Exhibit 10.1
REGISTRATION RIGHTS
AGREEMENT
Dated as of October 19,
2009
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 October 19, 2009, 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, as representatives of the
several initial purchasers named in Schedule II 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 Issuers’ 7.875% First Mortgage
Notes due 2017 being issued on the date hereof (the “
Initial Notes ”) pursuant to the Purchase
Agreement, dated as of October 9, 2009, (the “
Purchase Agreement ”), by and among the
Issuers, the Guarantors and the Initial Purchasers.
In order to induce the Initial
Purchasers to purchase the Initial 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(j) 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 October 19,
2009 (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.
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 Initial
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 Initial Exchange Notes in
the same aggregate principal amount as the aggregate principal
amount of Initial 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 Initial Exchange Notes (which
shall be registered 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 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.
Initial Exchange
Notes : The
Issuers’ 7.875% First Mortgage Notes due 2017 to be issued
pursuant to the Indenture either (i) in the Exchange Offer or
(ii) as contemplated by Section 6 hereof.
Inspectors
: As defined in
Section 6(c)(vii) hereof.
Notes
: Collectively, the Initial Notes
and the Initial 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 discloses information previously omitted from a prospectus
filed as part of an effective
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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 Initial 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 Initial 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, disposition, merger or other material
corporate transaction involving the Issuers or any of
its
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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 Initial 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, 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.
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
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to be filed with the Commission on or prior to
210 days after the Closing Date (such applicable filing deadline,
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 300 days after the Closing Date (such
300 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 Initial 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 Initial Exchange Notes to be offered in exchange for the
Initial Notes that are Transfer Restricted Securities and
(ii) resales of Initial Exchange Notes by Broker-Dealers that
tendered Initial 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 Initial
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 Initial 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 Initial 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
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connection with its initial sale of any Initial
Exchange 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 Initial 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 Initial
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 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 240 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
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(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).
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 Initial 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
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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 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 Initial Exchange Notes by Broker-Dealers that
tendered Initial 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
Initial 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 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.
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(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 Initial Exchange Notes to be issued in the Exchange Offer,
(C) it is acquiring the Initial Exchange Notes in its ordinary
course of business and (D) only if such Holder is a
Broker-Dealer that will receive Initial Exchange Notes in exchange
for Initial 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 Initial
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 Initial Exchange Notes shall acknowledge and
agree that, if the resales are of Initial Exchange Notes obtained
by such Holder in exchange for Initial 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
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 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 Initial 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 Initial
Exchange Notes in its ordinary course of business and has no
arrangement or understanding with any Person to participate in the
distribution of the Initial 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 Initial Notes covered by any Shelf
Registration Statement contemplated by this Agreement, Initial
Exchange Notes having an aggregate principal amount equal to the
aggregate principal amount of Initial Notes sold pursuant to the
Shelf Registration Statement and surrendered to the Issuers for
cancellation; the Issuers shall register Initial Exchange Notes on
the Shelf Registration Statement for this purpose and issue the
Initial 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 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;
10
(ii) (A) prepare and file with the
Commission such amendments and post-effective amendments to the
applicable Registration Statement as may be necessary to keep such
Registration Statement effective for the applicable period set
forth in Section 3 or 4 hereof, as the case may be, subject to
any applicable Suspension Period; (B) cause the Prospectus to
be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to
comply fully with Rules 424, 430A, 430B and 462, as applicable,
under the Act in a timely manner; and (C) comply with the
provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the
applicable period in accordance with the intended method or methods
of distribution by the sellers thereof set forth in such
Registration Statement or supplement to the Prospectus;
(iii) advise each Holder promptly
and, if requested by such Holder, confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any
applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of
the Registration Statement under the Act or of the suspension by
any state securities commission of the qualification of the
Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the
preceding purposes, (D) of the existence of any fact or the
happening of any event that makes any statement of a material fact
made in the Registration Statement, the Prospectus, any amendment
or supplement thereto or any document incorporated by reference
therein untrue, or that requires the making of any additions to or
changes in the Registration Statement in order to make the
statements therein (and in the case of the
11
Prospectus or any supplement
thereto, in light of the circumstances under which they were made)
not misleading, or that requires the making of any additions to or
changes in the Prospectus in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading and (E) of any Suspension Period;
(iv) subject to
Section 6(c)(i), if any fact or event contemplated by
Section 6(c)(iii)(D) above shall exist or have occurred,
prepare as soon as practicable, subject to any applicable
Suspension Period, a supplement or post-effective amendment to the
Registration Statement or related Prospectus or any document
incorporated therein by reference or file any other required
document so that, as thereafter delivered to the purchasers of
Transfer Restricted Securities, the Prospectus will not contain an
untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not
misleading;
(v) furnish to counsel for the
Initial Purchasers provided in Section 7(b) (on behalf of the
Holders) and to each Shelf Holder, in each case, in connection with
such exchange or sale, if any, before filing with the Commission,
copies of any Registration Statement (in the case of such counsel
(on behalf of the Holders)) or of any Shelf Registration Statement
(in the case of any such Shelf Holder) or any Prospectus included
therein or any amendments or supplements to any such Registration
Statement or Prospectus (including, upon request, all documents
incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the
review and comment of such counsel (on behalf of the Holders) or,
if applicable, such Shelf Holders in connection with such sale, if
any, for a period of at least three Business Days, and the Issuers
shall reasonably consider and shall use all commercially reasonable
efforts to reflect in each such document, when filed with the
Commission, any such comments that such counsel (on behalf of the
Holders) or, if applicable, such Shelf Holders shall reasonably
propose prior to the expiration of such three Business Day period;
provided , however , that the Issuers need not
furnish (A) any amen
