|
Exhibit 4.3
REGISTRATION RIGHTS
AGREEMENT
Dated as of June 8,
2007
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 (ST. LOUIS 4S),
LLC
PSW PROPERTIES
LLC
ST. LOUIS CASINO
CORP.
YANKTON INVESTMENTS,
LLC
and
LEHMAN BROTHERS
INC.
BEAR, STEARNS &
CO. INC.
BANC OF AMERICA SECURITIES
LLC
DEUTSCHE BANK SECURITIES
INC.
This Registration Rights
Agreement (this “ Agreement ”) is made
and entered into as of June 8, 2007, 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 (ST. LOUIS 4S), LLC, 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 Lehman
Brothers Inc., Bear, Stearns & Co. Inc., Banc of America
Securities LLC 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
7.50% Senior Subordinated Notes due 2015 (the “ Initial
Notes ”) pursuant to the Purchase Agreement (as
defined below).
This Agreement is made
pursuant to the Purchase Agreement, dated June 5, 2007 (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
June 8, 2007, among the Company, the Guarantors and The Bank
of New York Trust Company, N.A., as trustee, relating to the
Initial Notes and the Exchange Notes (the “
Indenture ”).
The parties hereby agree as
follows:
SECTION 1. DEFINITIONS
As used in this Agreement,
the following capitalized terms shall have the following
meanings:
Act : The
Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
Affiliate : As
defined in Rule 144 of the Act.
Broker-Dealer :
Any broker or dealer registered under the Exchange Act.
Business Day :
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 Sections 3(a) and 4(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 7.50% Senior Subordinated Notes due 2015 to
be issued pursuant to the Indenture: (i) in the Exchange Offer
or (ii) as contemplated by Section 4 hereof.
Exchange Offer
: The exchange and issuance by the Company of a principal amount of
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.
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 supplement and by all other
amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
2
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 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 (and the
purchasers thereof have been issued Exchange Notes) or (d) the
date on which such Initial 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) The Company and the
Guarantors shall (i) cause the Exchange Offer Registration
Statement to be filed with the Commission no later than
March 31, 2008 (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
3
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. The Company
and the Guarantors may include other securities in the Exchange
Offer Registration Statement in connection with an exchange offer
or exchange offers relating to such securities.
(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
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
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 (such 30th day, or such later date
required by the federal securities laws, being 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 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
4
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, 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 Consummation Deadline or such shorter
period as will terminate when all Transfer Restricted Securities
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 31, 2008), to file a shelf
registration statement pursuant to Rule 415 under the Act (which
may be an amendment to the Exchange Offer Registration Statement
(the “ Shelf Registration Statement ”)),
relating to all Transfer Restricted Securities, and
(y) use all commercially
reasonable efforts to 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 90th day the
“ Effectiveness Deadline ”).
5
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 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 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 in connection with
an exchange offer or exchange offers relating to such
securities.
(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 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 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 30 Business Days after the Effectiveness
Deadline 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
6
hereby jointly and severally agree to
pay to each Holder affected thereby additional interest 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 additional interest 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 additional interest of $0.50 per
week per $1,000 in 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
each Interest Payment Date, as more fully set forth in the
Indenture, the Initial Notes and the Exchange Notes.
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 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
7
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 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,
8
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 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
9
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 period referred to in Section 4(a) hereof
during which the Shelf Registration Statement is required to be
effective and usable shall be extended by the number of days during
which such Registration Statement was not effective or usable
pursuant to the foregoing provisions (which such extension shall be
the Holders’ sole remedy for the exercise by the Company of
the Suspension Rights during the time period permitted hereunder,
but only to the extent that any suspension period does not violate
the 90-day period set forth above).
(ii) Subject to the
Suspension Rights set forth in Section 6(c)(i) above, 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; 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 and 462, as applicable, under the Act in a timely manner;
and 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 (a) each
Holder whose Transfer Restricted Securities have been included in a
Shelf Registration Statement (in the case of a Shelf Registration
Statement) and (b) each Holder who has provided notice to the
Company 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
10
Restricted Securities for
offering or sale in any jurisdiction, or the initiation of any
proceeding for any of the preceding purposes, and (D) of the
happening of any event that requires the Company to make changes in
the Registr
|
