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EXHIBIT
10.2
EXECUTION
COPY
REGISTRATION RIGHTS
AGREEMENT
Dated as of
November 6, 2007
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
This Registration Rights
Agreement (this “ Agreement ”) is made
and entered into as of November 6, 2007, 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. and Banc of America
Securities LLC (each an “ Initial Purchaser
” and, together, the “ Initial Purchasers
”), each of whom has agreed to purchase the Issuers’
6 5 / 8 % First Mortgage Notes due 2014 being
issued on the date hereof (the “ Additional
Notes ”) pursuant to the Purchase Agreement, dated as
of November 1, 2007, (the “ Purchase
Agreement ”), by and among the Issuers, the
Guarantors and the Initial Purchasers.
In order to induce the
Initial Purchasers to purchase the Additional 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 in the indenture, dated as of
December 14, 2004, as amended and supplemented by a first
supplemental indenture, dated as of June 29, 2005, and a
second supplemental indenture, dated as of July 29, 2005 (as
amended and supplemented, the “ Indenture
”), among the Issuers, the Guarantors and U.S. Bank National
Association, as trustee (the “ Trustee
”).
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.
Additional Exchange
Notes : The Issuers’ 6 5 / 8 % First Mortgage Notes due 2014 to be issued pursuant to
the Indenture either (i) in the Exchange Offer or (ii) as
contemplated by Section 6 hereof.
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 Additional Exchange 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
Additional Exchange Notes in the same aggregate principal amount as
the aggregate principal amount of Additional 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
Additional Exchange Notes (which shall be registered pursuant to
the Exchange Offer Registration Statement) equal to the outstanding
principal amount of Additional 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.
Holder : As
defined in Section 2 hereof.
Inspectors : As
defined in Section 6(c)(vii) hereof.
Notes :
Collectively, the Additional Notes and the Additional Exchange
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
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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 or
free writing prospectus (as defined in Rule 405 under the Act), and
all material incorporated by reference into such
Prospectus.
Recommencement
Date : As defined in Section 6(d) hereof.
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 Additional
Exchange 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.
Shelf Effectiveness
Deadline : As defined in Section 4(a)(y)
hereof.
Shelf Filing
Deadline : As defined in Section 4(a)(x)
hereof.
Shelf Holder :
As defined in Section 4(a) hereof.
Shelf Registration
Statement : As defined in Section 4(a)(x)
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 Additional Exchange 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,
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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
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
Additional Exchange 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 Additional Note, until the earliest to
occur of (i) the date on which such Additional Note is
exchanged by a Person other than a Broker-Dealer for an Additional
Exchange Note in the Exchange Offer, (ii) following the
exchange by a Broker-Dealer in the Exchange Offer of an Additional
Note for an Additional Exchange Note, the date on which such
Additional 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, (iii) the date on which such Additional 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 Additional 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 applicable filing deadline, the “
Exchange Offer Filing Deadline ” ), (ii) use
all commercially reasonable
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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 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 Additional Exchange 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 Additional Exchange Notes to be
offered in exchange for the Additional Notes that are Transfer
Restricted Securities and (ii) resales of Additional Exchange
Notes by Broker-Dealers that tendered Additional 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 Additional 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 Additional Exchange 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 the 30
th
Business Day after the
Exchange Offer Registration Statement is declared effective, or, if
later, the 10 th Business Day after the Exchange Offer expires (such applicable
deadline 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 Additional 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
Additional Exchange Notes received by such Broker-Dealer in the
Exchange Offer, the Issuers and Guarantors shall permit the use of
the Prospectus
5
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 Additional Exchange 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 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 or (ii) 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 Additional
Exchange 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 Additional 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, provided, however, that
the Issuers and Guarantors shall not be required to file a Shelf
Registration Statement prior to the date that is 150 days following
the Closing Date (such applicable filing 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
”).
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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).
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 request 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 Additional 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)
7
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 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 defined in the Notes),
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 Additional Exchange Notes by Broker-Dealers
that tendered Additional 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
Additional 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
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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 use all 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 Additional Exchange Notes to be issued in the Exchange Offer,
(C) it is acquiring the Additional Exchange Notes in its
ordinary course of business and (D) only if such Holder is a
Broker-Dealer that will receive Additional Exchange Notes in
exchange for Additional 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
Additional Exchange Notes. As a condition to its participation in
the Exchange Offer each Holder using the Exchange Offer to
participate in a distribution of the Additional Exchange Notes
shall acknowledge and agree that, if the resales are of Additional
Exchange Notes obtained by such Holder in exchange for Additional
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.
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(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 understanding with any Person to
distribute the Additional Exchange 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 Additional
Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Additional Exchange Notes received in the
Exchange Offer and (C) making 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 Additional Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Additional
Exchange Notes having an aggregate principal amount equal to the
aggregate principal amount of Additional Notes sold pursuant to the
Shelf Registration Statement and surrendered to the Issuers for
cancellation; the Issuers shall register Additional Exchange Notes
on the Shelf Registration Statement for this purpose and issue the
Additional Exchange 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 Section 3 or 4 of this Agreement, as
applicable. Upon the occurrence
10
of any event that would cause
any such Registration Statement or Prospectus contained therein
(A) to contain an untrue statement of material fact or omit to
state any material fact necessary to make the statements therein
(and in the case of the Prospectus or any supplement thereto, in
light of the circumstances under which they were made) not
misleading or (B) not to be effective and usable for resale of
Transfer Restricted Securities during the period required by this
Agreement, the Issuers and the Guarantors shall file as soon as
practicable, subject to any applicable Suspension Period, an
appropriate amendment to such Registration Statement curing such
defect, and, if Commission review is required, use all commercially
reasonable efforts to cause such amendment to be declared effective
as soon as practicable. If at any time the Commission shall issue
any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory
authority shall issue an order suspending the qualification or
exemption from qualification of the Transfer Restricted Securities
under state securities or Blue Sky laws, the Issuers and the
Guarantors shall use all commercially reasonable efforts to obtain
the withdrawal or lifting of such order at the earliest possible
time;
(ii)(A) prepare and file with
the Commission such am
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