REGISTRATION RIGHTS
AGREEMENT
Dated as of August 10,
2009
by and among
PINNACLE ENTERTAINMENT, INC.
ACE GAMING, LLC
AREH MLK LLC
AREP BOARDWALK PROPERTIES LLC
BELTERRA RESORT INDIANA, LLC
BILOXI CASINO CORP.
BOOMTOWN, LLC
CASINO MAGIC CORP.
CASINO ONE CORPORATION
LOUISIANA — I GAMING, A LOUISIANA PARTNERSHIP IN
COMMENDAM
MITRE ASSOCIATES LLC
OGLE HAUS, LLC
PNK (BATON ROUGE) PARTNERSHIP
PNK (BOSSIER CITY), INC.
PNK (CHILE 1), LLC
PNK (CHILE 2), LLC
PNK DEVELOPMENT 7, LLC
PNK DEVELOPMENT 8, LLC
PNK DEVELOPMENT 9, LLC
PNK DEVELOPMENT 13, LLC
PNK (ES), LLC
PNK (LAKE CHARLES), L.L.C.
PNK (RENO), LLC
PNK (SCB), L.L.C.
PNK (ST. LOUIS RE), LLC
PNK (STLH), LLC
PRESIDENT RIVERBOAT CASINO-MISSOURI, INC.
PSW PROPERTIES LLC
ST. LOUIS CASINO CORP.
YANKTON INVESTMENTS LLC
J.P. MORGAN SECURITIES INC.
BANC OF AMERICA SECURITIES LLC
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
This Registration Rights Agreement (this “
Agreement ”) is made and entered into as of
August 10, 2009, by and among Pinnacle Entertainment, Inc., a
Delaware corporation (the “ Company ”),
ACE Gaming, LLC, AREH MLK LLC, AREP Boardwalk Properties LLC,
Belterra Resort Indiana, LLC, Biloxi Casino Corp., Boomtown, LLC,
Casino Magic Corp., Casino One Corporation, Louisiana — I
Gaming, a Louisiana Partnership in Commendam, Mitre Associates LLC,
OGLE HAUS, LLC, PNK (Baton Rouge) Partnership, PNK (BOSSIER CITY),
Inc., PNK (CHILE 1), LLC, PNK (CHILE 2), LLC, PNK Development 7,
LLC, PNK Development 8, LLC, PNK Development 9, LLC, PNK
Development 13, LLC, PNK (ES), LLC, PNK (LAKE CHARLES), L.L.C., PNK
(Reno), LLC, PNK (SCB), L.L.C., PNK (ST. LOUIS RE), LLC, PNK
(STLH), LLC, PRESIDENT RIVERBOAT CASINO-MISSOURI, INC., PSW
Properties LLC, St. Louis Casino Corp. and Yankton Investments, LLC
(together with any new party to this Agreement pursuant to Section
10(e) hereof, each a “ Guarantor ” and,
together, the “ Guarantors ”) and J.P.
Morgan Securities Inc., Banc of America Securities LLC, Barclays
Capital Inc., and Deutsche Bank Securities Inc., as representatives
of the several initial purchasers named in Schedule 1 attached
to the Purchase Agreement (as defined below) (each such initial
purchaser, an “ Initial Purchaser ” and,
together, the “ Initial Purchasers ”),
each of whom has agreed to purchase the Company’s 8.625%
Senior Notes due 2017 (the “ Initial Notes
”) pursuant to the Purchase Agreement.
This Agreement is made pursuant to the Purchase
Agreement, dated July 27, 2009 (the “ Purchase
Agreement ”), by and among the Company, the
Guarantors and the Initial Purchasers. In order to induce the
Initial Purchasers to purchase the Initial Notes, the Company 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 8 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
August 10, 2009 (the “ Indenture ”),
among the Company, the Guarantors and The Bank of New York Mellon
Trust Company, N.A., as trustee, relating to the Initial Notes and
the Exchange Notes (each as defined below).
The parties hereby agree as follows:
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 : Any day other than a Saturday, a Sunday or a
day on which banking institutions in the City of New York or at a
place of payment are authorized by law, regulation or executive
order to remain closed.
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 filing and effectiveness under the Act
of the Exchange Offer Registration Statement relating to the
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 Company to the
Registrar under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of
Initial Notes tendered by Holders thereof pursuant to the Exchange
Offer.
Consummation Deadline
: As defined in Section 3(b)
hereof.
Effectiveness Deadline
: As defined in Section 3(a)
hereof.
Exchange Act : The Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission
promulgated thereunder.
Exchange Notes : The Company’s 8.625% Senior Notes due
2017 to be issued pursuant to the Indenture: in the Exchange
Offer.
Exchange Offer : The exchange and issuance by the Company of a
principal amount of Exchange Notes (which shall be registered under
the Act pursuant to the Exchange Offer Registration Statement)
equal to the outstanding principal amount of Initial Notes that are
validly tendered and not withdrawn by such Holders in connection
with such exchange and issuance pursuant to the terms of the
Exchange Offer Registration Statement.
Exchange Offer Registration
Statement : The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
Filing Deadline : As defined in Sections 3(a) and 4(a)
hereof.
Free Writing Prospectus
: Each offer to sell or solicitation
of an offer to buy the Initial Notes or the Exchange Notes that
would constitute a “free writing prospectus” (if the
offering of the Initial Notes or the Exchange Notes was made
pursuant to a registered offering under the Securities Act) as
defined in Rule 405 under the Securities Act, prepared by or
on behalf of the Company or used or referred to by the Company in
connection with the sale of the Initial Notes or the Exchange
Notes.
Holders : As defined in Section 2
hereof.
Interest Payment Date
: As defined in the Initial Notes
and Exchange Notes.
Prospectus : The prospectus included in a Registration
Statement at the time such Registration Statement is declared
effective, as amended or supplemented by any prospectus
2
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.
Registration Default
: As defined in Section 5
hereof.
Registration Statement
: Any registration statement of the
Company and the Guarantors relating to (a) an offering of
Exchange Notes pursuant to an Exchange Offer 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,
(ii) including the Prospectus included therein, and
(iii) including all amendments and supplements thereto
(including post-effective amendments) and all exhibits and material
incorporated by reference therein.
Rule 144 : Rule 144 promulgated under the
Act.
Shelf Effectiveness Deadline
: As defined in Section 4(a)
hereof.
Shelf Registration Statement
: As defined in Section 4
hereof.
Suspension Notice : As defined in Section 6(d) hereof.
Suspension Rights : As defined in Section 6(c)(i)
hereof.
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 Initial Note until the
earliest to occur of (a) the date on which such Initial Note has
been exchanged in the Exchange Offer by a Person other than a
Broker-Dealer for an Exchange Note entitled to be resold to the
public by the Holder thereof without complying with the prospectus
delivery requirements of the Act, (b) following the exchange
by a Broker-Dealer in the Exchange Offer of an Initial Note for an
Exchange Note, the date on which such Exchange Note is sold to a
purchaser who receives from such Broker-Dealer on or prior to the
date of such sale a copy of the Prospectus contained in the
Exchange Offer Registration Statement, (c) the date on which
such Initial Note has been effectively registered under the Act and
disposed of in accordance with the Shelf Registration Statement or
(d) the date on which such Initial Note is distributed to the
public pursuant to Rule 144, provided that on or prior to the
date of such distribution either (x) the Exchange Offer has
been Consummated or (y) a Shelf Registration Statement has
been declared effective by the Commission.
A Person is deemed to be a holder of Transfer
Restricted Securities (each, a “ Holder
”) whenever such Person owns Transfer Restricted
Securities.
3
SECTION 3.
REGISTERED EXCHANGE OFFER
(a) The Company and the Guarantors shall
(i) cause the Exchange Offer Registration Statement to be
filed with the Commission no later than March 30, 2010 (such
date being the " Filing Deadline " ), (ii) use
all commercially reasonable efforts to cause such Exchange Offer
Registration Statement to become effective no later than
90 days after the Filing Deadline (such 90th day being the
“ 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 and (C) cause
all necessary filings, if any, in connection with the registration
and qualification of the 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) unless the
Exchange Offer shall not be permitted by applicable law or
Commission policy (after the procedures set forth in
Section 6(a)(i) below have been complied with), 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 Exchange Notes to be offered in exchange for the Initial
Notes that are Transfer Restricted Securities and (ii) resales of
Exchange Notes by Broker-Dealers that tendered into the Exchange
Offer Initial Notes that such Broker-Dealer acquired for its own
account as a result of market-making activities or other trading
activities (other than Initial Notes acquired directly from the
Company or any of its Affiliates) as contemplated by Section 3(c)
below.
(b) The Company 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
Company and the Guarantors shall cause the Exchange Offer to comply
with all applicable federal and state securities laws. No
securities other than the Exchange Notes and the Guarantees thereof
shall be included in the Exchange Offer Registration Statement. The
Company and the Guarantors shall use all commercially reasonable
efforts to cause the Exchange Offer to be Consummated on the
earlier of (i) the earliest practicable date after the
Exchange Offer Registration Statement has become effective, but in
no event later than 30 Business Days or longer, if required by the
federal securities laws, after the date on which the Exchange Offer
Registration Statement has become effective and
(ii) August 5, 2010 (the “ Consummation
Deadline ”).
(c) The Company 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
Initial Notes acquired directly from the Company or any Affiliate
of the Company), 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
4
Commission as a
result of a change in policy, rules or regulations after the date
of this Agreement. See the Shearman & Sterling no-action
letter (available July 2, 1993).
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 Exchange Notes
received by such Broker-Dealer in the Exchange Offer, the Company
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; provided that
such Broker-Dealer, in its reasonable judgment, determines that it
is subject to 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 Exchange
Notes by Broker-Dealers, if requested by one or more
Broker-Dealers, the Company 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 the provisions of
Sections 6(a) and (c) hereof 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 date on which the Exchange Offer
is Consummated or such shorter period ending on the date when all
Transfer Restricted Securities held by such requesting
Broker-Dealers covered by such Registration Statement have been
sold pursuant thereto. The Company 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 Company and the Guarantors are not (A) required
to file the Exchange Offer Registration Statement or
(B) permitted to Consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission
policy (after the Company and the Guarantors have complied with the
procedures set forth in Section 6(a)(i) below) or
(ii) any Holder notifies the Company prior to the 20th
Business Day following Consummation of the Exchange Offer that
(A) such Holder, alone or together with Holders who hold in
the aggregate at least $1.0 million in principal amount of
Transfer Restricted Securities, was prohibited by law or Commission
policy from participating in the Exchange Offer, (B) such
Holder may not resell the 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 Initial
Notes acquired directly from the Company or any of its Affiliates,
then the Company and the Guarantors, subject to the Suspension
Rights set forth in Section 6(c)(i) below, shall:
(x) use all commercially reasonable efforts
on or prior to 30 days after the earlier of (i) the date as of
which the Company determines that the Exchange Offer Registration
Statement will not be or cannot be, as the case may be, filed as a
result of clause (a)(i) above and (ii) the date on which the
Company receives the notice specified in clause (a)(ii) above
(30 days after such earlier date, the “ Shelf
Filing Deadline ” provided that, notwithstanding the
foregoing, the Shelf Filing Deadline shall be no earlier than
March 30, 2010), to file a shelf registration
statement
5
pursuant to
Rule 415 under the Act (which may be an amendment to the
Exchange Offer Registration Statement (the “ Shelf
Registration Statement ”)), covering resales by
Holders of such Transfer Restricted Securities, and
(y) use all commercially reasonable efforts
to cause such Shelf Registration Statement to become effective
under the Act on or prior to 90 days after the Shelf Filing
Deadline for the Shelf Registration Statement (such 90th day the
“ Shelf Effectiveness Deadline
”).
If, after the Company and the Guarantors have
filed an Exchange Offer Registration Statement that satisfies the
requirements of Section 3(a) above, the Company and the 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)(B) 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 Company and the Guarantors shall remain
obligated to meet the Shelf Effectiveness Deadline set forth in
clause (y) above.
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
Company 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 the provisions of Sections
6(b) and (c) hereof 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 (as extended pursuant to Section 6(c)(i) or
6(d)) 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 are
no longer Transfer Restricted Securities. The Company and the
Guarantors may include other securities in any Shelf Registration
Statement.
(b) Provision by Holders of Certain
Information in Connection with the Shelf Registration Statement
. No Holder 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 Company in writing,
within 20 days after receipt of a request therefor, the
information specified in Item 507 or 508 of
Regulation S-K, as applicable, of the Act for use in
connection with any Shelf Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder shall be
entitled to additional interest pursuant to Section 5 hereof
unless and until (and from and after such time) such Holder shall
have provided all such required information. Each selling Holder
agrees to promptly furnish additional information required to be
disclosed in order to make the information previously furnished to
the Company by such Holder not materially misleading and shall
promptly supply such other information as the Company may from time
to time reasonably request.
SECTION 5.
ADDITIONAL INTEREST
Subject to the Suspension Rights referred to in
Section 6(c)(i) below, if (i) any Registration Statement
required by this Agreement is not filed with the Commission on or
prior
6
to the Filing
Deadline or the Shelf Effectiveness Deadline, as applicable,
(ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the Effectiveness
Deadline or the Shelf Effectiveness Deadline, as applicable,
(iii) the Exchange Offer has not been Consummated by
August 5, 2010 with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this
Agreement is filed and declared effective but shall thereafter
cease to be effective or usable for its intended purpose (each such
event referred to in clauses (i) through (iv), a "
Registration Default " ), then the Company and the
Guarantors hereby jointly and severally agree to pay to each Holder
affected thereby additional interest in an amount equal to a per
annum rate of 0.25% on the principal amount of Transfer Restricted
Securities held by such Holder while the Registration Default
continues for the first 90-day period immediately following the
occurrence of such Registration Default, with such rate increasing
by an additional per annum rate of 0.25% with respect to each
subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of additional interest for all
Registration Defaults of 1.0% per annum of the principal amount of
Transfer Restricted Securities; provided that the Company
and the Guarantors shall in no event be required to pay additional
interest for more than one Registration Default at any given time.
Notwithstanding anything to the contrary set forth herein,
(1) upon filing of the Exchange Offer Registration Statement
(and/or, if applicable, the Shelf Registration Statement), in the
case of clause (i) above, (2) upon the effectiveness of
the Exchange Offer Registration Statement (and/or, if applicable,
the Shelf Registration Statement), in the case of clause
(ii) above, (3) upon Consummation of the Exchange Offer,
in the case of clause (iii) above, or (4) 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 clause (iv) above, the additional
interest payable with respect to the Transfer Restricted Securities
as a result of such clause (i), (ii), (iii) or (iv), as
applicable, shall cease.
All accrued additional interest shall be paid by
the Company and the Guarantors (or the Company and the Guarantors
will cause the Paying Agent to make such payment on their behalf)
to the Holders entitled thereto, in the manner provided for the
payment of interest in the Indenture, on the next scheduled
Interest Payment Date, as more fully set forth in the Indenture,
the Initial Notes and the Exchange Notes. All accrued additional
interest shall be computed in the manner provided for the
computation of interest in the Indenture. Notwithstanding the fact
that any securities for which additional interest are due cease to
be Transfer Restricted Securities, all obligations of the Company
and the Guarantors to pay additional interest with respect to
securities that accrued prior to the time that such securities
ceased to be Transfer Restricted 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, the Company
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 Exchange Notes by Broker-Dealers that tendered in the Exchange
Offer Initial Notes that such Broker-Dealer acquired for its own
account as a result of its market-making activities or other
trading activities (other than Initial Notes acquired directly from
the Company or any of
7
its 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 Company raises a substantial question as
to whether the Exchange Offer is permitted by applicable federal
law, the Company and the Guarantors hereby agree to seek a
no-action letter or other favorable decision from the Commission
allowing the Company and the Guarantors to Consummate an Exchange
Offer for such Transfer Restricted Securities. The Company and the
Guarantors hereby agree to pursue the issuance of such a decision
to the Commission staff level but shall not be required to take
action not commercially reasonable to affect a change of Commission
policy. In connection with the foregoing, the Company and the
Guarantors hereby agree to take all such other 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 Company 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 and which need not be a
written resolution) by the Commission staff.
(ii) As a condition to its participation in
the Exchange Offer, each Holder (including, without limitation, any
Holder who is a Broker-Dealer) shall furnish, upon the request of
the Company, prior to the Consummation of the Exchange Offer, a
written representation to the Company 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 the Company, or, if it is an
Affiliate of the Company, that such Holder will comply with the
registration and prospectus delivery requirements of the Act to the
extent applicable, (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 Exchange Notes
to be issued in the Exchange Offer, (C) it is acquiring the
Exchange Notes in its ordinary course of business and (D) only
if such Holder is a Broker-Dealer that will receive Exchange Notes
in exchange for Initial Notes that such Broker-Dealer acquired for
its own private account as a result of market making or other
trading activities, it will deliver a Prospectus, as required by
law, in connection with any sale of such 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
Exchange Notes shall acknowledge and agree that, if the resales are
of Exchange Notes obtained by such Holder in exchange for Initial
Notes acquired directly from the Company 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 Morgan Stanley and Co., Inc. (available
June 5, 1991) and Exxon Capital Holdings Corporation
(available May 13, 1988), as interpreted in the
Commission’s letter to Shearman & Sterling dated
July 2, 1993, and similar no-action letters (including, 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
8
registration
statement containing the selling security holder information
required by Item 507 or 508, as applicable, of
Regulation S-K.
(iii) Prior to effectiveness of the
Exchange Offer Registration Statement, the Company and the
Guarantors shall provide a supplemental letter to the Commission
(A) stating that the Company 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), 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 the Company nor any Guarantor has
entered into any arrangement or understanding with any Person to
distribute the Exchange Notes to be received in the Exchange Offer
and that, to the best of the Company’s and each
Guarantor’s information and belief, each Holder participating
in the Exchange Offer is acquiring the Exchange Notes in its
ordinary course of business and has no arrangement or understanding
with any Person to participate in the distribution of the Exchange
Notes received in the Exchange Offer and (C) any other
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 Company
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 Company pursuant to Section 4(b)
hereof), and pursuant thereto the Company and the Guarantors will
prepare and file with the Commission a 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 to any Holder or purchaser of
Initial Notes covered by any Shelf Registration Statement
contemplated by this Agreement, upon the request of any such Holder
or purchaser, registered Initial Notes having an aggregate
principal amount equal to the aggregate principal amount of Initial
Notes in the names as such Holder or purchaser shall
designate.
(c) General Provisions . In
connection with any Registration Statement and any related
Prospectus required by this Agreement, the Company 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 of any event that would cause any such Registration
Statement or the Prospectus
9
contained
therein (A) to contain an untrue statement of material fact or
omit to state any material fact necessary to make the statements
therein not misleading or (B) not to be effective and usable
for resale of Transfer Restricted Securities during the period
required by this Agreement, the Company and the Guarantors shall
file promptly 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.
Notwithstanding the foregoing, the Company and the Guarantors may
allow the Exchange Offer Registration Statement, at any time after
Consummation of the Exchange Offer (if otherwise required to keep
it effective), or the Shelf Registration Statement and the related
Prospectus to cease to remain effective and usable or may delay the
filing or the effectiveness of the Shelf Registration Statement if
not then filed or effective, as applicable (“
Suspension Rights ”), for one or more periods
of 90 days in aggregate in any twelve month period if
(x) the board of directors of the Company (or a duly-appointed
committee of the board of directors having power over the subject
matter) determines in good faith that it is in the best interests
of the Company not to disclose the existence of or facts
surrounding any proposed or pending material corporate transaction
involving the Company and the Guarantors, and the Company mails
notification to the Holders within five Business Days after the
board of directors makes such determination, or (y) the
Prospectus contained in the Exchange Offer Registration Statement
or the Shelf Registration Statement, as the case may be, contains
an untrue statement of the material fact or omits to state a
material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading; provided that the 180-day period referred to in
Section 3(c) during which the Exchange Offer Registration Statement
is required to be effective and usable or the two-year
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