E XHIBIT 4.15
REGISTRATION RIGHTS
AGREEMENT
Dated as of December 14,
2004
by and among
Wynn Las Vegas,
LLC,
Wynn Las Vegas Capital
Corp.,
the Guarantor Signatories
Hereto
and
Deutsche Bank Securities
Inc.
Banc of America Securities
LLC
Bear, Stearns & Co.
Inc.
J.P. Morgan Securities
Inc.
SG Americas Securities,
LLC
This Registration Rights Agreement
(this “ Agreement ”) is made and entered
into as of December 14, 2004, by and among Wynn Las Vegas, LLC, a
Nevada limited liability company, Wynn Las Vegas Capital Corp., a
Nevada corporation (each an “ Issuer ”
and collectively, the “ Issuers ”) and
the guarantors listed on the signature pages hereto (the “
Guarantors ”), and Deutsche Bank Securities
Inc., Banc of America Securities LLC, Bear, Stearns & Co. Inc.,
J.P. Morgan Securities Inc. and SG Americas Securities, LLC (each
an “ Initial Purchaser ” and,
collectively, the “ Initial Purchasers
”), each of whom has agreed to purchase the Issuers’
6-5/8% First Mortgage Notes due 2014 (the “ Series A
Notes ”) pursuant to the Purchase Agreement, dated as
of November 22, 2004, (the “ Purchase Agreement
”), by and among the Issuers, the Guarantors and the Initial
Purchasers.
In order to induce the Initial
Purchasers to purchase the Series A Notes, the Issuers and the
Guarantors have agreed to provide the registration rights set forth
in this Agreement. The execution and delivery of this Agreement is
a condition to the obligations of the Initial Purchasers set forth
in Section 5 of the Purchase Agreement. Capitalized terms used
herein and not otherwise defined shall have the meaning assigned to
them the Indenture, dated as of December 14, 2004, among the
Issuers, the Guarantors and U.S. Bank, National Association, as
Trustee, relating to the Series A Notes and the Series B Notes (the
“ Indenture ”).
The parties hereby agree as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the
following capitalized terms shall have the following
meanings:
Act
: The Securities Act of 1933, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
Affiliate
: As defined in Rule 144 of the
Act.
Broker-Dealer
: Any broker or dealer registered
under the Exchange Act.
Business Day
: Each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions
in New York, New York are authorized or obligated by law,
regulation or executive order to close.
Certificated
Securities :
Definitive Notes, as defined in the Indenture.
Closing Date
: The date hereof.
Commission
: The Securities and Exchange
Commission.
Consummate
: An Exchange Offer shall be deemed
“Consummated” for purposes of this Agreement upon the
occurrence of (a) the effectiveness under the Act of the Exchange
Offer Registration Statement relating to the Series B Notes to be
issued in the Exchange Offer, (b) the maintenance of such Exchange
Offer Registration Statement continuously effective and the keeping
of the Exchange Offer open for a period not less than the period
required pursuant to
Section 3(b) hereof and (c) the delivery by the
Issuers to the Registrar under the Indenture of Series B Notes in
the same aggregate principal amount as the aggregate principal
amount of Series A Notes validly tendered by Holders thereof
pursuant to the Exchange Offer.
Consummation
Deadline : As defined
in Section 3(b) hereof.
Effectiveness
Deadline : The
Exchange Offer Effectiveness Deadline and the Shelf Effectiveness
Deadline.
Exchange Act
: The Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
Exchange Offer
: The exchange and issuance by the
Issuers of a principal amount of Series B Notes (which shall be
registered pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Series A Notes that
are validly tendered and not withdrawn by such Holders in
connection with such exchange and issuance as required by the terms
of this Agreement.
Exchange Offer Effectiveness
Deadline : As defined
in Section 3(a) hereof.
Exchange Offer Filing
Deadline : As defined
in Section 3(a) hereof.
Exchange Offer Registration
Statement : The
Registration Statement required to be filed by the Issuers with the
Commission pursuant to this Agreement relating to the Exchange
Offer, including the related Prospectus included therein, all
amendments and supplements thereto (including post-effective
amendments) and all exhibits and material incorporated by reference
therein.
Filing Deadline
: The Exchange Offer Filing
Deadline and the Shelf Filing Deadline.
Holders
: As defined in Section 2
hereof.
Inspectors
: As defined in Section 6(c)(vii)
hereof.
Notes
: Collectively, the Series A Notes
and the Series B Notes.
Person
: Any individual, corporation,
partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, limited liability company or
government or any agency or political subdivision thereof or other
entity.
Prospectus
: The prospectus included in a
Registration Statement at the time 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 Act), as amended or supplemented by any
prospectus supplement and by all other amendments thereto,
including post-effective amendments, and all material incorporated
by reference into such Prospectus.
Recommencement
Date : As defined in
Section 6(d) hereof.
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Records
: As defined in Section 6(c)(vii)
hereof.
Registration
Default : As defined
in Section 5 hereof.
Registration
Statement : Any
registration statement of the Issuers and the Guarantors relating
to (a) an offering of Series B Notes pursuant to the Exchange Offer
Registration Statement or (b) the registration for resale of
Transfer Restricted Securities pursuant to the Shelf Registration
Statement, in each case, (i) that is filed pursuant to the
provisions of this Agreement and (ii) including the Prospectus
included therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material
incorporated by reference therein.
Regulation S
: Regulation S promulgated under
the Act.
Rule 144
: Rule 144 promulgated under the
Act.
Rule 415
: Rule 415 promulgated under the
Act.
Series B Notes
: The Issuers’ 6
5
/ 8 % Series B Senior Notes due 2014 to
be issued pursuant to the Indenture either (i) in the Exchange
Offer or (ii) as contemplated by Section 6 hereof.
Shelf Registration
Statement : As
defined in Section 4 hereof.
Shelf Effectiveness
Deadline : As defined
in Section 4(a) hereof.
Shelf Filing
Deadline : As defined
in Section 4(a) hereof.
Shelf Holder
: As defined in Section 4(a)
hereof.
Suspension
Notice : As defined
in Section 6(d) hereof.
Suspension
Period : The period
of time (a) that the Issuers may delay filing and distributing (i)
a post-effective amendment to (x) the Shelf Registration Statement
or (y) after the date on which the Exchange Offer is Consummated,
the Exchange Offer Registration Statement that is required to
maintain its effectiveness to permit resales of Series B Notes by
Broker-Dealers as contemplated by Section 3(c) below or (ii) a
supplement to any related Prospectus so that, as thereafter
delivered to Holders or purchasers of Transfer Restricted
Securities, the Prospectus will not contain an 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 they were made, not
misleading, if the Issuers determine reasonably and in good faith
that compliance with the disclosure obligations necessary to
maintain the effectiveness of such Registration Statement at such
time would reasonably be expected to have a material adverse effect
on the Issuers or a pending financing, acquisition, disposition,
merger or other material corporate transaction involving the
Issuers or any of its subsidiaries or affiliates (it being
understood that, in the case of this clause (a), the Issuers shall
be required to use their commercially reasonable efforts to proceed
in good faith to amend such Registration Statement or supplement to
such related Prospectus as soon as practicable to describe such
events or to
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otherwise cause such Registration Statement to
become effective and the related Prospectus to again be usable at
such time as so doing would not have such a material adverse
effect), or (b) when, at any time prior to the date which is one
year from the effective date of the Exchange Offer Registration
Statement, (i) the Shelf Registration Statement or (ii) after the
date on which the Exchange Offer is Consummated, the Exchange Offer
Registration Statement that is required to remain effective to
permit resales of Series B Notes by Broker-Dealers as contemplated
by Section 3(c) below, in each case, ceases to be effective or any
related Prospectus is not usable solely because the Issuers filed a
post-effective amendment to any such Registration Statement to
include annual audited financial information with respect to the
Issuers and such post-effective amendment is not yet effective and
needs to be declared effective to permit Holders to use the related
Prospectus (it being understood that in the case of this clause
(b), the Issuers shall be required to use their commercially
reasonable efforts to cause any such post-effective amendment to
become effective as soon as practicable); provided that such
Suspension Periods shall not occur for more than 45 consecutive
days, or more than 75 days in the aggregate; provided ,
further , that upon the termination of such Suspension
Period, the Issuers shall promptly advise each Holder and purchaser
and, if request by any such Person, confirm such advice in writing
that such Suspension Period has been terminated.
TIA
: The Trust Indenture Act of 1939
(15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of the
Indenture.
Transfer Restricted
Securities : Each
Series A Note, until the earliest to occur of (i) the date on which
such Series A Note is exchanged by a Person other than a
Broker-Dealer for a Series B Note in the Exchange Offer, (ii)
following the exchange by a Broker-Dealer in the Exchange Offer of
a Series A Note for a Series B Note, the date on which such Series
B Note is sold to a purchaser who receives from such Broker-Dealer
on or prior to the date of such sale a copy of the Prospectus
contained in the Exchange Offer Registration Statement, (iii) the
date on which such Series A Note has been effectively registered
under the Act and disposed of in accordance with the Shelf
Registration Statement, or (iv) the date on which such Series A
Note is distributed to the public pursuant to Rule 144.
SECTION 2. HOLDERS
A Person is deemed to be a holder of
Transfer Restricted Securities (each, a “ Holder
” ) whenever such Person owns Transfer Restricted
Securities.
SECTION 3. REGISTERED EXCHANGE
OFFER
(a) Unless the Exchange Offer shall
not be permitted by applicable federal law or Commission policy
(after the procedures set forth in Section 6(a)(i) below have been
complied with), the Issuers and the Guarantors shall (i) cause the
Exchange Offer Registration Statement to be filed with the
Commission on or prior to 120 days after the Closing Date (such
120 th day being the “ Exchange
Offer Filing Deadline ” ), (ii) use all commercially
reasonable efforts to cause such Exchange Offer Registration
Statement to be declared effective by the Commission on or prior to
240 days after the Closing Date (such 240 th day being the “
Exchange Offer Effectiveness Deadline ”), (iii)
in connection with the foregoing, (A) file all pre-effective
amendments to such Exchange Offer Registration Statement as may be
necessary in order to
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cause it to become effective, (B) file, if
applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Act and (C)
use all commercially reasonable efforts to cause all necessary
filings, if any, in connection with the registration and
qualification of the Series B Notes to be made under the Blue Sky
laws of such jurisdictions as are necessary to permit Consummation
of the Exchange Offer, and (iv) upon the effectiveness of such
Exchange Offer Registration Statement, commence and Consummate the
Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting (i) registration of the Series B Notes to be offered in
exchange for the Series A Notes that are Transfer Restricted
Securities and (ii) resales of Series B Notes by Broker-Dealers
that tendered Series A Notes into the Exchange Offer that such
Broker-Dealer acquired for its own account as a result of market
making activities or other trading activities (other than Series A
Notes acquired directly from the Issuers or any of their respective
Affiliates) as contemplated by Section 3(c) below.
(b) The Issuers and the Guarantors
shall use all commercially reasonable efforts to cause the Exchange
Offer Registration Statement to be effective continuously, and
shall keep the Exchange Offer open for a period of not less than
the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; provided ,
however , that in no event shall such period be less than 20
Business Days. The Issuers and the Guarantors shall cause the
Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Series B Notes shall
be included in the Exchange Offer Registration Statement. The
Issuers and the Guarantors shall use all commercially reasonable
efforts to cause the Exchange Offer to be Consummated not later
than 30 Business Days after the Exchange Offer Registration
Statement is declared effective (such 30 th day being the “
Consummation Deadline ”).
(c) The Issuers shall include a
“Plan of Distribution” section in the Prospectus
contained in the Exchange Offer Registration Statement and indicate
therein that any Broker-Dealer who holds Transfer Restricted
Securities that were acquired for the account of such Broker-Dealer
as a result of market-making activities or other trading activities
(other than Series A Notes acquired directly from the Issuers or
any Affiliate of the Issuers), may exchange such Transfer
Restricted Securities pursuant to the Exchange Offer. Such
“Plan of Distribution” section shall also contain all
other information with respect to such sales by such Broker-Dealers
that the Commission may require in order to permit such sales
pursuant thereto, but such “Plan of Distribution” shall
not name any such Broker-Dealer or disclose the amount of Transfer
Restricted Securities held by any such Broker-Dealer, except to the
extent required by the Commission.
Because such Broker-Dealer may be
deemed to be an “underwriter” within the meaning of the
Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with its initial sale of any
Series B Notes received by such Broker-Dealer in the Exchange
Offer, the Issuers and Guarantors shall permit the use of the
Prospectus contained in the Exchange Offer Registration Statement
by such Broker-Dealer to satisfy such prospectus delivery
requirement. To the extent necessary to ensure that the Prospectus
contained in the Exchange Offer Registration Statement is available
for sales of Series B Notes by Broker-Dealers, the Issuers and the
Guarantors agree to use all commercially reasonable efforts to keep
the Exchange Offer Registration Statement continuously effective,
supplemented, amended and current as required by and subject to (i)
the provisions of Section 6(a) and (c) hereof and (ii)
any
5
applicable Suspension Period, and in conformity
with the requirements of this Agreement, the Act and the policies,
rules and regulations of the Commission as announced from time to
time, for a period of 180 days from the Consummation Deadline or
such shorter period as will terminate when all Transfer Restricted
Securities covered by such Registration Statement have been sold
pursuant thereto; provided , however , that if the
Exchange Offer Registration Statement ceases to be effective during
any Suspension Period, such 180-day period shall be extended by the
number of days such Suspension Period is in effect. The Issuers and
the Guarantors shall provide sufficient copies of the latest
version of such Prospectus to such Broker-Dealers, promptly upon
request, and in no event later than two Business Days after such
request, at any time during such period.
SECTION 4. SHELF REGISTRATION
(a) Shelf Registration . If
(i) the Exchange Offer is not permitted by applicable law or
Commission policy (after the Issuers and the Guarantors have
complied with the procedures set forth in Section 6(a)(i) below) or
(ii) if any Holder of Transfer Restricted Securities shall notify
the Issuers within 20 Business Days following the Consummation
Deadline that (A) such Holder was prohibited by law or Commission
policy from participating in the Exchange Offer, (B) such Holder
may not resell the Series B Notes acquired by it in the Exchange
Offer to the public without delivering a prospectus and the
Prospectus contained in the Exchange Offer Registration Statement
is not appropriate or available for such resales by such Holder or
(C) such Holder is a Broker-Dealer and holds Series A Notes
acquired directly from the Issuers or any of their respective
Affiliates ((A) all Holders in the case of clause (i) above and (B)
each such Holder described in clause (ii) above shall hereinafter
be referred to as a “ Shelf Holder ”),
then the Issuers and the Guarantors shall use all commercially
reasonable efforts to:
(x) cause to be filed, on or prior
to 30 days after the earlier of (i) the date on which the Issuers
determine that the Exchange Offer Registration Statement cannot be
filed as a result of clause (a)(i) above and (ii) the date on which
the Issuers receive the notice specified in clause (a)(ii) above,
(such earlier date, the “ Shelf Filing Deadline
”), a shelf registration statement pursuant to Rule 415 under
the Act (which may be an amendment to the Exchange Offer
Registration Statement, including the related Prospectus included
therein, all amendments and supplements thereto (including
post-effective amendments) and all exhibits and material
incorporated by reference therein (the “ Shelf
Registration Statement ”)), relating to all Transfer
Restricted Securities, and
(y) cause such Shelf Registration
Statement to become effective on or prior to 90 days after the
Shelf Filing Deadline for the Shelf Registration Statement (such
90 th day the “ Shelf
Effectiveness Deadline ”).
If, after the Issuers and Guarantors
have filed an Exchange Offer Registration Statement that satisfies
the requirements of Section 3(a) above, the Issuers and Guarantors
are required to file and make effective a Shelf Registration
Statement solely because the Exchange Offer is not permitted under
applicable federal law (i.e., clause (a)(i) above), then the filing
of the Exchange Offer Registration Statement shall be deemed to
satisfy the requirements of clause (x) above; provided that,
in such event, the Issuers and Guarantors shall remain obligated to
meet the Shelf Effectiveness Deadline set forth in clause
(y).
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To the extent necessary to ensure
that the Shelf Registration Statement is available for sales of
Transfer Restricted Securities by the Holders thereof entitled to
the benefit of this Section 4(a) and the other securities required
to be registered therein pursuant to Section 6(b)(ii) hereof, the
Issuers and the Guarantors shall use all commercially reasonable
efforts to keep any Shelf Registration Statement required by this
Section 4(a) continuously effective, supplemented, amended and
current as required by and subject to (i) the provisions of
Sections 6(b) and (c) hereof and (ii) any applicable Suspension
Period, and in conformity with the requirements of this Agreement,
the Act and the policies, rules and regulations of the Commission
as announced from time to time, for a period of at least two years,
or one year if such Shelf Registration Statement is filed at the
requests of a Holder or Holders, (in each case, as such time may be
extended pursuant to Section 6(d) hereof) following the Closing
Date, or such shorter period as will terminate when all Transfer
Restricted Securities covered by such Shelf Registration Statement
have been sold pursuant thereto or when all Series A Notes cease to
be Transfer Restricted Securities.
(b) Provision by Holders of
Certain Information in Connection with the Shelf Registration
Statement . No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf
Registration Statement pursuant to this Agreement unless and until
such Holder furnishes to the Issuers in writing, within 15 Business
Days after receipt of a request therefor, the information required
by Item 507 or 508 of Regulation S-K, as applicable, of the Act or
other information reasonably requested by the Issuers and required
by Regulation S-K of the Act in order to fulfill their obligations
hereunder, for use in connection with any Shelf Registration
Statement or Prospectus or preliminary prospectus included therein.
No Holder of Transfer Restricted Securities shall be entitled to
liquidated damages pursuant to Section 5 hereof unless and until
such Holder shall have provided all such information. Each selling
Holder agrees to promptly furnish additional information as
requested by the Commission or as required to be disclosed in order
to make the information previously furnished to the Issuers by such
Holder not materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement
required by this Agreement is not filed with the Commission on or
prior to the applicable Filing Deadline, (ii) any such Registration
Statement has not been declared effective by the Commission on or
prior to the applicable Effectiveness Deadline, (iii) the Exchange
Offer has not been Consummated on or prior to the Consummation
Deadline or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter
cease to be effective or fail to be usable for its intended
purpose, except during any Suspension Period, without being
succeeded immediately by a post-effective amendment to such
Registration Statement or another Registration Statement that cures
such failure and that is itself declared effective immediately
(each such event referred to in clauses (i) through (iv) of this
Section 5, a “ Registration Default ” ),
then the Issuers and the Guarantors hereby jointly and severally
agree to pay to each Holder of Transfer Restricted Securities
affected thereby liquidated damages in an amount equal to $0.05 per
week per $1,000 in principal amount of Transfer Restricted
Securities held by such Holder for each week or portion thereof
that the Registration Default continues for the first 90-day period
immediately following the occurrence of such Registration Default.
The amount of the liquidated damages shall increase by an
additional $0.05 per week per $1,000 in principal amount of
Transfer Restricted Securities with respect to each subsequent
90-day period until all Registration Defaults have
7
been cured, up to a maximum amount of liquidated
damages of $0.50 per week per $1,000 in principal amount of
Transfer Restricted Securities; provided that the Issuers
and the Guarantors shall in no event be required to pay liquidated
damages for more than one Registration Default at any given time.
Such interest is payable in addition to any other interest payable
from time to time with respect to the Transfer Restricted
Securities. Notwithstanding anything to the contrary set forth
herein, (A) upon the filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration
Statement), in the case of (i) above, (B) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement), in the case of (ii) above, (C)
upon Consummation of the Exchange Offer, in the case of (iii)
above, or (D) upon the filing of a post-effective amendment to the
Registration Statement or an additional Registration Statement that
causes the Exchange Offer Registration Statement (and/or, if
applicable, the Shelf Registration Statement) to again be declared
effective or made usable in the case of (iv) above, the liquidated
damages payable with respect to the Transfer Restricted Securities
as a result of such clause (i), (ii), (iii) or (iv), as applicable,
shall cease to accrue.
All accrued liquidated damages shall
be paid to the Holders entitled thereto, in the manner provided for
with respect to the payment of interest in the Indenture, on each
Interest Payment Date, as more fully set forth in the Indenture and
the Notes. Notwithstanding the fact that any securities for which
liquidated damages are due cease to be Transfer Restricted
Securities, all obligations of the Issuers and the Guarantors to
pay liquidated damages with respect to securities shall survive
until such time as such obligations with respect to such securities
shall have been satisfied in full.
SECTION 6. REGISTRATION
PROCEDURES
(a) Exchange Offer Registration
Statement . In connection with the Exchange Offer, each Holder
(if applicable) shall comply with clause (z)(ii) below and the
Issuers and the Guarantors shall (x) comply with all applicable
provisions of Section 6(c) below, (y) use all commercially
reasonable efforts to effect such exchange and to permit the resale
of Series B Notes by Broker-Dealers that tendered Series A Notes
into the Exchange Offer that such Broker-Dealer acquired for its
own account as a result of its market making activities or other
trading activities (other than Series A Notes acquired directly
from the Issuers or any of their respective Affiliates) being sold
in accordance with the intended method or methods of distribution
thereof, and (z) comply with all of the following
provisions:
(i) If, following the date hereof
there has been announced a change in Commission policy with respect
to exchange offers such as the Exchange Offer that, in the
reasonable opinion of counsel to the Issuers, raises a substantial
question as to whether the Exchange Offer is permitted by
applicable federal law, the Issuers and the Guarantors hereby agree
to (A) seek a no-action letter or other favorable decision from the
Commission allowing the Issuers and the Guarantors to Consummate an
Exchange Offer for such Transfer Restricted Securities or (B) file,
in accordance with Section 4(a) hereof, a Shelf Registration
Statement to permit the registration and/or resale of the Transfer
Restricted Securities that would otherwise be covered by the
Exchange Offer Registration Statement but for the announcement of a
change in Commission policy. In the case of clause (A) above, the
Issuers and the Guarantors hereby agree to us all
8
commercially reasonable efforts to
pursue the issuance of such a decision to the Commission staff
level. In connection with the foregoing, the Issuers and the
Guarantors hereby agree to take all such other commercially
reasonable actions as may be requested by the Commission or
otherwise required in connection with the issuance of such
decision, including, without limitation, (A) participating in
telephonic conferences with the Commission, (B) delivering to the
Commission staff an analysis prepared by counsel to the Issuers
setting forth the legal bases, if any, upon which such counsel has
concluded that such an Exchange Offer should be permitted and (C)
diligently pursuing a resolution (which need not be favorable) by
the Commission staff.
(ii) As a condition to its
participation in the Exchange Offer, each Holder of Transfer
Restricted Securities (including, without limitation, any Holder
who is a Broker-Dealer) shall furnish, upon the request of the
Issuers, prior to the Consummation of the Exchange Offer, a written
representation to the Issuers and the Guarantors (which may be
contained in the letter of transmittal contemplated by the Exchange
Offer Registration Statement) to the effect that (A) it is not an
Affiliate of either of the Issuers, (B) it is not engaged in, and
does not intend to engage in, and has no arrangement or
understanding with any person to participate in, a distribution of
the Series B Notes to be issued in the Exchange Offer, (C) it is
acquiring the Series B Notes in its ordinary course of business and
(D) only if such Holder is a Broker-Dealer that will receive Series
B Notes in exchange for Series A Notes in the Exchange Offer that
such Broker-Dealer acquired for its own account as a result of
market-making activities or other trading activities, it shall
deliver the Prospectus included in the Exchange Offer Registration
Statement, as required by law, in connection with any sale of such
Series B Notes. As a condition to its participation in the Exchange
Offer each Holder using the Exchange Offer to participate in a
distribution of the Series B Notes shall acknowledge and agree
that, if the resales are of Series B Notes obtained by such Holder
in exchange for Series A Notes acquired directly from the Issuers
or an Affiliate thereof, it (1) could not, under Commission policy
as in effect on the date of this Agreement, rely on the position of
the Commission enunciated in Exxon Capital Holdings
Corporation (available May 13, 1988) and Morgan Stanley and
Co., Inc. (available June 5, 1991) as interpreted in the
Commission’s letter to Shearman & Sterling dated
July 2, 1993, and, if applicable, any no-action letter obtained
pursuant to clause (i) above), and (2) must comply with the
registration and prospectus delivery requirements of the Act in
connection with a secondary resale transaction and that such a
secondary resale transaction must be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508 of Regulation S-K, as
applicable, of the Act.
(iii) To the extent required by
Commission policies and procedures, prior to effectiveness of the
Exchange Offer Registration Statement, the Issuers and the
Guarantors shall provide a supplemental letter to the Commission
(A) stating that the Issuers and the Guarantors are registering the
Exchange Offer in reliance on the position of the Commission
enunciated in Exxon Capital Holdings Corporation (available
May 13, 1988) and Morgan Stanley and Co., Inc. (available
June 5, 1991) as interpreted in the Commission’s letter to
Shearman & Sterling dated July 2, 1993, and, if
applicable, any no-action letter obtained pursuant to clause (i)
above, (B) including a representation that neither of the Issuers
nor any Guarantor has entered into any arrangement or
9
understanding with any Person to
distribute the Series B Notes to be received in the Exchange Offer
and that, to the best of each Issuer’s and each
Guarantor’s information and belief, each Holder participating
in the Exchange Offer is acquiring the Series B Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Series B
Notes received in the Exchange Offer and (C) any other commercially
reasonable undertaking or representation required by the Commission
as set forth in any no-action letter obtained pursuant to clause
(i) above, if applicable.
(b) Shelf Registration
Statement . In connection with the Shelf Registration
Statement, the Issuers and the Guarantors shall:
(i) comply with all the provisions
of Section 6(c) below and use all commercially reasonable efforts
to effect such registration to permit the sale of the Transfer
Restricted Securities being sold in accordance with the intended
method or methods of distribution thereof (as indicated in the
information furnished to the Issuers pursuant to Section 4(b)
hereof), and pursuant thereto the Issuers and the Guarantors will
prepare and file with the Commission a Shelf Registration Statement
relating to the registration on any appropriate form under the Act,
which form shall be available for the sale of the Transfer
Restricted Securities in accordance with the intended method or
methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof, and
(ii) issue, upon request, to any
Holder or purchaser of Series A Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Series B
Notes having an aggregate principal amount equal to the aggregate
principal amount of Series A Notes sold pursuant to the Shelf
Registration Statement and surrendered to the Issuers for
cancellation; the Issuers shall register Series B Notes on the
Shelf Registration Statement for this purpose and issue the Series
B Notes to the purchaser(s) of securities subject to the Shelf
Registration Statement in the names as such purchaser(s) shall
designate.
(c) General Provisions . In
connection with any Registration Statement and any related
Prospectus required by this Agreement, the Issuers and the
Guarantors shall:
(i) use all commercially reasonable
efforts to keep such Registration Statement continuously effective
and provide all requisite financial statements for the period
specified in S
