American Casino &
Entertainment Properties LLC
11% Senior Secured Notes due
2014
fully and unconditionally
guaranteed as to the
payment of principal, premium,
if any, interest and special interest, if any, by the Guarantors
listed on
the signature pages hereto
Exchange and Registration
Rights Agreement
Goldman, Sachs
& Co.
85 Broad Street
New York, New York 10004
American
Casino & Entertainment Properties LLC, a Delaware limited
liability company (“ ACEP ” or the “
Company ”) and ACEP Finance Corp., a Delaware
corporation (together with ACEP, the “Issuers”
), propose to issue and sell to the Purchaser (as defined herein)
upon the terms set forth in the Purchase Agreement (as defined
herein) $375,000,000 in aggregate principal amount of the
Issuers’ 11% Senior Secured Notes due 2014, which are fully
and unconditionally guaranteed by the Guarantors (as defined
herein). As an inducement to the Purchaser to enter into the
Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchaser thereunder, the Issuers and the
Guarantors agree with the Purchaser for the benefit of holders (as
defined herein) from time to time of the Entitled Securities (as
defined herein) as follows:
1.
Certain Definitions . For purposes of this Exchange and
Registration Rights Agreement (this “Agreement”
), the following terms shall have the following respective
meanings:
“Base
Interest” shall mean the interest that would otherwise
accrue on the Securities under the terms thereof and the Indenture,
without giving effect to the provisions of this
Agreement.
“BNYM” shall mean The Bank of New York
Mellon.
“Board
of Directors” means (i), with respect to ACEP, the board
of directors of ACEP or any committee thereof duly authorized to
act on behalf of such board or the managing member or members or
any controlling committee of managing members thereof and
(ii),
with respect to
ACEP Finance Corp., the board of directors of ACEP Finance Corp. or
any committee thereof duly authorized to act on behalf of such
board.
“Broker-Dealer” shall mean any broker or dealer
registered with the Commission under the Exchange Act.
“Business Day” shall have the meaning set forth
in Rule 13e-4(a)(3) promulgated by the Commission under the
Exchange Act, as the same may be amended or succeeded from time to
time.
“Closing
Date” shall mean the date on which the Securities are
initially issued.
“Collateral Trustee” shall have the meaning
assigned thereto in the Indenture.
“Commission” shall mean the United States
Securities and Exchange Commission, or any other federal agency at
the time administering the Exchange Act or the Securities Act,
whichever is the relevant statute for the particular
purpose.
“ DTC
” shall mean The Depository Trust Company.
“EDGAR
System” means the EDGAR filing system of the Commission
and the rules and regulations pertaining thereto promulgated by the
Commission in Regulation S-T under the Securities Act and the
Exchange Act, in each case as the same may be amended or succeeded
from time to time (and without regard to format).
“
Effectiveness Target Date ” shall have the meaning
assigned thereto in Section 2(c).
“Effective Time,” in the case of (i) an
Exchange Registration, shall mean the time and date as of which the
Commission declares the Exchange Offer Registration Statement
effective or as of which the Exchange Offer Registration Statement
otherwise becomes effective; (ii) a Shelf Registration, shall
mean the time and date as of which the Commission declares the
Shelf Registration Statement effective or as of which the Shelf
Registration Statement otherwise becomes effective and (iii) a
Market-Making Registration, shall mean the time and date as of
which the Commission declares the Market-Making Registration
Statement effective or as of which the Market-Making Registration
Statement otherwise becomes effective.
“Electing Holder” shall mean any holder of
Entitled Securities that has returned a completed and signed Notice
and Questionnaire to the Issuers in accordance with
Section 3(d)(ii) or Section 3(d)(iii) and the
instructions set forth in the Notice and Questionnaire.
“Entitled Securities” shall mean the Securities;
provided, however, that a Security shall cease to be a
Entitled Security upon the earliest to occur of the following:
(i) the date on which such note has been exchanged by a Person
other than a Broker-Dealer for an Exchange Note in the Exchange
Offer; (ii) the date on which such Exchange Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the
date of such sale a copy of the prospectus contained in the
Exchange Offer Registration Statement, following the exchange by a
Broker-Dealer in the Exchange Offer of a note for an Exchange Note;
(iii) the date on which, in the circumstances contemplated by
Section 2(b), a Shelf Registration Statement 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 Statement; or (iv) the date
on which such Security is actually sold by the holder thereof
pursuant to Rule
144 under the
Securities Act; provided that a Security will not cease to be an
Entitled Security for purposes of the Exchange Offer or any
Market-Making Registration by virtue of this clause
(iv).
“Exchange Act” shall mean the Securities
Exchange Act of 1934, as amended, and the rules and regulations
promulgated by the Commission thereunder, as the same may be
amended or succeeded from time to time.
“Exchange Offer” shall have the meaning assigned
thereto in Section 2(a).
“Exchange Offer Registration Statement” shall
have the meaning assigned thereto in Section 2(a).
“Exchange Registration” shall have the meaning
assigned thereto in Section 3(c).
“Exchange Securities” shall have the meaning
assigned thereto in Section 2(a).
“ Gaming
Authorities ” shall have the meaning assigned thereto in
the Indenture.
“Guarantors” shall have the meaning assigned
thereto in the Indenture.
“
Guarantees ” shall have the meaning assigned thereto
in the definition of Securities.
The term
“holder” shall mean the Purchaser and other
persons who acquire Securities from time to time (including any
successors or assigns), in each case for so long as such person
owns any Securities.
“Indenture” shall mean the indenture, dated as
of August 14, 2009, among the Issuers, the Guarantors and
BNYM, as trustee, as the same may be amended from time to
time.
“Market
Maker” shall mean Goldman, Sachs & Co. and its
affiliates (as defined under the rules and regulations of the
Commission).
“Market-Making Conditions” shall have the
meaning assigned thereto in Section 2(d).
“Market-Making Prospectus” shall have the
meaning assigned thereto in Section 2(d).
“Market-Making Registration” shall have the
meaning assigned thereto in Section 2(d).
“Market-Making Registration Statement” shall
have the meaning assigned thereto in Section 2(d).
“Notice
and Questionnaire” means a Notice of Registration
Statement and Selling Securityholder Questionnaire substantially in
the form of Exhibit A hereto.
The term
“person” shall mean a corporation, limited
liability company, association, partnership, organization,
business, individual, government or political subdivision thereof
or governmental agency.
“Purchase Agreement” shall mean the Purchase
Agreement, dated as of August 11, 2009, among the Purchaser,
the Issuers and the Guarantors relating to the
Securities.
“Purchaser” shall mean Goldman, Sachs &
Co.
“Registration Default” shall have the meaning
assigned thereto in Section 2(c).
“Registration Default Period” shall have the
meaning assigned thereto in Section 2(c).
“Registration Expenses” shall have the meaning
assigned thereto in Section 4.
“Resale
Period” shall have the meaning assigned thereto in
Section 2(a).
“Restricted Holder” shall mean (i) a holder
that is an affiliate of either of the Issuers within the meaning of
Rule 405, (ii) a holder who acquires Exchange Securities
outside the ordinary course of such holder’s business,
(iii) a holder who has arrangements or understandings with any
person to participate in the Exchange Offer for the purpose of
distributing Exchange Securities and (iv) a holder that is a
Broker-Dealer, but only with respect to Exchange Securities
received by such Broker-Dealer pursuant to an Exchange Offer in
exchange for Entitled Securities acquired by the Broker-Dealer
directly from the Issuers.
“Rule 144” , Rule 405” ,
“Rule 415” ,
“Rule 424” ,
“Rule 430B” and
“Rule 433” shall mean, in each case, such
rule promulgated by the Commission under the Securities Act (or any
successor provision), as the same may be amended or succeeded from
time to time.
“Securities” shall mean the $375,000,000 in
aggregate principal amount of the Issuers’ 11% Senior Secured
Notes due 2014 to be issued and sold to the Purchaser pursuant to
the Purchase Agreement, and securities issued in exchange therefor
or in lieu thereof pursuant to the Indenture. Each Security is
entitled to the benefit of the guarantees provided by the
Guarantors in the Indenture (the “ Guarantees ”)
and, unless the context otherwise requires, any reference herein to
a “Security,” an “Exchange Security” or a
“Entitled Security” shall include a reference to the
related Guarantees.
“Securities Act” shall mean the Securities Act
of 1933, as amended, and the rules and regulations promulgated by
the Commission thereunder, as the same may be amended or succeeded
from time to time.
“Shelf
Registration” shall have the meaning assigned thereto in
Section 2(b).
“Shelf
Registration Statement” shall have the meaning assigned
thereto in Section 2(b).
“Special
Interest” shall have the meaning assigned thereto in
Section 2(c).
“Suspension Period” shall have the meaning
assigned thereto in Section 2(b).
“Trust
Indenture Act” shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations promulgated by the
Commission thereunder, as the same may be amended or succeeded from
time to time.
“Trustee” shall mean BNYM, as trustee under the
Indenture, together with any successors thereto in such
capacity.
Unless the context
otherwise requires, any reference herein to a “Section”
or “clause” refers to a Section or clause, as the case
may be, of this Agreement, and the words “herein,”
“hereof” and “hereunder” and other words of
similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.
2. Registration
Under the Securities Act .
(a) Except as set
forth in Section 2(b) below, the Issuers and the Guarantors
agree to file with the Commission, on or prior to 90 days
after the Closing Date an exchange offer registration statement on
the appropriate form under the Securities Act with respect to an
offer to exchange (such registration statement, the
“Exchange Offer Registration Statement” , and
such offer, the “Exchange Offer” ) any and all
of the Securities for a like aggregate principal amount of debt
securities issued by the Issuers and guaranteed by the Guarantors,
which debt securities and Guarantees are substantially identical to
the Securities and the related Guarantees, respectively (and are
entitled to the benefits of the Indenture), except that they have
been registered pursuant to an effective registration statement
under the Securities Act and do not contain provisions for Special
Interest contemplated in Section 2(c) below (such new debt
securities hereinafter called “Exchange
Securities” ). The Issuers and the Guarantors agree to
use all commercially reasonable efforts to have the Exchange Offer
Registration Statement declared effective by the Commission on or
prior to 180 days after the Closing Date, which may be
extended for an additional 90 days if the sole reason for the
Exchange Offer Registration Statement not becoming declared
effective is the result of the failure of the Issuers to obtain
necessary approvals of applicable Gaming Authorities;
provided , that during such extension the Issuers shall
continue to use their commercially reasonable efforts to obtain
such approvals. The Exchange Offer will be registered under the
Securities Act on the appropriate form and will comply with all
applicable tender offer rules and regulations under the Exchange
Act. Unless the Exchange Offer would not be permitted by applicable
law or Commission policy, the Issuers and the Guarantors will
(i) commence the Exchange Offer promptly; and (ii) use
all commercially reasonable efforts to (A) hold the Exchange
Offer open for at least 20 Business Days in accordance with
Regulation 14E promulgated by the Commission under the
Exchange Act and (B) exchange Exchange Securities for all
Entitled Securities that have been properly tendered and not
withdrawn promptly following the expiration of the Exchange Offer.
The Exchange Offer will be deemed to have been
“completed” only (i) if the Exchange Securities
and related guarantees received by holders other than Restricted
Holders in the Exchange Offer for Entitled Securities are, upon
receipt, transferable by each such holder without restriction under
the Securities Act and the Exchange Act and without material
restrictions under the blue sky or securities laws of a substantial
majority of the States of the United States of America and (ii)
upon the Issuers having exchanged, pursuant to the Exchange Offer,
Exchange Securities for all Entitled Securities that have been
properly tendered and not withdrawn before the expiration of the
Exchange Offer, which shall be on a date that is at least 20 and
not more than 30 Business Days following the commencement of the
Exchange Offer. The Issuers and the Guarantors agree (x) to include
in the Exchange Offer Registration Statement a prospectus for use
in any resales by any holder of Exchange Securities that is a
Broker-Dealer and (y) to keep such Exchange Offer Registration
Statement effective for a period (the “Resale
Period” ) beginning when Exchange Securities are first
issued in the Exchange Offer and ending upon the earlier of the
expiration of the 180 th day after the Exchange Offer has been completed
or such time as such Broker-Dealers no longer own any Entitled
Securities. With respect to such Exchange Offer Registration
Statement, such holders shall have the benefit of the rights of
indemnification and contribution set forth in
subsections 6(a), (c), (d) and (e).
(b) If (i) on
or prior to the time the Exchange Offer is completed the Issuers
and the Guarantors are not (A) required to file the Exchange
Offer Registration Statement or (B) permitted to consummate the
Exchange Offer because the Exchange Offer is not permitted by
applicable law or Commission policy; or (ii) any holder of
Entitled Securities notifies the Issuers prior to the 20th Business
Day following consummation of the Exchange Offer that
(A) it is
prohibited by law or Commission policy from participating in the
Exchange Offer, (B) it may not resell the Exchange Securities
acquired by it in the Exchange Offer to the public without
delivering a prospectus and the prospectus contained in the
Exchange Offer Registration Statement is not appropriate or
available for such resales or (C) it is a Broker-Dealer and
owns Securities acquired directly from the Issuers or an affiliate
of the Issuers, then the Issuers and the Guarantors shall, in lieu
of (or, in the case of clause (B), in addition to) conducting the
Exchange Offer contemplated by Section 2(a), use all
commercially reasonable efforts to file with the Commission on or
prior to 30 days after such filing obligation arises (but no
earlier than 90 days after the Closing Date), a
“shelf” registration statement providing for the
registration of, and the sale on a continuous or delayed basis by
the holders of, all of the Entitled Securities, pursuant to
Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the “Shelf
Registration” and such registration statement, the
“Shelf Registration Statement” ) to cover
resales of the Entitled Securities by the Electing Holders who
satisfy certain conditions relating to the provision of information
in connection with the Shelf Registration Statement. If obligated
to file the Shelf Registration Statement, the Issuers and the
Guarantors will use all commercially reasonable efforts to cause
the Shelf Registration Statement be declared effective by the
Commission on or prior to 90 days after such Shelf
Registration Statement filing obligation arises (but no earlier
than 180 days after the Closing Date). The Issuers and the
Guarantors agree to use all commercially reasonable efforts to keep
such Shelf Registration Statement continuously effective for a
period ending on the earlier of the second anniversary of the
Effective Time or such time as there are no longer any Entitled
Securities outstanding. No holder shall be entitled to be named as
a selling securityholder in the Shelf Registration Statement or to
use the prospectus forming a part thereof for resales of Entitled
Securities unless such holder is an Electing Holder. The Issuers
and the Guarantors agree, after the Effective Time of the Shelf
Registration Statement and promptly upon the request of any holder
of Entitled Securities that is not then an Electing Holder, to use
all commercially reasonable efforts to enable such holder to use
the prospectus forming a part thereof for resales of Entitled
Securities, including, without limitation, any action necessary to
identify such holder as a selling securityholder in the Shelf
Registration Statement (whether by post-effective amendment thereto
or by filing a prospectus pursuant to Rules 430B and 424(b)
under the Securities Act identifying such holder), provided,
however, that nothing in this sentence shall relieve any such
holder of the obligation to return a completed and signed Notice
and Questionnaire to the Issuers in accordance with
Section 3(d)(iii). Notwithstanding anything to the contrary in
this Section 2(b), upon notice to the Electing Holders, the
Issuers may suspend the use or the effectiveness of such Shelf
Registration Statement, or extend the time period in which it is
required to file the Shelf Registration Statement, for up to 30
consecutive days and up to 60 days in the aggregate, in each
case in any 12-month period (a “Suspension
Period” ) if the Board of Directors of the Issuers
determines that there is a valid business purpose for suspension of
the Shelf Registration Statement; provided that the Issuers
shall promptly notify the Electing Holders when the Shelf
Registration Statement may once again be used or is
effective
(c) In the event
that (i) the Issuers and the Guarantors have not filed the
Exchange Offer Registration Statement or the Shelf Registration
Statement on or before the date on which such registration
statement is required to be filed pursuant to Section 2(a) or
Section 2(b), respectively, or (ii) such Exchange Offer
Registration Statement or Shelf Registration Statement has not been
declared effective by the Commission on or prior to the date
specified for such effectiveness (the “ Effectiveness
Target Date ”), or (iii) the Exchange Offer has not
been completed within 30 Business Days of the Effectiveness Target
Date with respect to the Exchange Offer Registration Statement or
(iv) any Exchange Offer Registration Statement or Shelf
Registration Statement required by Section 2(a) or
Section
2(b) is filed
and becomes effective but thereafter ceases to be effective or
usable in connection with resales or exchanges of Securities either
because it is withdrawn by the Issuers or it becomes subject to an
effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration
statement (except as specifically permitted herein including, with
respect to any Shelf Registration Statement, during any applicable
Suspension Period in accordance with the last sentence of
Section 2(b)) without being succeeded immediately by an
additional registration statement filed and declared effective
(each such event referred to in clauses (i) through (iv), a
“Registration Default” and each period during
which a Registration Default has occurred and is continuing, a
“Registration Default Period” ) , then,
as liquidated damages for such Registration Default, the Issuers
and the Guarantors will pay special interest ( “Special
Interest” ) to each holder of Entitled Securities until
all Registration Defaults have been cured. With respect to the
first 90-day period immediately following the occurrence of the
first Registration Default, Special Interest will be paid in an
amount equal to 0.25% per annum on the principal amount of Entitled
Securities outstanding. The amount of Special Interest will
increase by an additional 0.25% per annum on the principal amount
of Entitled Securities with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a
maximum amount of Special Interest for all Registration Defaults of
1.0% per annum of the principal amount of the Entitled Securities
outstanding. All accrued Special Interest will be paid by the
Issuers and the Guarantors on the next scheduled interest payment
date to DTC or its nominee by wire transfer of immediately
available funds. Following the cure of all Registration Defaults,
the accrual of Special Interest will cease.
(d) So long as
(w) any of the Securities (whether Entitled Securities,
Exchange Securities or otherwise) are outstanding, (x) the
Market Maker proposes to make a market in the Securities as part of
its business in the ordinary course and (y) in the reasonable
opinion of Goldman, Sachs & Co., it would be necessary or
appropriate under applicable laws, rules and regulations for the
Market Maker to deliver a prospectus in connection with
market-making activities with respect to the Securities (clauses
(w) through (y) collectively, the “
Market-Making Conditions ”) and (z) the Market
Marker provides notice to the Issuers that the Market Marking
Conditions are satisfied, the following provisions of this Section
2(d) shall apply for the sole benefit of the Market Maker (it being
understood that only a person for whom the Market-Making Conditions
apply at the applicable time shall be entitled to the use of the
Market-Making Registration Statement and related provisions of this
Agreement at any time). The Issuers and the Guarantors shall use
all commercially reasonable efforts to file with the Commission, a
“shelf” registration statement (which may be the
Exchange Offer Registration Statement or the Shelf Registration
Statement if permitted by the rules and regulations of the
Commission) pursuant to Rule 415 under the Securities Act or
any similar rule that may be adopted by the Commission providing
for the registration of, and the sale on a continuous or delayed
basis in secondary transactions by the Market Maker of, Securities
(such filing, a “ Market-Making Registration ”,
such registration statement as amended or supplemented from time to
time, a “ Market-Making Registration Statement
”, and the prospectus contained in such Market-Making
Registration Statement, as amended or supplemented from time to
time, a “ Market-Making Prospectus ”). The
Issuers and the Guarantors agree to use all commercially reasonable
efforts to cause the Market-Making Registration Statement to become
or be declared effective on or prior to (i) the date the
Exchange Offer is completed pursuant to Section 2(a) above or
(ii) the date the Shelf Registration becomes or is declared
effective pursuant to Section 2(b) above, and to keep such
Market-Making Registration Statement continuously effective for so
long as the Market Maker may be required to deliver a prospectus in
connection with transactions in the Securities. In the event that
the Market Maker holds Securities at the time an Exchange Offer is
to be conducted under Section 2(a) above, the Issuers and the
Guarantors agree
that the
Market-Making Registration shall provide for the resale by the
Market Maker of such Securities and shall use its commercially
reasonable efforts to keep the Market-Making Registration Statement
continuously effective until such time as Goldman, Sachs & Co.
determines in its reasonable judgment that the Market Maker is no
longer required to deliver a prospectus in connection with the sale
of such Securities.
Notwithstanding
anything to the contrary in this Section 2(d), the Issuers may
suspend the offering and sale under the Market-Making Registration
Statement for a Suspension Period if the Board of Directors of the
Issuers determines that (i) such registration would require
disclosure of an event at such time as could reasonably be expected
to have a material adverse effect on the business operations or
prospects of the Issuers, (ii) such registration would require
disclosure of material information relating to a corporate
development or (iii) such Market-Making Registration Statement
or amendment or supplement thereto contains an untrue statement of
material fact or omits to state a material fact necessary in order
to make the statements therein, in light of the circumstances under
which they were made, not misleading; provided that the
Issuers shall promptly notify the Market Maker when the
Market-Making Registration Statement may once again be used or is
effective.
(e) The Issuers
shall take, and shall cause the Guarantors to take, all actions
necessary or advisable to be taken by them to ensure that the
transactions contemplated herein are effected as so contemplated,
including all actions necessary or desirable to register the
Guarantees under any Exchange Offer Registration Statement, Shelf
Registration Statement or Market-Making Registration Statement, as
applicable.
(f) Any reference
herein to a registration statement or prospectus as of any time
shall be deemed to include any document incorporated, or deemed to
be incorporated, therein by reference as of such time; and any
reference herein to any post-effective amendment to a registration
statement or to any prospectus supplement as of any time shall be
deemed to include any document incorporated, or deemed to be
incorporated, therein by reference as of such time.
3. Registration
Procedures .
If
the Issuers and the Guarantors file a registration statement
pursuant to Section 2(a), Section 2(b) or
Section 2(d), the following provisions shall apply:
(a) At or before
the Effective Time of the Exchange Registration or any Shelf
Registration or any Market-Making Registration, whichever may occur
first, the Issuers shall qualify the Indenture under the Trust
Indenture Act.
(b) In the event
that such qualification would require the appointment of a new
trustee under the Indenture, the Issuers shall appoint a new
trustee thereunder pursuant to the applicable provisions of the
Indenture.
(c) In connection
with the Issuers’ and the Guarantors’ obligations with
respect to the registration of Exchange Securities as contemplated
by Section 2(a) (the “Exchange
Registration” ), if applicable, the Issuers and the
Guarantors shall:
(i) prepare and
file with the Commission, on or prior to 90 days after the
Closing Date, an Exchange Offer Registration Statement on any form
which may be utilized by the Issuers and the Guarantors and which
shall permit the Exchange Offer and resales of Exchange Securities
by Broker-Dealers during the Resale Period to
be effected as
contemplated by Section 2(a), and use all commercially
reasonable efforts to cause such Exchange Registration Statement to
become effective on or prior to 180 days after the Closing
Date, which may be extended for an additional 90 days if the
sole reason for the Exchange Offer Registration Statement not
becoming effective is the result of the failure of the Issuers to
obtain necessary approvals of applicable Gaming Authorities;
provided , that during such extension the Issuers shall
continue to use their commercially reasonable efforts to obtain
such approvals;
(ii) as soon as
practicable prepare and file with the Commission such amendments
and supplements to such Exchange Offer Registration Statement and
the prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Exchange Offer Registration
Statement for the periods and purposes contemplated in
Section 2(a) and as may be required by the applicable rules
and regulations of the Commission and the instructions applicable
to the form of such Exchange Offer Registration Statement, and
promptly provide each Broker-Dealer holding Exchange Securities
with such number of copies of the prospectus included therein (as
then amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the Trust
Indenture Act, as such Broker-Dealer reasonably may request prior
to the expiration of the Resale Period, for use in connection with
resales of Exchange Securities;
(iii) promptly
notify each Broker-Dealer that has requested or received copies of
the prospectus included in such Exchange Offer Registration
Statement, and confirm such advice in writing, (A) when such
Exchange Offer Registration Statement or the prospectus included
therein or any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such Exchange Offer
Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or
regulator of any state with respect thereto or any request by the
Commission for amendments or supplements to such Exchange Offer
Registration Statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order
suspending the effectiveness of such Exchange Offer Registration
Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and
warranties of the Issuers contemplated by Section 5 cease to
be true and correct in all material respects, (E) of the
receipt by the Issuers of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (F) the occurrence of any event
that causes either of the Issuers to become an “ineligible
issuer” as defined in Rule 405, or (G) if at any
time during the Resale Period when a prospectus is required to be
delivered under the Securities Act, that such Exchange Offer
Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act or contains an untrue statement of
a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading (in the case of any prospectus, in the light of the
circumstances under which such statements were made).
(iv) in the event
that the Issuers and the Guarantors would be required, pursuant to
Section 3(c)(iii)(G), to notify any Broker-Dealers holding
Exchange Securities (except as otherwise permitted during any
Suspension Period), promptly prepare and furnish to each such
holder a reasonable number of copies of a
prospectus
supplemented or amended so that, as thereafter delivered to
purchasers of such Exchange Securities during the Resale Period,
such prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and shall 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 the
light of the circumstances under which such statements were made,
not misleading.
(v) use all
commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Exchange Offer
Registration Statement or any post-effective amendment thereto at
the earliest practicable date;
(vi) use all
commercially reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of
such jurisdictions as are contemplated by Section 2(a) on or
prior to the commencement of the Exchange Offer, to the extent
required by such laws, (B) keep such registrations or
qualifications in effect and comply with such laws so as to permit
the continuance of offers, sales and dealings therein in such
jurisdictions until the expiration of the Resale Period,
(C) take any and all other actions as may be reasonably
necessary or advisable to enable each Broker-Dealer holding
Exchange Securities to consummate the disposition thereof in such
jurisdictions and (D) obtain the consent or approval of each
governmental agency or authority, whether federal, state or local,
which may be required to effect the Exchange Registration, the
Exchange Offer and the offering and sale of Exchange Securities by
Broker-Dealers during the Resale Period; provided, however,
that none of the Issuers nor any Guarantors shall be required for
any such purpose to (1) qualify as a foreign corporation in
any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(c)(vi),
(2) consent to general service of process in any such
jurisdiction or become subject to taxation in any such jurisdiction
or (3) make any changes to its certificate of incorporation or
by-laws or other governing documents or any agreement between it
and its stockholders;
(vii) obtain a
CUSIP number for all Exchange Securities, not later than the
applicable Effective Time; and
(viii) comply with
all applicable rules and regulations of the Commission, and make
generally available to its securityholders no later than
18 months after the Effective Time of such Exchange Offer
Registration Statement, an “earning statement” of the
Issuers and its subsidiaries complying with Section 11(a) of
the Securities Act (including, at the option of the Issuers,
Rule 158 thereunder).
(d) In connection
with the Issuers’ and the Guarantors’ obligations with
respect to the Shelf Registration, if applicable, the Issuers and
the Guarantors shall:
(i) prepare and
file with the Commission, within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which
may be utilized by the Issuers and which shall register all of the
Entitled Securities for resale by the holders thereof in accordance
with such method or methods of disposition as may be specified by
the holders of Entitled Securities as, from time to time, may be
Electing Holders and use all commercially reasonable efforts to
cause such Shelf Registration Statement to become effective within
the time periods specified in Section 2(b);
(ii) mail the
Notice and Questionnaire to the holders of Entitled Securities not
less than 30 days prior to the anticipated Effective Time of
the Shelf Registration Statement and in any such case no holder
shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement, and no holder shall be entitled to
use the prospectus forming a part thereof for resales of Entitled
Securities at any time, unless and until such holder has returned a
completed and signed Notice and Questionnaire to the
Issuers;
(iii) after the
Effective Time of the Shelf Registration Statement, upon the
request of any holder of Entitled Securities that is not then an
Electing Holder, promptly send a Notice and Questionnaire to such
holder; provided that the Issuers shall not be required to
take any action to name such holder as a selling securityholder in
the Shelf Registration Statement or to enable such holder to use
the prospectus forming a part thereof for resales of Entitled
Securities until such holder has returned a completed and signed
Notice and Questionnaire to the Issuers;
(iv) as soon as
practicable prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such Shelf Registration Statement for
the period specified in Section 2(b) and as may be required by
the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Shelf Registration
Statement, and furnish to the Electing Holders copies of any such
supplement or amendment simultaneously with or prior to its being
used or filed with the Commission to the extent such documents are
not publicly available on the Commission’s EDGAR
System;
(v) comply with
the provisions of the Securities Act with respect to the
disposition of all of the Entitled Securities covered by such Shelf
Registration Statement in accordance with the intended methods of
disposition by the Electing Holders provided for in such Shelf
Registration Statement;
(vi) provide the
Electing Holders and not more than one counsel for all the Electing
Holders the opportunity to participate in the preparation of such
Shelf Registration Statement, each prospectus included therein or
filed with the Commission and each amendment or supplement
thereto;
(vii) for a
reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in
Section 2(b), make available at reasonable times at the
Issuers’ principal place of business or such other reasonable
place for inspection by the persons referred to in
Section 3(d)(vi) who shall certify to the Issuers that they
have a current intention to sell the Entitled Securities pursuant
to the Shelf Registration such financial and other information and
books and records of the Issuers, and cause the officers,
employees, counsel and independent certified public accountants of
the Issuers to respond to such inquiries, as shall be reasonably
necessary (and in the case of counsel, not violate an
attorney-client privilege, in such counsel’s reasonable
belief), in the judgment of the respective counsel referred to in
Section 3(d)(vi), to conduct a reasonable investigation within
the meaning of Section 11 of the Securities Act; provided,
however, that the foregoing inspection and information
gathering on behalf of the Electing Holders shall be conducted by
one counsel designated by the holders of at least a majority in
aggregate principal amount of the Entitled Securities held by the
Electing Holders at the time outstanding and provided
further that each such party shall be required to maintain in
confidence
and not to
disclose to any other person any information or records reasonably
designated by the Issuers as being confidential, until such time as
(A) such information becomes a matter of public record
(whether by virtue of its inclusion in such Shelf Registration
Statement or otherwise), or (B) such person shall be required
so to disclose such information pursuant to a subpoena or order of
any court or other governmental agency or body having jurisdiction
over the matter (subject to the requirements of such order, and
only after such person shall have given the Issuers prompt prior
written notice of such requirement), or (C) such information
is required to be set forth in such Shelf Registration Statement or
the prospectus included therein or in an amendment to such Shelf
Registration Statement or an amendment or supplement to such
prospectus in order that such Shelf Registration Statement,
prospectus, amendment or supplement, as the case may be, complies
with applicable requirements of the Securities Act and does not
contain an untrue statement of a material fact or omit to state
therein a material fact required to be stated therein or necessary
to make the statements therein not misleading (in the case of any
prospectus, in the light of the circumstances under which such
statements were made).
(viii) promptly
notify each of the Electing Holders and confirm such advice in
writing, (A) when such Shelf Registration Statement or the
prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with
respect to such Shelf Registration Statement or any post-effective
amendment, when the same has become effective, (B) of any
comments by the Commission and by the blue sky or securities
commissioner or regulator of any state with respect thereto or any
request by the Commission for amendments or supplements to such
Shelf Registration Statement or prospectus or for additional
information, (C) of the issuance by the Commission of any stop
order suspending the effectiveness of such Shelf Registration
Statement or the initiation or threatening of any proceedings for
that purpose, (D) if at any time the representations and
warranties of the Issuers set forth in Section 5 cease to be
true and correct in all material respects, (E) of the receipt
by the Issuers of any notification with respect to the suspension
of the qualification of the Entitled Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose, (F) the occurrence of any event that causes
either of the Issuers to become an “ineligible issuer”
as defined in Rule 405, or (G) if at any time when a
prospectus is required to be delivered under the Securities Act,
that such Shelf Registration Statement, prospectus, prospectus
amendment or supplement or post-effective amendment does not
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act or contains an
untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any prospectus,
in the light of the circumstances under which such statements were
made).
(ix) use all
commercially reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of such Shelf Registration
Statement or any post-effective amendment thereto at the earliest
practicable date;
(x) if requested
by any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the Commission
and as such Electing Holder reasonably specifies should be included
therein relating to the terms of the sale of such Entitled
Securities, including information with respect to the principal
amount of
Entitled
Securities being sold by such Electing Holder, the name and
description of such Electing Holder, the offering price of such
Entitled Securities and any discount, commission or other
compensation payable in respect thereof and with respect to any
other terms of the offering of the Entitled Securities to be sold
by such Electing Holder; and make all required filings of such
prospectus supplement or post-effective amendment promptly after
notification of the matters to be incorporated in such prospectus
supplement or post-effective amendment;
(xi) furnish to
each Electing Holder and the counsel referred to in
Section 3(d)(vi) an executed copy (or a conformed copy) of
such Shelf Registration Statement, each such amendment and
supplement thereto (in each case including all exhibits thereto (in
the case of an Electing Holder of Entitled Securities, upon
request) and documents incorporated by reference therein) and such
number of copies of such Shelf Registration Statement (excluding
exhibits thereto and documents incorporated by reference therein
unless specifically so requested by such Electing Holder) and of
the prospectus included in such Shelf Registration Statement
(including each preliminary prospectus and any summary prospectus),
in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act to
the extent such documents are not available through the
Commission’s EDGAR System, and such other documents, as such
Electing Holder may reasonably request in order to facilitate the
offering and disposition of the Entitled Securities owned by such
Electing Holder and to permit such Electing Holder to satisfy the
prospectus delivery requirements of the Securities Act; and subject
to Section 3(e), the Issuers hereby consent to the use of such
prospectus (including such preliminary and summary prospectus) and
any amendment or supplement thereto by each such Electing Holder
(subject to any applicable Suspension Period), in each case in the
form most recently provided to such person by the Issuers, in
connection with the offering and sale of the Entitled Securities
covered by the prospectus (including such preliminary and summary
prospectus) or any supplement or amendment thereto;
(xii) use all
commercially reasonable efforts to (A) register or qualify the
Entitled Securities to be included in such Shelf Registration
Statement under such securities laws or blue sky laws of such
jurisdictions as any Electing Holder shall reasonably request,
(B) keep such registrations or qualifications in effect and
comply with such laws so as to permit the continuance of offers,
sales and dealings therein in such jurisdictions during the period
the Shelf Registration Statement is required to remain effective
under Section 2(b) and for so long as may be necessary to
enable any such Electing Holder to complete its distribution of
Entitled Securities pursuant to such Shelf Registration Statement,
(C) take any and all other actions as may be reasonably
necessary or advisable to enable each such Electing Holder to
consummate the disposition in such jurisdictions of such Entitled
Securities and (D) obtain the consent or approval of each
governmental agency or authority, whether federal, state or local,
which may be required to effect the Shelf Registration or the
offering or sale in connection therewith or to enable the selling
holder or holders to offer, or to consummate the disposition of,
their Entitled Securities; provided, however, that none the
Issuers or the Guarantors shall be required for any such purpose to
(1) qualify as a foreign corporation in any jurisdiction
wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(d)(xii), (2) consent to
general service of process in any such jurisdiction or become
subject to taxation in any such jurisdiction or (3) make any
changes to its
certificate of
incorporation or by-laws or other governing documents or any
agreement between it and its stockholders;
(xiii) unless any
Entitled Securities shall be in book-entry only form, cooperate
with the Electing Holders to facilitate the timely preparation and
delivery of certificates representing Entitled Securities to be
sold, which certificates, if so required by any securities exchange
upon which any Entitled Securities are listed, shall be printed,
penned, lithographed, engraved or otherwise produced by any
combination of such methods, on steel engraved borders, and which
certificates shall not bear any restrictive legends;
(xiv) obtain a
CUSIP number for all Securities that have been registered under the
Securities Act, not later than the applicable Effective
Time;
(xv) notify in
writing each holder of Entitled Securities of any proposal by the
Issuers to amend or waive any provision of this Agreement pursuant
to Section 9(h) and of any amendment or waiver effected
pursuant thereto, each of which notices shall contain the text of
the amendment or waiver proposed or effected, as the case may be;
and
(xvi) comply with
all applicable rules and regulations of the Commission, and make
generally available to its securityholders no later than
18 months after the Effective Time of such Shelf Registration
Statement an “earning statement” of the Issuers and its
subsidiaries complying with Section 11(a) of the Securities
Act (including, at the option of the Issuers, Rule 158
thereunder).
(e) In the event
that the Issuers would be required, pursuant to
Section 3(d)(viii)(G), to notify the Electing Holders, the
Issuers shall promptly prepare and furnish to each of the Electing
Holders a reasonable number of copies of a prospectus supplemented
or amended so that, as thereafter delivered to purchasers of
Entitled Securities, such prospectus shall conform in all material
respects to the applicable requirements of the Securities Act and
the Trust Indenture Act and shall 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 the
light of the circumstances under which such statements were made,
not misleading. Each Electing Holder agrees that upon receipt of
any notice from the Issuers pursuant to Section 3(d)(viii)(G),
such Electing Holder shall forthwith discontinue the disposition of
Entitled Securities pursuant to the Shelf Registration Statement
applicable to such Entitled Securities until such Electing Holder
shall have received copies of such amended or supplemented
prospectus, and if so directed by the Issuers, such Electing Holder
shall deliver to the Issuers (at the Issuers’ expense) all
copies, other than permanent file copies, of the prospectus
covering such Entitled Securities in such Electing Holder’s
possession at the time of receipt of such notice.
(f) In the event
of a Shelf Registration, in addition to the information required to
be provided by each Electing Holder in its Notice and
Questionnaire, the Issuers may require such Electing Holder to
furnish to the Issuers such additional information regarding such
Electing Holder and such Electing Holder’s intended method of
distribution of Entitled Securities as may be required in order to
comply with the Securities Act. Each such Electing Holder agrees to
notify the Issuers as promptly as practicable of any inaccuracy or
change in information previously furnished by such Electing Holder
to the Issuers or of the occurrence of any event in either case as
a result of which any prospectus relating to such Shelf
Registration contains or would contain an untrue statement of a
material fact regarding such Electing Holder or such Electing
Holder’s intended method of disposition of such
Entitled
Securities or omits to state any material fact regarding such
Electing Holder or such Electing Holder’s intended method of
disposition of such Entitled Securities required to be stated
therein or necessary to make the statements therein not misleading
in light of the circumstances then existing, and promptly to
furnish to the Issuers any additional information required to
correct and update any previously furnished information or required
so that such prospectus shall not contain, with respect to such
Electing Holder or the disposition of such Entitled Securities, 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 not misleading in light of the circumstances
then existing.
(g) Until the
expiration of one year after the Closing Date, the Issuers will
not, and will not permit any of their “affiliates” (as
defined in Rule 144) to, resell any of the Securities that
have been reacquired by any of them except pursuant to an effective
registration statement, or a valid exemption from the registration
requirements, under the Securities Act.
(h) As a condition
to its participation in the Exchange Offer, each holder of Entitled
Securities shall furnish, upon the request of the Issuers, a
written representation to the Issuers (which may be contained in
the letter of transmittal or “agent’s message”
transmitted via The Depository Trust Company’s Automated
Tender Offer Procedures, in either case contemplated by the
Exchange Offer Registration Statement) to the effect that
(A) it is not an “affiliate” of either of the
Issuers, as defined in Rule 405 of the Securities Act, or if
it is such an “affiliate”, it wi
|
