Exhibit 4.5A
XXXXXXX XX, LLC
THE OLD XXXXXXXXXX XXXXX CAPITAL CORP.
$233,000,000 8 3/4% SENIOR SECURED NOTES DUE 2012
REGISTRATION RIGHTS AGREEMENT
April 16, 2004
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Xxxxxxx Xx, LLC, a Delaware limited liability company (the
"COMPANY"), The Old Xxxxxxxxxx Xxxxx Capital Corp., a Delaware corporation
("CAPITAL" and, together with the Company, the "ISSUERS"), and the Guarantors
listed on the signature pages hereto under the heading "Guarantors," are issuing
and selling to Xxxxxxxxx & Company, Inc. (the "INITIAL PURCHASER"), upon the
terms set forth in a purchase agreement, dated as of March 25, 2004 (the
"PURCHASE AGREEMENT"), by and among the Initial Purchaser, the Issuers and the
Guarantors listed on the signature pages hereto under the heading "Guarantors,"
$233,000,000 aggregate principal amount at maturity of the Issuers' 8 3/4%
Senior Secured Notes due 2012, Series A, including the Guarantees (as defined
below) endorsed thereon (the "NOTES").
The Issuers and the Guarantors are seeking requisite approvals from
applicable Iowa and Louisiana regulatory authorities to effect the
Reorganization Transactions (as defined in the Indenture). If the approvals of
the regulatory authorities are obtained for the Reorganization Transactions
after the issuance of the Notes, then as a part of the Reorganization
Transactions, the Indenture requires that Peninsula Gaming, LLC, a Delaware
limited liability company (the "PARENT ISSUER"), execute and deliver a joinder
to this Agreement substantially in the form of Exhibit A attached hereto (the
"JOINDER") and become a party to this Agreement. Effective upon execution of the
Joinder, all references in this Agreement to the "Issuers" shall include the
Parent Issuer.
As an inducement to the Initial Purchaser to enter into the Purchase
Agreement, each of the Issuers and the Guarantors jointly and severally agrees
with the Initial Purchaser, for the benefit of the holders of the Securities (as
defined below) (including, without limitation, the Initial Purchaser), 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 or obligated by law, regulation or executive order to be closed.
CLOSING DATE: April 16, 2004.
CONTROLLING PERSON: See Section 8(a).
DTC: See Section 6(i).
EFFECTIVENESS DATE: The 180th day following the Closing Date;
provided, however, that if the Effectiveness Date would otherwise fall on a day
that is not a Business Day, then the Effectiveness Date shall be the next
succeeding Business Day.
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).
2
EXCHANGE SECURITIES: The 8 3/4% Senior Secured Notes due 2012,
Series B, of the Issuers, including the guarantees endorsed or to be endorsed
thereon, substantially identical to the Notes and the Guarantees, except (i)
that such securities shall have been registered pursuant to an effective
registration statement under the Securities Act, (ii) that such securities shall
not contain a restrictive legend thereon, (iii) that such securities shall not
contain provisions relating to the accrual or payment of Liquidated Damages and
(iv) as described in the first sentence of Section 2(e).
FILING DATE: The 90th day following the Closing Date; provided,
however, that if the Filing Date would otherwise fall on a day that is not a
Business Day, then the Filing Date shall be the next succeeding Business Day.
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.
GUARANTOR: Each subsidiary of either of the Issuers that has
executed or in the future executes a Guarantee in accordance with the Indenture.
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 U.S. Bank National Association, 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
3
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 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: The Notes (together with the Guarantees);
provided, however, that any such security shall cease to be a Registrable
Security when (i) it has been exchanged for an Exchange Security in the Exchange
Offer as contemplated in Section 2(a) (provided, that any Exchange Security that
is included in a Prospectus for use in connection with resales by Participating
Broker-Dealers shall be deemed to be a Registrable Security with respect to
Sections 8 and 11 until resale of such Registrable Security has been effected
pursuant to a "Plan of Distribution" within the Applicable Period; (ii) a Shelf
Registration registering such security under the Securities Act has been
declared or becomes effective and such security has been sold or otherwise
transferred by the holder thereof pursuant to and in a manner contemplated by
such effective Shelf Registration;) (iii) such security is sold pursuant to Rule
144 under the Securities Act under circumstances in which any legend borne by
such security relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed by the Issuers or pursuant to the
Indenture; (iv) such security is eligible to be sold pursuant to paragraph (k)
of Rule 144 under the Securities Act; or (v) such security shall cease to be
outstanding.
REGISTRATION STATEMENT: Any registration statement 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
4
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 60th day after the filing of such Shelf Registration.
SHELF FILING DATE: With respect to a Shelf Registration, the 30th
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; provided, however, that if the
Shelf Filing Date would otherwise fall on a day that is not a Business Day, then
the Shelf Filing Date shall be the next succeeding Business Day.
SHELF NOTICE: See Section 2(i).
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.
5
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A
registration in which securities 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 exchange any and all of the Notes for a like principal amount of
Exchange Securities;
(ii) use their respective reasonable best efforts to cause the
Exchange Offer Registration Statement to become effective under the Securities
Act as promptly as practicable after the filing thereof, but in no event later
than the Effectiveness Date;
(iii) keep the Exchange Offer Registration Statement effective until
the consummation of the Exchange Offer pursuant to its terms; and
(iv) unless the Exchange Offer would not be permitted by a policy of
the SEC, use their respective reasonable best efforts to commence the Exchange
Offer and to, on or prior to 45 days after the Exchange Offer Registration
Statement is declared effective, consummate the Exchange Offer and issue
Exchange Securities in exchange for all Notes validly tendered and not withdrawn
prior thereto in the Exchange Offer.
The Exchange Offer shall not be subject to any conditions, other than (i)
that the Exchange Offer does not violate Applicable Law or any applicable
interpretation of the staff of the SEC, and (ii) no action or proceeding shall
have been instituted in any court or by any governmental agency which might
materially impair the ability of the Issuers or the Guarantors to proceed with
the Exchange Offer or, if required to
6
be made pursuant to Section 2(g), the Private Exchange.
(b) The Exchange Securities shall be issued under, and entitled to the
benefits of, the Indenture or a trust indenture that is substantially 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, or cause to be mailed, to each Holder of record entitled
to participate in the Exchange Offer 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) use their respective reasonable best efforts to keep the
Exchange Offer open for not less than 20 Business 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 City time, on the last Business Day on which the
Exchange Offer shall remain open; and
(v) otherwise comply in all material respects 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) subject to Section 2(i) hereof, accept for exchange all Notes
validly tendered and not validly withdrawn pursuant to the Exchange Offer and
the Private Exchange, if any;
(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; provided, that, in the case of
any Notes held in global form by a depositary, authentication and delivery to
such
7
depositary of one or more replacement Exchange Securities in global form in an
equivalent principal amount thereto for the account of such Holders in
accordance with the Indenture shall satisfy such authentication and delivery
requirement.
(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 a "Plan of Distribution"
section in the Prospectus contained in the Exchange Offer Registration Statement
and indicate therein that (i) any broker or dealer registered under the Exchange
Act that holds Notes that were acquired for its own account as a result of
market-making activities or other trading activities (other than Notes acquired
directly from the Issuers or any Affiliate of the Issuers) (a "PARTICIPATING
BROKER-DEALER") may exchange such Notes pursuant to the Exchange Offer, however,
such Participating Broker-Dealer may be deemed to be an "underwriter" within the
meaning of the Securities Act and must, therefore, deliver a prospectus meeting
the requirements of the Securities Act in connection with its initial sale of
any Exchange Securities received by such Participating Broker-Dealer in the
Exchange Offer and (ii) the Prospectus contained in the Exchange Offer
Registration Statement may be used to satisfy such prospectus delivery
requirement. Such "Plan of Distribution" section shall also contain all other
information with respect to such sales by such Participating Broker-Dealers that
the SEC may require in order to permit such sales pursuant thereto, but such
"Plan of Distribution" shall not name any such Participating Broker-Dealer or
disclose the amount of Notes held by any such Participating Broker-Dealer,
except to the extent required by the SEC. See the Shearman & Xxxxxxxx no-action
letter (available July 2, 1993). Such "Plan of Distribution" section shall also
allow, to the extent and in the manner permitted by applicable policies and
regulations of the SEC, the use of the Prospectus by all other Persons subject
to the prospectus delivery requirements of the Securities Act. 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 in order to permit such Prospectus to be lawfully
delivered by all Participating Broker-Dealers and other Persons subject to the
prospectus delivery requirement of the Securities Act for such period of time as
such Participating Broker-Dealers and Persons must comply with such requirements
in order to resell the Exchange Securities (the "APPLICABLE PERIOD").
8
(g) If, prior to consummation of the Exchange Offer, the 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 the 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 such Notes held
by the Initial Purchaser (the "PRIVATE EXCHANGE"), a like principal amount of
debt securities of the Issuers, including guarantees endorsed thereon (the
"PRIVATE EXCHANGE SECURITIES"), that are substantially identical to the Exchange
Securities except for the placement of a restrictive legend on such Private
Exchange Securities. The Private Exchange Securities shall be issued pursuant to
the same Indenture as the Exchange Securities and shall bear the same CUSIP
number as the Exchange Securities.
(h) Each Person (including, without limitation, each Participating
Broker-Dealer) participating in the Exchange Offer will be required to represent
to the Issuers and the Guarantors in writing (which may be contained in the
applicable letter of transmittal) prior to consummation of the Exchange Offer
that: (i) any Exchange Securities acquired by such Person in the Exchange Offer
will be acquired in its ordinary course of business; (ii) at the time of
commencement and at the time of consummation of the Exchange Offer, such Person
had and will have no arrangement or understanding with any other Person to
participate in the distribution (within the meaning of the Securities Act) of
the Exchange Securities to be received in the Exchange Offer in violation of the
Securities Act; (iii) if such Person is not a Participating Broker-Dealer, it is
not engaged in and does not intend to engage in, the distribution of the
Exchange Securities; (iv) if such Person is a Participating Broker-Dealer, (A)
it acquired the Notes for its own account as a result of market-making
activities or other trading activities, (B) it may be deemed to be a statutory
underwriter under the Securities Act and (C) will comply with the applicable
provisions of the Securities Act (including, without limitation, the prospectus
delivery requirements thereunder) in connection with any resale of Exchange
Securities to be received in the Exchange Offer in exchange for such Notes; and
(v) such Person is not an "affiliate" (as defined in Rule 405 of the Securities
Act) of either of the Issuers or, if it is an "affiliate" (as defined in Rule
405 of the Securities Act) of either of the Issuers, that it will comply with
the registration and prospectus delivery requirements of the Securities Act
applicable to it. See the Exxon Holdings Capital Corp. no-action letter
(available May 13, 1988), the Xxxxxx Xxxxxxx & Co. Incorporated no-action letter
(available June 5, 1991) and the Shearman & Sterling no-action letter (available
July 2, 1993).
(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 (A)
the Exchange
9
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, or (B) the
interests of the Holders under this Agreement, taken as a whole, would be
materially adversely affected by the consummation of the Exchange Offer; (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 225 days of the Closing Date for any reason; or (v) in the case of (A)
any Holder not permitted to participate in the Exchange Offer (including any
broker-dealer that holds Notes acquired directly from the Issuers or any of
their respective affiliates that is not permitted to participate in the Exchange
Offer), or (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)
and, in each such case contemplated by this clause (v), such Holder notifies the
Issuers within six months of consummation of the Exchange Offer, then the
Issuers shall promptly 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
practicable thereafter (but in no event later than the Shelf Filing Date) file
an Initial Shelf Registration pursuant to Section 3.
3. SHELF REGISTRATION.
If a Shelf Notice is required to be delivered pursuant to clause (i),
(ii), (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 not permitted to
participate 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), provided that the relevant
Holder has duly notified the Issuers within six months of consummation of the
Exchange Offer as required 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"). If the Issuers and the Guarantors
have not filed an Exchange Offer Registration Statement, the Issuers and the
Guarantors shall file with the SEC the Initial Shelf Registration on or prior to
the Filing Date. Otherwise, the Issuers and the Guarantors shall file with the
SEC the Initial Shelf Registration as
10
promptly as practicable following the delivery of the Shelf Notice, 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 no 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 in the manner set forth and as contemplated in the
Initial Shelf Registration, or (ii) a Subsequent Shelf Registration covering all
of the Registrable Securities has been declared effective under the Securities
Act or (iii) there cease to be any outstanding Registrable Securities; provided,
however, that the Effectiveness Period shall be reduced to the extent that the
applicable provisions of Rule 144(k) under the Securities Act are amended or
revised to reduce the two year holding period set forth therein.
(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.
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
11
respective obligations under Sections 2 and 3. 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:
(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 obligated to make the Exchange Offer pursuant to this
Agreement, 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 45 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 shall either be withdrawn by the Issuers or shall become
subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such Registration Statement
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, it being understood that the Issuers shall in no event be required to
pay the Weekly Liquidated Damages Amount for more than one Event at any given
time; 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
12
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 and not
withdrawn or (B) the Issuers deliver a Shelf Notice to the Holders and the
Trustee pursuant to clause (i), (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 in the Issuers' reasonable judgment for the
consummation of the transactions contemplated hereby.
6. REGISTRATION PROCEDURES.
In connection with the registration of any Securities pursuant to Section
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
13
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 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 (if the Issuers have been notified
of the identity of such Special Counsel), each Participating Broker-Dealer, the
managing underwriters, if any, and their counsel (if the Issuers have been
notified of the identity of such 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 reasonably 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 use their respective reasonable best efforts to 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, and each of such Holder's agents and
representatives to agree to keep confidential any non-public information
relating to the Issuers and the Guarantors received by such Holder or such agent
or representative and not to disclose such information (other than to an
affiliate or prospective purchaser who agrees 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
14
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).
(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 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' 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) any amendments and supplements required to be filed
pursuant to Section 6(c) and any documents incorporated therein
15
by reference and all exhibits thereto, including exhibits incorporated by
reference, as such Person may reasonably request. Subject to the last paragraph
of this Section 6, the Issuers and the Guarantors hereby consent to the use 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 (if the Issuers have been notified of the identity of such
Special Counsel), each Participating Broker-Dealer and the managing
underwriters, if any, promptly (but in any event within two 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
written request by the
16
SEC for post-effective amendments to the Registration Statement or supplements
to the Prospectus.
(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
17
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.
18
(m) Use their respective commercially reasonable 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 (which, if such Shelf Registration is an Underwritten Offering,
shall include an underwriting agreement in form, scope and substance as is
customary in Underwritten Offerings) and take all such other reasonable actions
in connection therewith (including those reasonably requested by the managing
underwriters, if the offering is an Underwritten Offering, or the Holders of a
majority in aggregate principal amount of Registrable Securities being sold, if
the offering is not an Underwritten Offering) 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, if the offering is not an
Underwritten Offering, or the underwriters, if the offering is an Underwritten
Offering, with respect to the business of the Issuers and their respective
subsidiaries, if any, 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 of debt securities similar to the
Securities, 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 the offering is an Underwritten
Offering, or the Holders of a majority in aggregate principal amount of the
Registrable Securities being sold, if the offering is not an Underwritten
Offering, provided, that with respect to the Holders of a majority in aggregate
principal amount of the Registrable Securities being sold, such opinion shall be
deemed to be reasonably satisfactory to such Holders if such Holders do not
provide to the Issuers written notice of their objection to such opinion within
five Business Days after their receipt of such opinion), addressed to each
selling Holder and each of the underwriters, if any, covering the matters
customarily covered in opinions requested in Underwritten Offerings of debt
securities similar to the Securities; (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 selling Holder and each of the
underwriters, if any, such letters to be in customary form and covering matters
of the type customarily covered in "cold comfort" letters
19
in connection with Underwritten Offerings of debt securities similar to the
Securities; 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, if the offering is not an Underwritten
Offering, or the managing underwriters, if the offering is an Underwritten
Offering, to evidence the continued validity of the representations and
warranties of the Issuers and the Guarantors and their respective subsidiaries,
if any, 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.
(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 Purchaser), addressed to the
Trustee for the benefit of 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 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, in
the case of each of clauses (i), (ii) and (iii), subject to customary
exceptions, assumptions and qualifications.
(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
20
exchange for the Exchange Securities or the Private Exchange Securities, as the
case may be, the Issuers and the Guarantors shall request the Issuers' exchange
agent or transfer agent to mark 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 that such
Registrable Securities not be marked as paid or otherwise satisfied.
(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.
The Issuers and the Guarantors may require each selling Holder of
Registrable Securities as to which any registration is being effected
(including, without limitation, any Shelf Registration) to furnish to the
Issuers and Guarantors in writing such information regarding such selling Holder
and the distribution of such Registrable Securities as the Issuers or the
Guarantors may, from time to time, reasonably request, including the information
specified in Item 507 or 508 of Regulation S-K, as applicable, under the
Securities Act and any other information regarding such selling Holder and the
distribution of such Registrable Securities required, in the opinion of counsel
to the Issuers, under the securities laws to be included in the Registration
Statement (the "SEC REQUIRED INFORMATION"). The Issuers and the Guarantors may
exclude from any registration of Registrable Securities (including, without
limitation, any Shelf Registration) the Registrable Securities of any selling
Holder who fails to furnish to the Issuers, within 20 days after receipt of a
written request therefor, the SEC Required Information. No such selling Holder
shall be entitled to liquidated damages pursuant to Section 4 unless and until
such selling Holder shall have provided the SEC Required 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.
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)
21
event) of such Securities covered by such Registration Statement or Prospectus
until the earlier of (i) such Holder'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 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 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);
22
(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
(ix) rating agency fees and the fees and expenses incurred in
connection with the listing (if any) 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
23
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, arising out of or based upon 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 that neither the Issuers nor the Guarantors shall be
obligated to indemnify or hold harmless any Person pursuant to this Section 8
for any Losses insofar as such Losses arise out of or are based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
such Registration Statement, preliminary prospectus, Prospectus or form of
prospectus, or in any amendment or supplement thereto, in reliance upon or in
conformity with 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. 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, partners, representatives, 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,
24
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 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
25
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 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 the 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.
26
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 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
comply with the current public information requirements of 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. 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, subject to the expiration of
the holding period required for sales under Rule 144(k) under the Securities
Act. Upon the written 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.
27
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 and shall be reasonably acceptable to the
Issuers.
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 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 Purchaser, 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, without the written consent of (i) the Issuers and (ii) the 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
28
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. Notwithstanding the foregoing, the Issuers and the
Guarantors may amend, supplement or modify the Registration Rights Agreement
without the consent of any Holder as provided in Section 9.1 of the Indenture.
(d) Notices. All notices and other communications (including, without
limitation, any notices or other communications to the Trustee) provided for or
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 of such Holder as
set forth on the register kept 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, to
Xxxxxxx Xx, LLC, 000 Xxxx Xxxxx Xxxxxx, X.X. Box 1750, Dubuque, Iowa 52004,
facsimile number: (000) 000-0000, Attention: Xxxxxxx Xxxxxxx, with a copy to
Peninsula Gaming Partners, LLC, 0000 Xxxxxxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxx
00000, facsimile number: (000) 000-0000, Attention: Xxxxxxx X. Xxxxxx, and an
additional copy to Xxxxx, Xxxxx, Xxxx & Maw, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, facsimile number: (000) 000-0000, Attention: Xxxxx Xxxxxx, Esq., or
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.
29
(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.
(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 April 16, 2004. 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
30
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 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
ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY OTHER
PARTY TO THIS AGREEMENT 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 reasonable 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) 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
31
be counted in determining whether such consent or approval was given by the
Holders of such required percentage.
[signature pages follow this page]
32
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
"ISSUERS":
XXXXXXX XX, LLC
By: /s/X. XXXXX XXXXXXX
----------------------------
Name: X. Xxxxx Xxxxxxx
Title: Chief Executive Officer
THE OLD XXXXXXXXXX XXXXX CAPITAL CORP.
By: /s/X. XXXXX XXXXXXX
----------------------------
Name: X. Xxxxx Xxxxxxx
Title: Chief Executive Officer
"GUARANTORS":
PENINSULA GAMING CORP.
By: /s/X. XXXXX XXXXXXX
----------------------------
Name: X. Xxxxx Xxxxxxx
Title: Chief Executive Officer
THE OLD XXXXXXXXXX XXXXX, L.L.C.
By: /s/X. XXXXX XXXXXXX
----------------------------
Name: X. Xxxxx Xxxxxxx
Title: Chief Executive Officer
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By: /s/XXXXX XXXXXXX
-----------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
EXHIBIT A
XXXXXXX XX, LLC
THE OLD XXXXXXXXXX XXXXX CAPITAL CORP.
$233,000,000 8 3/4% SENIOR SECURED NOTES DUE 2012
JOINDER TO THE REGISTRATION RIGHTS AGREEMENT
__________________, 2004
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to the Registration Rights Agreement (the
"REGISTRATION RIGHTS AGREEMENT") dated April 16, 2004, by and among Xxxxxxx Xx,
LLC, a Delaware limited liability company (the "COMPANY"), The Old Xxxxxxxxxx
Xxxxx Capital Corp., a Delaware corporation ("CAPITAL" and, together with the
Company, the "ISSUERS"), and the Guarantors listed on the signature pages
thereto under the heading "Guarantors," on the one hand, and Xxxxxxxxx &
Company, Inc. (the "INITIAL PURCHASER"), on the other hand. Capitalized terms
used herein but not defined herein shall have the respective meanings assigned
to such terms in the Registration Rights Agreement.
This letter agreement is being executed and delivered concurrently
with the consummation of the Reorganization Transactions.
1. Joinder. Peninsula Gaming, LLC, a Delaware limited liability
company (the "PARENT ISSUER"), hereby agrees to be bound by the terms,
conditions and other provisions of the Registration Rights Agreement with all
attendant rights, duties and obligations stated therein, with the same force and
effect as if originally named as an "Issuer" therein and as if the Parent Issuer
had executed the Registration Rights Agreement on the date thereof.
2. 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 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 ANY PARTY TO THIS AGREEMENT TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY OTHER PARTY TO THIS AGREEMENT IN ANY OTHER JURISDICTION.
3. Counterparts. This letter 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.
4. Amendments. No amendment or waiver of any provision of this
letter agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
5. Headings. The headings in this letter agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
[signature pages follow]
If the foregoing is in accordance with your understanding of this
letter agreement, kindly sign and return to us a counterpart thereof, whereupon
this instrument will become a binding agreement among the Issuers, the
Guarantors, the Parent Issuer party hereto and the Initial Purchaser in
accordance with its terms.
Very truly yours,
PENINSULA GAMING, LLC
By:___________________________________
Name:
Title:
ACCEPTED AND AGREED TO:
XXXXXXXXX & COMPANY, INC.
By:___________________________
Name:
Title:
