exv4w7






Exhibit 4.7




EXECUTION VERSION




American Casino & Entertainment Properties LLC




ACEP Finance Corp.




11% Senior Secured Notes due 2014




fully and unconditionally guaranteed as to the

payment of principal, premium,

if any, interest and special interest, if any, by the Guarantors listed on

the signature pages hereto




 






Exchange and Registration Rights Agreement




August 14, 2009




Goldman, Sachs & Co.

85 Broad Street

New York, New York 10004




Ladies and Gentlemen:




          American Casino & Entertainment Properties LLC, a Delaware limited liability company (“ACEP”
or the “Company”) and ACEP Finance Corp., a Delaware corporation (together with ACEP, the
“Issuers”), propose to issue and sell to the Purchaser (as defined herein) upon the terms set forth
in the Purchase Agreement (as defined herein) $375,000,000 in aggregate principal amount of the
Issuers’ 11% Senior Secured Notes due 2014, which are fully and unconditionally guaranteed by the
Guarantors (as defined herein). As an inducement to the Purchaser to enter into the Purchase
Agreement and in satisfaction of a condition to the obligations of the Purchaser thereunder, the
Issuers and the Guarantors agree with the Purchaser for the benefit of holders (as defined herein)
from time to time of the Entitled Securities (as defined herein) as follows:




          1. Certain Definitions. For purposes of this Exchange and Registration Rights Agreement (this
“Agreement”), the following terms shall have the following respective meanings:





     “Base Interest” shall mean the interest that would otherwise accrue on the Securities under
the terms thereof and the Indenture, without giving effect to the provisions of this Agreement.




     “BNYM” shall mean The Bank of New York Mellon.




     “Board of Directors” means (i), with respect to ACEP, the board of directors of ACEP or any
committee thereof duly authorized to act on behalf of such board or the managing member or
members or any controlling committee of managing members thereof and (ii),



 









 







with respect to ACEP Finance Corp., the board of directors of ACEP Finance Corp. or any
committee thereof duly authorized to act on behalf of such board.




     “Broker-Dealer” shall mean any broker or dealer registered with the Commission under the
Exchange Act.




     “Business Day” shall have the meaning set forth in Rule 13e-4(a)(3) promulgated by the
Commission under the Exchange Act, as the same may be amended or succeeded from time to time.




     “Closing Date” shall mean the date on which the Securities are initially issued.




     “Collateral Trustee” shall have the meaning assigned thereto in the Indenture.




     “Commission” shall mean the United States Securities and Exchange Commission, or any other
federal agency at the time administering the Exchange Act or the Securities Act, whichever is
the relevant statute for the particular purpose.




     “DTC” shall mean The Depository Trust Company.




     “EDGAR System” means the EDGAR filing system of the Commission and the rules and
regulations pertaining thereto promulgated by the Commission in Regulation S-T under the
Securities Act and the Exchange Act, in each case as the same may be amended or succeeded from
time to time (and without regard to format).




     “Effectiveness Target Date” shall have the meaning assigned thereto in Section 2(c).




     “Effective Time,” in the case of (i) an Exchange Registration, shall mean the time and date
as of which the Commission declares the Exchange Offer Registration Statement effective or as of
which the Exchange Offer Registration Statement otherwise becomes effective; (ii) a Shelf
Registration, shall mean the time and date as of which the Commission declares the Shelf
Registration Statement effective or as of which the Shelf Registration Statement otherwise
becomes effective and (iii) a Market-Making Registration, shall mean the time and date as of
which the Commission declares the Market-Making Registration Statement effective or as of which
the Market-Making Registration Statement otherwise becomes effective.




     “Electing Holder” shall mean any holder of Entitled Securities that has returned a
completed and signed Notice and Questionnaire to the Issuers in accordance with Section 3(d)(ii)
or Section 3(d)(iii) and the instructions set forth in the Notice and Questionnaire.




     “Entitled Securities” shall mean the Securities; provided, however, that a Security shall
cease to be a Entitled Security upon the earliest to occur of the following: (i) the date on
which such note has been exchanged by a Person other than a Broker-Dealer for an Exchange Note
in the Exchange Offer; (ii) 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, following the exchange by a
Broker-Dealer in the Exchange Offer of a note for an Exchange Note; (iii) the date on which, in
the circumstances contemplated by Section 2(b), a Shelf Registration Statement registering such
Security under the Securities Act has been declared or becomes effective and such Security has
been sold or otherwise transferred by the holder thereof pursuant to and in a manner
contemplated by such effective Shelf Registration Statement; or (iv) the date on which such
Security is actually sold by the holder thereof pursuant to Rule



 









 







144 under the Securities Act; provided that a Security will not cease to be an Entitled
Security for purposes of the Exchange Offer or any Market-Making Registration by virtue of this
clause (iv).




     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated by the Commission thereunder, as the same may be amended or
succeeded from time to time.




     “Exchange Offer” shall have the meaning assigned thereto in Section 2(a).




     “Exchange Offer Registration Statement” shall have the meaning assigned thereto in
Section 2(a).




     “Exchange Registration” shall have the meaning assigned thereto in Section 3(c).




     “Exchange Securities” shall have the meaning assigned thereto in Section 2(a).




     “Gaming Authorities” shall have the meaning assigned thereto in the Indenture.




     “Guarantors” shall have the meaning assigned thereto in the Indenture.




     “Guarantees” shall have the meaning assigned thereto in the definition of Securities.




     The term “holder” shall mean the Purchaser and other persons who acquire Securities from
time to time (including any successors or assigns), in each case for so long as such person owns
any Securities.




     “Indenture” shall mean the indenture, dated as of August 14, 2009, among the Issuers, the
Guarantors and BNYM, as trustee, as the same may be amended from time to time.




     “Market Maker” shall mean Goldman, Sachs & Co. and its affiliates (as defined under the
rules and regulations of the Commission).




     “Market-Making Conditions” shall have the meaning assigned thereto in Section 2(d).




     “Market-Making Prospectus” shall have the meaning assigned thereto in Section 2(d).




     “Market-Making Registration” shall have the meaning assigned thereto in Section 2(d).




     “Market-Making Registration Statement” shall have the meaning assigned thereto in Section
2(d).




     “Notice and Questionnaire” means a Notice of Registration Statement and Selling
Securityholder Questionnaire substantially in the form of Exhibit A hereto.




     The term “person” shall mean a corporation, limited liability company, association,
partnership, organization, business, individual, government or political subdivision thereof or
governmental agency.




     “Purchase Agreement” shall mean the Purchase Agreement, dated as of August 11, 2009, among
the Purchaser, the Issuers and the Guarantors relating to the Securities.




     “Purchaser” shall mean Goldman, Sachs & Co.



 









 






     “Registration Default” shall have the meaning assigned thereto in Section 2(c).




     “Registration Default Period” shall have the meaning assigned thereto in Section 2(c).




     “Registration Expenses” shall have the meaning assigned thereto in Section 4.




     “Resale Period” shall have the meaning assigned thereto in Section 2(a).




     “Restricted Holder” shall mean (i) a holder that is an affiliate of either of the Issuers
within the meaning of Rule 405, (ii) a holder who acquires Exchange Securities outside the
ordinary course of such holder’s business, (iii) a holder who has arrangements or understandings
with any person to participate in the Exchange Offer for the purpose of distributing Exchange
Securities and (iv) a holder that is a Broker-Dealer, but only with respect to Exchange
Securities received by such Broker-Dealer pursuant to an Exchange Offer in exchange for Entitled
Securities acquired by the Broker-Dealer directly from the Issuers.




     “Rule 144”, Rule 405”, “Rule 415”, “Rule 424”, “Rule 430B” and “Rule 433” shall mean, in
each case, such rule promulgated by the Commission under the Securities Act (or any successor
provision), as the same may be amended or succeeded from time to time.




     “Securities” shall mean the $375,000,000 in aggregate principal amount of the Issuers’ 11%
Senior Secured Notes due 2014 to be issued and sold to the Purchaser pursuant to the Purchase
Agreement, and securities issued in exchange therefor or in lieu thereof pursuant to the
Indenture. Each Security is entitled to the benefit of the guarantees provided by the
Guarantors in the Indenture (the “Guarantees”) and, unless the context otherwise requires, any
reference herein to a “Security,” an “Exchange Security” or a “Entitled Security” shall include
a reference to the related Guarantees.




     “Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations promulgated by the Commission thereunder, as the same may be amended or succeeded
from time to time.




     “Shelf Registration” shall have the meaning assigned thereto in Section 2(b).




     “Shelf Registration Statement” shall have the meaning assigned thereto in Section 2(b).




     “Special Interest” shall have the meaning assigned thereto in Section 2(c).




     “Suspension Period” shall have the meaning assigned thereto in Section 2(b).




     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended, and the rules
and regulations promulgated by the Commission thereunder, as the same may be amended or
succeeded from time to time.




     “Trustee” shall mean BNYM, as trustee under the Indenture, together with any successors
thereto in such capacity.




     Unless the context otherwise requires, any reference herein to a “Section” or “clause” refers
to a Section or clause, as the case may be, of this Agreement, and the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision.



 









 






     2. Registration Under the Securities Act.




     (a) Except as set forth in Section 2(b) below, the Issuers and the Guarantors agree to file
with the Commission, on or prior to 90 days after the Closing Date an exchange offer
registration statement on the appropriate form under the Securities Act with respect to an offer
to exchange (such registration statement, the “Exchange Offer Registration Statement”, and such
offer, the “Exchange Offer”) any and all of the Securities for a like aggregate principal amount
of debt securities issued by the Issuers and guaranteed by the Guarantors, which debt securities
and Guarantees are substantially identical to the Securities and the related Guarantees,
respectively (and are entitled to the benefits of the Indenture), except that they have been
registered pursuant to an effective registration statement under the Securities Act and do not
contain provisions for Special Interest contemplated in Section 2(c) below (such new debt
securities hereinafter called “Exchange Securities”). The Issuers and the Guarantors agree to
use all commercially reasonable efforts to have the Exchange Offer Registration Statement
declared effective by the Commission on or prior to 180 days after the Closing Date, which may
be extended for an additional 90 days if the sole reason for the Exchange Offer Registration
Statement not becoming declared effective is the result of the failure of the Issuers to obtain
necessary approvals of applicable Gaming Authorities; provided, that during such extension the
Issuers shall continue to use their commercially reasonable efforts to obtain such approvals.
The Exchange Offer will be registered under the Securities Act on the appropriate form and will
comply with all applicable tender offer rules and regulations under the Exchange Act. Unless
the Exchange Offer would not be permitted by applicable law or Commission policy, the Issuers
and the Guarantors will (i) commence the Exchange Offer promptly; and (ii) use all commercially
reasonable efforts to (A) hold the Exchange Offer open for at least 20 Business Days in
accordance with Regulation 14E promulgated by the Commission under the Exchange Act and
(B) exchange Exchange Securities for all Entitled Securities that have been properly tendered
and not withdrawn promptly following the expiration of the Exchange Offer. The Exchange Offer
will be deemed to have been “completed” only (i) if the Exchange Securities and related
guarantees received by holders other than Restricted Holders in the Exchange Offer for Entitled
Securities are, upon receipt, transferable by each such holder without restriction under the
Securities Act and the Exchange Act and without material restrictions under the blue sky or
securities laws of a substantial majority of the States of the United States of America and (ii)
upon the Issuers having exchanged, pursuant to the Exchange Offer, Exchange Securities for all
Entitled Securities that have been properly tendered and not withdrawn before the expiration of
the Exchange Offer, which shall be on a date that is at least 20 and not more than 30 Business
Days following the commencement of the Exchange Offer. The Issuers and the Guarantors agree (x)
to include in the Exchange Offer Registration Statement a prospectus for use in any resales by
any holder of Exchange Securities that is a Broker-Dealer and (y) to keep such Exchange Offer
Registration Statement effective for a period (the “Resale Period”) beginning when Exchange
Securities are first issued in the Exchange Offer and ending upon the earlier of the expiration
of the 180th day after the Exchange Offer has been completed or such time as such
Broker-Dealers no longer own any Entitled Securities. With respect to such Exchange Offer
Registration Statement, such holders shall have the benefit of the rights of indemnification and
contribution set forth in subsections 6(a), (c), (d) and (e).




     (b) If (i) on or prior to the time the Exchange Offer is completed the Issuers 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; or (ii) any holder of Entitled Securities notifies the
Issuers prior to the 20th Business Day following consummation of the Exchange Offer that



 









 







(A) it is prohibited by law or Commission policy from participating in the Exchange Offer,
(B) it may not resell the Exchange Securities 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 or (C) it is a Broker-Dealer and owns
Securities acquired directly from the Issuers or an affiliate of the Issuers, then the Issuers
and the Guarantors shall, in lieu of (or, in the case of clause (B), in addition to) conducting
the Exchange Offer contemplated by Section 2(a), use all commercially reasonable efforts to file
with the Commission on or prior to 30 days after such filing obligation arises (but no earlier
than 90 days after the Closing Date), a “shelf” registration statement providing for the
registration of, and the sale on a continuous or delayed basis by the holders of, all of the
Entitled Securities, pursuant to Rule 415 or any similar rule that may be adopted by the
Commission (such filing, the “Shelf Registration” and such registration statement, the “Shelf
Registration Statement”) to cover resales of the Entitled Securities by the Electing Holders who
satisfy certain conditions relating to the provision of information in connection with the Shelf
Registration Statement. If obligated to file the Shelf Registration Statement, the Issuers and
the Guarantors will use all commercially reasonable efforts to cause the Shelf Registration
Statement be declared effective by the Commission on or prior to 90 days after such Shelf
Registration Statement filing obligation arises (but no earlier than 180 days after the Closing
Date). The Issuers and the Guarantors agree to use all commercially reasonable efforts to keep
such Shelf Registration Statement continuously effective for a period ending on the earlier of
the second anniversary of the Effective Time or such time as there are no longer any Entitled
Securities outstanding. No holder shall be entitled to be named as a selling securityholder in
the Shelf Registration Statement or to use the prospectus forming a part thereof for resales of
Entitled Securities unless such holder is an Electing Holder. The Issuers and the Guarantors
agree, after the Effective Time of the Shelf Registration Statement and promptly upon the
request of any holder of Entitled Securities that is not then an Electing Holder, to use all
commercially reasonable efforts to enable such holder to use the prospectus forming a part
thereof for resales of Entitled Securities, including, without limitation, any action necessary
to identify such holder as a selling securityholder in the Shelf Registration Statement (whether
by post-effective amendment thereto or by filing a prospectus pursuant to Rules 430B and 424(b)
under the Securities Act identifying such holder), provided, however, that nothing in this
sentence shall relieve any such holder of the obligation to return a completed and signed Notice
and Questionnaire to the Issuers in accordance with Section 3(d)(iii). Notwithstanding anything
to the contrary in this Section 2(b), upon notice to the Electing Holders, the Issuers may
suspend the use or the effectiveness of such Shelf Registration Statement, or extend the time
period in which it is required to file the Shelf Registration Statement, for up to 30
consecutive days and up to 60 days in the aggregate, in each case in any 12-month period (a
“Suspension Period”) if the Board of Directors of the Issuers determines that there is a valid
business purpose for suspension of the Shelf Registration Statement; provided that the Issuers
shall promptly notify the Electing Holders when the Shelf Registration Statement may once again
be used or is effective




     (c) In the event that (i) the Issuers and the Guarantors have not filed the Exchange Offer
Registration Statement or the Shelf Registration Statement on or before the date on which such
registration statement is required to be filed pursuant to Section 2(a) or Section 2(b),
respectively, or (ii) such Exchange Offer Registration Statement or Shelf Registration Statement
has not been declared effective by the Commission on or prior to the date specified for such
effectiveness (the “Effectiveness Target Date”), or (iii) the Exchange Offer has not been
completed within 30 Business Days of the Effectiveness Target Date with respect to the Exchange
Offer Registration Statement or (iv) any Exchange Offer Registration Statement or Shelf
Registration Statement required by Section 2(a) or Section



 









 







2(b) is filed and becomes effective but thereafter ceases to be effective or usable in
connection with resales or exchanges of Securities either because it is withdrawn by the Issuers
or it becomes subject to an effective stop order issued pursuant to Section 8(d) of the
Securities Act suspending the effectiveness of such registration statement (except as
specifically permitted herein including, with respect to any Shelf Registration Statement,
during any applicable Suspension Period in accordance with the last sentence of Section 2(b))
without being succeeded immediately by an additional registration statement filed and declared
effective (each such event referred to in clauses (i) through (iv), a “Registration Default” and
each period during which a Registration Default has occurred and is continuing, a “Registration
Default Period”), then, as liquidated damages for such Registration Default, the Issuers and the
Guarantors will pay special interest (“Special Interest”) to each holder of Entitled Securities
until all Registration Defaults have been cured. With respect to the first 90-day period
immediately following the occurrence of the first Registration Default, Special Interest will be
paid in an amount equal to 0.25% per annum on the principal amount of Entitled Securities
outstanding. The amount of Special Interest will increase by an additional 0.25% per annum on
the principal amount of Entitled Securities with respect to each subsequent 90-day period until
all Registration Defaults have been cured, up to a maximum amount of Special Interest for all
Registration Defaults of 1.0% per annum of the principal amount of the Entitled Securities
outstanding. All accrued Special Interest will be paid by the Issuers and the Guarantors on the
next scheduled interest payment date to DTC or its nominee by wire transfer of immediately
available funds. Following the cure of all Registration Defaults, the accrual of Special
Interest will cease.




     (d) So long as (w) any of the Securities (whether Entitled Securities, Exchange Securities
or otherwise) are outstanding, (x) the Market Maker proposes to make a market in the Securities
as part of its business in the ordinary course and (y) in the reasonable opinion of Goldman,
Sachs & Co., it would be necessary or appropriate under applicable laws, rules and regulations
for the Market Maker to deliver a prospectus in connection with market-making activities with
respect to the Securities (clauses (w) through (y) collectively, the “Market-Making Conditions”)
and (z) the Market Marker provides notice to the Issuers that the Market Marking Conditions are
satisfied, the following provisions of this Section 2(d) shall apply for the sole benefit of the
Market Maker (it being understood that only a person for whom the Market-Making Conditions apply
at the applicable time shall be entitled to the use of the Market-Making Registration Statement
and related provisions of this Agreement at any time). The Issuers and the Guarantors shall use
all commercially reasonable efforts to file with the Commission, a “shelf” registration
statement (which may be the Exchange Offer Registration Statement or the Shelf Registration
Statement if permitted by the rules and regulations of the Commission) pursuant to Rule 415
under the Securities Act or any similar rule that may be adopted by the Commission providing for
the registration of, and the sale on a continuous or delayed basis in secondary transactions by
the Market Maker of, Securities (such filing, a “Market-Making Registration”, such registration
statement as amended or supplemented from time to time, a “Market-Making Registration
Statement”, and the prospectus contained in such Market-Making Registration Statement, as
amended or supplemented from time to time, a “Market-Making Prospectus”). The Issuers and the
Guarantors agree to use all commercially reasonable efforts to cause the Market-Making
Registration Statement to become or be declared effective on or prior to (i) the date the
Exchange Offer is completed pursuant to Section 2(a) above or (ii) the date the Shelf
Registration becomes or is declared effective pursuant to Section 2(b) above, and to keep such
Market-Making Registration Statement continuously effective for so long as the Market Maker may
be required to deliver a prospectus in connection with transactions in the Securities. In the
event that the Market Maker holds Securities at the time an Exchange Offer is to be conducted
under Section 2(a) above, the Issuers and the Guarantors agree



 









 







that the Market-Making Registration shall provide for the resale by the Market Maker of
such Securities and shall use its commercially reasonable efforts to keep the Market-Making
Registration Statement continuously effective until such time as Goldman, Sachs & Co. determines
in its reasonable judgment that the Market Maker is no longer required to deliver a prospectus
in connection with the sale of such Securities.




     Notwithstanding anything to the contrary in this Section 2(d), the Issuers may suspend the
offering and sale under the Market-Making Registration Statement for a Suspension Period if the
Board of Directors of the Issuers determines that (i) such registration would require disclosure
of an event at such time as could reasonably be expected to have a material adverse effect on
the business operations or prospects of the Issuers, (ii) such registration would require
disclosure of material information relating to a corporate development or (iii) such
Market-Making Registration Statement or amendment or supplement thereto contains an untrue
statement of 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 Issuers shall promptly notify the Market Maker when the Market-Making
Registration Statement may once again be used or is effective.




     (e) The Issuers shall take, and shall cause the Guarantors to take, all actions necessary
or advisable to be taken by them to ensure that the transactions contemplated herein are
effected as so contemplated, including all actions necessary or desirable to register the
Guarantees under any Exchange Offer Registration Statement, Shelf Registration Statement or
Market-Making Registration Statement, as applicable.




     (f) Any reference herein to a registration statement or prospectus as of any time shall be
deemed to include any document incorporated, or deemed to be incorporated, therein by reference
as of such time; and any reference herein to any post-effective amendment to a registration
statement or to any prospectus supplement as of any time shall be deemed to include any document
incorporated, or deemed to be incorporated, therein by reference as of such time.




     3. Registration Procedures.



          If the Issuers and the Guarantors file a registration statement pursuant to Section 2(a),
Section 2(b) or Section 2(d), the following provisions shall apply:





     (a) At or before the Effective Time of the Exchange Registration or any Shelf Registration
or any Market-Making Registration, whichever may occur first, the Issuers shall qualify the
Indenture under the Trust Indenture Act.




     (b) In the event that such qualification would require the appointment of a new trustee
under the Indenture, the Issuers shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.




     (c) In connection with the Issuers’ and the Guarantors’ obligations with respect to the
registration of Exchange Securities as contemplated by Section 2(a) (the “Exchange
Registration”), if applicable, the Issuers and the Guarantors shall:




     (i) prepare and file with the Commission, on or prior to 90 days after the Closing
Date, an Exchange Offer Registration Statement on any form which may be utilized by the
Issuers and the Guarantors and which shall permit the Exchange Offer and resales of
Exchange Securities by Broker-Dealers during the Resale Period to



 









 







be effected as contemplated by Section 2(a), and use all commercially reasonable
efforts to cause such Exchange Registration Statement to become effective on or prior to
180 days after the Closing Date, which may be extended for an additional 90 days if the
sole reason for the Exchange Offer Registration Statement not becoming effective is the
result of the failure of the Issuers to obtain necessary approvals of applicable Gaming
Authorities; provided, that during such extension the Issuers shall continue to use
their commercially reasonable efforts to obtain such approvals;




     (ii) as soon as practicable prepare and file with the Commission such amendments
and supplements to such Exchange Offer Registration Statement and the prospectus
included therein as may be necessary to effect and maintain the effectiveness of such
Exchange Offer Registration Statement for the periods and purposes contemplated in
Section 2(a) and as may be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of such Exchange Offer
Registration Statement, and promptly provide each Broker-Dealer holding Exchange
Securities with such number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material respects with the requirements
of the Securities Act and the Trust Indenture Act, as such Broker-Dealer reasonably may
request prior to the expiration of the Resale Period, for use in connection with resales
of Exchange Securities;




     (iii) promptly notify each Broker-Dealer that has requested or received copies of
the prospectus included in such Exchange Offer Registration Statement, and confirm such
advice in writing, (A) when such Exchange Offer Registration Statement or the prospectus
included therein or any prospectus amendment or supplement or post-effective amendment
has been filed, and, with respect to such Exchange Offer Registration Statement or any
post-effective amendment, when the same has become effective, (B) of any comments by the
Commission and by the blue sky or securities commissioner or regulator of any state with
respect thereto or any request by the Commission for amendments or supplements to such
Exchange Offer Registration Statement or prospectus or for additional information,
(C) of the issuance by the Commission of any stop order suspending the effectiveness of
such Exchange Offer Registration Statement or the initiation or threatening of any
proceedings for that purpose, (D) if at any time the representations and warranties of
the Issuers contemplated by Section 5 cease to be true and correct in all material
respects, (E) of the receipt by the Issuers of any notification with respect to the
suspension of the qualification of the Exchange Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose, (F) the occurrence
of any event that causes either of the Issuers to become an “ineligible issuer” as
defined in Rule 405, or (G) if at any time during the Resale Period when a prospectus is
required to be delivered under the Securities Act, that such Exchange Offer Registration
Statement, prospectus, prospectus amendment or supplement or post-effective amendment
does not conform in all material respects to the applicable requirements of the
Securities Act and the Trust Indenture Act or contains an untrue statement of a material
fact or omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading (in the case of any prospectus, in the light
of the circumstances under which such statements were made).




     (iv) in the event that the Issuers and the Guarantors would be required, pursuant
to Section 3(c)(iii)(G), to notify any Broker-Dealers holding Exchange Securities
(except as otherwise permitted during any Suspension Period), promptly prepare and
furnish to each such holder a reasonable number of copies of a



 









 







prospectus supplemented or amended so that, as thereafter delivered to purchasers
of such Exchange Securities during the Resale Period, such prospectus shall conform in
all material respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and shall 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 the light of the circumstances under which such statements were made, not
misleading.




     (v) use all commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such Exchange Offer Registration Statement or any
post-effective amendment thereto at the earliest practicable date;




     (vi) use all commercially reasonable efforts to (A) register or qualify the
Exchange Securities under the securities laws or blue sky laws of such jurisdictions as
are contemplated by Section 2(a) on or prior to the commencement of the Exchange Offer,
to the extent required by such laws, (B) keep such registrations or qualifications in
effect and comply with such laws so as to permit the continuance of offers, sales and
dealings therein in such jurisdictions until the expiration of the Resale Period,
(C) take any and all other actions as may be reasonably necessary or advisable to enable
each Broker-Dealer holding Exchange Securities to consummate the disposition thereof in
such jurisdictions and (D) obtain the consent or approval of each governmental agency or
authority, whether federal, state or local, which may be required to effect the Exchange
Registration, the Exchange Offer and the offering and sale of Exchange Securities by
Broker-Dealers during the Resale Period; provided, however, that none of the Issuers nor
any Guarantors shall be required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not otherwise be required to qualify
but for the requirements of this Section 3(c)(vi), (2) consent to general service of
process in any such jurisdiction or become subject to taxation in any such jurisdiction
or (3) make any changes to its certificate of incorporation or by-laws or other
governing documents or any agreement between it and its stockholders;




     (vii) obtain a CUSIP number for all Exchange Securities, not later than the
applicable Effective Time; and




     (viii) comply with all applicable rules and regulations of the Commission, and make
generally available to its securityholders no later than 18 months after the Effective
Time of such Exchange Offer Registration Statement, an “earning statement” of the
Issuers and its subsidiaries complying with Section 11(a) of the Securities Act
(including, at the option of the Issuers, Rule 158 thereunder).




     (d) In connection with the Issuers’ and the Guarantors’ obligations with respect to the
Shelf Registration, if applicable, the Issuers and the Guarantors shall:




     (i) prepare and file with the Commission, within the time periods specified in
Section 2(b), a Shelf Registration Statement on any form which may be utilized by the
Issuers and which shall register all of the Entitled Securities for resale by the
holders thereof in accordance with such method or methods of disposition as may be
specified by the holders of Entitled Securities as, from time to time, may be Electing
Holders and use all commercially reasonable efforts to cause such Shelf Registration
Statement to become effective within the time periods specified in Section 2(b);



 









 






     (ii) mail the Notice and Questionnaire to the holders of Entitled Securities not
less than 30 days prior to the anticipated Effective Time of the Shelf Registration
Statement and in any such case no holder shall be entitled to be named as a selling
securityholder in the Shelf Registration Statement, and no holder shall be entitled to
use the prospectus forming a part thereof for resales of Entitled Securities at any
time, unless and until such holder has returned a completed and signed Notice and
Questionnaire to the Issuers;




     (iii) after the Effective Time of the Shelf Registration Statement, upon the
request of any holder of Entitled Securities that is not then an Electing Holder,
promptly send a Notice and Questionnaire to such holder; provided that the Issuers shall
not be required to take any action to name such holder as a selling securityholder in
the Shelf Registration Statement or to enable such holder to use the prospectus forming
a part thereof for resales of Entitled Securities until such holder has returned a
completed and signed Notice and Questionnaire to the Issuers;




     (iv) as soon as practicable prepare and file with the Commission such amendments
and supplements to such Shelf Registration Statement and the prospectus included therein
as may be necessary to effect and maintain the effectiveness of such Shelf Registration
Statement for the period specified in Section 2(b) and as may be required by the
applicable rules and regulations of the Commission and the instructions applicable to
the form of such Shelf Registration Statement, and furnish to the Electing Holders
copies of any such supplement or amendment simultaneously with or prior to its being
used or filed with the Commission to the extent such documents are not publicly
available on the Commission’s EDGAR System;




     (v) comply with the provisions of the Securities Act with respect to the
disposition of all of the Entitled Securities covered by such Shelf Registration
Statement in accordance with the intended methods of disposition by the Electing Holders
provided for in such Shelf Registration Statement;




     (vi) provide the Electing Holders and not more than one counsel for all the
Electing Holders the opportunity to participate in the preparation of such Shelf
Registration Statement, each prospectus included therein or filed with the Commission
and each amendment or supplement thereto;




     (vii) for a reasonable period prior to the filing of such Shelf Registration
Statement, and throughout the period specified in Section 2(b), make available at
reasonable times at the Issuers’ principal place of business or such other reasonable
place for inspection by the persons referred to in Section 3(d)(vi) who shall certify to
the Issuers that they have a current intention to sell the Entitled Securities pursuant
to the Shelf Registration such financial and other information and books and records of
the Issuers, and cause the officers, employees, counsel and independent certified public
accountants of the Issuers to respond to such inquiries, as shall be reasonably
necessary (and in the case of counsel, not violate an attorney-client privilege, in such
counsel’s reasonable belief), in the judgment of the respective counsel referred to in
Section 3(d)(vi), to conduct a reasonable investigation within the meaning of Section 11
of the Securities Act; provided, however, that the foregoing inspection and information
gathering on behalf of the Electing Holders shall be conducted by one counsel designated
by the holders of at least a majority in aggregate principal amount of the Entitled
Securities held by the Electing Holders at the time outstanding and provided further
that each such party shall be required to maintain in confidence



 









 







and not to disclose to any other person any information or records reasonably
designated by the Issuers as being confidential, until such time as (A) such information
becomes a matter of public record (whether by virtue of its inclusion in such Shelf
Registration Statement or otherwise), or (B) such person shall be required so to
disclose such information pursuant to a subpoena or order of any court or other
governmental agency or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall have given the Issuers
prompt prior written notice of such requirement), or (C) such information is required to
be set forth in such Shelf Registration Statement or the prospectus included therein or
in an amendment to such Shelf Registration Statement or an amendment or supplement to
such prospectus in order that such Shelf Registration Statement, prospectus, amendment
or supplement, as the case may be, complies with applicable requirements of the
Securities Act and does not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (in the case of any prospectus, in the light of the
circumstances under which such statements were made).




     (viii) promptly notify each of the Electing Holders and confirm such advice in
writing, (A) when such Shelf Registration Statement or the prospectus included therein
or any prospectus amendment or supplement or post-effective amendment has been filed,
and, with respect to such Shelf Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with respect thereto or
any request by the Commission for amendments or supplements to such Shelf Registration
Statement or prospectus or for additional information, (C) of the issuance by the
Commission of any stop order suspending the effectiveness of such Shelf Registration
Statement or the initiation or threatening of any proceedings for that purpose, (D) if
at any time the representations and warranties of the Issuers set forth in Section 5
cease to be true and correct in all material respects, (E) of the receipt by the Issuers
of any notification with respect to the suspension of the qualification of the Entitled
Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, (F) the occurrence of any event that causes either of the
Issuers to become an “ineligible issuer” as defined in Rule 405, or (G) if at any time
when a prospectus is required to be delivered under the Securities Act, that such Shelf
Registration Statement, prospectus, prospectus amendment or supplement or post-effective
amendment does not conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act or contains an untrue statement of a
material fact or omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading (in the case of any prospectus,
in the light of the circumstances under which such statements were made).




     (ix) use all commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such Shelf Registration Statement or any post-effective
amendment thereto at the earliest practicable date;




     (x) if requested by any Electing Holder, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required by the applicable
rules and regulations of the Commission and as such Electing Holder reasonably specifies
should be included therein relating to the terms of the sale of such Entitled
Securities, including information with respect to the principal amount of



 









 







Entitled Securities being sold by such Electing Holder, the name and description of
such Electing Holder, the offering price of such Entitled Securities and any discount,
commission or other compensation payable in respect thereof and with respect to any
other terms of the offering of the Entitled Securities to be sold by such Electing
Holder; and make all required filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be incorporated in such
prospectus supplement or post-effective amendment;




     (xi) furnish to each Electing Holder and the counsel referred to in
Section 3(d)(vi) an executed copy (or a conformed copy) of such Shelf Registration
Statement, each such amendment and supplement thereto (in each case including all
exhibits thereto (in the case of an Electing Holder of Entitled Securities, upon
request) and documents incorporated by reference therein) and such number of copies of
such Shelf Registration Statement (excluding exhibits thereto and documents incorporated
by reference therein unless specifically so requested by such Electing Holder) and of
the prospectus included in such Shelf Registration Statement (including each preliminary
prospectus and any summary prospectus), in conformity in all material respects with the
applicable requirements of the Securities Act and the Trust Indenture Act to the extent
such documents are not available through the Commission’s EDGAR System, and such other
documents, as such Electing Holder may reasonably request in order to facilitate the
offering and disposition of the Entitled Securities owned by such Electing Holder and to
permit such Electing Holder to satisfy the prospectus delivery requirements of the
Securities Act; and subject to Section 3(e), the Issuers hereby consent to the use of
such prospectus (including such preliminary and summary prospectus) and any amendment or
supplement thereto by each such Electing Holder (subject to any applicable Suspension
Period), in each case in the form most recently provided to such person by the Issuers,
in connection with the offering and sale of the Entitled Securities covered by the
prospectus (including such preliminary and summary prospectus) or any supplement or
amendment thereto;




     (xii) use all commercially reasonable efforts to (A) register or qualify the
Entitled Securities to be included in such Shelf Registration Statement under such
securities laws or blue sky laws of such jurisdictions as any Electing Holder shall
reasonably request, (B) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers, sales and dealings therein in
such jurisdictions during the period the Shelf Registration Statement is required to
remain effective under Section 2(b) and for so long as may be necessary to enable any
such Electing Holder to complete its distribution of Entitled Securities pursuant to
such Shelf Registration Statement, (C) take any and all other actions as may be
reasonably necessary or advisable to enable each such Electing Holder to consummate the
disposition in such jurisdictions of such Entitled Securities and (D) obtain the consent
or approval of each governmental agency or authority, whether federal, state or local,
which may be required to effect the Shelf Registration or the offering or sale in
connection therewith or to enable the selling holder or holders to offer, or to
consummate the disposition of, their Entitled Securities; provided, however, that none
the Issuers or the Guarantors shall be required for any such purpose to (1) qualify as a
foreign corporation in any jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(d)(xii), (2) consent to general
service of process in any such jurisdiction or become subject to taxation in any such
jurisdiction or (3) make any changes to its



 









 







certificate of incorporation or by-laws or other governing documents or any
agreement between it and its stockholders;




     (xiii) unless any Entitled Securities shall be in book-entry only form, cooperate
with the Electing Holders to facilitate the timely preparation and delivery of
certificates representing Entitled Securities to be sold, which certificates, if so
required by any securities exchange upon which any Entitled Securities are listed, shall
be printed, penned, lithographed, engraved or otherwise produced by any combination of
such methods, on steel engraved borders, and which certificates shall not bear any
restrictive legends;




     (xiv) obtain a CUSIP number for all Securities that have been registered under the
Securities Act, not later than the applicable Effective Time;




     (xv) notify in writing each holder of Entitled Securities of any proposal by the
Issuers to amend or waive any provision of this Agreement pursuant to Section 9(h) and
of any amendment or waiver effected pursuant thereto, each of which notices shall
contain the text of the amendment or waiver proposed or effected, as the case may be;
and




     (xvi) comply with all applicable rules and regulations of the Commission, and make
generally available to its securityholders no later than 18 months after the Effective
Time of such Shelf Registration Statement an “earning statement” of the Issuers and its
subsidiaries complying with Section 11(a) of the Securities Act (including, at the
option of the Issuers, Rule 158 thereunder).




     (e) In the event that the Issuers would be required, pursuant to Section 3(d)(viii)(G), to
notify the Electing Holders, the Issuers shall promptly prepare and furnish to each of the
Electing Holders a reasonable number of copies of a prospectus supplemented or amended so that,
as thereafter delivered to purchasers of Entitled Securities, such prospectus shall conform in
all material respects to the applicable requirements of the Securities Act and the Trust
Indenture Act and shall 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 the
light of the circumstances under which such statements were made, not misleading. Each Electing
Holder agrees that upon receipt of any notice from the Issuers pursuant to
Section 3(d)(viii)(G), such Electing Holder shall forthwith discontinue the disposition of
Entitled Securities pursuant to the Shelf Registration Statement applicable to such Entitled
Securities until such Electing Holder shall have received copies of such amended or supplemented
prospectus, and if so directed by the Issuers, such Electing Holder shall deliver to the Issuers
(at the Issuers’ expense) all copies, other than permanent file copies, of the prospectus
covering such Entitled Securities in such Electing Holder’s possession at the time of receipt of
such notice.




     (f) In the event of a Shelf Registration, in addition to the information required to be
provided by each Electing Holder in its Notice and Questionnaire, the Issuers may require such
Electing Holder to furnish to the Issuers such additional information regarding such Electing
Holder and such Electing Holder’s intended method of distribution of Entitled Securities as may
be required in order to comply with the Securities Act. Each such Electing Holder agrees to
notify the Issuers as promptly as practicable of any inaccuracy or change in information
previously furnished by such Electing Holder to the Issuers or of the occurrence of any event in
either case as a result of which any prospectus relating to such Shelf Registration contains or
would contain an untrue statement of a material fact regarding such Electing Holder or such
Electing Holder’s intended method of disposition of such



 









 







Entitled Securities or omits to state any material fact regarding such Electing Holder or
such Electing Holder’s intended method of disposition of such Entitled Securities required to be
stated therein or necessary to make the statements therein not misleading in light of the
circumstances then existing, and promptly to furnish to the Issuers any additional information
required to correct and update any previously furnished information or required so that such
prospectus shall not contain, with respect to such Electing Holder or the disposition of such
Entitled Securities, 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 not misleading in
light of the circumstances then existing.




     (g) Until the expiration of one year after the Closing Date, the Issuers will not, and will
not permit any of their “affiliates” (as defined in Rule 144) to, resell any of the Securities
that have been reacquired by any of them except pursuant to an effective registration statement,
or a valid exemption from the registration requirements, under the Securities Act.




     (h) As a condition to its participation in the Exchange Offer, each holder of Entitled
Securities shall furnish, upon the request of the Issuers, a written representation to the
Issuers (which may be contained in the letter of transmittal or “agent’s message” transmitted
via The Depository Trust Company’s Automated Tender Offer Procedures, in either case
contemplated by the Exchange Offer Registration Statement) to the effect that (A) it is not an
“affiliate” of either of the Issuers, as defined in Rule 405 of the Securities Act, or if it is
such an “affiliate”, it will comply with the registration and prospectus delivery requirements
of the Securities 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 Securities to be issued in the Exchange Offer, (C) it is acquiring
the Exchange Securities in its ordinary course of business, (D) if it is a Broker-Dealer that
holds Securities that were acquired for its own account as a result of market-making activities
or other trading activities (other than Securities acquired directly from either of the Issuers
or any of their affiliates), it will deliver a prospectus meeting the requirements of the
Securities Act in connection with any resales of the Exchange Securities received by it in the
Exchange Offer, (E) if it is a Broker-Dealer, that it did not purchase the Securities to be
exchanged in the Exchange Offer from either of the Issuers or any of its affiliates, and (F) it
is not acting on behalf of any person who could not truthfully and completely make the
representations contained in the foregoing subclauses (A) through (E).




     (i) In connection with the Issuers’ and the Guarantors’ obligations with respect to a
Market-Making Registration, if applicable, the Issuers and the Guarantors shall:




     (i) prepare and file with the Commission, within the time periods specified in
Section 2(d), a Market-Making Registration Statement on any form which may be utilized
by the Issuers and which shall register all of the Securities and the Exchange
Securities for resale by the Market Maker in accordance with such method or methods of
disposition as may be specified by the Market Maker and use all commercially reasonable
efforts to cause such Market-Making Registration Statement to become effective within
the time periods specified in Section 2(d);




     (ii) as soon as practicable prepare and file with the Commission such amendments
and supplements to such Market-Making Registration Statement and the prospectus included
therein as may be necessary to effect and maintain the effectiveness of such
Market-Making Registration Statement for the period specified in Section 2(d) and as may
be required by the applicable rules and regulations of the Commission and the
instructions applicable to the form of such Market-Making Registration Statement, and
furnish to the Market Maker copies of any such



 









 







supplement or amendment simultaneously with or prior to its being used or filed
with the Commission to the extent such documents are not publicly available on the
Commission’s EDGAR System;




     (iii) comply with the provisions of the Securities Act with respect to the
disposition of all of the Securities and Exchange Securities covered by such
Market-Making Registration Statement in accordance with the intended methods of
disposition by the Market Maker provided for in such Market-Making Registration
Statement;




     (iv) provide the Market Maker and its counsel the opportunity to participate in the
preparation of such Market-Making Registration Statement, each prospectus included
therein or filed with the Commission and each amendment or supplement thereto;




     (v) for a reasonable period prior to the filing of such Market-Making Registration
Statement, and throughout the period specified in Section 2(d), make available at
reasonable times at the Issuers’ principal place of business or such other reasonable
place for inspection by the Market Maker and its counsel such financial and other
information and books and records of the Issuers, and cause the officers, employees,
counsel and independent certified public accountants of the Issuers to respond to such
inquiries, as shall be reasonably necessary (and in the case of counsel, not violate an
attorney-client privilege, in such counsel’s reasonable belief), in the judgment of the
Market Maker’s counsel, to conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that the Market Maker and its
counsel shall be required to maintain in confidence and not to disclose to any other
person any information or records reasonably designated by the Issuers as being
confidential, until such time as (A) such information becomes a matter of public record
(whether by virtue of its inclusion in such Market-Making Registration Statement or
otherwise), or (B) such person shall be required so to disclose such information
pursuant to a subpoena or order of any court or other governmental agency or body having
jurisdiction over the matter (subject to the requirements of such order, and only after
such person shall have given the Issuers prompt prior written notice of such
requirement), or (C) such information is required to be set forth in such Market-Making
Registration Statement or the prospectus included therein or in an amendment to such
Market-Making Registration Statement or an amendment or supplement to such prospectus in
order that such Market-Making Registration Statement, prospectus, amendment or
supplement, as the case may be, complies with applicable requirements of the Securities
Act and does not contain an untrue statement of a material fact or omit to state therein
a material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;




     (vi) promptly notify the Market Maker and confirm such advice in writing, (A) when
such Market-Making Registration Statement or the prospectus included therein or any
prospectus amendment or supplement or post-effective amendment has been filed, and, with
respect to such Market-Making Registration Statement or any post-effective amendment,
when the same has become effective, (B) of any comments by the Commission and by the
blue sky or securities commissioner or regulator of any state with respect thereto or
any request by the Commission for amendments or supplements to such Market-Making
Registration Statement or prospectus or for additional information, (C) of the issuance
by the Commission of any stop order suspending the effectiveness of such Market-Making
Registration



 









 







Statement or the initiation or threatening of any proceedings for that purpose,
(D) if at any time the representations and warranties of the Issuers set forth in
Section 5 cease to be true and correct in all material respects, (E) of the receipt by
the Issuers of any notification with respect to the suspension of the qualification of
the Securities or the Exchange Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose, (F) the occurrence of any event that
causes the Issuers to become an “ineligible issuer” as defined in Rule 405, or (G) if at
any time when a prospectus is required to be delivered under the Securities Act, that
such Market-Making Registration Statement, prospectus, prospectus amendment or
supplement or post-effective amendment does not conform in all material respects to the
applicable requirements of the Securities Act and the Trust Indenture Act or contains an
untrue statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in light of
the circumstances then existing;




     (vii) use all commercially reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of such Market-Making Registration Statement or any
post-effective amendment thereto at the earliest practicable date;




     (viii) if requested by the Market Maker, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is required by the applicable
rules and regulations of the Commission and as the Market Maker reasonably specifies
should be included therein relating to the terms of the sale of such Securities or
Exchange Securities by the Market Maker; and make all required filings of such
prospectus supplement or post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or post-effective amendment;




     (ix) furnish to the Market Maker and its counsel an executed copy (or a conformed
copy) of such Market-Making Registration Statement, each such amendment and supplement
thereto (in each case including all exhibits thereto and documents incorporated by
reference therein) and such number of copies of such Market-Making Registration
Statement (excluding exhibits thereto and documents incorporated by reference therein
unless specifically so requested by the Market Maker) and of the prospectus included in
such Market Making Registration Statement (including each preliminary prospectus and any
summary prospectus), in conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture Act to the extent such
documents are not available through the Commission’s EDGAR System, and such other
documents, as the Market Maker may reasonably request in order to facilitate the
offering and disposition of the Securities and the Exchange Securities by the Market
Maker and to permit the Market Maker to satisfy the prospectus delivery requirements of
the Securities Act; and subject to Section 3(j), the Issuers and the Guarantors hereby
consent to the use of such prospectus (including such summary prospectus) and any
amendment or supplement thereto by the Market Maker (subject to any applicable
suspension period in accordance with Section 3(j)), in each case in the form most
recently provided to the Market Maker by the Issuers) in connection with the offering
and sale of the Securities and Exchange Securities covered by the prospectus (including
such summary prospectus) or any supplement or amendment thereto;




     (x) use all commercially reasonable efforts to (A) register or qualify the
Securities and Exchange Securities to be included in such Market-Making Registration
Statement under such securities laws or blue sky laws of such



 









 







jurisdictions as the Market Maker shall reasonably request, (B) keep such
registrations or qualifications in effect and comply with such laws so as to permit the
continuance of offers, sales and dealings therein in such jurisdictions during the
period the Market-Making Registration Statement is required to remain effective under
Section 2(d) and for so long as may be necessary to enable any such Electing Holder to
complete its distribution of Securities and Exchange Securities pursuant to such
Market-Making Registration Statement, (C) take any and all other actions as may be
reasonably necessary or advisable to enable the Market Maker to consummate the
disposition in such jurisdictions of such Securities and Exchange Securities and
(D) obtain the consent or approval of each governmental agency or authority, whether
federal, state or local, which may be required to effect the Market-Making Registration
or the offering or sale in connection therewith or to enable the Market Maker to offer,
or to consummate the disposition of, Securities and Exchange Securities in connection
with its market making activities; provided, however, that none of the Issuers nor any
Guarantor shall be required for any such purpose to (1) qualify as a foreign corporation
in any jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 3(e)(x), (2) consent to general service of process in any
such jurisdiction or become subject to taxation in any such jurisdiction or (3) make any
changes to its certificate of incorporation or by-laws or other governing documents or
any agreement between it and its stockholders;




     (xi) use all commercially reasonable efforts to furnish or cause to be furnished to
the Market Maker upon its request at reasonable intervals (subject to the proviso
below), when the Market-Making Registration Statement or the Market-Making Prospectus
shall be amended or supplemented at any time when the Market-Making Conditions are
satisfied: (1) access to the Issuers’ officers and financial and other records;
provided, however, that if any information is identified by the Issuers as being
confidential or proprietary, each person shall take such actions as are reasonably
necessary to protect the confidentiality of such information; (2) written opinions of
counsel for the Issuers (which may be the General Counsel of the Issuers in her sole
discretion) covering such matters as the Market Maker may reasonably request and that,
to such counsel’s knowledge, no stop order suspending the effectiveness of the
Market-Making Registration Statement has been issued and no proceeding for that purpose
is pending or threatened by the Commission; (3) a customary comfort letter from the
independent accountants who have certified the financial statements included in the
Market-Making Registration Statement as then amended covering such matters as the Market
Maker shall reasonably request and consistent with customary practice; and (4)
certificates of officers of the Issuers to the effect that, to the knowledge of such
officer: (A) the Market-Making Registration Statement has been declared effective; (B)
in the case of an amendment, such amendment has become effective under the Securities
Act as of the date and time specified in such certificate, if applicable; (C) if
required, such amendment or supplement to the Market-Making Prospectus was filed with
the Commission pursuant to the subparagraph of Rule 424(b) under the Securities Act
specified in such certificate on the date specified therein; (D) no stop order
suspending the effectiveness of the Market-Making Registration Statement has been issued
and no proceeding for that purpose is pending or threatened by the Commission; (E) such
officers have examined the Market-Making Registration Statement and the Market-Making
Prospectus (and, in the case of an amendment or supplement, such amendment or
supplement) and as of the date of such document, the Market-Making Registration
Statement and the Market-Making Prospectus, as amended or



 









 







supplemented, as applicable, did not include any untrue statement of a material
fact and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and in the case of clauses (2),
(3) and (4) above in form and substance reasonably satisfactory to the Market Maker and
as modified to relate to the Market-Making Registration Statement and the Market-Making
Prospectus as then amended or supplemented; provided, however, that (x) such letters
from the independent accountants shall be required only in connection with amendments or
supplements relating to the inclusion of audited financial statements, beginning with
the audited financial statements for the year ended 2008 and shall be required no more
than once in any calendar year and (y) such opinions of counsel and such officers
certificates shall be required no more than twice in any calendar year;




     (xii) unless any Securities or Exchange Securities shall be in book-entry only
form, cooperate with the Market Maker to facilitate the timely preparation and delivery
of certificates representing Securities and Exchange Securities to be sold, which
certificates, if so required by any securities exchange upon which any Securities or
Exchange Securities are listed, shall be printed, penned, lithographed, engraved or
otherwise produced by any combination of such methods, on steel engraved borders, and
which certificates shall not bear any restrictive legends; and




     (xiii) comply with all applicable rules and regulations of the Commission, and make
generally available to its securityholders no later than 18 months after the Effective
Time of such Market-Making Registration Statement an “earning statement” of the Issuers
and its subsidiaries complying with Section 11(a) of the Securities Act (including, at
the option of the Issuers, Rule 158 thereunder).




     (j) In the event that the Issuers would be required, pursuant to Section 3(i)(vi)(G), to
notify the Market Maker, the Issuers shall promptly prepare and furnish to the Market Maker a
reasonable number of copies of a Market-Making prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Securities or Exchange Securities, such prospectus shall
conform in all material respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and shall 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
not misleading in light of the circumstances then existing. The Market Maker agrees that upon
receipt of any notice from the Issuers pursuant to Section 3(i)(vi)(G), the Market Maker shall
forthwith discontinue the disposition of Securities and Exchange Securities pursuant to the
Market-Making Registration Statement until the Market Maker shall have received copies of such
amended or supplemented Market-Making Prospectus, and if so directed by the Issuers, the Market
Maker shall deliver to the Issuers (at the Issuers’ expense) all copies, other than permanent
file copies, of the Market-Making Prospectus in the Market-Maker’s possession at the time of
receipt of such notice.




     4. Registration Expenses.



               The Issuers agree to bear and to pay or cause to be paid promptly all expenses incident to the
Issuers’ and the Guarantors’ performance of or compliance with this Agreement, including (a) all
Commission and any FINRA registration, filing and review fees and expenses including reasonable
fees and disbursements of counsel for the Eligible Holders and the Market Maker in connection with
such registration, filing and review, (b) all fees and expenses in connection with the
qualification of the Entitled Securities, the Securities and the Exchange Securities, as
applicable, for offering and sale under the state securities and blue sky laws referred to in
Section 3(d)(xii) and Section 3(i)(x) and determination of their eligibility for



 









 







investment under the laws of such jurisdictions as the Electing Holders or the Market Maker
may designate, including any reasonable fees and disbursements of counsel for the Electing Holders
or the Market Maker in connection with such qualification and determination, (c) all expenses
relating to the preparation, printing, production, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included therein or prepared
for distribution pursuant hereto, each amendment or supplement to the foregoing, the expenses of
preparing the Securities or Exchange Securities, as applicable, for delivery and the expenses of
printing or producing any selling agreements and blue sky or legal investment memoranda and all
other documents in connection with the offering, sale or delivery of Securities or Exchange
Securities, as applicable, to be disposed of (including certificates representing the Securities or
Exchange Securities, as applicable), (d) messenger, telephone and delivery expenses relating to the
offering, sale or delivery of Securities or Exchange Securities, as applicable, and the preparation
of documents referred in clause (c) above, (e) fees and expenses of the Trustee under the
Indenture, any agent of the Trustee and any counsel for the Trustee and of any collateral agent or
custodian, including the Collateral Trustee, (f) internal expenses (including all salaries and
expenses of the Issuers’ officers and employees performing legal or accounting duties),
(g) reasonable fees, disbursements and expenses of counsel and independent certified public
accountants of the Issuers, (h) reasonable fees, disbursements and expenses of (x) one counsel and
any local counsel for all Electing Holders retained in connection with a Shelf Registration, as
selected by the Electing Holders of at least a majority in aggregate principal amount of the
Entitled Securities held by Electing Holders (which counsel shall be reasonably satisfactory to the
Issuers) and (y) one counsel and any local counsel for the Market Maker retained in connection with
a Market-Making Registration, as selected by the Market Maker (which counsel shall be reasonably
satisfactory to the Issuers), (i) any fees charged by securities rating services for rating the
Entitled Securities, the Securities or the Exchange Securities, as applicable, and (j) reasonable
fees, expenses and disbursements of any other persons, including special experts, retained by the
Issuers in connection with such registration (collectively, the “Registration Expenses”). To the
extent that any Registration Expenses are incurred, assumed or paid by any holder of Entitled
Securities, Securities or Exchange Securities (including the Market Maker), as applicable, the
Issuers shall reimburse such person for the full amount of the Registration Expenses so incurred,
assumed or paid promptly after receipt of a request therefor and supporting documentation.
Notwithstanding the foregoing, the holders of the Entitled Securities being registered and the
Market Maker shall pay all agency fees and commissions and underwriting discounts and commissions,
if any, and transfer taxes, if any, attributable to the sale of such Entitled Securities,
Securities and Exchange Securities, as applicable, and reasonable fees and disbursements of any
counsel or other advisors or experts retained by such holders (severally or jointly), other than
the counsel and experts specifically referred to above.



          5. Representations and Warranties.




               Each of the Issuers and the Guarantors, jointly and severally, represents and warrants to, and
agrees with, the Purchaser and each of the holders from time to time of Entitled Securities and the
Market Maker that:




     (a) Each registration statement covering Entitled Securities, Securities or Exchange
Securities, as applicable, and each prospectus (including any preliminary or summary prospectus)
contained therein or furnished pursuant to Section 3(c) or Section 3(d) or Section 3(i) and any
further amendments or supplements to any such registration statement or prospectus, when it
becomes effective or is filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act and the Trust Indenture Act and 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 not



 









 







misleading; and at all times subsequent to the Effective Time when a prospectus would be
required to be delivered under the Securities Act, other than from (i) such time as a notice has
been given to holders of Entitled Securities or to the Market Maker pursuant to
Section 3(c)(iii)(G) or Section 3(d)(viii)(G) or Section 3(i)(vi)(G) until (ii) such time as the
Issuers furnishes an amended or supplemented prospectus pursuant to Section 3(c)(iv) or
Section 3(e) or Section 3(j), each such registration statement, and each prospectus (including
any summary prospectus) contained therein or furnished pursuant to Section 3(c) or Section 3(d)
or Section 3(i), as then amended or supplemented, will conform in all material respects to the
requirements of the Securities Act and the Trust Indenture Act and 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 not misleading (in the case of any prospectus, in the
light of the circumstances under which such statements were made); provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Issuers by a holder of Entitled
Securities or the Market Maker expressly for use therein.




     (b) Any documents incorporated by reference in any prospectus referred to in Section 5(a),
when they become or became effective or are or were filed with the Commission, as the case may
be, will conform or conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and none of such documents will contain or contained an
untrue statement of a material fact or will omit or omitted to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of the circumstances
under which such statements were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Issuers by a holder of Entitled
Securities or the Market Maker expressly for use therein.




     (c) The compliance by the Issuers with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not (i) conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the properties or assets of the Company or any of its subsidiaries
is subject, (ii) result in any violation of the provisions of the certificate of incorporation,
as amended, or the by-laws or other governing documents, as applicable, of the Issuers or the
Guarantors or (iii)  result in any violation of any statute or any order, rule or regulation of
any court or governmental agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties, except in the cases of clause (i) or (iii)
above, as would not, individually or in the aggregate, result in any material adverse change, or
any development that would reasonably expected to result in a material adverse change, in or
affecting the business, properties, financial condition or results of operations of the Issuers
and their subsidiaries, taken as a whole. No consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency or body is
required for the consummation by the Issuers and the Guarantors of the transactions contemplated
by this Agreement, except for (x) the registration under the Securities Act of the Entitled
Securities, the Securities and the Exchange Securities, as applicable, and qualification of the
Indenture under the Trust Indenture Act, (y) such consents, approvals, authorizations,
registrations or qualifications as may be required under state securities or blue sky laws in
connection with the offering and distribution of the Entitled Securities, the Securities and the
Exchange Securities, as



 









 







applicable, and (z) such consents, approvals, authorizations, registrations or
qualifications that have been obtained and are in full force and effect as of the date hereof.




     (d) This Agreement has been duly authorized, executed and delivered by the Issuers and by
the Guarantors.




     6. Indemnification and Contribution.




     (a) Indemnification by each of the Issuers and each Guarantor. The Issuers and the
Guarantors, jointly and severally, will indemnify and hold harmless each of the holders of
Entitled Securities included in an Exchange Offer Registration Statement, each of the Electing
Holders as holders of Entitled Securities included in a Shelf Registration Statement and the
Market Maker as holder of Securities or Exchange Securities included in a Market-Making
Registration Statement against any losses, claims, damages or liabilities, joint or several, to
which such holder, such Electing Holder or the Market Maker may become subject under the
Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Exchange Offer Registration Statement, any Shelf
Registration Statement, or any Market-Making Registration Statement, as the case may be, under
which such Entitled Securities, Securities or Exchange Securities were registered under the
Securities Act, or any preliminary, final or summary prospectus (including, without limitation,
any “issuer free writing prospectus” as defined in Rule 433) contained therein or furnished by
the Issuers to any such holder, any such Electing Holder or the Market Maker, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such holder, each such Electing Holder and the
Market Maker for any and all legal or other expenses reasonably incurred by them in connection
with investigating or defending any such action or claim as such expenses are incurred;
provided, however, that none of the Issuers nor any Guarantor shall be liable to any such person
in any such case to the extent that any such loss, claim, damage or liability arises out of or
is based upon an untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement, or preliminary, final or summary prospectus (including,
without limitation, any “issuer free writing prospectus” as defined in Rule 433), or amendment
or supplement thereto, in reliance upon and in conformity with written information furnished to
the Issuers by such person expressly for use therein.




     (b) Indemnification by the Electing Holders. The Issuers may require, as a condition to
including any Entitled Securities in any Shelf Registration Statement filed pursuant to Section
2(b), that the Issuers shall have received an undertaking reasonably satisfactory to it from
each Electing Holder of Entitled Securities included in such Shelf Registration Statement,
severally and not jointly, to (i) indemnify and hold harmless the Issuers, the Guarantors and
all other Electing Holders of Entitled Securities included in such Shelf Registration Statement,
against any losses, claims, damages or liabilities to which the Issuers, the Guarantors or such
other Electing Holders may become subject, under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are
based upon an untrue statement or alleged untrue statement of a material fact contained in such
registration statement, or any preliminary, final or summary prospectus (including, without
limitation, any “issuer free writing prospectus” as defined in Rule 433) contained therein or
furnished by the Issuers to any Electing Holder, or any amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the



 









 







extent, that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information furnished to the
Issuers by such Electing Holder expressly for use therein, and (ii) reimburse the Issuers and
the Guarantors for any legal or other expenses reasonably incurred by the Issuers and the
Guarantors in connection with investigating or defending any such action or claim as such
expenses are incurred; provided, however, that no such Electing Holder shall be required to
undertake liability to any person under this Section 6(b) for any amounts in excess of the
dollar amount of the proceeds to be received by such Electing Holder from the sale of such
Electing Holder’s Entitled Securities pursuant to such registration.




     (c) Notices of Claims, Etc. Promptly after receipt by an indemnified party under
subsection (a) or (b) above of written notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an indemnifying
party pursuant to the indemnification provisions of or contemplated by this Section 6, notify
such indemnifying party in writing of the commencement of such action; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it may have to any
indemnified party otherwise than under the indemnification provisions of or contemplated by
Section 6(a) or Section 6(b). In case any such action shall be brought against any indemnified
party and it shall notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and, after notice from
the indemnifying party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party under such
subsection for any legal expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect the settlement or compromise of, or consent to the
entry of any judgment with respect to, any pending or threatened action or claim in respect of
which indemnification or contribution may be sought hereunder (whether or not the indemnified
party is an actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of any indemnified party.




     (d) Contribution. If for any reason the indemnification provisions contemplated by
Section 6(a) or Section 6(b) are unavailable to or insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or liabilities (or actions
in respect thereof) in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and the indemnified party in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in respect thereof),
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 the
untrue or alleged untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by such indemnifying party or by such indemnified
party, and the parties’ relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The parties hereto agree that it would not be
just and



 









 







equitable if contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the holders were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations referred to in
this Section 6(d). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, or liabilities (or actions in respect thereof) referred to above shall
be deemed to include any legal or other fees or expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding
the provisions of this Section 6(d), (i) no Electing Holder shall be required to contribute any
amount in excess of the amount by which the dollar amount of the proceeds received by such
holder from the sale of any Entitled Securities (after deducting any fees, discounts and
commissions applicable thereto) exceeds the amount of any damages which such holder has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission and (ii) under no circumstances will the Market Maker be required to
contribute any amount. 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. The holders’ obligations in this Section 6(d)
to contribute shall be several in proportion to the principal amount of Entitled Securities
registered by them and not joint.




     (e) The obligations of the Issuers and the Guarantors under this Section 6 shall be in
addition to any liability which the Issuers or the Guarantors may otherwise have and shall
extend, upon the same terms and conditions, to each officer, director and partner of each
holder, each Electing Holder, the Market Maker, and each person, if any, who controls any of the
foregoing within the meaning of the Securities Act; and the obligations of the holders and the
Electing Holders contemplated by this Section 6 shall be in addition to any liability which the
respective holder or Electing Holder may otherwise have and shall extend, upon the same terms
and conditions, to each officer and director of either of Issuers or the Guarantors (including
any person who, with his consent, is named in any registration statement as about to become a
director of either of the Issuers or any Guarantor) and to each person, if any, who controls
either of Issuers within the meaning of the Securities Act, as well as to each officer and
director of the other holders and to each person, if any, who controls such other holders within
the meaning of the Securities Act.




     7. Underwritten Offerings.



               Each holder of Entitled Securities hereby agrees with the Issuers and each other such holder
that no holder of Entitled Securities may participate in any underwritten offering hereunder unless
(a) the Issuers give their prior written consent to such underwritten offering, (b) the managing
underwriter or underwriters thereof shall be designated by Electing Holders holding at least a
majority in aggregate principal amount of the Entitled Securities to be included in such offering,
provided that such designated managing underwriter or underwriters is or are reasonably acceptable
to the Issuers, (c) each holder of Entitled Securities participating in such underwritten offering
agrees to sell such holder’s Entitled Securities on the basis provided in any underwriting
arrangements approved by the persons entitled selecting the managing underwriter or underwriters
hereunder and (d) each holder of Entitled Securities participating in such underwritten offering
completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements
and other documents reasonably required under the terms of such underwriting arrangements.




     8. Rule 144.




     (a) Facilitation of Sales Pursuant to Rule 144. The Issuers covenant to the holders of
Entitled Securities that to the extent they shall be required to do so under the Exchange Act,



 









 







the Issuers shall timely file the reports required to be filed by it under the
Exchange Act or the Securities Act (including the reports under Sections 13 and 15(d) of the
Exchange Act referred to in subparagraph (c)(1) of Rule 144), and shall take such further action
as any holder of Entitled Securities may reasonably request, all to the extent required from
time to time to enable such holder to sell Entitled Securities without registration under the
Securities Act within the limitations of the exemption provided by Rule 144. Upon the request
of any holder of Entitled Securities in connection with that holder’s sale pursuant to Rule 144,
the Issuers shall deliver to such holder a written statement as to whether they have complied
with such requirements.




     (b) Availability of Rule 144 Not Excuse for Obligations under Section 2. The fact that
holders of Entitled Securities may become eligible to sell such Entitled Securities pursuant to
Rule 144 shall not (1) cause such Securities to cease to be Entitled Securities or (2) excuse
the Issuers’ and the Guarantors’ obligations set forth in Section 2 of this Agreement, including
without limitation the obligations in respect of an Exchange Offer, Shelf Registration, Special
Interest and Market-Making Registration.




     9. Miscellaneous.




     (a) No Inconsistent Agreements. The Issuers represent, warrant, covenant and agree that
they have not granted, and shall not grant, registration rights with respect to Entitled
Securities, Exchange Securities or Securities, as applicable, or any other securities which
would be inconsistent with the terms contained in this Agreement.




     (b) Specific Performance. The parties hereto acknowledge that there would be no adequate
remedy at law if the Issuers fail to perform any of their obligations hereunder and that the
Purchaser and the holders from time to time of the Entitled Securities and the Market Maker may
be irreparably harmed by any such failure, and accordingly agree that the Purchasers and such
holders and the Market Maker, in addition to any other remedy to which they may be entitled at
law or in equity, shall be entitled to compel specific performance of the obligations of the
Issuers under this Agreement in accordance with the terms and conditions of this Agreement, in
any court of the United States or any State thereof having jurisdiction. Time shall be of the
essence in this Agreement.




     (c) Notices. All notices, requests, claims, demands, waivers and other communications
hereunder shall be in writing and shall be deemed to have been duly given when delivered by
hand, if delivered personally, by facsimile or by courier, or three days after being deposited
in the mail (registered or certified mail, postage prepaid, return receipt requested) as
follows: If to the Issuers, to them at 2000 Las Vegas Boulevard South, Las Vegas, NV 89104,
Attention: General Counsel, with a copy to Sullivan & Cromwell LLP, [          ], New York, NY
[          ], Attention: S. Neal McKnight, and if to a holder, to the address of such holder set
forth in the security register or other records of the Issuers, or to such other address as the
Issuers or any such holder may have furnished to the other in writing in accordance herewith,
except that notices of change of address shall be effective only upon receipt and if to the
Market Maker, to 85 Broad Street, New York, NY 10004.




     (d) Parties in Interest. All the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the parties hereto, the holders
from time to time of the Entitled Securities, the Market Maker and the respective successors and
assigns of the foregoing. In the event that any transferee of any holder of Entitled Securities
shall acquire Entitled Securities, in any manner, whether by gift, bequest, purchase, operation
of law or otherwise, such transferee shall, without any further writing or action of any kind,
be deemed a beneficiary hereof for all purposes and such Entitled



 









 







Securities shall be held subject to all of the terms of this Agreement, and by taking and
holding such Entitled Securities such transferee shall be entitled to receive the benefits of,
and be conclusively deemed to have agreed to be bound by all of the applicable terms and
provisions of this Agreement. If the Issuers shall so request, any such successor, assign or
transferee shall agree in writing to acquire and hold the Entitled Securities subject to all of
the applicable terms hereof.




     (e) Survival. The respective indemnities, agreements, representations, warranties and each
other provision set forth in this Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the results thereof) made by or
on behalf of any holder of Entitled Securities, the Market Maker, any director, officer or
partner of such holder or the Market Maker, or any controlling person of any of the foregoing,
and shall survive delivery of and payment for the Entitled Securities pursuant to the Purchase
Agreement, the transfer and registration of Entitled Securities by such holder and the
consummation of an Exchange Offer and the transfer and registration of Securities and Exchange
Securities by the Market Maker.




     (f) Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.




     (g) Headings. The descriptive headings of the several Sections and paragraphs of this
Agreement are inserted for convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this Agreement.




     (h) Entire Agreement; Amendments. This Agreement and the other writings referred to herein
(including the Indenture and the form of Securities) or delivered pursuant hereto which form a
part hereof contain the entire understanding of the parties with respect to its subject matter.
This Agreement supersedes all prior agreements and understandings between the parties with
respect to its subject matter. This Agreement may be amended and the observance of any term of
this Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by the Issuers and
the holders of at least a majority in aggregate principal amount of the Entitled Securities at
the time outstanding and the Market Maker; provided that any such amendment or waiver affecting
solely the provisions of this Agreement relating to a Market-Making Registration may be effected
by a written instrument duly executed solely by the Issuers and the Market Maker. Each holder
of any Entitled Securities at the time or thereafter outstanding shall be bound by any amendment
or waiver effected pursuant to this Section 9(h), whether or not any notice, writing or marking
indicating such amendment or waiver appears on such Entitled Securities or is delivered to such
holder.




     (i) Inspection. For so long as this Agreement shall be in effect, this Agreement and a
complete list of the names and addresses of all the record holders of Entitled Securities shall
be made available for inspection and copying on any Business Day by any holder of Entitled
Securities and the Market Maker for proper purposes only (which shall include any purpose
related to the rights of the holders of Entitled Securities under the Securities, the Indenture
and this Agreement) at the offices of the Issuers at the address thereof set forth in
Section 9(c) and at the office of the Trustee under the Indenture.




     (j) Counterparts. This Agreement may be executed by the parties in counterparts, each of
which shall be deemed to be an original, but all such respective counterparts shall together
constitute one and the same instrument.



 









 






     (k) Severability. If any provision of this Agreement, or the application thereof in any
circumstance, is held to be invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of such provision in every other respect and of the
remaining provisions contained in this Agreement shall not be affected or impaired thereby.



[Rest of Page Intentionally Left Blank]




 









 








          If the foregoing is in accordance with your understanding, please sign and return to us one
for the each of the Issuers, each of the Guarantors and the Purchaser plus one for each counsel
counterparts hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof
shall constitute a binding agreement between the Purchaser, the Guarantors and the Issuers.





               Very truly yours,



	 	 	 	 	 	 	 	 	 
	AMERICAN CASINO & ENTERTAINMENT
PROPERTIES LLC, 

a Delaware limited liability company	 	 	 	ACEP FINANCE CORP.,

a Delaware corporation
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
	 	 	 	By:
	 	/S/ Oleg Yablonovskiy
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Oleg Yablonovskiy
	 	 	 	 	 	Name: Oleg Yablonovskiy
	 

	 	Title: Authorized Signatory
	 	 	 	 	 	Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	STRATOSPHERE LLC,

a Delaware limited liability company	 	 	 	STRATOSPHERE GAMING LLC,

a Nevada limited liability company
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
	 	 	 	By:
	 	/S/ Oleg Yablonovskiy
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Oleg Yablonovskiy
	 	 	 	 	 	Name: Oleg Yablonovskiy
	 

	 	Title: Authorized Signatory
	 	 	 	 	 	Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	STRATOSPHERE LAND LLC,

a Delaware limited liability company	 	 	 	AQUARIUS GAMING LLC,

a Nevada limited liability company
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
	 	 	 	By:
	 	/S/ Oleg Yablonovskiy
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Oleg Yablonovskiy
	 	 	 	 	 	Name: Oleg Yablonovskiy
	 

	 	Title: Authorized Signatory
	 	 	 	 	 	Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	CHARLIE’S HOLDING LLC,

a Delaware limited liability company	 	 	 	ARIZONA CHARLIE’S, LLC,

a Nevada limited liability company
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
	 	 	 	By:
	 	/S/ Oleg Yablonovskiy
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Oleg Yablonovskiy
	 	 	 	 	 	Name: Oleg Yablonovskiy
	 

	 	Title: Authorized Signatory
	 	 	 	 	 	Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	FRESCA, LLC, 

a Nevada limited liability company	 	 	 	STRATOSPHERE DEVELOPMENT, LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
	 	 	 	By:
	 	/S/ Oleg Yablonovskiy
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Oleg Yablonovskiy
	 	 	 	 	 	Name: Oleg Yablonovskiy
	 

	 	Title: Authorized Signatory
	 	 	 	 	 	Title: Authorized Signatory






 









 









	 	 	 	 	 	 	 	 	 
	STRATOSPHERE LEASING, LLC,

a Delaware limited liability company	 	 	 	STRATOSPHERE ADVERTISING AGENCY LLC,

a Delaware limited liability company
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
	 	 	 	By:
	 	/S/ Oleg Yablonovskiy
	 

	 	 
	 	 	 	 	 	 
	 

	 	Name: Oleg Yablonovskiy
	 	 	 	 	 	Name: Oleg Yablonovskiy
	 

	 	Title: Authorized Signatory
	 	 	 	 	 	Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	W2007 ACEP FIRST MEZZANINE
A GEN-PAR, L.L.C., 

a Delaware limited liability company	 	 	 	W2007 ACEP FIRST MEZZANINE A BORROWER, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
 

Name: Oleg Yablonovskiy
	 	 	 	By:
	 	W2007 ACEP First Mezzanine A Gen-Par,
L.L.C., a Delaware limited liability company, its general partner
	 

	 	Title: Authorized Signatory	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	
	 	By:    
 /S/ Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	          Name: Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	          Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	W2007 ACEP FIRST MEZZANINE
B GEN-PAR, L.L.C.,

a Delaware limited liability company	 	 	 	W2007 ACEP FIRST MEZZANINE B BORROWER, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
 

Name: Oleg Yablonovskiy
	 	 	 	By:
	 	W2007 ACEP First Mezzanine B Gen-Par,
L.L.C., a Delaware limited liability company, its general partner
	 

	 	Title: Authorized Signatory	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	 	By:     /S/ Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	           Name: Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	           Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	W2007 STRATOSPHERE GEN-PAR, L.L.C.,

a Delaware limited liability company	 	 	 	W2007 STRATOSPHERE PROPCO, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
 

Name: Oleg Yablonovskiy
	 	 	 	By:
	 	W2007 Stratosphere Gen-Par, L.L.C., a
Delaware limited liability company, its general partner
	 

	 	Title: Authorized Signatory	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 		 	By:    
 /S/ Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	           Name: Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	           Title: Authorized Signatory






 









 







	 	 	 	 	 	 	 	 	 
	W2007 STRATOSPHERE LAND
GEN-PAR, L.L.C.,

a Delaware limited liability company	 	 	 	W2007 STRATOSPHERE LAND
PROPCO, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
 

Name: Oleg Yablonovskiy
	 	 	 	By:
	 	W2007 Stratosphere Land Gen-Par, L.L.C., a Delaware
limited liability company, its general partner
	 

	 	Title: Authorized Signatory	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 		 	By:    
 /S/ Oleg Yablonovskiy

	 

	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	           Name:
Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	           Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	W2007 AQUARIUS GEN-PAR, L.L.C.,

a Delaware limited liability company	 	 	 	W2007 AQUARIUS PROPCO, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
 

Name: Oleg Yablonovskiy
	 	 	 	By:
	 	W2007 Aquarius Gen-Par, L.L.C., a
Delaware limited liability company, its general partner
	 

	 	Title: Authorized Signatory	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 		 	By:    
 /S/ Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	           Name: Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	           Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	W2007 ARIZONA CHARLIE’S
GEN-PAR, L.L.C., 

a Delaware limited liability company	 	 	 	W2007 ARIZONA CHARLIE’S
PROPCO, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
 

Name: Oleg Yablonovskiy
	 	 	 	By:
	 	W2007 Arizona Charlie’s Gen-Par, L.L.C., a Delaware
limited liability company, its general partner
	 

	 	Title: Authorized Signatory	 	 	 	 	 	 
	 

	 	 	 	 	 		 	By:    
 /S/ Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	           Name: Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	           Title: Authorized Signatory
	 
	 	 	 	 	 	 	 	 
	W2007 FRESCA GEN-PAR, L.L.C.,

a Delaware limited liability company	 	 	 	W2007 FRESCA PROPCO, L.P.,

a Delaware limited partnership
	 
	 	 	 	 	 	 	 	 
	By:

	 	/S/ Oleg Yablonovskiy
 

Name: Oleg Yablonovskiy
	 	 	 	By:    
	 	W2007 Fresca Gen-Par, L.L.C., a
Delaware limited liability company, its general partner
	 

	 	Title: Authorized Signatory	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 		 	By:    
 /S/ Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	 

	 

	 	 	 	 	 	 	 	           Name: Oleg Yablonovskiy
	 

	 	 	 	 	 	 	 	           Title: Authorized Signatory






 









 







Accepted as of the date hereof:




Goldman, Sachs & Co.




	 	 	 	 	 
	By:

	 	/S/ Goldman, Sachs & Co.
 

     (Goldman, Sachs & Co.)
	 	 







 











 





Exhibit A




American
Casino & Entertainment Properties LLC



ACEP Finance Corp.




INSTRUCTION TO DTC PARTICIPANTS




(Date of Mailing)




URGENT — IMMEDIATE ATTENTION REQUESTED




DEADLINE FOR RESPONSE: [DATE] *



The Depository Trust Company (“DTC”) has identified you as a DTC Participant through which
beneficial interests in the American Casino & Entertainment Properties LLC (“ACEP”) and ACEP
Finance Corp. (together with ACEP, the “Issuers”) 11% Senior Secured Notes due 2014 (the
“Securities”) are held.



The Issuers are in the process of registering the Securities under the Securities Act of 1933, as
amended, for resale by the beneficial owners thereof. In order to have their Securities included
in the registration statement, beneficial owners must complete and return the enclosed Notice of
Registration Statement and Selling Securityholder Questionnaire (the “Notice and Questionnaire”).



It is important that beneficial owners of the Securities receive a copy of the enclosed
materials as soon as possible as their rights to have the Securities included in the
registration statement depend upon their returning the Notice and Questionnaire by [Deadline For
Response]. Please forward a copy of the enclosed documents to each beneficial owner that holds
interests in the Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact the Issuers at: Attn: General Counsel,
2000 Las Vegas Boulevard South, Las Vegas, NV 89104, (702) 380-7777.






 




			
	*	 	Not less than 28 calendar days from date of mailing.




A-1









 










American Casino & Entertainment Properties LLC




ACEP Finance Corp.




Notice of Registration Statement

and

Selling Securityholder Questionnaire




(Date)



Reference is hereby made to the Exchange and Registration Rights Agreement (the “Exchange and
Registration Rights Agreement”) among American Casino & Entertainment Properties LLC (“ACEP”) and
ACEP Finance Corp. (together with ACEP, the “Issuers”) and the Purchaser named therein. Pursuant
to the Exchange and Registration Rights Agreement, the Issuers have filed or will file with the
United States Securities and Exchange Commission (the “Commission”) a registration statement on
Form [___] (the “Shelf Registration Statement”) for the registration and resale under Rule 415 of
the Securities Act of 1933, as amended (the “Securities Act”), of the Issuers’ 11% Senior Secured
Notes due 2014 (the “Securities”). A copy of the Exchange and Registration Rights Agreement has
been filed as an exhibit to the Shelf Registration Statement and can be obtained from the
Commission’s website at www.sec.gov. All capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Exchange and Registration Rights Agreement.



Each beneficial owner of Entitled Securities (as defined below) is entitled to have the Entitled
Securities beneficially owned by it included in the Shelf Registration Statement. In order to have
Entitled Securities included in the Shelf Registration Statement, this Notice of Registration
Statement and Selling Securityholder Questionnaire (“Notice and Questionnaire”) must be completed,
executed and delivered to the Issuers’ counsel at the address set forth herein for receipt ON OR
BEFORE [Deadline for Response]. Beneficial owners of Entitled Securities who do not properly
complete, execute and return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use the Prospectus
forming a part thereof for resales of Entitled Securities.



Certain legal consequences arise from being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus. Accordingly, holders and beneficial owners of
Entitled Securities are advised to consult their own securities law counsel regarding the
consequences of being named or not being named as a selling securityholder in the Shelf
Registration Statement and related Prospectus.



The term “Entitled Securities” is defined in the Exchange and Registration Rights Agreement.




A-2









 








ELECTION



The undersigned holder (the “Selling Securityholder”) of Entitled Securities hereby elects to
include in the Shelf Registration Statement the Entitled Securities beneficially owned by it and
listed below in Item (3). The undersigned, by signing and returning this Notice and Questionnaire,
agrees to be bound with respect to such Entitled Securities by the terms and conditions of this
Notice and Questionnaire and the Exchange and Registration Rights Agreement, including, without
limitation, Section 6 of the Exchange and Registration Rights Agreement, as if the undersigned
Selling Securityholder were an original party thereto.



Pursuant to the Exchange and Registration Rights Agreement, the undersigned has agreed to indemnify
and hold harmless the Issuers, their officers who sign any Shelf Registration Statement, and each
person, if any, who controls either of the Issuers within the meaning of either Section 15 of the
Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), against certain loses arising out of an untrue statement, or the alleged untrue statement,
of a material fact in the Shelf Registration Statement or the related prospectus or the omission,
or alleged omission, to state a material fact required to be stated in such Shelf Registration
Statement or the related prospectus, but only to the extent such untrue statement or omission, or
alleged untrue statement or omission, was made in reliance on and in conformity with the
information provided in this Notice and Questionnaire.



Upon any sale of Entitled Securities pursuant to the Shelf Registration Statement, the Selling
Securityholder will be required to deliver to the Issuers and Trustee the Notice of Transfer set
forth in Appendix A to the Prospectus and as Exhibit B to the Exchange and Registration Rights
Agreement.



The Selling Securityholder hereby provides the following information to the Issuers and represents
and warrants that such information is accurate and complete:




A-3









 










QUESTIONNAIRE





	(1) 	(a)	 	 Full legal name of Selling Securityholder:
	 	 	 	 
	 
	 	(b) 	 	 
Full legal name of registered Holder (if not the same as in (a) above) of Entitled
Securities listed in Item (3) below:
	 	 	 	 
	 
	 	(c) 	 	 
Full legal name of DTC Participant (if applicable and if not the same as (b) above)
through which Entitled Securities listed in Item (3) below are held:
	 	 	 	 






	(2)	 	Address for notices to Selling Securityholder:






	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 	 	 	Telephone:
 


	 	 	 	Fax:
 


	 	 	 	Contact Person:
 


	 	 	 	E-mail for Contact Person:
 








	(3)	 	Beneficial Ownership of Securities:






	 	 	 	Except as set forth below in this Item (3), the undersigned does not beneficially own any
Securities.





	 	 	 	 	 
	      (a)

	 	Principal amount of Entitled Securities beneficially owned:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	CUSIP No(s). of such Entitled Securities:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	      (b)

	 	   Principal amount of Securities other than Entitled Securities beneficially owned:	 	      
	 

	 	 	 	 





	 	 	 	 	 
	 

	 	CUSIP No(s). of such other Securities:	 	 
	 

	 	 	 	 






	 	(c)	 	Principal amount of Entitled Securities that the undersigned wishes to be included in
the Shelf Registration 
Statement:
 

	 
	 	 	 	CUSIP No(s). of such Entitled Securities to be included in the Shelf Registration
Statement:
 







	(4)	 	Beneficial Ownership of Other Securities of the Issuers:






	 	 	 	Except as set forth below in this Item (4), the undersigned
Selling Securityholder is not the beneficial or registered owner of
any other securities of the Issuers, other than the Securities listed
above in Item (3).
	 
	 	 	 	State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 





A-4









 













	(5)	 	Individuals who exercise dispositive powers with respect to the Securities:






	 	 	 	If the Selling Securityholder is not an entity that is required to file reports with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act (a “Reporting Company”), then the Selling Securityholder must disclose the name of
the natural person(s) who exercise sole or shared dispositive powers with respect to the Securities. Selling
Securityholders should disclose the beneficial holders, not nominee holders or other such others of record. In addition,
the Commission has provided guidance that Rule 13d-3 of the Securities Exchange Act of 1934 should be used by analogy when
determining the person or persons sharing voting and/or dispositive powers with respect to the Securities.
	 
	 	(a)	 	Is the holder a Reporting Issuers?
	 
	 	 	 	Yes                                No                      
	 
	 	 	 	If “No”, please answer Item (5)(b).
	 
	 	(b)	 	List below the individual or individuals who exercise dispositive powers with respect
to the Securities:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	Please note that the names of the persons listed in (b) above will be included in the
Shelf Registration Statement and related Prospectus.






	(6)	 	Relationships with the Issuers:






	 	 	 	Except as set forth below, neither the Selling Securityholder nor
any of its affiliates, officers, directors or principal equity holders
(5% or more) has held any position or office or has had any other
material relationship with either of the Issuers (or its predecessors
or affiliates) during the past three years.



State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 







	(7)	 	Plan of Distribution:






	 	 	 	Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Entitled Securities listed above in Item (3)
only as follows (if at all): Such Entitled Securities may be sold
from time to time directly by the undersigned Selling Securityholder.
Such Entitled Securities may be sold in one or more transactions at
fixed prices, at prevailing market prices at the time of sale, at
varying prices determined at the time of sale, or at negotiated
prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange
or quotation service on which the Registered Securities may be
listed or quoted at the time of sale, (ii) in the over-the-counter market, (iii) in
transactions otherwise than on such exchanges or services or in the over-the-counter
market, or (iv) through the writing of options. In connection with sales of the Entitled




A-5









 








	 	 	 	Securities or otherwise, the Selling Securityholder may enter into hedging transactions
with Broker-Dealers, which may in turn engage in short sales of the Entitled Securities in
the course of hedging the positions they assume. The Selling Securityholder may also sell
Entitled Securities short and deliver Entitled Securities to close out such short
positions, or loan or pledge Entitled Securities to Broker-Dealers that in turn may sell
such securities.
	 
	 	 	 	State any exceptions here:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 






Note: In no event may such method(s) of distribution take the form of an underwritten
offering of Entitled Securities without the prior written agreement of the Issuers.




	(8)	 	Broker-Dealers:






	 	 	 	The Commission requires that all Selling Securityholders that are
registered Broker-Dealers or affiliates of registered Broker-Dealers
be so identified in the Shelf Registration Statement. In addition,
the Commission requires that all Selling Securityholders that are
registered Broker-Dealers be named as underwriters in the Shelf
Registration Statement and related Prospectus, even if they did not
receive the Entitled Securities as compensation for underwriting
activities.
	 
	 	(a)	 	State whether the undersigned Selling Securityholder is a registered Broker-Dealer:
	 
	 	 	 	Yes                                No                      
	 
	 	(b)	 	If the answer to (a) is “Yes”, you must answer (i) and (ii) below, and (iii) below if
applicable. Your answers to (i) and (ii) below, and (iii) below if applicable, will be
included in the Shelf Registration Statement and related Prospectus.






	 	(i)	 	Were the Securities acquired as compensation for underwriting activities?






	 	 	 	Yes                                No                      
	 
	 	 	 	If you answered “Yes”, please provide a brief description of the transaction(s)
in which the Securities were acquired as compensation:






	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 








	 	(ii)	 	Were the Securities acquired for investment purposes?






	 	 	 	Yes                                No                      






	 	(iii)	 	If you answered “No” to both (i) and (ii), please explain the Selling
Securityholder’s reason for acquiring the Securities:






	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 






A-6









 













	 	(c)	 	State whether the undersigned Selling Securityholder is an affiliate of a registered
Broker-Dealer and, if so, list the name(s) of the Broker-Dealer affiliate(s):
	 
	 	 	 	Yes                                No                      
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	(d)	 	If you answered “Yes” to question (c) above:






	 	(i)	 	Did the undersigned Selling Securityholder purchase Entitled Securities in
the ordinary course of business?






	 	 	 	Yes                                No                      
	 
	 	 	 	If the answer is “No” to question (d)(i), provide a brief explanation of the
circumstances in which the Selling Securityholder acquired the Entitled
Securities:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 







	 	(ii)	 	At the time of the purchase of the Entitled Securities, did the undersigned
Selling Securityholder have any agreements, understandings or arrangements, directly
or indirectly, with any person to dispose of or distribute the Entitled Securities?






	 	 	 	Yes                                No                      
	 
	 	 	 	If the answer is “Yes” to question (d)(ii), provide a brief explanation of such
agreements, understandings or arrangements:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	If the answer is “No” to Item (8)(d)(i) or “Yes” to Item (8)(d)(ii), you will be named as
an underwriter in the Shelf Registration Statement and the related Prospectus.






	(9)	 	Hedging and short sales:






	 	(a)	 	State whether the undersigned Selling Securityholder has or will enter into “hedging
transactions” with respect to the Entitled Securities:






	 	 	 	Yes                                No                      
	 
	 	 	 	If “Yes”, provide below a complete description of the hedging transactions into
which the undersigned Selling Securityholder has entered or will enter and the
purpose of such hedging transactions, including the extent to which such
hedging transactions remain in place:
	 
	 	 	 	 

	 
	 	 	 	 

	 
	 	 	 	 





A-7









 












	 	(b)	 	Set forth below is Interpretation A.65 of the Commission’s July 1997 Manual of Publicly
Available Interpretations regarding short selling:
	 
	 	 	 	“An issuer filed a Form S-3 registration statement for a secondary offering of common
stock which is not yet effective. One of the selling shareholders wanted to do a short
sale of common stock “against the box” and cover the short sale with registered shares
after the effective date. The issuer was advised that the short sale could not be made
before the registration statement becomes effective, because the shares underlying the
short sale are deemed to be sold at the time such sale is made. There would, therefore,
be a violation of Section 5 if the shares were effectively sold prior to the effective
date.”
	 
	 	 	 	By returning this Notice and Questionnaire, the undersigned Selling Securityholder will be
deemed to be aware of the foregoing interpretation.





* * * * *



By signing below, the Selling Securityholder acknowledges that it understands its obligation to
comply, and agrees that it will comply, with the provisions of the Exchange Act, particularly
Regulation M (or any successor rule or regulation).



The Selling Securityholder hereby acknowledges its obligations under the Exchange and Registration
Rights Agreement to indemnify and hold harmless the Issuers and certain other persons as set forth
in the Exchange and Registration Rights Agreement.



In the event that the Selling Securityholder transfers all or any portion of the Entitled
Securities listed in Item (3) above after the date on which such information is provided to the
Issuers, the Selling Securityholder agrees to notify the transferee(s) at the time of the transfer
of its rights and obligations under this Notice and Questionnaire and the Exchange and Registration
Rights Agreement.



By signing below, the Selling Securityholder consents to the disclosure of the information
contained herein in its answers to Items (1) through (9) above and the inclusion of such
information in the Shelf Registration Statement and related Prospectus. The Selling Securityholder
understands that such information will be relied upon by the Issuers in connection with the
preparation of the Shelf Registration Statement and related Prospectus.



In accordance with the Selling Securityholder’s obligation under Section 3(d) of the Exchange and
Registration Rights Agreement to provide such information as may be required by law for inclusion
in the Shelf Registration Statement, the Selling Securityholder agrees to promptly notify the
Issuers of any inaccuracies or changes in the information provided herein which may occur
subsequent to the date hereof at any time while the Shelf Registration Statement remains in effect
and to provide such additional information that the Issuers may reasonably request regarding such
Selling Securityholder and the intended method of distribution of Entitled Securities in order to
comply with the Securities Act. Except as otherwise provided in the
Exchange and Registration Rights Agreement, all notices hereunder and pursuant to the
 

A-8









 







Exchange and
Registration Rights Agreement shall be made in writing, by hand-delivery, first-class mail, or air
courier guaranteeing overnight delivery as follows:




	 	 	 
	     (i) To the Issuers:
	 	 
	 

	 	American Casino &

Entertainment Properties LLC
	 

	 	2000 Las Vegas Boulevard South
	 

	 	Las Vegas, NV 89104
	 
	 	 
	 

	 	Facsimile: (702) 383-5340
	 

	 	Attention: Phyllis A. Gilland
	 
	 	 
	     (ii) With a copy to:
	 	 
	 
	 	 
	 

	 	Sullivan & Cromwell LLP
	 

	 	125 Broad Street
	 

	 	New York, NY 10004
	 
	 	 
	 

	 	Facsimile: (212) 291-9097
	 

	 	Attention: S. Neal McKnight





Once this Notice and Questionnaire is executed by the Selling Securityholder and received by the
Issuers’ counsel, the terms of this Notice and Questionnaire, and the representations and
warranties contained herein, shall be binding on, shall inure to the benefit of and shall be
enforceable by the respective successors, heirs, personal representatives, and assigns of the
Issuers and the Selling Securityholder (with respect to the Entitled Securities beneficially owned
by such Selling Securityholder and listed in Item (3) above). This Notice and Questionnaire shall
be governed in all respects by the laws of the State of New York.




A-9









 







IN WITNESS WHEREOF, the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly authorized agent.




     Dated:                     



	 	 	 	 	 
	 	 	 
	 	 	Selling Securityholder
	 	 	(Print/type full legal name of beneficial owner of Entitled Securities)
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 





PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE FOR RECEIPT ON OR BEFORE
[DEADLINE FOR RESPONSE] TO THE ISSUERS’ COUNSEL AT:




Sullivan & Cromwell LLP

125 Broad Street

New York, NY 10004




Facsimile: (212) 297-9097

Attention: S. Neal McKnight




A-10









 






Exhibit B




NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT




The Bank of New York Mellon

American Casino & Entertainment Properties LLC

ACEP Finance Corp.

c/o The Bank of New York Mellon

Global Structured Finance

101 Barclay Street, 4E

New York, NY 10286




Attention: Trust Officer




     Re: American Casino & Entertainment Properties LLC (“ACEP”) and ACEP Finance Corp. (together
with ACEP, the “Issuers”) 11% Senior Secured Notes due 2014 (the “Securities”)


Dear Sirs:



Please be advised that                                          has transferred $                    
                     aggregate principal amount of the above-referenced
Securities pursuant to an effective Registration Statement on Form [          ] (File No.
333-          ) filed by the Issuers.



We hereby certify that the prospectus delivery requirements, if any, of the Securities Act of 1933,
as amended, have been satisfied and that the above-named beneficial owner of the Securities is
named as a “Selling Holder” in the Prospectus dated [date] or in supplements thereto, and that the
aggregate principal amount of the Securities transferred are the Securities listed in such
Prospectus opposite such owner’s name.



Dated:




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 

(Name)
	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

(Authorized Signature)
	 	 







B-1