EXHIBIT 10.13 REGISTRATION RIGHTS AGREEMENTRegistration Rights Agreement |
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EXHIBIT 10.13
REGISTRATION RIGHTS AGREEMENT
Dated as of March 2, 2005
by and among
JACOBS ENTERTAINMENT, INC.,
THE GUARANTORS
and
THE PURCHASERS
$23,000,000
11 7/8% SENIOR SECURED NOTES DUE 2009
TABLE OF CONTENTS
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REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the “ Agreement ”) is made and entered into as of March 2, 2005, by and among Jacobs Entertainment, Inc., a Delaware corporation (the “ Company ”), the Guarantors (as defined below) and the purchasers set forth on Schedule A hereto (the “ Purchasers ”).
This Agreement is entered into in connection with that certain Note Purchase Agreement, dated March 2, 2005, by and among the Company, the Guarantors and the Purchasers (the “ Note Purchase Agreement ”) relating to the sale by the Company to the Purchasers of $23,000,000 aggregate principal amount of the Company’s 11 7/8 % Senior Secured Notes due 2009 (the “ Notes ”) and the unconditional guarantee thereof by the Guarantors on a joint and several basis (the “ Guarantee ”). In order to induce the Purchasers to enter into the Note Purchase Agreement, the Issuers (as defined below) have agreed to provide the registration rights set forth in this Agreement for the benefit of the holders of Registrable Notes (as defined below), including, without limitation, the Purchasers. The execution and delivery of this Agreement is a condition to the Purchasers’ obligation to purchase the Notes under the Note Purchase Agreement.
The parties hereby agree as follows:
1. Definitions
As used in this Agreement, the following terms shall have the following meanings:
Additional Interest : See Section 4(a).
Advice : See the last paragraph of Section 5.
Agreement : See the preamble to this Agreement.
Applicable Period : See Section 3(b).
Business Day : A day that is not a Saturday, a Sunday, or a day on which banking institutions in New York, New York are required to be closed.
Commission : The Securities and Exchange Commission.
Company : See the first introductory paragraph to this Agreement.
Effectiveness Date : The 210 th day after the Issue Date, in the case of the Exchange Registration Statement, and, in the case of the Initial Shelf Registration, the 90 th day after the filing of the Initial Shelf Registration.
Effectiveness Period : See Section 3(a).
Event Date : See Section 4(b).
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Exchange Act : The Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
Exchange Notes : See Section 2 (a).
Exchange Offer : See Section 2(a).
Exchange Registration Statement : See Section 2 (a).
Filing Date : The 120 th day after the Issue Date (regardless of whether the actual filing precedes such date).
Guarantee : See the second introductory paragraph to this Agreement.
Guarantors : Black Hawk Gaming & Development Company, Inc., a Colorado corporation, Black Hawk/Jacobs Entertainment, a Colorado limited liability company, Gold Dust West Casino, Inc., a Nevada corporation, Gilpin Hotel Venture, a Colorado joint venture, Gilpin Ventures, Inc., a Colorado corporation, Jalou II Inc., a Louisiana corporation, Winner’s Choice Casino, Inc., a Louisiana corporation, Diversified Opportunities Group Ltd., an Ohio limited liability company, Jalou L.L.C., a Louisiana limited liability company, Houma Truck Plaza & Casino, L.L.C., a Louisiana limited liability company, Jalou-Cash’s L.L.C., a Louisiana limited liability company, JACE, Inc., a Louisiana corporation, Lucky Magnolia Truck Stop and Casino, L.L.C., a Louisiana limited liability company, Bayou Vista Truck Plaza and Casino, L.L.C., a Louisiana limited liability company, Raceland Truck Plaza and Casino, L.L.C., a Louisiana limited liability company, Colonial Holdings, Inc., a Virginia corporation, Stansley Racing Corp., a Virginia corporation, Colonial Downs, L.P., a Virginia limited partnership, Colonial Downs, L.L.C., a Virginia limited liability company, JRJ Properties, L.L.C., a Louisiana limited liability company, Jalou Breaux Bridge, LLC, a Louisiana limited liability company, Jalou Eunice, LLC, a Louisiana limited liability company, and Jalou of Jefferson, LLC, a Louisiana limited liability company.
Holder : Any registered holder of Registrable Notes.
Indemnified Person : See Section 7(c).
Indemnifying Person : See Section 7(c).
Indenture : The Indenture, dated as of February 8, 2002, by and among Jacobs Entertainment, Inc. (formerly known as Gameco, Inc.), the Subsidiary Guarantors (as defined therein), and Wells Fargo Bank Minnesota, 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).
Inspectors : See Section 5(o).
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Issue Date : The date on which the Notes were sold to the Purchasers pursuant to the Note Purchase Agreement.
Issuers : The Company and the Guarantors, collectively.
NASD : National Association of Securities Dealers, Inc.
Note Purchase Agreement : See the second introductory paragraph to this Agreement.
Notes : See the second introductory paragraph to this Agreement.
Participant : See Section 7(a).
Person : Any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust, unincorporated organization or government (including any agency or political subdivision thereof).
Potential Material Event : (i) An event or circumstance which occurs and is continuing as a result of which any Shelf Registration, any related prospectus or any document incorporated therein by reference as then amended or supplemented or proposed to be filed would, in the good faith determination of the Board of Directors of the Company, contain an untrue statement of a material fact or omit 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, and (ii) either (a) the Board of Directors of the Company determines in good faith that the disclosure of such event at such time would have a material adverse effect on the Company’s business, operations or prospects or (b) the disclosure otherwise relates to a material business transaction or development which has not yet been publicly disclosed.
Prospectus : The prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated 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 Registrable Notes 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.
Purchasers : See the preamble to this Agreement.
Records : See Section 5(o).
Registrable Notes : Each Note upon original issuance thereof and at all times subsequent thereto, each Exchange Note as to which Section 2(c)(iii) hereof is applicable upon original issuance thereof and at all times subsequent thereto until, in the case of any such Note or Exchange Note, as the case may be, the earliest to occur of (i) a Registration Statement covering such Note or Exchange Note, as the case may be, has been declared effective by the Commission
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and such Note or Exchange Note, as the case may be, has been disposed of in accordance with such effective Registration Statement, (ii) such Note or Exchange Note, as the case may be, is sold in compliance with Rule 144, (iii) in the case of any Note, such Note has or could have been exchanged pursuant to the Exchange Offer for an Exchange Note or Exchange Notes which may be resold without restriction under federal securities laws, or (iv) such Note or Exchange Note, as the case may be, ceases to be outstanding for purposes of the Indenture.
Registration Statement : Any registration statement of the Company, including, but not limited to, the Exchange Registration Statement, that covers any of the Registrable Notes pursuant to the provisions of this Agreement, including the Prospectus, amendments and supplements to such registration statement, including post-effective amendments, all exhibits, and all material incorporated by reference or deemed to be incorporated by reference in such registration statement.
Rule 144 : Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule (other than Rule 144A) or regulation hereafter adopted by the Commission providing for offers and sales of securities made in compliance therewith resulting in offers and sales by subsequent holders that are not affiliates of an issuer of such securities being free of the registration and prospectus delivery requirements of the Securities Act.
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 Commission.
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 Commission.
Securities Act : The Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
Shelf Notice : See Section 2(c).
Shelf Registration : See Section 3(b).
Suspension Period : See Section 5.
Subsequent Shelf Registration : See Section 3(b).
TIA : The Trust Indenture Act of 1939, as amended.
Trustee : The trustee under the Indenture and, if existent, the trustee under any indenture governing the Exchange Notes.
Underwritten registration or underwritten offering : A registration in which securities of one or more of the Issuers are sold to an underwriter for reoffering to the public.
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(a) Each of the Issuers agrees to file with the Commission no later than the Filing Date, an offer to exchange (the “ Exchange Offer ”) any and all of the Registrable Notes for a like aggregate principal amount of debt securities of the Company which are identical in all material respects to the Notes (the “ Exchange Notes ”) (and which are entitled to the benefits of the Indenture (other than such changes to the Indenture as are necessary to comply with any requirements of the Commission to effect or maintain the qualification thereof under the TIA), except that the Exchange Notes shall have been registered pursuant to an effective Registration Statement under the Securities Act and shall contain no restrictive legend thereon. The Exchange Offer shall be registered under the Securities Act on the appropriate form (the “ Exchange Registration Statement ”) and shall comply with all applicable tender offer rules and regulations under the Exchange Act. Each of the Issuers agrees to use its best efforts to (x) cause the Exchange Registration Statement to be declared effective under the Securities Act on or before the Effectiveness Date; (y) keep the Exchange Offer open for at least 30 Business Days (or longer if required by applicable law) after the later of the date on which (i) the Exchange Offer is first mailed to Purchasers and (ii) the Exchange Registration Statement is declared effective by the Commission and launched; and (z) consummate the Exchange Offer on or prior to the 60th day following the date on which the Exchange Registration Statement is declared effective by the Commission. If after such Exchange Registration Statement is initially declared effective by the Commission, the Exchange Offer or the issuance of the Exchange Notes thereunder is interfered with by any stop order, injunction or other order or requirement of the Commission or any other governmental agency or court, such Exchange Registration Statement shall be deemed not to have become effective for purposes of this Agreement and the Company shall immediately provide notice to the Trustee that the Exchange Registration Statement is no longer effective. Each Holder who participates in the Exchange Offer will be required to represent that any Exchange Notes received by it will be acquired in the ordinary course of its business, that at the time of the consummation of the Exchange Offer such Holder will have no arrangement or understanding with any Person to participate in the distribution of the Exchange Notes, that such Holder is not an affiliate of any Issuer within the meaning of the Securities Act, and any additional representations that in the written opinion of counsel to the Issuers are necessary under then-existing interpretations of the Commission in order for the Exchange Registration Statement to be declared effective. Upon consummation of the Exchange Offer in accordance with this Section 2, the Issuers shall have no further obligation to register Registrable Notes other than in respect of any Exchange Notes as to which clause 2(b)(iii) hereof applies.
In connection with the Exchange Offer, the Issuers shall:
(1) mail to each Holder a copy of the Prospectus forming part of the Exchange Registration Statement, together with an appropriate letter of transmittal and related documents;
(2) utilize the services of a depositary for the Exchange Offer with an address in the Borough of Manhattan, The City of New York, which may be the Trustee or an affiliate thereof;
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(3) permit Holders to withdraw tendered Registrable Notes at any time prior to the close of business, New York time, on the last Business Day on which the Exchange Offer shall remain open; and
(4) otherwise comply in all material respects with all applicable laws.
As soon as practicable after the close of the Exchange Offer, the Issuers shall:
(1) accept for exchange all Registrable Notes validly tendered and not validly withdrawn pursuant to the Exchange Offer;
(2) deliver to the Trustee for cancellation all Registrable Notes so accepted for exchange; and
(3) cause the Trustee to authenticate and deliver promptly to each Holder tendering such Registrable Notes or Exchange Notes, as the case may be, equal in principal amount to the Notes of such Holder so accepted for exchange.
The Exchange Notes may be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture, which in either event will provide that the Exchange Notes will not be subject to the transfer restrictions set forth in the Indenture and that the Exchange Notes and the Notes, if any, will vote and consent together on all matters as one class and that none of the Exchange Notes or the Notes, if any, will have the right to vote or consent as a separate class on any matter.
(b) If, (i) because of any change in law or in currently prevailing interpretations of the staff of the Commission, the Company is not permitted to effect an Exchange Offer, (ii) the Exchange Offer is not consummated within 255 days of the Issue Date, or (iii) in the case of any Holder that participates in the Exchange Offer (and validly tenders and does not withdraw its Registrable Notes prior to the expiration thereof), such Holder does not receive Exchange Notes on the date of the exchange that may be sold without restriction under federal securities laws (other than due solely to the status of such Holder as an affiliate of any Issuer within the meaning of the Securities Act) and so notifies the Company within 30 days following the consummation of the Exchange Offer (and provides a reasonable basis for its conclusions), in the case of each of clauses (i)-(iii), then the Issuers shall promptly deliver to the Holders and the Trustee written notice thereof (the “ Shelf Notice ”) and shall file a Shelf Registration pursuant to Section 3.
If a Shelf Notice is delivered as contemplated by Section 2(c), then:
(a) Shelf Registration . The Issuers shall as promptly as reasonably practicable file with the Commission a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 covering all of the Registrable Notes (the “ Initial Shelf Registration ”). If the Issuers shall not have filed the Exchange Registration Statement, each of the Issuers shall file with the Commission the Initial Shelf Registration on or prior to the Filing
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Date and shall use its best efforts to cause such Initial Shelf Registration to be declared effective under the Securities Act on or prior to the Effectiveness Date. Otherwise, each of the Issuers shall file with the Commission the Initial Shelf Registration within 120 days of the delivery of the Shelf Notice and shall use its best efforts to cause such Shelf Registration to be declared effective under the Securities Act on or prior to the Effectiveness Date. The Issuers shall file the Initial Shelf Registration on Form S-3 if they are eligible to do so. Otherwise, the Issuers shall file such Initial Shelf Registration on Form S-1 or another appropriate form permitting registration of such Registrable Notes for resale by Holders in the manner or manners designated by them (including, without limitation, one or more underwritten offerings). The Issuers shall not permit any securities other than the Registrable Notes to be included in any Shelf Registration. Each of the Issuers shall use its best efforts to keep the Initial Shelf Registration continuously effective under the Securities Act until the date which is 24 months from the Issue Date (or, if Rule 144(k) under the Securities Act is amended to permit unlimited resales by non-affiliates within a lesser period, such lesser period) (subject to extension pursuant to the last and penultimate paragraphs of Section 5 hereof) (the “ Effectiveness Period ”) or such shorter period ending when (i) all Registrable Notes 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 Notes has been declared effective under the Securities Act.
(b) Subsequent Shelf Registrations . If the Initial Shelf Registration or any Subsequent 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 securities registered thereunder), the Company shall immediately provide notice to the Trustee that such Initial Shelf Registration or Subsequent Shelf Registration, as the case may be, is no longer effective and each of the Issuers shall use its 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 amend the Shelf Registration in a manner 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 Notes then outstanding (a “ Subsequent Shelf Registration ”). If a Subsequent Shelf Registration is filed, each of the Issuers shall use its best efforts to cause the Subsequent Shelf Registration to be declared effective as soon as practicable after such filing and to keep such Subsequent Shelf Registration continuously effective for a period (the “ Applicable Period ”) equal to the number of days in the Effectiveness Period less the aggregate number of days during which the Initial Shelf Registration, or any Subsequent Shelf Registrations, was previously continuously effective. As used herein the term “ Shelf Registration ” means the Initial Shelf Registration and any Subsequent Shelf Registration.
(c) Supplements and Amendments . Each of the Issuers shall promptly supplement and amend any Shelf Registration if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration, or if required by the Securities Act.
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(a) The Issuers and the Purchasers agree that the Holders of Registrable Notes will suffer damages if the Issuers fail to fulfill their obligations under Section 2 or Section 3 hereof and that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, each of the Issuers agrees to pay, as liquidated damages, additional interest on the Registrable Notes (“ Additional Interest ”) under the circumstances and to the extent set forth below (each of which shall be given independent effect):
(i) if (A) neither the Exchange Registration Statement nor the Initial Shelf Registration has been filed on or prior to the Filing Date or (B) notwithstanding that the Issuers have consummated or will consummate an Exchange Offer, the Issuers are required to file a Shelf Registration and such Shelf Registration is not filed on or prior to the 120 th day after delivery of the Shelf Notice, then, in the case of subclause (A), commencing on the day after the Filing Date or, in the case of subclause (B), commencing on the 121 st day following delivery of the Shelf Notice, Additional Interest shall accrue on the Registrable Notes over and above the stated interest at a rate of 1.0% per annum for the first 90 days immediately following the Filing Date or such 120th day, as the case may be, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period;
(ii) if (A) neither the Exchange Registration Statement nor the Initial Shelf Registration is declared effective on or prior to the Effectiveness Date applicable thereto or (B) notwithstanding that the Issuers have consummated or will consummate an Exchange Offer, the Issuers are required to file a Shelf Registration and such Shelf Registration is not declared effective by the Commission on or prior to the applicable Effectiveness Date, then, commencing on the day after such applicable Effectiveness Date, Additional Interest shall accrue on the Registrable Notes over and above the stated interest at a rate of 1.0% per annum for the first 90 days immediately following the day after the applicable Effectiveness Date, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each subsequent 90-day period; and
(iii) if (A) the Company has not exchanged Exchange Notes for all Notes validly tendered and not withdrawn in accordance with the terms of the Exchange Offer on or prior to the 255 th day after the Issue Date, (B) the Exchange Registration Statement ceases to be effective prior to consummation of the Exchange Offer or (C) if applicable, a Shelf Registration has been declared effective and such Shelf Registration ceases to be effective at any time during the Effectiveness Period (other than as a result of the imposition of any Suspension Period in accordance with the penultimate paragraph of Section 5 of this Agreement), then Additional Interest shall accrue on the Registrable Notes over and above the stated interest at a rate of 1.0% per annum for the first 90 days commencing on the (x) 256 th day after the Issue Date in the case of (A) above or (y) the day such Exchange Registration Statement or Shelf Registration ceases to be effective in the case of (B) and (C) above, such Additional Interest rate increasing by an additional 0.50% per annum at the beginning of each such subsequent 90-day period;
provided , however , that the Additional Interest rate on the Registrable Notes may not exceed in the aggregate 2.0% per annum; provided further that (1) upon the filing of the Exchange
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Registration Statement or each Shelf Registration (in the case of (i) above), (2) upon the effectiveness of the Exchange Registration Statement or each Shelf Registration, as the case may be (in the case of (ii) above), or (3) upon the exchange of Exchange Notes for all Registrable Notes tendered (in the case of (iii) (A) above) or upon the effectiveness of an Exchange Registration Statement or Shelf Registration which had ceased to remain effective (in the case of (iii)(B) and (C) above), Additional Interest on any Registrable Notes then accruing Additional Interest as a result of such clause (or the relevant subclause thereof), as the case may be, shall cease to accrue.
(b) The Issuers shall notify the Trustee within one Business Day after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an “ Event Date ”). Any amounts of Additional Interest due pursuant to (a)(i), (a)(ii) or (a)(iii) of this Section 4 will be payable in cash semi-annually on each regular interest payment date specified in the Indenture (to the Holders of Registrable Notes of record on the regular record date therefor (as specified in the Indenture) immediately preceding such dates), commencing with the first such regular interest payment date occurring after any such Additional Interest commences to accrue. The amount of Additional Interest will be determined by multiplying the applicable Additional Interest rate by the principal amount of the Notes subject thereto, multiplied by a fraction, the numerator of which is the number of days such Additional Interest rate was applicable during such period (determined on the basis of a 360-day year comprised of twelve 30-day months), and the denominator of which is 360.
In connection with the filing of any Registration Statement pursuant to Section 2 or 3 hereof, each Issuer shall effect such registration to permit the sale of such securities covered thereby in accordance with the intended method or methods of disposition thereof, and pursuant thereto and in connection with any Registration Statement filed by each Issuer hereunder, each Issuer shall:
(a) Prepare and file with the Commission prior to the Filing Date, the Exchange Registration Statement or if the Exchange Registration Statement is not filed or is unavailable, a Shelf Registration as prescribed by Section 2 or 3, and use its best efforts to cause each such Registration Statement to become effective and remain effective as provided herein; provided that, if a Shelf Registration is filed pursuant to Section 3, before filing any Registration Statement or Prospectus or any amendments or supplements thereto, the Issuers shall, if requested, afford the Holders of the Registrable Notes to be registered pursuant to such Shelf Registration and their legal counsel a reasonable opportunity to review copies of all such documents (including copies of any documents to be incorporated by reference therein and all exhibits thereto) proposed to be filed (in each case at least five Business Days prior to such filing). The Issuers shall not file any such Registration Statement or Prospectus or any amendments or supplements thereto if the Holders of a majority in aggregate principal amount of the Registrable Notes covered by such Registration Statement shall reasonably object thereto.
(b) Prepare and file with the Commission such amendments and post-effective amendments to each Shelf Registration or Exchange Registration Statement, as the case may be,
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as may be necessary to keep such Registration Statement continuously effective for the Effectiveness Period or the Applicable Period, as the case may be; 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 with the provisions of the Securities Act and the Exchange Act applicable to it with respect to the disposition of all securities covered by such Registration Statement as so amended or in such Prospectus as so supplemented.
(c) If a Shelf Registration is filed pursuant to Section 3, notify each selling Holder of Registrable Notes, its counsel and the managing underwriters, if any, promptly (but in any event within two Business Days), and confirm such notice in writing, (i) when a Prospectus or any Prospectus supplement 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 (including in such notice a written statement that any Holder may, upon request, obtain, without charge, one conformed copy of such Registration Statement or post-effective amendment including financial statements and schedules, documents incorporated or deemed to be incorporated by reference and exhibits), (ii) of the issuance by the Commission of any stop order suspending the effectiveness of a Registration Statement or of any order preventing or suspending the use of any preliminary 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 Notes the representations and warranties of any Issuer contained in any agreement (including any underwriting agreement contemplated by Section 5(n) hereof) cease to be true and correct in any material respect, (iv) of the happening of any event, the existence of any condition or any information becoming known that makes any statement made in such Registration Statement or related Prospectu | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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