Document/Exhibit Description Pages Size
1: 10-K Annual Report 77 476K
2: EX-10.56 Senior Executive Plan 3 17K
3: EX-10.57 Senior Executive Agmt. 5 21K
4: EX-10.58 Amend. #2 to Operating Agmt. 21 82K
5: EX-10.59 Note Purchase Agmt. 41 168K
6: EX-10.60 Reg. Rights Agmt. 25 99K
7: EX-10.61 Note Purchase Agmt. 41 168K
8: EX-10.62 Regis. Rights Agmt. 25 99K
9: EX-10.63 Note Purchase Agmt. 41 168K
10: EX-10.64 Note Purchase Agmt. 41 168K
11: EX-10.65 Note Purchase Agmt. 41 168K
12: EX-10.66 Note Purchase Agmt. 41 168K
13: EX-10.67 Regis. Rights Agmt. 25 100K
14: EX-10.68 Stock Pledge Agmt. 11 35K
15: EX-21.1 Subsidiaries 1 7K
16: EX-23 Consent of Peat 1 9K
17: EX-27 Financial Data Schedule 2 8K
REGISTRATION RIGHTS AGREEMENT
-----------------------------
THIS REGISTRATION RIGHTS AGREEMENT is made and entered into as of March 31,
1995, by and among ELSINORE CORPORATION, a Nevada corporation (the "Company"),
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and MOJAVE PARTNERS, L.P., a Delaware limited partnership (the "Purchaser").
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This Agreement is made pursuant to the Note Purchase Agreement, dated as of
March 30, 1995, between the Company and the Purchaser (the "Purchase
Agreement"). The execution of this Agreement is a condition to the closing of
the transactions contemplated by the Purchase Agreement.
The parties hereby agree as follows:
1. Definitions.
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As used in this Agreement, the following terms shall have the following
meanings:
Advice: As defined in the last paragraph of Section 6 hereof.
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Affiliate of any specified person shall mean any other person directly or
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indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control," when used with respect to any person, means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"affiliated," "controlling" and "controlled" have meanings correlative to the
foregoing.
Agreement: This Registration Rights Agreement, as the same may be amended,
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supplemented or modified from time to time in accordance with the terms hereof.
Business Day: Any day except Saturday, Sunday and any day which shall be a
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legal holiday or a day on which banking institutions in the state of New York
generally are authorized or required by law or other government actions to
close.
Common Stock: As defined in the Purchase Agreement.
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Company: Elsinore Corporation, a Nevada corporation, and any successor
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corporation thereto.
Demand Notice: As defined in Section 2 hereof.
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Demand Registration: As defined in Section 3 hereof.
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Effectiveness Date: The date each Demand Registration Statement becomes
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effective, which date shall not be later than
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the 130th day following the Company's receipt of the Demand Notice.
Effectiveness Period: As defined in Section 3(a) hereof.
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Exchange Act: The Securities Exchange Act of 1934, as amended, and the
------------
rules and regulations of the SEC promulgated pursuant thereto.
Filing Date: The date the Demand Registration is filed, which shall be no
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later than the forty-fifth day following the Company's receipt of the Demand
Notice.
Indemnified Party: As defined in Section 8(c) hereof.
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Indemnifying Party: As defined in Section 8(c) hereof.
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Losses: As defined in Section 8(a) hereof.
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Note: The $1,125,000 aggregate principal amount of the Company's 7 1/2%
----
Convertible Subordinated Notes due December 31, 1996 being issued to the
Purchaser pursuant to the Purchase Agreement.
Piggyback Registration: As defined in Section 4.
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Proceeding: An action, claim, suit or proceeding (including, without
----------
limitation, an investigation or partial proceeding, such as a deposition),
whether commenced or threatened.
Prospectus: The prospectus included in any Registration Statement
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(including, without limitation, a prospectus that discloses information
previously omitted from a prospectus filed as part of an effective registration
statement in reliance upon Rule 430A promulgated pursuant to the Securities
Act), as amended or supplemented by any prospectus supplement, with respect to
the terms of the offering of any portion of the Registrable Securities covered
by such Registration Statement, and all other amendments and supplements to the
Prospectus, including post-effective amendments, and all material incorporated
by reference or deemed to be incorporated by reference in such Prospectus.
Registrable Securities: Each of the Shares (including each share of Common
----------------------
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of the notes
or the Shares) until (i) it has been registered effectively pursuant to the
Securities Act and disposed of in accordance with the Registration Statement
covering it, or (ii) it is sold by the holder thereof pursuant to Rule 144 (or
any similar provisions then in effect).
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Registration Statement: Any registration statement of the Company that
----------------------
covers any of the Shares pursuant to the provisions of this Agreement, including
the Prospectus, amendments and supplements to such registration statement or
Prospectus, including pre- and post-effective amendments, all exhibits thereto,
and all material incorporated by reference or deemed to be incorporated by
reference in such registration statement.
Rule 144: Rule 144 promulgated by the SEC pursuant to the Securities Act,
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as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC having substantially the same effect as such Rule.
Rule 144A: Rule 144A promulgated by the SEC pursuant to the Securities Act,
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as such Rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC having substantially the same effect as such Rule.
SEC: The Securities and Exchange Commission.
---
Securities Act: The Securities Act of 1933, as amended, and the rules and
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regulations promulgated by the SEC thereunder.
Shares: The shares of Common Stock of the Company issuable to the Purchaser
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(i) upon conversion of the Note pursuant to the Purchase Agreement and (ii) upon
the exercise of the Purchaser's right to purchase Common Stock pursuant to
Section 6(c) of the Purchase Agreement.
Special Counsel: Any special counsel to the holders of Registrable
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Securities, for which holders of Registrable Securities will be reimbursed
pursuant to Section 7.
underwritten registration or underwritten offering: A registration in
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connection with which securities of the Company are sold to an underwriter for
reoffering to the public pursuant to an effective Registration Statement.
2. Demand Registrations.
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(a) Requests for Registration. On or after the date hereof, and subject to
-------------------------
the provisions of Section 2(c) hereof, the Purchaser shall have the right at any
time by written request to the Company (the "Demand Notice"), to require the
Company to register under and in accordance with the provisions of the
Securities Act all, but not less than all, Registrable Securities then
outstanding (a "Registration").
(b) Filing and Effectiveness. The Company shall file the Demand
------------------------
Registration as soon as practicable following its receipt of the Demand Notice
but in no event later than the Filing Date, and shall cause the same to be
declared effective by the SEC as soon as practicable after the date of filing
but in no event later than the Effectiveness Date.
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(c) Number of Registrations.
-----------------------
(i) The holders of Registrable Securities pursuant to this Section 2
shall be entitled to request one and only one Demand Registration unless
such Demand Registration does not become effective or is not maintained
effective as required hereunder, for reasons including, among other things,
the exercise of registration rights by Company securityholders other than
the holders of Registrable Securities, in which case the holders of
Registrable Securities shall be entitled to an additional Demand
Registration for each such Demand Registration that does not so become
effective or continue effective.
(ii) With respect to a Demand Registration filed or to be filed
pursuant to this Section 2, if the Company's Board of Directors shall
determine, in its good faith reasonable judgment, that to maintain the
effectiveness of such registration statement or to permit such registration
statement to become effective (or, if no registration statement has yet been
filed, to file such a registration statement) would be significantly
disadvantageous to the Company's financial condition or business (a
"Disadvantageous Condition") in light of the existence, or in anticipation,
of any material acquisition or financing activity involving the Company or
any subsidiary, the material terms of which have not been publicly
disclosed, the Company may, until such Disadvantageous Condition no longer
exists (but not with respect to more than one occasion involving more than
60 days), cause such registration statement to be withdrawn and the
effectiveness of such registration statement to be terminated or, if no
registration statement has yet been filed, elect not to file such
registration statement. If the Company determines to take any action
pursuant to the preceding sentence, the Company shall deliver a notice to
any holders selling Registrable Securities pursuant to an effective
registration statement to such effect. Upon the receipt of any such notice,
such persons shall forthwith discontinue use of the prospectus contained in
such registration statement and, if so directed by the Company, shall
deliver to the Company all copies of the prospectus then covering such
Registrable Securities current at the time of receipt of such notice. If
any Disadvantageous Condition shall cease to exist, the Company shall
promptly notify any holders who shall have ceased selling Registrable
Securities pursuant to an effective registration statement as a result of
such Disadvantageous Condition to such effect, and shall disclose in
reasonable detail the nature and outcome of such Disadvantageous Condition.
The Company shall, if any registration statement shall
4
have been withdrawn, file, at such time as it in good faith deems
appropriate, a new registration statement covering the Registrable
Securities that were covered by such withdrawn registration statement, and
the effectiveness of such registration statement shall be maintained for
such time as may be necessary so that the period of effectiveness of such
new registration statement, when aggregated with the period during which
such withdrawn registration statement was effective, shall be such time as
may be otherwise required by this Agreement. For purposes of this Section
2(c), a Disadvantageous Condition shall cease to exist on the date the
Company makes public disclosure of the acquisition or financing activity
giving rise to the Disadvantageous Condition.
(d) Selection of Underwriters. If a requested registration pursuant to this
-------------------------
Section 2 involves an underwritten offering, the underwriter or underwriters
that will manage such underwriting shall be selected by the holders of a
majority of shares of the Registrable Securities as to which registration has
been requested, provided however that nothing in this section shall be deemed to
obligate the Company to register the Registrable Securities pursuant to an
underwritten offering.
3. Registration.
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If a Demand Notice is delivered as contemplated by Section 2, then the
Company shall prepare and file, as promptly as reasonably practicable
thereafter, with the SEC a Registration Statement under the Securities Act
covering all of the Registrable Securities requested by Holders to be included
therein (the "Demand Registration"). In the case of each Demand Notice, the
Company shall (i) file a Registration Statement relating to the Demand
Registration with the SEC on or prior to the Filing Date, (ii) cause the Demand
Registration to become effective under the Securities Act as soon as practicable
following the Filing Date, but not later than the Effectiveness Date, and (iii)
keep the Demand Registration continuously effective under the Securities Act
until (the "Effectiveness Period") (A) 180 days following the date on which the
Demand Registration becomes effective (subject to extension pursuant the last
paragraph of Section 6 hereof) or (B) if sooner, the date following the date
that all Registrable Securities covered by the Demand Registration have been
sold pursuant thereto; provided that the Effectiveness Period shall be extended
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to the extent required to permit dealers to comply with the applicable
prospectus delivery requirements under Rule 174 under the Securities Act.
4. Piggyback Registration.
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(a) Right to Piggyback. If at any time the Company proposes to file a
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registration statement, including a shelf
5
registration, pursuant to the Securities Act with respect to an offering of any
class of equity securities, whether or not for its own account (other than a
registration (i) on Form S-8 or any successor or similar forms, (ii) relating to
equity securities issuable upon exercise of employee stock options or in
connection with any employee benefit or similar plan of the Company, (iii)
pursuant to a registration under Section 2 or (iv) on Form S-4 or any successor
or form similar for the purpose of registering a bona fide transaction of a type
described by Rule 145(a)(1) or 145(a)(2) promulgated pursuant to the Securities
Act), then the Company shall give written notice of such proposed filing to the
holders of Registrable Securities at least 20 days before the anticipated filing
date (the "Piggyback Notice"). The Piggyback Notice shall offer such holders the
opportunity to register such amount of Registrable Securities as each such
holder may request (a "Piggyback Registration"). Subject to Section 4(b) hereof,
the Company shall include in each such Piggyback Registration all Registrable
Securities requested to be included in such offering. The holders of Registrable
Securities shall be permitted to withdraw all or part of the Registrable
Securities from a Piggyback Registration at any time prior to the effective date
of such Piggyback Registration.
(b) Priority on Piggyback Registrations. The Company shall cause the
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managing underwriters of a proposed underwritten offering of securities to
permit holders of Registrable Securities requested to be included in the
registration for such offering to include all such Registrable Securities on the
same terms and conditions as any similar securities, if any, of the Company
included therein. Notwithstanding the foregoing, if the managing underwriters
of such underwritten offering determine in good faith in writing to the Company
and each of the holders of Registrable Securities that the total amount of
securities that such holders and the Company propose to include in such offering
is such as would materially and adversely affect the success of such offering,
then in the event that such Piggyback Registration is a primary registration on
behalf of the Company only, the amount of securities to be offered for the
account of holders of Registrable Securities shall be reduced or limited pro
rata amongst such holders and amongst any other holders (excluding the Company)
of securities of the same class included in such Registration Statement, in each
case in proportion to the respective amounts of securities owned and previously
included in such Registration Statement to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriters.
(c) Number of Registrations. The holders of Registerable Securities
-----------------------
pursuant to this section 4 shall be entitled to request not more than two
Piggyback Registrations unless a Piggyback Registration does not become
effective or is not maintained effective as required hereunder, for reasons
including, among other things, the determination of the managing underwriters of
an underwritten offering that all or part of the
6
Registerable Securities cannot be included in such offering, in which case the
holders of Registrable Securities shall be entitled to an additional Piggyback
Registration for each such Piggyback Registration that does not so become
effective or continue effective or for each such registerable security excluded
from the offering.
5. Hold-Back Agreements.
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(a) Restrictions on Sale by Holders of Registrable Securities. Except in
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connection with the exercise of its Piggyback Registration rights, each holder
of Registrable Securities agrees, if requested (pursuant to a timely written
notice) by the managing underwriters or other managers in an underwritten
offering (which, for purposes of this Section shall include a Rule 144A
offering) of the Company's Common Stock, not to effect any private sale or
distribution (including a sale pursuant to Rule 144(k) and Rule 144A, but
excluding non-public sales to any of its affiliates, officers, directors,
employees and controlling persons) of any of the Shares (except as part of such
underwritten offering), during the period beginning 10 days prior to, and ending
120 days after, the closing date of the underwritten or private offering.
The foregoing provisions shall not apply to any holder of Registrable
Securities if such holder is prevented by applicable statute or regulation from
entering into any such agreement.
(b) Restrictions on Public Sale by the Company and Others. The Company
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agrees without the written consent of the managing underwriters in an
underwritten offering of Registrable Securities covered by a Registration
Statement filed pursuant to Section 3 hereof, not to effect any public or
private sale or distribution of any of its common stock, or any options, rights,
warrants to purchase, or securities exchangeable or convertible into, shares of
common stock of the Company, including a sale pursuant to Regulation D or Rule
144A under the Securities Act, during the period beginning 10 days prior to, and
ending 90 days after, the closing date of each underwritten offering made
pursuant to such Registration Statement (provided, however, that such period
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shall be extended by the number of days from and including the date of the
giving of any notice pursuant to Section 6(c) hereof to and including the date
when each seller of Registrable Securities covered by such Registration
Statement shall have received the copies of the supplemented or amended
Prospectus contemplated by Section 6(k) hereof).
6. Registration Procedures.
-----------------------
In connection with the Company's registration obligations hereunder, the
Company shall:
(a) no fewer than 10 Business Days prior to the initial filing of a
Registration Statement or
7
Prospectus and no fewer than two Business Days prior to the filing of any
amendment or supplement thereto (including any document that would be
incorporated or deemed to be incorporated therein by reference), furnish to
the holders of the Registrable Securities relating to such Registration
Statement, their Special Counsel and the managing underwriters, if any,
copies of all such documents proposed to be filed, which documents (other
than those incorporated or deemed to be incorporated by reference) will be
subject to the review of such holders, their Special Counsel and such
underwriters, if any, and cause the officers and directors of the Company,
counsel to the Company and independent certified public accountants to the
Company to respond to such inquiries as shall be necessary, in the opinion
of respective counsel to such holders and such underwriters, to conduct a
reasonable investigation within the meaning of the Securities Act; provided,
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further, that the Company shall not be deemed to have kept a Registration
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Statement effective during the applicable period if it voluntarily takes any
action that results in selling holders of the Registrable Securities covered
thereby not being able to sell such Registrable Securities pursuant to
Federal securities laws during that period (and the time period during which
such Registration Statement is required to remain effective hereunder shall
be extended by the number of days during which such selling holders of
Registrable Securities are not able to sell Registrable Securities) unless
such action is required under applicable law or regulation or court order.
The Company shall not file any such Registration Statement or Prospectus or
any amendments or supplements thereto to which the holders of a majority of
the Registrable Securities relating to such Registration Statement, their
Special Counsel, or the managing underwriters, if any, shall reasonably
object on a timely basis; provided, however, that the Company shall not be
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prohibited from making any such filing that is necessary, in the opinion of
outside counsel to the Company, to comply with applicable law;
(b) prepare and file with the SEC such amendments, including post-
effective amendments, to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
time period; cause the related Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule
424 (or any similar provisions then in force) under the Securities Act; and
comply with the provisions of the Securities Act and the Exchange Act with
respect to the disposition of all securities covered by such Registration
Statement
8
during such period in accordance with the intended methods of
disposition by the sellers thereof set forth in such Registration Statement
as so amended or in such Prospectus as so supplemented;
(c) notify the holders of Registrable Securities to be sold, their
Special Counsel and the managing underwriters, if any, promptly (and in the
case of (i) (A) in no event less than two Business Days prior to such
filing) and (if requested by any such Person), confirm such notice in
writing, (i) (A) when a Prospectus or any Prospectus supplement or post-
effective amendment is proposed to be filed, and (B) with respect to a
Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any other Federal or
state governmental authority for amendments or supplements to a Registration
Statement or related Prospectus or for additional information, (iii) of the
issuance by the SEC of any stop order suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iv) if at any time any of the representations and warranties of
the Company contained in any agreement (including any underwriting
agreement) contemplated hereby cease to be true and correct in all material
respects, (v) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of
any of the Registrable Securities for sale in any jurisdiction, or the
initiation or threatening of any proceeding for such purpose, and (vi) of
the happening of any event that makes any statement made in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue in any material
respect or that requires the making of any changes in such Registration
Statement, Prospectus or documents so that, in the case of the Registration
Statement, it will not contain any 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, not misleading, and that in the case of the
Prospectus, it will not contain any 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;
(d) use their reasonable best efforts to avoid the issuance of, or, if
issued, obtain the withdrawal of any order suspending the effectiveness of a
Registration Statement, or the lifting of any suspension of the
qualification (or exemption from
9
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest practicable moment;
(e) if a Demand Registration is filed pursuant to Section 3 and, if
requested by the managing underwriter, if any, or the holders of a majority
in principal amount of the Registrable Securities being sold in connection
with an underwritten offering, (i) promptly incorporate in a Prospectus
supplement or post-effective amendment such information as the managing
underwriters, if any, and such holders agree should be included therein, and
(ii) make all required filings of such Prospectus supplement or such post-
effective amendment as soon as practicable after the Company have received
notification of the matters to be incorporated in such Prospectus supplement
or post-effective amendment; provided, however, that the Company shall not
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be required to take any action pursuant to this Section 6(e) that would, in
the opinion of outside counsel for the Company, violate applicable law;
(f) furnish to each holder of Registrable Securities, their Special
Counsel and each managing underwriter, if any, without charge, at least one
conformed copy of each Registration Statement and each amendment thereto,
including financial statements and schedules, all documents incorporated or
deemed to be incorporated therein by reference, and all exhibits to the
extent requested by each holder (including those previously furnished or
incorporated by reference) as soon as practicable after the filing of such
documents with the SEC;
(g) deliver to each holder of Registrable Securities, their Special
Counsel, and the underwriters, if any, without charge, as many copies of the
Prospectus or Prospectuses (including each form of prospectus) and each
amendment or supplement thereto as such Persons reasonably request; and the
Company hereby consents to the use of such Prospectus and each amendment or
supplement thereto by each of the selling holders of Registrable Securities
and the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by such Prospectus and any amendment or
supplement thereto;
(h) prior to any public offering of Registrable Securities, use its
reasonable best efforts to register or qualify or cooperate with the holders
of Registrable Securities to be sold or tendered for, the underwriters, if
any, and their respective counsel in connection with the registration or
qualification (or
10
exemption from such registration or qualification) of such
Registrable Securities for offer and sale under the securities or Blue Sky
laws of such jurisdictions within the United States as any holder or
underwriter reasonably requests in writing; keep each such registration or
qualification (or exemption therefrom) effective during the period such
Registration Statement is required to be kept effective and do any and all
other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to qualify generally to do business in any jurisdiction where it is
not then so qualified or to take any action that would subject it to general
service of process in any such jurisdiction where it is not then so subject
or subject the Company to any tax in any such jurisdiction where it is not
then so subject;
(i) cooperate with the holders and the managing underwriters, if any,
to facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold, which certificates shall not
bear any restrictive legends and shall be in a form eligible for deposit
with The Depository Trust Company and to enable such Registrable Securities
to be in such denominations and registered in such names as the managing
underwriters, if any, or holders may request at least two Business Days
prior to any sale of Registrable Securities;
(j) use its reasonable best efforts to cause the Registrable Securities
covered by the Registration Statement to be registered with or approved by
such other governmental agencies or authorities within the United States,
except as may be required solely as a consequence of the nature of such
selling holder's business, in which case the Company shall cooperate in all
reasonable respects with the filing of such Registration Statement and the
granting of such approvals as may be necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition
of such Registrable Securities; provided, however, that the Company shall
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not be required to register the Registrable Securities in any jurisdiction
that would subject it to general service of process in any such jurisdiction
where it is not then so subject or subject the Company to any tax in any
such jurisdiction where it is not then so subject or to require the Company
to qualify to do business in any jurisdiction where it is not then so
qualified;
11
(k) upon the occurrence of any event contemplated by Paragraph
6(c)(vi), as promptly as practicable, prepare a supplement or amendment,
including a post-effective amendment, to each Registration Statement or a
supplement to the related Prospectus or any document incorporated or deemed
to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, such Prospectus will not contain
an untrue statement of a material fact or omit to state a 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;
(l) use its reasonable best efforts to cause all Registrable Securities
relating to such Registration Statement to be listed on each securities
exchange, if any, on which similar securities issued by the Company are then
listed;
(m) enter into such agreements (including an underwriting agreement in
form, scope and substance as is customary in underwritten offerings) and
take all such other reasonable actions in connection therewith (including
those reasonably requested by the managing underwriters, if any, or the
holders of a majority of the Registrable Securities being sold) in order to
expedite or facilitate the disposition of such Registrable Securities, and
in such connection, whether or not an underwriting agreement is entered into
and whether or not the registration is an underwritten registration, (i)
make such representations and warranties to the holders of such Registrable
Securities and the underwriters, if any, with respect to the business of the
Company and its subsidiaries, and the Registration Statement, Prospectus and
documents, if any, incorporated or deemed to be incorporated by reference
therein, in each case, in form, substance and scope as are customarily made
by issuers to underwriters in underwritten offerings, and confirm the same
if and when requested; (ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and
Special Counsel to the holders of the Registrable Securities being sold),
addressed to each selling holder of Registrable Securities and each of the
underwriters, if any, covering the matters customarily covered in opinions
requested in underwritten offerings and such other matters as may be
reasonably requested by such Special Counsel and underwriters; (iii) obtain
"cold comfort" letters and updates thereof from the independent certified
public accountants of the Company (and, if
12
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company for
which financial statements and financial data is, or is required to be,
included in the Registration Statement), addressed to each selling holder of
Registrable Securities and each of the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comfort" letters in connection with underwritten offerings; (iv) if an
underwriting agreement is entered into, the same shall contain
indemnification provisions and procedures no less favorable to the selling
holders and the underwriters, if any, than those set forth in Section 8
hereof (or such other provisions and procedures acceptable to holders of a
majority of the holders of Registrable Securities covered by such
Registration Statement and the managing underwriters); and (v) deliver such
documents and certificates as may be reasonably requested by the holders of
a majority of the Registrable Securities being sold, their Special Counsel
and the managing underwriters, if any, to evidence the continued validity of
the representations and warranties made pursuant to clause 6(m)(i) above and
to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company;
(n) make available for inspection by a representative of the holders of
Registrable Securities being sold, any underwriter participating in any such
disposition of Registrable Securities, if any, and any attorney, consultant
or accountant retained by such selling holders or underwriter, at the
offices where normally kept, during reasonable business hours, all financial
and other records, pertinent corporate documents and properties of the
Company, and its subsidiaries, and cause the officers, directors, agents and
employees of the Company and its subsidiaries to supply all information in
each case reasonably requested by any such representative, underwriter,
attorney, consultant or accountant in connection with such Registration
Statement; and
(o) comply with all applicable rules and regulations of the SEC and
make generally available to their securityholders earning statements
satisfying the provisions of Section 11(a) of the Securities Act and Rule
158 thereunder (or any similar rule promulgated under the Securities Act),
no later than 45 days after the end of any 12-month period (or 90 days after
the end of any 12-month period if such period is a fiscal year) (i)
commencing at the end of any fiscal quarter in which Registrable Securities
are sold to
13
underwriters in a firm commitment or reasonable efforts underwritten
offering and (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after
the effective date of a Registration Statement, which statement shall cover
said 12-month periods, or end shorter periods as is consistent with the
requirements of Rule 158.
The Company may require each seller of Registrable Securities as to which
any registration is being effected to furnish to the Company such information
regarding the distribution of such Registrable Securities as is required by law
to be disclosed in the applicable Registration Statement and the Company may
exclude from such registration the Registrable Securities of any seller who
unreasonably fails to furnish such information within a reasonable time after
receiving such request.
If any such Registration Statement refers to any holder by name or otherwise
as the holder of any securities of the Company, then such holder shall have the
right to require, in the event that such reference to such holder by name or
otherwise is not required by the Securities Act or any similar federal statute
then in force, the deletion of the reference to such holder in any amendment or
supplement to the Registration Statement filed or prepared subsequent to the
time that such reference ceases to be required.
Each holder of Registrable Securities agrees by registration of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in Section 6(c)(ii), 6(c)(iii),
6(c)(v) or 6(c)(vi) hereof, such holder will forthwith discontinue disposition
of such Registrable Securities covered by such Registration Statement or
Prospectus until such holder's receipt of the copies of the supplemented or
amended Prospectus contemplated by Section 6(k) hereof, or until it is advised
in writing (the "Advice") by the Company that the use of the applicable
Prospectus may be resumed, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus. If the Company shall give any
such notice, the time periods mentioned in Section 3 hereof shall be extended by
the number of days during such periods from and including the date of the giving
of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received (x) the
copies of the supplemented or amended Prospectus contemplated by Section 6(k)
hereof or (y) the Advice, and, in either case, has received copies of any
additional or supplemental filings that are incorporated or deemed to be
incorporated by reference in such Prospectus.
7. Registration Expenses.
---------------------
14
(a) All fees and expenses incident to the performance of or compliance with
this Agreement by the Company shall be borne by the Company whether or not any
Registration Statement is filed or becomes effective and whether or not any
securities are issued or sold pursuant to any Registration Statement (unless
such Registration Statement is not filed or does not become effective or
securities are not issued or sold pursuant to such Registration Statement as a
result of any action by the holders of Registrable Securities requesting such
registration). The fees and expenses referred to in the foregoing sentence
shall include, without limitation, (i) all registration and filing fees
(including, without limitation, fees and expenses (A) with respect to filings
required to be made with the National Association of Securities Dealers, Inc.
and (B) in compliance with securities or Blue Sky laws (including without
limitation and in addition to that provided for in (b) below, fees and
disbursements of counsel for the underwriters or holders in connection with Blue
Sky qualifications of the Registrable Securities and determination of the
eligibility of the Registrable Securities for investment under the laws of such
jurisdictions as the managing underwriters, if any, or holders of a majority of
Registrable Securities may designate), (ii) printing expenses (including,
without limitation, expenses of printing certificates for Registrable Securities
in a form eligible for deposit with The Depository Trust Company and of printing
prospectuses if the printing of prospectuses is requested by the managing
underwriters, if any, (iii) messenger, telephone and delivery expenses, (iv)
fees and disbursements of counsel for the Company and Special Counsel for the
holders (in accordance with the provisions of Section 7(b) hereof), (v) fees and
disbursements of all independent certified public accountants (including,
without limitation, the expenses of any special audit and "cold comfort" letters
required by or incident to such performance), (vi) underwriters' fees and
expenses (excluding discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
to the sale or distribution of the Registrable Securities (collectively,
"Selling Expenses"), which shall be borne solely by the holders of the
Registrable Securities, (vii) Securities Act liability insurance, if the Company
so desires such insurance, and (viii) fees and expenses of all other persons
retained by the Company. In addition, the Company shall pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and rating agency fees (plus
any local counsel, deemed appropriate by the holders of a majority of the
Registrable Securities).
(b) In connection with any Registration hereunder, the Company shall
reimburse the holders of the Registrable Securities being registered in such
registration for the reasonable fees and
15
disbursements of not more than one firm of attorneys chosen by the holders of a
majority of the Registrable Securities.
8. Indemnification.
---------------
(a) Indemnification by the Company. The Company shall, notwithstanding
------------------------------
termination of this Agreement and without limitation as to time, indemnify and
hold harmless each holder of Registrable Securities, the officers, directors,
agents, investment advisors and employees of each of them, each Person who
controls any such holder (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) and the officers, directors, agents and
employees of each such controlling person, to the fullest extent lawful, from
and against any and all losses, claims, damages, liabilities, costs (including,
without limitation, costs of preparation and reasonable attorneys' fees) and
expenses (collectively, "Losses"), as incurred, arising out of or based upon any
untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any
Prospectus or form of prospectus or supplement thereto, in light of the
circumstances under which they were made) not misleading, except to the extent,
that such are finally judicially determined to have been based upon information
regarding such Holder furnished in writing to the Company by or on behalf of
such holder expressly for use therein, and that such information was reasonably
relied on by the Company in the preparation thereof; provided, however, that the
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Company shall not be liable to the extent that (A) any such Losses arise out of
or are based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any preliminary prospectus if (i) having previously
been furnished by the Company with copies of the Prospectus on a timely basis,
such holder failed to send or deliver a copy of the Prospectus with or prior to
the delivery of written confirmation of the sale by such holder of a Registrable
Security to the person asserting such Losses who purchased such Registrable
Security that is the subject thereof and (ii) the Prospectus would have
adequately corrected such untrue statement or alleged untrue statement or such
omission or alleged omission or (B) any such Losses arise primarily out of or
are based primarily upon an untrue statement or alleged untrue statement or
omission or alleged omission in the Prospectus, if such untrue statement or
alleged untrue statement, omission or alleged omission is adequately corrected
in an amendment or supplement to the Prospectus (such that there is no longer
any untrue statement of a material fact in the Prospectus or omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading) and if, having previously been furnished by the Company
with copies of the
16
Prospectus as so amended or supplemented on a timely basis, the holder of
Registrable Securities thereafter failed to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the person asserting such Losses who purchased such Registrable
Security that is the subject thereof from such holder. In the event Registrable
Securities are to be registered in an underwritten offering pursuant to a Demand
Registration, the Company will indemnify, subject to commercially reasonable
terms, the managing underwriter(s) of such offering.
(b) Indemnification by Holder of Registrable Securities. In connection with
---------------------------------------------------
any Registration Statement in which a holder of Registrable Securities is
participating, such holder of Registrable Securities shall furnish to the
Company in writing such information regarding such holder's ownership of
securities of the Company as the Company reasonably requests for use in
connection with any Registration Statement or Prospectus and agrees to indemnify
and hold harmless the Company and its directors, officers, agents and employees,
each Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling persons, to the fullest extent lawful,
from and against all Losses (as determined by a court of competent jurisdiction
in a final judgment not subject to appeal or review) arising out of or based
upon any untrue statement of a material fact contained in any Registration
Statement, Prospectus, or form of prospectus, or arising out of or based upon
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
so furnished in writing by such holder to the Company expressly for use in such
Registration Statement or Prospectus and that such information was reasonably
relied upon by the Company in preparation of such Registration Statement,
Prospectus or form of prospectus. In no event shall the liability of any selling
holder of Registrable Securities hereunder be greater in amount than the dollar
amount of the proceeds received by such holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be
--------------------------------------
brought or asserted against any person entitled to indemnity hereunder (an
"Indemnified Party"), such Indemnified Party promptly shall so notify the person
from whom indemnity is sought (the "Indemnifying Party") in writing, and the
Indemnifying Party shall assume the defense thereof, including the employment of
counsel reasonably satisfactory to the Indemnified Party and the payment of all
fees and expenses incurred in connection with the defense thereof; provided,
that the failure of any Indemnified Party to give such notice shall not relieve
the Indemnifying Party of its obligations pursuant to this Agreement, except to
the extent that it shall be finally
17
determined by a court of competent jurisdiction (which determination is not
subject to appeal or further review) that such failure shall have materially
prejudiced the Indemnifying Party.
Any such Indemnified Party shall have the right to employ separate counsel
in any such action, claim or proceeding and to participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed
to pay such fees and expenses; or (2) the Indemnifying Party shall have failed
promptly to assume the defense of such action, claim or proceeding and to employ
counsel reasonably satisfactory to such Indemnified Party in any such action,
claim or proceeding; or (3) the named parties to any such action, claim or
proceeding (including any impleaded parties) include both such Indemnified Party
and the Indemnifying Party, and such Indemnified Party shall have been advised
in writing by counsel that a conflict of interest may exist if such counsel
represents such Indemnified Party and the Indemnifying Party (in which case, if
such Indemnified Party notifies the Indemnifying Parties in writing that it
elects to employ separate counsel at the expense of the Indemnifying Parties,
the Indemnifying Parties shall not have the right to assume the defense thereof
and such counsel retained by the Indemnified Party shall be at the expense of
the Indemnifying Party), it being understood, however, that, the Indemnifying
Party shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Indemnified Parties,
which firm shall be designated in writing by the Indemnified Parties. The
Indemnifying Party shall not be liable for any settlement of any such Proceeding
effected without its written consent, which consent shall not be unreasonably
withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any proceeding unless such
settlement includes an unconditional release of such Indemnified Party from all
liability on claims that are or may be the subject matter of such proceeding.
All fees and expenses of the Indemnified Party (including reasonable fees
and expenses to the extent incurred in connection with investigating or
preparing to defend such action or proceeding in a manner not inconsistent with
this Section 8) shall be paid to the Indemnified Party, as incurred, within 10
Business Days of written notice thereof to the Indemnifying Party (regardless of
whether it is ultimately determined that an Indemnified Party is not entitled to
indemnification hereunder; provided, that the Indemnifying Party may require
--------
such Indemnified Party to undertake to reimburse all such fees and expenses to
the extent it is finally judicially determined that
18
such Indemnified Party is not entitled to indemnification hereunder).
(d) Contribution. If a claim by an Indemnified Party for indemnification
------------
under Section 8(a) or 8(b) hereof is found unenforceable in a final judgment by
a court of competent jurisdiction (not subject to further appeal) (even though
the express provisions hereof provide for indemnification in such case), then
each applicable Indemnifying Party, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses, in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations. The relative fault of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 8(c), any legal or other fees or
expenses reasonably incurred by such party in connection with any investigation
or Proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
--- ----
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 8(d), an Indemnifying Party that
is a holder of Registrable Securities shall not be required to contribute any
amount in excess of the amount by which the total price at which the securities
sold by such Indemnifying Party and distributed to the public
were offered to the public exceeds the amount of any damages that such
Indemnifying Party has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
9. Rule 144.
--------
The Company shall use its best efforts to file the reports required to be
filed by them under the Securities Act and the Exchange Act in a timely manner
and, if at any time the Company is not required to file such reports, it will,
upon the request of any holder of Registrable Securities, make publicly
available
19
other information so long as necessary to permit sales of their securities
pursuant to Rule 144. The Company further covenants that it will take such
further action as any holder of Registrable Securities may reasonably request,
all to the extent required from time to time to enable such holder to sell
Registrable Securities without registration under the Securities Act within the
limitation of the exemption provided by Rule 144. Upon the request of any holder
of Registrable Securities, the Company shall deliver to such holder a written
statement as to whether it has complied with such requirements. Notwithstanding
the foregoing, nothing in this Section 9 shall be deemed to require the Company
to register any of its securities pursuant to the Exchange Act.
10. Underwritten Registrations.
--------------------------
If any of the Registrable Securities covered by any Demand Registration are
to be sold in an underwritten offering, the investment banker or investment
bankers and manager or managers that will manage the offering will be selected
by the holders of a majority of such Registrable Securities included in such
offering.
No person may participate in any underwritten registration hereunder unless
such Person (a) agrees to sell such person's Registrable Securities on the basis
reasonably provided in any underwriting arrangements approved by the persons
entitled hereunder to approve such arrangements and (b) completes and executes
all questionnaires, powers of attorney, indemnities, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements.
11. Miscellaneous.
-------------
(a) Remedies. In the event of a breach by the Company, or by a holder of
--------
Registrable Securities, of any of their obligations under this Agreement, each
holder of Registrable Securities or the Company, as the case may be, in addition
to being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company, and each holder of Registrable Securities, agree that
monetary damages would not be adequate compensation for any loss incurred by
reason of a breach by it of any of the provisions of this Agreement and hereby
further agrees that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy at law would be
adequate.
(b) No Inconsistent Agreements. The Company has not entered into, as of
--------------------------
the date hereof, nor shall the Company, on or after the date of this Agreement,
enter into, any agreement with respect to its securities that is inconsistent
with the rights granted to the holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof.
20
Except for (i) the Registration Rights Agreement dated October 14, 1994,
pertaining to the Company's 20% Mortgage Notes due 1996 ("Mortgage Notes"), (ii)
the Registration Rights Agreement dated October 14, 1994, pertaining to the
shares of Common Stock issued to the purchasers of the Mortgage Notes, (iii) the
Warrant Shares Registration Rights Agreement dated as of October 8, 1993 by and
among the Company and the purchasers of its 12-1/2% First Mortgage Notes due
2000 (collectively, the "Prior Rights Agreements"), the Company has not
previously entered into any agreement granting to any Person any registration
rights still exercisable on the date hereof with respect to any of its
securities. The rights of the holders of Registrable Securities set forth herein
are subject in all respects to the prior rights, if any, granted to the
purchasers under the Prior Rights Agreements and shall be construed and applied
hereunder so as not to be in conflict or inconsistent with the provisions of the
Prior Rights Agreements. The Purchaser acknowledges that on the date hereof the
Company has entered into registration rights agreements substantially similar to
this Agreement with each other purchaser of its 7 1/2% Convertible Subordinated
Notes due December 31, 1996 being issued on the date hereof, and Purchaser
acknowledges that the rights granted under such agreements are not in conflict
or inconsistent with the provisions of this Agreement. Without limiting the
generality of the foregoing, without the written consent of the holders of a
majority of the then outstanding Registrable Securities, the Company shall not
grant to any person the right to request the Company to register any securities
of the Company under the Securities Act unless the rights so granted are subject
in all respects to the prior rights of the holders of Registrable Securities set
forth herein, and are not otherwise in conflict or inconsistent with the
provisions of this Agreement.
(c) No Piggyback on Registrations. The Company will not, and none of its
-----------------------------
securityholders (other than the holders of Registerable Securities in such
capacity pursuant to the applicable Section hereof) may, include securities of
the Company or such securityholders in any Demand Registration (except to the
extent that the inclusion of such securities by the Company or such
securityholders would not, in the good faith opinion of the managing underwriter
selected by the holders of Registrable Securities, adversely affect the success
of the offering proposed to be made by holders of Registrable Securities).
(d) Amendments and Waivers. The provisions of this Agreement, including the
----------------------
provisions of this sentence, may not be amended, modified or supplemented, and
waivers or consents to departures from the provisions hereof may not be given,
unless the Company has obtained the written consent of the holders of a majority
of the then outstanding of Registrable Securities; provided, however, that, for
-------- -------
the purpose of this Agreement, Registrable Securities that are owned, directly
or indirectly, by the Company or an Affiliate of the Company are not deemed
outstanding. Notwithstanding the foregoing, a waiver or consent
21
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other holders of Registrable Securities may
be given by holders of a majority of the Registrable Securities being sold by
such holders pursuant to such Registration Statement; provided, however, that
-------- -------
the provisions of this sentence may not be amended, modified, or supplemented
except in accordance with the provisions of the immediately preceding sentence.
(e) Notices. All notices and other communications provided for herein shall
-------
be made in writing by hand-delivery, next-day air courier, certified first-class
mail, return receipt requested, telex or facsimile to:
(i) the intended recipient at the "Address for Notices" specified
below its name on the signature pages hereof, or
(ii) if to any other person who is then the registered holder of any
Registrable Securities, to the address of such holder as it appears in the
stock register of the Company.
Except as otherwise provided in this Agreement, all such communications
shall be deemed to have been duly given: when delivered by hand, if personally
delivered; one business day after being timely delivered to a next-day air
courier; five business days after being deposited in the mail, postage prepaid,
if mailed; when answered back, if telexed; and when receipt is acknowledged by
the recipient's telecopier machine, if telecopied.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
----------------------
and be binding upon the successors and permitted assigns of each of the parties
and shall inure to the benefit of each holder of any Registrable Securities.
The Company may not assign their rights or obligations hereunder without the
prior written consent of each holder of any Registrable Securities.
Notwithstanding the foregoing, no transferee shall have any of the rights
granted under this Agreement until such transferee shall acknowledge its rights
and obligations hereunder by a signed written statement of such transferee's
acceptance of such rights and obligations.
(g) Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and, all of which taken
together shall constitute one and the same Agreement.
22
(h) Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
---------------------------------------------------------------
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN
THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. THE
COMPANY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL
COURT SITTING IN THE BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF
ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, AND
IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND
UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. THE COMPANY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW,
TRIAL BY JURY AND ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING
OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH
COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT
THE RIGHT OF ANY HOLDER OF A REGISTRABLE SECURITY TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
(i) Severability. The remedies provided herein are cumulative and not
------------
exclusive of any remedies provided by law. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative
means to achieve the same or substantially the same result as that contemplated
by such term, provision, covenant or restriction. It is hereby stipulated and
declared to be the intention of the parties that they would have executed the
remaining terms, provisions, covenants and restrictions without including any of
such that may be hereafter declared invalid, illegal, void or unenforceable.
(j) Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof. All
references made in this Agreement to "Section" or "paragraph" refer to such
Section or paragraph in this Agreement unless expressly stated otherwise.
(k) Attorneys' Fees. In any action or proceeding brought to enforce any
---------------
provision of this Agreement, or where any provision hereof or thereof is validly
asserted as a defense, the prevailing party, as determined by the court, shall
be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
23
(l) Termination. Provided at least 50% of the Notes issued on the date
-----------
hereof repaid, redeemed or converted into Shares, this Agreement shall terminate
and be of no further force and effect from and after the earliest of (w) the
date on which 33% or less of the Registrable Securities remain outstanding (x)
with respect to any holder of Registrable Securities, the date on which all of
the Shares held by such holder may be sold pursuant to Rule 144(k), (y) with
respect to
24
any holder of Registrable Securities, the date on which all of the Shares held
by such holder may be sold in a three-month period pursuant to Rule 144, and (z)
10 years from the date hereof; provided, however, with respect to clauses (x)
-------- -------
and (y) of this subsection 12(1) that this Agreement shall not terminate until
such time as the Company shall have delivered to each of the holders of Shares
an opinion of counsel of the Company stating that the conditions contained in
such clause (x) or (y) have been satisfied.
IN WITNESS WHEREOF, the parties hereto have caused this Registration Rights
Agreement to be duly executed, all as of the day first written above.
ELSINORE CORPORATION
By /s/ Thomas E. Martin
-------------------------------
Thomas E. Martin
President
PURCHASER:
MOJAVE PARTNERS, L.P.
By Woodhaven Investors, Inc.
Its General Partner
By /s/ Ted Herreck
--------------------------------
Edward Herreck
President
25
Dates Referenced Herein and Documents Incorporated by Reference
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