) or
6(e)(vii), such Holder will forthwith discontinue disposition (in the
jurisdictions specified in a notice of a 6(e)(iv) event, and elsewhere in a
notice of a 6(e)(ii), 6(e)(v), 6(e)(vi) or 6(e)(vii) event) of such Securities
covered by such Registration Statement or Prospectus until the earlier of (i)
such Xxxxxx's receipt of the copies of the amended or supplemented Prospectus
contemplated by Section 6(j); or (ii) the time such Holder is advised in writing
(the "ADVICE") by the Issuers and the Guarantors that offers or sales in a
particular jurisdiction may be resumed, or that the use of the applicable
Prospectus may be resumed, as the case may be, and has received copies of any
amendments or supplements thereto. If so directed by the Issuers in such notice,
each Holder and each Participating Broker-Dealer will deliver to the Issuers (at
the Issuers' expense) all copies of the Prospectus contained in the Registration
Statement covering such Securities that was in effect at the time of such
Xxxxxx's or Participating Broker-Dealer's receipt of such notice. If the Issuers
and the Guarantors shall give such notice, each of the Effectiveness Period and
the Applicable Period shall be extended by the number of days during such
periods from and including the date of the giving of such notice to and
including the date when each seller of such Securities covered by such
Registration Statement shall have received (x) the copies of the amended or
supplemented Prospectus contemplated by Section 6(j) or (y) the Advice.
7. REGISTRATION EXPENSES.
(a) All fees and expenses incident to the performance of or
compliance with this Agreement by the Issuers and the Guarantors shall be borne
by the Issuers and the Guarantors whether or not the Exchange Offer is
consummated or the Exchange Offer Registration Statement or a Shelf Registration
is filed or becomes effective, including, without limitation:
(i) all registration and filing fees (including, without
limitation, (A) fees with respect to filings required to be made with the NASD
and (B) fees and expenses of compliance with state securities or Blue Sky laws
(including, without
20
limitation, reasonable fees and disbursements of counsel in connection with Blue
Sky qualifications of the Registrable Securities or Exchange Securities and
determination of the eligibility of the Registrable Securities or Exchange
Securities for investment under the laws of such jurisdictions (x) where the
Holders are located, in the case of the Exchange Securities, or (y) as provided
in Section 6(f), in the case of Registrable Securities or Exchange Securities to
be sold by a Participating Broker-Dealer during the Applicable Period));
(ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities or Exchange
Securities in a form eligible for deposit with DTC and of printing prospectuses
if the printing of prospectuses is requested by the managing underwriters, if
any, or, in respect of Registrable Securities or Exchange Securities to be sold
by a Participating Broker-Dealer during the Applicable Period, by the Holders of
a majority in aggregate principal amount of the Registrable Securities included
in any Registration Statement or of such Exchange Securities, as the case may
be);
(iii) messenger, telephone, duplication, word processing
and delivery expenses incurred by the Issuers and the Guarantors in the
performance of their obligations hereunder;
(iv) fees and disbursements of counsel for the Issuers,
the Guarantors and, subject to Section 7(b), the Holders;
(v) fees and disbursements of all independent certified
public accountants referred to in Section 6(n)(iii) (including, without
limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance);
(vi) fees and expenses of any "qualified independent
underwriter" or other independent appraiser participating in an offering
pursuant to Section 3 of Schedule E to the By-laws of the NASD, but only where
the need for such a "qualified independent underwriter" arises due to a
relationship with the Issuers and the Guarantors;
(vii) Securities Act liability insurance, if the Issuers
and the Guarantors so desire such insurance;
(viii) fees and expenses of all other Persons, including
special experts, retained by the Issuers or the Guarantors; internal expenses of
the Issuers and the Guarantors (including, without limitation, all salaries and
expenses of their respective officers and employees performing legal or
accounting duties), and the expenses of any annual audit; and
21
(ix) rating agency fees and the fees and expenses incurred
in connection with the listing of the Securities to be registered on any
securities exchange.
(b) The Issuers and the Guarantors shall reimburse the Holders for
the reasonable fees and disbursements of not more than one counsel (in addition
to appropriate local counsel) chosen by the Holders of a majority in aggregate
principal amount of the Registrable Securities to be included in any
Registration Statement and other reasonable and necessary out-of-pocket expenses
of the Holders incurred in connection with the registration of the Registrable
Securities.
8. INDEMNIFICATION.
(a) Indemnification by the Issuers and the Guarantors. The Issuers
and the Guarantors, jointly and severally, shall, without limitation as to time,
indemnify and hold harmless each Holder and each Participating Broker-Dealer,
each Person who controls (within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act (any of such persons being hereinafter
referred to as a "CONTROLLING PERSON")) each such Holder and any such
Participating Broker-Dealer and the members, managers, officers, directors,
partners, employees, representatives and agents of each such Holder,
Participating Broker-Dealer and controlling person (collectively, the "HOLDER
INDEMNIFIED PARTIES"), to the fullest extent lawful, from and against any and
all losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and reasonable attorneys' fees) and expenses (including,
without limitation, costs and expenses incurred in connection with
investigating, preparing, pursuing or defending against any of the foregoing)
(collectively, "LOSSES"), as incurred, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue or alleged
untrue statement of a material fact contained in any Registration Statement,
preliminary prospectus, Prospectus or form of prospectus, or in any amendment or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such Losses are based upon information relating to
such Holder or Participating Broker-Dealer and furnished in writing to the
Issuers and the Guarantors by such Holder or Participating Broker-Dealer
expressly for use therein; provided, that the Issuers and the Guarantors shall
not be liable under the indemnity provided in this Section 8(a) to any Holder
Indemnified Party to the extent that such Loss results solely from an untrue
statement of a material fact contained in, or the omission of a material fact
from, any preliminary prospectus, which untrue statement or omission was
corrected in the Prospectus (as then amended or supplemented) if it shall have
been determined by a court of competent jurisdiction by final and nonappealable
judgment that (i) such Holder or Participating Broker-Dealer sold the Securities
concerned to the
22
person alleging such Loss and failed to send or give, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented), if required by law to have so delivered it, and (ii) the Issuers
had previously furnished copies of such corrected Prospectus to such Holder or
Participating Broker-Dealer within a reasonable amount of time prior to such
sale or such confirmation, and (iii) the corrected Prospectus, if delivered,
would have been a complete defense against the person asserting such Loss. The
Issuers and each of the Guarantors shall also indemnify underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, their members, managers, officers, directors,
agents and employees and each of their respective controlling persons to the
same extent as provided above with respect to the indemnification of the Holder
Indemnified Parties.
(b) Indemnification by Holders of Registrable Securities. In
connection with any Registration Statement, preliminary prospectus, Prospectus
or form of prospectus, or any amendment or supplement thereto, in which a Holder
is participating, such Holder shall furnish to the Issuers and the Guarantors in
writing such information as the Issuers and the Guarantors reasonably request
for use in connection with any such Registration Statement, preliminary
prospectus, Prospectus or form of prospectus, any amendment or supplement
thereto, and shall, severally and not jointly, without limitation as to time,
indemnify and hold harmless the Issuers and the Guarantors, their respective
members, managers, directors, officers, agents and employees, each controlling
person of the Issuers or any of the Guarantors and the members, managers,
directors, officers, agents or employees of such controlling persons, to the
fullest extent lawful, from and against any and all Losses, as incurred, arising
out of or based upon any untrue or alleged untrue statement of a material fact
contained in any such Registration Statement, preliminary prospectus, Prospectus
or form of prospectus, or any amendment or supplement thereto, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading to the extent, but only
to the extent, that such untrue statement or alleged untrue statement of a
material fact or omission or alleged omission of a material fact is contained in
or omitted from any information so furnished in writing by such Holder to the
Issuers and the Guarantors expressly for use in any Registration Statement,
preliminary prospectus, Prospectus or form of prospectus, or any amendment or
supplement thereto. In no event shall the liability of any selling Holder be
greater in amount than such Holder's Maximum Contribution Amount (as defined
below).
(c) Conduct of Indemnification Proceedings. If any Proceeding
shall be brought or asserted against any Person entitled to indemnification
hereunder (an "INDEMNIFIED PARTY"), such indemnified party shall promptly notify
the party or parties from which such indemnification is sought (the
"INDEMNIFYING PARTIES") in
23
writing; provided, that the failure to so notify the indemnifying parties shall
not relieve the indemnifying parties from any obligation or liability except to
the extent (but only to the extent) that it shall be finally determined by a
court of competent jurisdiction (which determination is not subject to appeal)
that the indemnifying parties have been prejudiced materially by such failure.
The indemnifying parties shall have the right, exercisable by giving
written notice to an indemnified party, within 20 Business Days after receipt of
written notice from such indemnified party of such Proceeding, to assume, at
their expense, the defense of any such Proceeding; provided, that an indemnified
party shall have the right to employ separate counsel in any such Proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party or parties unless: (i) the
indemnifying parties have agreed to pay such fees and expenses; (ii) the
indemnifying parties shall have failed promptly to assume the defense of such
Proceeding or shall have failed to employ counsel reasonably satisfactory to
such indemnified party; or (iii) the named parties to any such Proceeding
(including any impleaded parties) include both such indemnified party and one or
more indemnifying parties (or any affiliates or controlling persons of any of
the indemnifying parties), and such indemnified party shall have been advised by
counsel that there may be one or more defenses available to such indemnified
party that are in addition to, or in conflict with, those defenses available to
the indemnifying party or such affiliate or controlling person (in which case,
if such indemnified party notifies the indemnifying parties in writing that it
elects to employ separate counsel at the expense of the indemnifying parties,
the indemnifying parties shall not have the right to assume the defense thereof
and the reasonable fees and expenses of such counsel shall be at the expense of
the indemnifying parties; it being understood, however, that, the indemnifying
parties shall not, in connection with any one such Proceeding or separate but
substantially similar or related Proceedings in the same jurisdiction, arising
out of the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (together with appropriate
local counsel) at any time for such indemnified party).
No indemnifying party shall be liable for any settlement of any such
Proceeding effected without its written consent, but if settled with its written
consent, or if there be a final judgment for the plaintiff in any such
Proceeding, each indemnifying party jointly and severally agrees, subject to the
exceptions and limitations set forth above, to indemnify and hold harmless each
indemnified party from and against any and all Losses by reason of such
settlement or judgment. The indemnifying party shall not consent to the entry of
any judgment or enter into any settlement that does not include as an
unconditional term thereof the giving by the claimant or plaintiff to each
indemnified party of a release, in form and substance reasonably satisfactory to
the indemnified party, from all liability in respect of
24
such Proceeding for which such indemnified party would be entitled to
indemnification hereunder (whether or not any indemnified party is a party
thereto).
(d) Contribution. If the indemnification provided for in this
Section 8 is unavailable to an indemnified party or is insufficient to hold such
indemnified party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 8), then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and several obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses, (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party, on the one hand, and such
indemnified party, on the other hand, from their sale of Registrable 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 indemnifying party, on the one hand, and such indemnified party, on the
other hand, in connection with the actions, statements or omissions that
resulted in such Losses as well as any other relevant equitable considerations.
The relative fault of such indemnifying party, on the one hand, and indemnified
party, on the other hand, shall be determined by reference to, among other
things, whether any untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information
supplied by such indemnifying party or indemnified party, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent any such statement or omission. The amount paid or payable by an
indemnified party as a result of any Losses shall be deemed to include any legal
or other fees or expenses incurred by such party in connection with any
Proceeding, to the extent such party would have been indemnified for such fees
or expenses if the indemnification provided for in Section 8(a) or 8(b) was
available to such party.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an indemnifying party that
is a selling Holder shall not be required to contribute, in the aggregate, any
amount in excess of such Holder's Maximum Contribution Amount. A selling
Holder's "MAXIMUM CONTRIBUTION AMOUNT" shall equal the excess, if any, of (i)
the aggregate proceeds received by such Holder pursuant to the sale of the
Registrable Securities giving rise to such indemnification obligation over (ii)
the aggregate amount of damages that 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 Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent
25
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 8(d) are several in proportion to the respective principal amount of the
Registrable Securities held by each Holder hereunder and not joint. The Issuers'
obligations to contribute pursuant to this Section 8(d) are joint and several.
The indemnity and contribution agreements contained in this Section 8
are in addition to any liability that the indemnifying parties otherwise may
have to the indemnified parties.
9. RULE 144 AND RULE 144A.
Each of the Issuers covenants that (a) during any period that it is
required to file reports under the Securities Act or the Exchange Act, it shall
file all reports required to be filed by it in a timely manner in order to
permit resales of Registrable Securities pursuant to Rule 144 under the
Securities Act and (b) during any period that it is not required to file such
reports, it shall, upon the request of any Holder, make available to each Holder
or beneficial owner of Registrable Securities and to any prospective purchaser
of Registrable Securities designated by such Holder or beneficial owner the
information required by Rule 144A(d)(4) under the Securities Act to permit
resales of Registrable Securities pursuant to Rule 144A. Each of the Issuers
shall take such further action as any Holder 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 pursuant to the
exemptions provided by Rule 144 and Rule 144A. Upon the request of any Holder,
each of the Issuers and the Guarantors shall deliver to such Holder a written
statement as to whether such Issuer or Guarantor has complied with such
information requirements. Nothing in this Section 9 shall be deemed to require
the Issuers to register any Securities pursuant to the Exchange Act.
10. UNDERWRITTEN REGISTRATIONS.
If any of the Registrable Securities covered by any Shelf Registration
are to be sold in an Underwritten Offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the Holders of a majority in aggregate principal amount of such Registrable
Securities included in such offering with the consent of the Issuers, which
consent shall not be unreasonably withheld or delayed.
No Holder may participate in any Underwritten Registration hereunder
unless such Xxxxxx (a) agrees to sell such Xxxxxx's Registrable Securities on
the basis provided in any underwriting arrangements approved by the Persons
entitled hereunder to approve such arrangements and (b) completes and executes
all
26
questionnaires, powers of attorney, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.
11. MISCELLANEOUS.
(a) Remedies. In the event of a breach by either of the Issuers or
any of the Guarantors of any of their respective obligations under this
Agreement, each Holder, in addition to being entitled to exercise all rights
provided herein, in the Indenture or, in the case of the Initial Purchasers, in
the Purchase Agreement, or granted by law, including recovery of damages, will
be entitled to specific performance of its rights under this Agreement. The
Issuers and the Guarantors agree that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by either of the
Issuers or any of the Guarantors of any of the provisions of this Agreement and
hereby further agree that, in the event of any action for specific performance
in respect of such breach, the Issuers and the Guarantors shall waive the
defense that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Issuers and the Guarantors
have not entered into, as of the date hereof, and shall not enter into, after
the date of this Agreement, any agreement with respect to any of their
respective securities that is inconsistent with the rights granted to the
Holders in this Agreement or otherwise conflicts with the provisions hereof.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Issuers have obtained the written consent of
Holders of at least a majority of the then outstanding aggregate principal
amount of Registrable Securities; provided, that Sections 4(a) and 8 shall not
be amended, modified or supplemented, and waivers or consents to departures from
this proviso may not be given, unless the Issuers have obtained the written
consent of each Holder. Notwithstanding the foregoing, a waiver or consent to
depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders whose securities are being sold pursuant to
a Registration Statement and that does not directly or indirectly affect the
rights of other Holders may be given by Holders of at least a majority in
aggregate principal amount of the Registrable Securities being sold by such
Holders pursuant to such Registration Statement; provided that the provisions of
this sentence may not be amended, modified or supplemented except in accordance
with the provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications (including,
without limitation, any notices or other communications to the Trustee) provided
for or
27
permitted hereunder shall be made in writing by hand-delivery, certified
first-class mail with return receipt requested, next-day air courier or
facsimile:
(i) if to a Holder, at the most current address given by
such Holder to the Issuers in accordance with the provisions of this Section
11(d), which address initially is, with respect to each Holder, the address of
such Holder maintained by the Registrar (as defined in the Indenture), with a
copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxxxx
0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, facsimile number (000) 000-0000, Attention:
Xxxxxxxx X. Xxxxxxx, Esq.; and
(ii) if to either of the Issuers or any of the Guarantors,
initially at 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, facsimile number:
(000) 000-0000, Attention: Chief Financial Officer, with a copy to Xxx
Xxxxxxxxxx Xxxxxx Xxxxx, Xxxx, Xxxxxxx 00000-0000, facsimile number: (219)
977-7811, Attention: Chief Financial Officer, and an additional copy to Xxxxxx
Xxxxxxx PLLC, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000, facsimile number
(000) 000-0000, Attention: Jin-Xxx Xxx, Esq., and thereafter at such other
address, notice of which is given in accordance with the provisions of this
Section 11(d).
All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; five Business Days after
being deposited in the mail, postage prepaid, if mailed; one Business Day after
being timely delivered to a next-day air courier, if sent by next-day air
courier; and when receipt is acknowledged by the addressee, if sent by
facsimile.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee under the
Indenture at the address specified in 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
hereto, including without limitation and without the need for an express
assignment, subsequent Holders; provided, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement or the Indenture.
If any transferee of any Holder shall acquire Registrable Securities in any
manner, whether by operation of law or otherwise, such Registrable Securities
shall be held subject to all of the terms of this Agreement, and by taking and
holding such Registrable 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.
28
(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.
When a reference is made in this Agreement to a Section, paragraph,
subparagraph, Schedule or Exhibit, such reference shall mean a Section,
paragraph, subparagraph, Schedule or Exhibit to this Agreement unless otherwise
indicated. The words "INCLUDE," "INCLUDES," and "INCLUDING" when used in this
Agreement shall be deemed in each case to be followed by the words "WITHOUT
LIMITATION." The phrases "THE DATE OF THIS AGREEMENT," "THE DATE HEREOF," and
terms of similar import, unless the context otherwise requires, shall be deemed
to refer to October 7, 2003. The words "HEREOF," "HEREIN," "HEREWITH," "HEREBY"
and "HEREUNDER" and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(h) GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
INTERPRETED, AND THE RIGHTS OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(b) OF NEW
YORK CIVIL PRACTICE LAWS AND RULES. EACH ISSUER AND EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN
THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND IRREVOCABLY
ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH ISSUER AND EACH
GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO
UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. EACH ISSUER AND
EACH GUARANTOR IRREVOCABLY CONSENTS, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO
SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS OF ANY OF THE AFOREMENTIONED
COURTS IN ANY SUCH
29
ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED
MAIL, POSTAGE PREPAID, TO SUCH ISSUER OR SUCH GUARANTOR, AS THE CASE MAY BE, AT
ITS ADDRESS SET FORTH HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE INITIAL PURCHASER TO
SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL
PROCEEDINGS OR OTHERWISE PROCEED AGAINST EITHER OF THE ISSUERS OR ANY OF THE
GUARANTORS IN ANY OTHER JURISDICTION.
(i) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their respective best efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Entire Agreement. This Agreement is intended by the parties as
a final expression of their agreement, and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein, with respect to the registration rights granted by the Issuers and the
Guarantors in respect of securities sold pursuant to the Purchase Agreement.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
(k) Attorneys' Fees. In any Proceeding brought to enforce any
provision of this Agreement, or where any provision hereof is validly asserted
as a defense, the prevailing party, as determined by the courts, shall be
entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
(l) Securities Held by Either of the Issuers or their Respective
Affiliates. Whenever the consent or approval of Holders of a specified
percentage of the principal amount of Registrable Securities is required
hereunder, Registrable Securities held by either of the Issuers or their
respective affiliates (as such term is defined in Rule 405 under the Securities
Act) (other than Holders deemed to be such affiliates solely by reason of their
holdings of such Registrable Securities) shall not be counted in determining
whether such consent or approval was given by the Holders of such required
percentage.
[signature pages follow this page]
30
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
THE MAJESTIC STAR CASINO, LLC
By:_________________________________
Name:
Title:
THE MAJESTIC STAR CASINO CAPITAL CORP.
By:_________________________________
Name:
Title:
Registration Rights Agreement
MAJESTIC INVESTOR, LLC
By:_________________________________
Name:
Title:
MAJESTIC INVESTOR HOLDINGS, LLC
By:_________________________________
Name:
Title:
MAJESTIC INVESTOR CAPITAL CORP.
By:_________________________________
Name:
Title:
XXXXXX MISSISSIPPI GAMING, LLC
By:_________________________________
Name:
Title:
XXXXXX COLORADO GAMING, LLC
By:_________________________________
Name:
Title:
Registration Rights Agreement
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By:_________________________________
Name:
Title:
XXXXX FARGO SECURITIES, LLC
By:_________________________________
Name:
Title:
Registration Rights Agreement
