exv10w1






EXHIBIT 10.1




REGISTRATION RIGHTS AGREEMENT




REGISTERED EXCHANGE OFFER




AMERISTAR CASINOS, INC.




 









 





$650,000,000 91/4% Senior Notes due 2014




REGISTRATION RIGHTS AGREEMENT




May 27, 2009




Banc of America Securities LLC

Wachovia Capital Markets, LLC

Deutsche Bank Securities Inc.

As Representatives of the Initial Purchasers




c/o Banc of America Securities LLC

One Bryant Park

New York, NY 10036




Ladies and Gentlemen:




          Ameristar Casinos, Inc., a Nevada corporation (the “Issuer”) proposes to issue and
sell to the initial purchasers (the “Initial Purchasers”), for whom Banc of America
Securities LLC, Wachovia Capital Markets, LLC and Deutsche Bank Securities Inc. are acting as
representatives (the “Representatives”), (i) $500,000,000 aggregate principal amount of its
91/4% Senior Notes due 2014 (the “Notes”) upon the terms set forth in the purchase agreement
among the Issuer, the Guarantors named therein and the Initial Purchasers, dated May 12, 2009 (the
“May 12 Purchase Agreement”) and (ii) $150,000,000 aggregate principal amount of Notes upon
the terms set forth in the purchase agreement among the Issuer, the Guarantors named therein and
the Initial Purchasers, dated May 21, 2009 (the “May 21 Purchase Agreement”, and, together
with the May 12 Purchase Agreement, the “Purchase Agreements”), relating to the initial
placement (the “Initial Placement”) of the Notes. As of the date hereof, the Issuer’s
obligations under the Notes will be guaranteed (the “Guarantees”) by each of the guarantors
listed on the signature pages to the Purchase Agreements (collectively, the “Guarantors”).
References herein to the “Securities” refer to the Notes and the Guarantees, collectively.
To induce the Initial Purchasers to enter into the Purchase Agreements and to satisfy a condition
to your obligations thereunder, the Issuer and the Guarantors jointly and severally agree with you,
as the Representatives, for their benefit and the benefit of the holders from time to time of the
Securities and the New Securities(including the Initial Purchasers) (each a “Holder” and,
collectively, the “Holders”), as follows:



          1. Definitions. Capitalized terms used herein without definition shall have their
respective meanings set forth in the Purchase Agreements. As used in this Agreement, the following
terms shall have the following meanings:



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     “Act” shall mean the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.




     “Affiliate” shall have the meaning specified in Rule 405 under the Act and the
term “controlling” shall have a meaning correlative thereto.




     “Agreement” shall mean this Registration Rights Agreement, as the same may be
amended from time to time in accordance with the terms hereof.




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




     “Business Day” shall mean a day other than a Saturday, a Sunday or a legal
holiday or day on which commercial banking institutions or trust companies are authorized
or required by law to close in New York City.




     “Closing Date” shall mean the date of the first issuance of the Securities.




     “Commission” shall mean the Securities and Exchange Commission.




     “Deferral Period” shall have the meaning set forth in Section 4(k)(ii) hereof.




     “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the Commission promulgated thereunder.




     “Exchange Offer Registration Period” shall mean the period of 180 days
following the consummation of the Registered Exchange Offer, exclusive of any period during
which any stop order shall be in effect suspending the effectiveness of the Exchange Offer
Registration Statement.




     “Exchange Offer Registration Statement” shall mean a registration statement of
the Issuer and the Guarantors on an appropriate form under the Act with respect to the
Registered Exchange Offer, all amendments and supplements to such registration statement,
including post-effective amendments thereto, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference therein.




     “Exchanging Dealer” shall mean any Holder (which may include any Initial
Purchaser) that is a Broker-Dealer and elects to exchange for New Securities any Securities
that it acquired for its own account as a result of market-making activities or other
trading activities (but not directly from the Issuer or any Affiliate of the Issuer) for New
Securities.




     “Final Memorandums” shall mean (i) the final offering memorandum, dated May 12,
2009 and (ii) the final offering memorandum dated May 21, 2009, in



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each case, relating to the Securities, and including any and all exhibits thereto and any
information incorporated by reference therein as of such date.




     “FINRA Rules” shall mean the Conduct Rules and the By-laws of the Financial
Industry Regulatory Authority.




     “Guarantee” shall have the meaning set forth in the preamble hereto.




     “Guarantors” shall have the meaning set forth in the preamble hereto.




     “Holder” shall have the meaning set forth in the preamble hereto.




     “Indenture” shall mean that certain Indenture, dated as of May 27, 2009, among
the Issuer, the Guarantors and Deutsche Bank Trust Company Americas, as trustee, as the same
may be amended from time to time in accordance with the terms thereof.




     “Initial Placement” shall have the meaning set forth in the preamble hereto.




     “Initial Purchaser” shall have the meaning set forth in the preamble hereto.




     “Losses” shall have the meaning set forth in Section 6(d) hereof.




     “Majority Holders” shall mean, on any date, Holders of a majority of the
aggregate principal amount of Securities and New Securities registered under a Registration
Statement.




     “Managing Underwriter” shall mean the investment banker or investment bankers
and manager or managers who administer an underwritten offering, if any, under a
Registration Statement.




     “New Securities” shall mean debt securities of the Issuer and Guarantees by the
Guarantors, in each case identical in all material respects to the Securities (except that
the transfer restrictions shall be modified or eliminated, as appropriate, and there will be
no provision relating to Registration Default Damages) to be issued under the New Securities
Indenture.




     “New Securities Indenture” shall mean the Indenture or an indenture among the
Issuer, the Guarantors and the New Securities Trustee, identical in all material respects to
the Indenture (except that (i) the New Securities shall contain no restrictive legend
thereon nor provision relating to Registration Default Damages, (ii) interest thereon shall
accrue from the last date on which interest was paid on such Notes or, if no such interest
has been paid, from the Closing Date and (iii) the New Securities shall be entitled to the
benefits of the Indenture or a trust indenture which is identical in all material respects
to the Indenture (other than such changes to the Indenture or any



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such identical trust indenture as are necessary to comply with the Trust Indenture Act)
and which, in either case, has been qualified under the Trust Indenture Act), which may be
the Indenture if in the terms thereof appropriate provision is made for the New Securities.




     “New Securities Trustee” shall mean the Trustee or a bank or trust company
selected by the Issuer and reasonably satisfactory to the Initial Purchasers, as trustee
with respect to the New Securities under the New Securities Indenture.




     “Notes” shall have the meaning set forth in the preamble hereto.




     “Prospectus” shall mean the prospectus included in any Registration Statement
(including, without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in reliance upon Rule
430A under the Act), as amended or supplemented by any prospectus supplement, with respect
to the terms of the offering of any portion of the Securities or the New Securities covered
by such Registration Statement, and all amendments and supplements thereto, including any
and all exhibits thereto and any information incorporated by reference therein.




     “Purchase Agreements” shall have the meaning set forth in the preamble hereto.




     “Registered Exchange Offer” shall mean the proposed offer of the Issuer and the
Guarantors to issue and deliver to the Holders of Registrable Securities that are not
prohibited by any law or policy of the Commission from participating in such offer, in
exchange for the Securities, a like aggregate principal amount of the New Securities in
accordance with Section 2 hereof.




     “Registrable Securities” shall mean the Securities ; provided, however, that
the Securities shall cease to be Registrable Securities (i) when, in the case of a Holder of
such Securities who was entitled to participate in the Registered Exchange Offer, an
Exchange Offer Registration Statement with respect to such Securities shall have been
declared effective under the Act and either (a) such Securities shall have been exchanged
pursuant to the Registered Exchange Offer for New Securities or (b) such Securities were not
tendered by the Holder thereof in the Registered Exchange Offer, (ii) when a Shelf
Registration Statement with respect to such Securities shall have been declared effective
under the Act or shall have become automatically effective in accordance with the rules and
regulations of the Commission and such Securities shall have been disposed of pursuant to
such Shelf Registration Statement, (iii) when such Securities have been sold to the public
pursuant to Rule 144 (or any similar provision then in force, but not Rule 144(A) under the
Act, (iv) when such Securities shall have ceased to be outstanding or (v) on the date that
is two years after the date of this Agreement.



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     “Registration Default Damages” shall have the meaning set forth in Section 8
hereof.




     “Registration Statement” shall mean any Exchange Offer Registration Statement
or Shelf Registration Statement that covers any of the Securities or the New Securities
pursuant to the provisions of this Agreement, any amendments and supplements to such
registration statement, including post-effective amendments (in each case including the
Prospectus contained therein), all exhibits thereto and all material incorporated by
reference therein.




     “Securities” shall have the meaning set forth in the preamble hereto.




     “Shelf Registration” shall mean a registration effected pursuant to Section 3
hereof.




     “Shelf Registration Period” shall have the meaning set forth in Section
3(b)(ii) hereof.




     “Shelf Registration Statement” shall mean a “shelf” registration statement of
the Issuer and the Guarantors pursuant to the provisions of Section 3 hereof that covers at
effectiveness some or all of the Registrable Securities (other than Registrable Securities
the Holders of which have not complied with their obligations under Section 4(o) hereof or
have elected not, or are otherwise not entitled, to have their Registrable Securities
included in the Shelf Registration Statement) on an appropriate form under Rule 415 under
the Act, or any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.




     “Trustee” shall mean the trustee from time to time with respect to the
Securities under the Indenture.




     “Trust Indenture Act” shall mean the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Commission promulgated thereunder.




     “underwriter” shall mean any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.



          2. Registered Exchange Offer. (a) The Issuer and the Guarantors shall prepare and
use their reasonable best efforts to file with the Commission and cause to become effective the
Exchange Offer Registration Statement with respect to the Registered Exchange



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Offer. The Issuer and the Guarantors shall use their reasonable best efforts to cause the
Registered Exchange Offer to be completed under the Act within 270 days of the Closing Date.



          (b) Upon the effectiveness of the Exchange Offer Registration Statement, the Issuer and the
Guarantors shall promptly commence the Registered Exchange Offer, it being the objective of such
Registered Exchange Offer to enable each Holder electing to exchange Registrable Securities for New
Securities (assuming that such Holder (i) is not an Affiliate of the Issuer, (ii) acquires the New
Securities in the ordinary course of such Holder’s business, (iii) has no arrangements with any
person to participate in the distribution of the New Securities, (iv) is not prohibited by any law
or policy of the Commission from participating in the Registered Exchange Offer and (v) is not an
Initial Purchaser holding Securities that have the status of an unsold allotment remaining from the
initial distribution of the Securities) to trade such New Securities from and after their receipt
without any limitations or restrictions under the Act and without material restrictions under the
securities laws of a substantial proportion of the several states of the United States.



          (c) In connection with the Registered Exchange Offer, the Issuer and the Guarantors shall:




     (i) mail or cause to be mailed to each Holder a copy of the Prospectus forming part of
the Exchange Offer Registration Statement, together with an appropriate letter of
transmittal and related documents;




     (ii) keep the Registered Exchange Offer open for at least 20 Business Days (or longer
if required by applicable law) after the date notice thereof is mailed to the Holders;




     (iii) use their reasonable best efforts to keep the Exchange Offer Registration
Statement continuously effective under the Act, supplemented and amended as required under
the Act, to ensure that it is available for sales of New Securities by Exchanging Dealers
during the Exchange Offer Registration Period;




     (iv) utilize the services of a depositary for the Registered Exchange Offer with an
address in the Borough of Manhattan in New York City which may be the Trustee, the New
Securities Trustee or an Affiliate of either of them;




     (v) permit Holders to withdraw tendered Securities at any time prior to the close of
business, New York time, on the last Business Day on which the Registered Exchange Offer is
open;




     (vi) prior to effectiveness of the Exchange Offer Registration Statement, provide, or
cause to be provided, a supplemental letter to the Commission (A) stating that the Issuer
and the Guarantors are conducting the Registered Exchange Offer in reliance on the position
of the Commission in Exxon Capital Holdings Corporation



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(pub. avail. May 13, 1988) and Morgan Stanley and Co., Inc. (pub. avail. June
5, 1991) and (B) including a representation that the Issuer and the Guarantors have not
entered into any arrangement or understanding with any person to distribute the New
Securities to be received in the Registered Exchange Offer and that, to the best of the
Issuer’s information and belief, each Holder participating in the Registered Exchange Offer
is acquiring the New Securities in the ordinary course of business and has no arrangement or
understanding with any person to participate in the distribution of the New Securities; and




     (vii) comply in all material respects with all laws applicable to the Registered
Exchange Offer.



          (d) As soon as practicable after the close of the Registered Exchange Offer, the Issuer and
the Guarantors shall:




     (i) accept for exchange all Registrable Securities tendered and not validly withdrawn
pursuant to the Registered Exchange Offer;




     (ii) deliver, or cause to be delivered, to the Trustee for cancellation in accordance
with Section 4(r) hereof all Securities so accepted for exchange; and




     (iii) cause the New Securities Trustee promptly to authenticate and deliver to each
Holder of Registrable Securities that have been accepted for exchange in the Registered
Exchange Offer a principal amount of New Securities equal to the principal amount of the
Registrable Securities of such Holder so accepted for exchange; provided, however, that, in
the case of any Registrable Securities held in global form by a depositary, authentication
and delivery by such depositary of one or more New Securities in global form in an
equivalent principal amount thereto for the account of such Holders in accordance with the
Indenture shall satisfy such authentication and delivery requirement.



     (e) Each Holder hereby acknowledges and agrees that any Broker-Dealer and any such Holder
using the Registered Exchange Offer to participate in a distribution of the New Securities (x)
could not under Commission policy as in effect on the date of this Agreement rely on the position
of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and
Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s
letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters and (y) must comply
with the registration and prospectus delivery requirements of the Act in connection with any
secondary resale transaction, which must be covered by an effective registration statement
containing the selling security holder information required by Item 507 or 508, as applicable, of
Regulation S-K under the Act if the resales are of New Securities obtained by such Holder in
exchange for Securities acquired by such Holder directly from the Issuer or any Affiliate of the
Issuer. Accordingly, each Holder participating



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in the Registered Exchange Offer shall be required to represent to the Issuer that, at the
time of the consummation of the Registered Exchange Offer:




     (i) any New Securities received by such Holder are being acquired in the ordinary
course of such Holder’s business;




     (ii) such Holder has no arrangement or understanding with any person to participate in
the distribution within the meaning of the Act of the Securities or the New Securities;




     (iii) such Holder is not an Affiliate of the Issuer or any Guarantor or, if it is an
Affiliate of the Issuer, it will comply with the registration and prospectus delivery
requirements of the Act to the extent applicable and will provide information to be included
in the Shelf Registration Statement in accordance with Section 4 hereof in order to have its
Securities included in the Shelf Registration Statement and benefit from the provisions
regarding Registration Default Damages in Section 8 hereof;




     (iv) if such Holder is an Exchanging Dealer, then such Holder will comply with the
applicable provisions of the Act (including the prospectus delivery requirements
thereunder); and




     (v) such Holder has full power and authority to transfer the Registrable Securities in
exchange for the New Securities.



          (f) If any Initial Purchaser determines that it is not eligible to participate in the
Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an
unsold allotment, at the request of such Initial Purchaser, the Issuer and the Guarantors shall
issue and deliver to such Initial Purchaser or the person purchasing New Securities registered
under a Shelf Registration Statement as contemplated by Section 3 hereof from such Initial
Purchasers, in exchange for such Securities, a like principal amount of New Securities. The Issuer
and the Guarantors shall use their commercially reasonable efforts to cause the CUSIP Service
Bureau to issue the same CUSIP number and International Securities Identification Number
(“ISIN”) for such New Securities as for New Securities issued pursuant to the Registered
Exchange Offer.



          (g) The Registered Exchange Offer shall not be subject to any conditions, other than (i) that
the Registered Exchange Offer does not violate applicable law or any applicable interpretation of
the Commission, (ii) that no action or proceeding shall have been instituted or threatened in any
court or by any governmental agency with respect to the Registered Exchange Offer and no material
adverse development shall have occurred with respect to the Issuer, (iii) that all governmental
approvals shall have been obtained that the Issuer deems necessary for the consummation of the
Registered Exchange Offer, (iv) that the conditions precedent to the Issuer’s obligations under
this Agreement shall have been fulfilled and (v)



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such other conditions as shall be deemed necessary or appropriate by the Issuer in its
reasonable judgment.



          3. Shelf Registration. (a) If (i) due to any change in law or applicable
interpretations thereof by the Commission’s staff, the Issuer and the Guarantors determine that
they are not permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof;
(ii) for any other reason the Registered Exchange Offer is not consummated within 270 days of the
Closing Date; (iii) any Initial Purchaser so requests with respect to Securities that are not
eligible to be exchanged for New Securities in the Registered Exchange Offer and that are held by
them following consummation of the Registered Exchange Offer; (iv) any Holder (other than an
Initial Purchaser) is not eligible to participate in the Registered Exchange Offer; or (v) in the
case of the Initial Purchasers that participate in the Registered Exchange Offer or acquires New
Securities pursuant to Section 2(f) hereof, an Initial Purchaser does not receive freely tradeable
New Securities in exchange for Securities constituting any portion of an unsold allotment (it being
understood that (x) the requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Item 507 or 508 of Regulation S-K under the Act in connection with sales of
New Securities acquired in exchange for such Securities shall result in such New Securities being
not “freely tradeable;” and (y) the requirement that an Exchanging Dealer deliver a Prospectus in
connection with sales of New Securities acquired in the Registered Exchange Offer in exchange for
Securities acquired as a result of market-making activities or other trading activities shall not
result in such New Securities being not “freely tradeable”), the Issuer and the Guarantors shall
file and use their reasonable best efforts to cause to become and keep effective a Shelf
Registration Statement in accordance with subsection (b) below.



          (b) (i) The Issuer and the Guarantors shall, if required by subsection (a) above, as promptly
as practicable use their reasonable best efforts to file with the Commission and shall use their
reasonable best efforts to cause to be declared effective under the Act within 330 days of the
Closing Date, a Shelf Registration Statement relating to the offer and sale of the Securities or
the New Securities, as applicable, by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf Registration Statement;
provided, however, that no Holder (other than an Initial Purchaser) shall be
entitled to have the Securities held by it covered by such Shelf Registration Statement unless such
Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such
Holder; and provided further, that with respect to New Securities received by an
Initial Purchaser in exchange for Securities constituting any portion of an unsold allotment, the
Issuer and the Guarantors may, if permitted by current interpretations by the Commission’s staff,
file a post-effective amendment to the Exchange Offer Registration Statement containing the
information required by Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their
obligations under this subsection with respect thereto, and any such Exchange Offer Registration
Statement, as so amended, shall be referred to herein as, and governed by the provisions herein
applicable to, a Shelf Registration Statement.



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          (ii) The Issuer and the Guarantors shall use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and amended as required by the Act, in
order to permit the Prospectus forming part thereof to be usable by Holders for a period from the
date the Shelf Registration Statement is declared effective by the Commission until the earliest
of: (A) the second anniversary of the Closing Date or (B) the date upon which all the Securities
or New Securities, as applicable, covered by the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement (in any such case, the “Shelf Registration
Period”). The Issuer and the Guarantors shall be deemed not to have used their reasonable best
efforts to keep the Shelf Registration Statement effective during the Shelf Registration Period if
they voluntarily take any action that would result in Holders of Securities covered thereby not
being able to offer and sell such Securities at any time during the Shelf Registration Period,
unless such action is (x) required by applicable law or otherwise taken by the Issuer and the
Guarantors for valid business reasons (not including avoidance of the Issuer’s and the Guarantors’
obligations hereunder), including the acquisition or divestiture of assets and (y) permitted
pursuant to Section 4(k)(ii) hereof.



          4. Additional Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following
provisions shall apply.



          (a) The Issuer and the Guarantors shall:




     (i) furnish to counsel designated by the Majority Holders, not less than two
(2) Business Days prior to the filing thereof with the Commission, a copy of any
Exchange Offer Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the Prospectus
included therein (including all documents incorporated by reference therein after
the initial filing) and shall use their commercially reasonable efforts to reflect
in each such document, when so filed with the Commission, such comments as counsel
designated by the Majority Holders reasonably proposes;




     (ii) include the information substantially in the form set forth in Annex A
hereto on the facing page of the Exchange Offer Registration Statement, in Annex B
hereto in the forepart of the Exchange Offer Registration Statement in a section
setting forth details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the Exchange Offer
Registration Statement and in Annex D hereto in the letter of transmittal delivered
pursuant to the Registered Exchange Offer;




     (iii) if requested by an Initial Purchaser, include the information required by
Item 507 or 508, as applicable, of Regulation S-K in the Prospectus contained in the
Exchange Offer Registration Statement or Shelf Registration



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Statement; provided, however, that such Initial Purchaser shall
have complied with subsection (o) hereof; and




     (iv) in the case of a Shelf Registration Statement, include the names of the
Holders that propose to sell Securities pursuant to the Shelf Registration Statement
as selling security holders; provided, however, that such Holders
shall have complied with subsection (o) hereof.



          (b) The Issuer and the Guarantors shall ensure that:




     (i) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto as of the effective
date of such Registration Statement or such amendment or supplement complies in all
material respects with the Act; and




     (ii) any Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any amendment or supplement thereto as of the effective
date of such Registration Statement or such amendment or supplement does not, when
it becomes effective, 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.




     (c) The Issuer and the Guarantors shall advise counsel for the Initial Purchasers, the
Holders of Securities covered by any Shelf Registration Statement and any Exchanging Dealer
under any Exchange Offer Registration Statement that has provided in writing to the Issuer
or the Guarantors a telephone or facsimile number and address for notices, and, if requested
by any Initial Purchaser or any such Holder or Exchanging Dealer, shall confirm such advice
in writing (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an
instruction to suspend the use of the Prospectus until the Issuer and the Guarantors shall
have remedied the basis for such suspension):




     (i) when a Registration Statement and any amendment thereto has been filed with
the Commission and when the Registration Statement or any post-effective amendment
thereto has become effective;




     (ii) of any request by the Commission after the effective date for any
amendment or supplement to the Registration Statement or the Prospectus;




     (iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution of any proceeding for
that purpose;



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     (iv) of the receipt by the Issuer or any Guarantor of any notification with
respect to the suspension of the qualification of the securities included therein
for sale in any jurisdiction or the institution of any proceeding for such purpose;
and




     (v) during the period in which an applicable Registration Statement is
effective, of the happening of any event that requires any change in the
Registration Statement or the Prospectus so that, as of such date, they (A) do not
contain any untrue statement of a material fact and (B) do not omit to state a
material fact required to be stated therein or necessary to make the statements
therein (in the case of the Prospectus, in the light of the circumstances under
which they were made) not misleading.




     (d) The Issuer and the Guarantors shall use their commercially reasonable efforts to
obtain the withdrawal of any order suspending the effectiveness of any Registration
Statement or the qualification of the securities therein for sale in any jurisdiction.




     (e) The Issuer and the Guarantors shall furnish to each Holder of Securities covered by
any Shelf Registration Statement, without charge, at least one (1) copy of such Shelf
Registration Statement and any post-effective amendment thereto, including, if requested,
all material incorporated therein by reference, and, if the Holder so requests in writing,
all exhibits thereto (including exhibits incorporated by reference therein).




     (f) The Issuer and the Guarantors shall, during the Shelf Registration Period, deliver
to each Holder of Securities covered by any Shelf Registration Statement, without charge, as
many copies of the Prospectus (including the Preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as such Holder may reasonably
request. The Issuer and the Guarantors consent to the use of the Prospectus or any
amendment or supplement thereto by each of the selling Holders of Securities in connection
with the offering and sale of the Securities covered by the Prospectus, or any amendment or
supplement thereto, included in the Shelf Registration Statement.




     (g) The Issuer and the Guarantors shall furnish to each Exchanging Dealer which so
requests, without charge, at least one (1) conformed copy of the Exchange Offer Registration
Statement and any post-effective amendments thereto, including, if requested, all material
incorporated by reference therein, and, if the Exchanging Dealer so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).




     (h) The Issuer and the Guarantors shall promptly deliver to each Initial Purchaser,
each Exchanging Dealer and each other person required under applicable



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law to deliver a Prospectus during the Exchange Offer Registration Period, without
charge, as many copies of the Prospectus included in such Exchange Offer Registration
Statement and any amendments or supplements thereto as any such person may reasonably
request. The Issuer and the Guarantors consent to the use of the Prospectus or any
amendments or supplements thereto by any Initial Purchaser, any Exchanging Dealer and any
such other person that may be required to deliver a Prospectus following the Registered
Exchange Offer in connection with the offering and sale of the New Securities covered by the
Prospectus, or any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.




     (i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant
to any Registration Statement, the Issuer and the Guarantors shall arrange, if necessary,
for the registration or qualification of the Securities or the New Securities for sale under
the laws of such jurisdictions as any Holder shall reasonably request and shall maintain
such qualification in effect so long as required; provided that in no event shall
the Issuer or any Guarantor be obligated to qualify to do business in any jurisdiction where
it is not then so qualified or to take any action that would subject it to service of
process in suits, in any such jurisdiction where it is not then so subject or to subject
itself to taxation in any such jurisdiction.




     (j) The Issuer and the Guarantors shall cooperate with the Holders of Securities to
facilitate the timely preparation and delivery of certificates representing New Securities
or Securities to be issued or sold pursuant to any Registration Statement free of any
restrictive legends and in such denominations (consistent with the provisions of the
Indenture) and registered in such names as Holders may reasonably request in writing at
least three (3) Business Days prior to the closing date of any sales of Securities.




     (k) (i) Upon the occurrence of any event contemplated by subsections (c) (ii) through
(v) above, the Issuer and the Guarantors shall promptly (or within the time period provided
for by clause (ii) hereof, if applicable) prepare a post-effective amendment to the
applicable Registration Statement or an amendment or supplement to the related Prospectus or
file any other required document so that, as thereafter delivered to the Holders of the
Securities included therein, the Prospectus shall not include an untrue statement of a
material fact or omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading. In such circumstances, the period of effectiveness of the Exchange
Offer Registration Statement provided for in Section 2 hereof shall be extended by the
number of days from and including the date of the giving of a notice of suspension pursuant
to Section 4(c) hereof to and including the date when the Initial Purchasers, the Holders of
the Securities and any known Exchanging Dealer shall have received such amended or
supplemented Prospectus pursuant to this Section 4(k).



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     (ii) Upon the occurrence or existence of any pending corporate development or any other
material event that, in the reasonable judgment of the Issuer and the Guarantors, makes it
appropriate to suspend the availability of a Shelf Registration Statement and the related
Prospectus, the Issuer and the Guarantors shall give notice (without notice of the nature or
details of such events) to the Holders that the availability of the Shelf Registration is
suspended and, upon actual receipt of any such notice, each Holder agrees to maintain the
information contained in such notice confidential (except that such information may be
disclosed to its counsel) until it has been publicly disclosed by the Issuer and not to sell
any Registrable Securities pursuant to the Shelf Registration until such Holder’s receipt of
copies of the supplemented or amended Prospectus provided for in Section 4(a)(i) hereof, or
until it is advised in writing by the Issuer and the Guarantors that the Prospectus may be
used, and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. Notwithstanding the
foregoing, the Issuer shall not be required to amend or supplement a Registration Statement,
any related Prospectus or any document incorporated or deemed to be incorporated therein by
reference if (i) an event occurs and is continuing as a result of which the Shelf
Registration, any related Prospectus or any document incorporated or deemed to be
incorporated therein by reference, would, in the Issuer’s good faith judgment, contain an
untrue statement of a material fact or omit to state a material fact necessary in order to
make the statements therein not misleading (with respect to such a Prospectus only, in the
light of the circumstances under which they were made), and (ii) (a) the Issuer determines
in its good faith judgment that the disclosure of such event at such time would have a
material adverse effect on the business, operations or prospects of the Issuer, or (b) the
disclosure otherwise relates to a pending material business transaction that has not yet
been publicly disclosed. The period during which the availability of the Shelf Registration
and any Prospectus is suspended (the “Deferral Period”) (1) shall not exceed 60
consecutive days, (2) shall not occur more than three (3) times during any calendar year and
(3) shall extend the number of days the Shelf Registration or any Prospectus is available by
an amount equal to the Deferral Period. Any Registration Default Damages payable pursuant
to Section 8(a)(iii) shall cease to accrue during any Deferral Period.




     (l) Not later than the effective date of any Registration Statement, the Issuer and the
Guarantors shall provide a CUSIP number and ISIN for the Securities or the New Securities,
as the case may be, registered under such Registration Statement, and provide the Trustee
with printed certificates for such Securities or New Securities, in a form eligible for
deposit with The Depository Trust Company.




     (m) The Issuer and the Guarantors shall comply in all material respects with all
applicable rules and regulations of the Commission and shall make generally available to
their security holders earning statements satisfying the provisions of Section 11(a) of the
Act as soon as practicable after the effective date of the applicable Registration
Statement.



15









 






     (n) The Issuer and the Guarantors shall cause the New Securities Indenture to be
qualified under the Trust Indenture Act as required by applicable law in a timely manner.




     (o) The Issuer and the Guarantors may require each Holder of Securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Issuer and the Guarantors
such information regarding the Holder and the distribution of such Securities as the Issuer
and the Guarantors may from time to time reasonably require for inclusion in such
Registration Statement. The Issuer and the Guarantors may exclude from such Shelf
Registration Statement the Securities of any Holder that fails to furnish such information
within 15 days after receiving such request.




     (p) In the case of any Shelf Registration Statement, upon the request of the Majority
Holders, the Issuer and the Guarantors shall enter into customary agreements (including, if
requested, one underwriting agreement in customary form) and take all other appropriate
actions, if any, as the Majority Holders shall reasonably request in order to expedite or
facilitate the registration or the disposition of the Securities, and in connection
therewith, if an underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set forth in Section
6 hereof (or such other provisions and procedures acceptable to the Majority Holders
participating in such underwritten offering).




     (q) In the case of an underwritten offering pursuant to a Shelf Registration Statement
as provided in subsection (p) above, the Issuer and the Guarantors shall:




     (i) make reasonably available for inspection at a location where they are
normally kept and during normal business hours by a representative designated by the
Majority Holders of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration Statement and any
attorney, accountant or other agent retained by such Holders or any such underwriter
all relevant financial and other records and pertinent corporate documents of the
Issuer, the Guarantors and their respective subsidiaries that is reasonably
necessary to enable them to exercise any applicable due diligence responsibilities;




     (ii) use their commercially reasonable efforts to cause their officers,
directors, employees, accountants and auditors to supply all relevant information
reasonably requested by the Holders or any such underwriter, attorney, accountant or
agent (each, an “Inspector”) in connection with any such Registration
Statement as is customary for similar due diligence examinations; provided,
however, that such Inspector shall first agree in writing with the Issuer
and the Guarantors that any information that is reasonably and in good faith
designated by the Issuer and the Guarantors in writing as confidential at the time
of delivery of such information shall be kept confidential by such



16









 







Inspector, unless (1) disclosure of such information is required by court or
administrative order pursuant to a subpoena or other administrative order, (2)
disclosure of such information is required by law (including any disclosure
requirements pursuant to federal securities laws in connection with the filing of
such Registration Statement or the use of any Prospectus), (3) such information
becomes generally available to the public other than as a result of a disclosure or
failure to safeguard such information by such person or (4) such information becomes
available to such Inspector from a source other than the Issuer or the Guarantors
and such source is not known, after due inquiry, by the relevant Holder to be bound
by a confidentiality agreement or is not otherwise under a duty of trust to the
Issuer or the Guarantors;




     (iii) to the extent possible, make such representations and warranties to the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings;




     (iv) obtain opinions of counsel to the Issuer and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably satisfactory
to the Managing Underwriter, if any) addressed to each underwriter, if any, of such
Registrable Securities covering such matters as are customarily covered in opinions
requested in primary underwritten offerings and such other matters as may be
reasonably requested by such underwriters;




     (v) obtain “comfort” letters and updates thereof from the independent
registered public accounting firm of the Issuer (and, if necessary, any other
independent registered public accounting firm of any subsidiary of the Issuer or of
any business acquired by the Issuer for which financial statements and financial
data are, or are required to be, included in the Registration Statement), addressed
to each underwriter, if any, of such Registrable Securities in customary form and
covering matters of the type customarily covered in “comfort” letters in connection
with primary underwritten offerings;




     (vi) deliver such documents and certificates as may be reasonably requested by
the Managing Underwriter, if any, including those to evidence compliance with
Section 4(k) hereof and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Issuer or the Guarantors; and




     (vii) cooperate with each seller of Registrable Securities covered by any Shelf
Registration Statement and each underwriter, if any, participating in the
disposition of such Registrable Securities and their respective counsel in
connection with any filings required to be made pursuant to the FINRA Rules



17









 






     (r) If a Registered Exchange Offer is to be consummated, upon delivery of the
Securities by Holders to the Issuer (or to such other person as directed by the Issuer) in
exchange for the New Securities, the Issuer shall mark, or caused to be marked, on the
Securities so exchanged that such Securities are being cancelled in exchange for the New
Securities. In no event shall the Securities be marked as paid or otherwise satisfied.




     (s) The Issuer and the Guarantors shall use their commercially reasonable efforts to
take all other steps necessary to effect the registration of the Securities or the New
Securities, as the case may be, covered by a Registration Statement.



          If any such Registration Statement refers to any Holder by name or otherwise as the holder of
any securities of the Issuer, then such Holder shall have the right to require (i) the insertion
therein of language, in form and substance reasonably satisfactory to such Holder, to the effect
that the holding by such Holder of such securities is not to be construed as a recommendation by
such Holder of the investment quality of the securities covered thereby and that such holding does
not imply that such Holder will assist in meeting any future financial requirements of the Issuer,
or (ii) in the event that such reference to such Holder by name or otherwise is not required by the
Act or any similar federal statute then in force, the deletion of the reference to such Holder in
any amendment or supplement to the Registration Statement filed or prepared subsequent to the time
that such reference ceases to be required.



          5. Registration Expenses. The Issuer and the Guarantors shall bear all expenses
incurred in connection with the performance of their obligations under Sections 2, 3 and 4 hereof
and, in the event of any Shelf Registration Statement, shall reimburse the Holders for the
reasonable fees and disbursements of one firm or counsel (which shall initially be Cahill Gordon &
Reindel llp, but which may be another nationally recognized law firm experienced in
securities matters designated by the Majority Holders) to act as counsel for the Holders in
connection therewith, which counsel shall be approved by the Issuer (such approval not to be
unreasonably withheld). Each Holder shall pay all expenses of its counsel other than as set forth
in the preceding sentence, underwriting discounts and commissions and transfer taxes, if any,
relating to the sale or disposition of such Holder’s Securities or New Securities.



          6. Indemnification and Contribution. (a) The Issuer and the Guarantors, jointly and
severally, agree to indemnify and hold harmless each Holder of Securities or New Securities, as the
case may be, covered by any Registration Statement, each Initial Purchaser and each Affiliate
thereof and, with respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer, the directors, officers and Affiliates of each such Holder, Initial Purchaser or
Exchanging Dealer and each person who controls any such Holder, Initial Purchaser or Exchanging
Dealer within the meaning of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or other



18









 







federal or state statutory law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in any Registration
Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the
Prospectus, or in any amendment thereof 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 (in the case of any preliminary Prospectus or the
Prospectus, in the light of the circumstances under which they were made) not misleading, and agree
(subject to the limitations set forth in subsection (c) hereof and in the proviso to this sentence)
to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Issuer shall not be liable in any
such case to the extent that any such loss, claim, damage or liability arises out of or is based
upon any such untrue statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to the Issuer by or
on behalf of the party claiming indemnification specifically for inclusion therein. This indemnity
agreement shall be in addition to any liability that the Issuer and the Guarantors may otherwise
have. The Issuer and the Guarantors shall not be liable under this Section 6 to any indemnified
party regarding any settlement or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect of which indemnification
or contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent is
consented to by the Issuer or the Guarantors, as applicable, which consent shall not be
unreasonably withheld.



          (b) Each Holder of securities covered by a Registration Statement (including each Initial
Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and
hold harmless the Issuer and the Guarantors and each of their respective directors, each of their
respective officers who signs such Registration Statement and each person who controls the Issuer
or any Guarantor within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Issuer and the Guarantors to each such Holder, but only with
reference to written information relating to such Holder furnished to the Issuer and the Guarantors
by or on behalf of such Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement shall be in addition to any liability that any such
Holder may otherwise have.



          (c) Promptly after receipt by an indemnified party under this Section 6 of notice of the
commencement of any action, such indemnified party will, if a claim in respect thereof is to be
made against the indemnifying party under this Section 6, notify the indemnifying party in writing
of the commencement thereof; but the failure to so notify the indemnifying party (i) shall not
relieve it from liability under paragraph (a) or (b) of this Section 6 unless and to the extent it
did not otherwise learn of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in any



19









 







event, relieve the indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) of this Section 6, except as
provided in paragraph (d) below. The indemnifying party shall be entitled to appoint counsel
(including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to
represent the indemnified party in any action for which indemnification is sought (in which case
the indemnifying party shall not thereafter be responsible for the fees and expenses of any
separate counsel, other than local counsel if not appointed by the indemnifying party, retained by
the indemnified party or parties except as set forth below); provided, however,
that such counsel shall be reasonably satisfactory to the indemnified party. Notwithstanding the
indemnifying party’s election to appoint counsel (including local counsel) to represent the
indemnified party in an action, the indemnified party shall have the right to employ separate
counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs
and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a material conflict of interest
(based on the advice of counsel to the indemnified party), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such action or (iii) the
indemnifying party shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. It is understood and agreed that the indemnifying party shall not, in
connection with any proceeding or related proceeding in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any local counsel) for
all indemnified parties. Any such separate firm for any Initial Purchaser, its Affiliates,
directors and officers and any control persons of such Initial Purchaser shall be designated in
writing by Banc of America Securities LLC (“BAS”), and any such separate firm for the
Issuer or any of the Guarantors, and any control persons of the Issuer or any of the Guarantors
shall be designated in writing by the Issuer or such Guarantor, as the case may be. In the event
that any Initial Purchaser, its Affiliates, directors and officers or any control persons of such
Initial Purchaser are indemnified parties collectively entitled, in connection with a proceeding in
a single jurisdiction, to the payment of fees and expenses of a single separate firm under this
Section 6(c), and any such Initial Purchaser, its Affiliates, directors and officers or any control
persons of such Initial Purchaser cannot agree to a mutually acceptable separate firm to act as
counsel thereto, then such separate firm for all such indemnified parties shall be designated in
writing by BAS. An indemnifying party shall not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any judgment with respect to
any pending or threatened claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or consent includes
an unconditional release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and does not include any statement as to, or any concession of, fault,
culpability or failure to act by or on behalf of any indemnified party.



20









 





          (d) In the event that the indemnity provided in paragraph (a) or (b) of this Section 6 is
unavailable to or insufficient to hold harmless an indemnified party in the respect of any
aggregate losses, claims, damages and liabilities (including, subject to the limitations of
subsection (c), legal or other expenses reasonably incurred in connection with investigating or
defending any loss, claim, liability, damage or action) (collectively “Losses”) (other than
by virtue of the failure of an indemnified party to notify the indemnifying party of its right to
indemnification pursuant to paragraph (a) or (b) of this Section 6, where such failure materially
prejudices the indemnifying party (through the forfeiture of substantial rights or defenses)), each
indemnifying party, in order to provide for just and equitable contribution, shall contribute to
the amount paid or payable by such indemnified party as a result of such Losses, in such proportion
as is appropriate to reflect the relative benefits received by such indemnifying party, on the one
hand, and such indemnified party, on the other hand, from the Initial Placement and the
Registration Statement which resulted in such Losses; provided, however, that in no
case shall any Initial Purchaser be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case of a New Security,
applicable to the Security that was exchangeable into such New Security, as set forth in the
Purchase Agreements, nor shall any underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the securities purchased by such underwriter
under the Registration Statement which resulted in such Losses. If the allocation provided by the
immediately preceding sentence is unavailable for any reason or not permitted by applicable law,
the indemnifying party and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the relative fault of such
indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection
with the statements or omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Issuer and the Guarantors shall be deemed to be
equal to the total net proceeds from the Initial Placement (before deducting expenses) as set forth
in the Final Memorandums. Benefits received by the Initial Purchasers shall be deemed to be equal
to the total purchase discounts and commissions as set forth in the Purchase Agreements, and
benefits received by any other Holders shall be deemed to be equal to the value of receiving
Securities or New Securities, as applicable, registered under the Act. Benefits received by any
underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set
forth on the cover page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference to, among other things,
whether any untrue or any alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information provided by the indemnifying party, on the
one hand, or by the indemnified party, on the other hand, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent such untrue
statement or omission and any other equitable considerations appropriate in the circumstances. The
parties agree that it would not be just and equitable if the amount of such contribution were
determined by pro rata allocation (even if the Holders were treated as one entity
for such purpose) or any other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this paragraph 6(d), no person
guilty of



21









 







fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 6(d), each person, if any, who controls a Holder within the meaning of
either the Act or the Exchange Act and each director and officer of such Holder shall have the same
rights to contribution as such Holder, and each person who controls the Issuer or any Guarantor
within the meaning of either the Act or the Exchange Act, each officer of any Issuer who shall have
signed the Registration Statement and each director of the Issuer shall have the same rights to
contribution as the Issuer, subject in each case to the applicable terms and conditions of this
paragraph 6(d).



          (e) The provisions of this Section 6 shall remain in full force and effect, regardless of any
investigation made by or on behalf of any Holder or the Issuer or any of the indemnified parties
referred to in this Section 6, and shall survive the sale by a Holder of securities covered by a
Registration Statement.



          7. Underwritten Registrations. (a) If any of the Securities or New Securities, as
the case may be, covered by any Shelf Registration Statement are to be sold in an underwritten
offering, the Managing Underwriters, if any, shall be selected by the Majority Holders, subject to
the consent of the Issuer (which shall not be unreasonably withheld), and the Holders of Securities
or New Securities covered by such Shelf Registration Statement shall be responsible for all
underwriting commissions and discounts.



          (b) No person may participate in any underwritten offering pursuant to any Shelf Registration
Statement, unless such person (i) agrees to sell such person’s Securities or New Securities, as the
case may be, on the basis reasonably provided in any underwriting arrangements approved by the
persons entitled hereunder to approve such arrangements and (ii) completes and executes all
questionnaires, powers of attorney, indemnities, underwriting agreements and other documents
reasonably required under the terms of such underwriting arrangements.



          8. Registration Defaults. (a) If any of the following events shall occur, then the
Issuer and the Guarantors shall pay liquidated damages (the “Registration Default Damages”)
to the Holders of Securities in respect of the Securities as follows:




     (i) if neither (x) the Registered Exchange Offer is completed within 270 days of the
Closing Date, nor (y) if required, the Shelf Registration Statement is declared effective
within 330 days of the Closing Date, then Registration Default Damages shall accrue on the
Registrable Securities at a rate of 0.25% per annum on the principal amount of such
Registrable Securities for the first 90 days from and including such specified date and
increasing by an additional 0.25% per annum at the beginning of each subsequent 90-day
period thereafter; provided that Registration Default Damages in the aggregate under
this Section 8 may not exceed 1.0% per annum of the principal amount of such Registrable
Securities; or



22









 






     (ii) notwithstanding that the Issuer and the Guarantors have consummated or will
consummate a Registered Exchange Offer, if the Issuer and the Guarantors are required to
file a Shelf Registration Statement and such Shelf Registration Statement is not declared
effective on or prior to the 330th day following the Closing Date, then Registration Default
Damages shall accrue on the Registrable Securities at a rate of 0.25% per annum of the
principal amount of such Registrable Securities for the first 90 days from and including
such specified date and increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period thereafter; provided that Registration Default Damages in the
aggregate under this Section 8 may not exceed 1.0% per annum of the principal amount of such
Registrable Securities; or




     (iii) subject to the last sentence of Section 4(k)(ii) above, if the Shelf Registration
Statement required by Section 3(a) of this Agreement has been declared effective but
thereafter ceases to be effective at any time at which it is required to be effective under
this Agreement and such failure to remain effective exists for more than 30 consecutive days
or more than 60 days (whether or not consecutive) during the period for which the Shelf
Registration Statement is required, then commencing on the 31st day or
61st day, as applicable, following the date on which such Shelf Registration
Statement ceases to be effective, Registration Default Damages shall accrue on the
Registrable Securities at a rate of 0.25% per annum of the principal amount of such
Registrable Securities for the first 90 days from and including such 31st day or 61st day,
as applicable, following the date on which such Shelf Registration Statement ceases to be
effective and increasing by an additional 0.25% per annum at the beginning of each
subsequent 90-day period thereafter; provided that Registration Default Damages in
the aggregate under this Section 8 may not exceed 1.0% per annum of the principal amount of
such Registrable Securities;


provided, however, that upon (1) the completion of the Exchange Offer (in the case
of paragraph (i) above), (2) the effectiveness of the Shelf Registration Statement (in the case of
paragraph (ii) above) and (3) the effectiveness of the Shelf Registration Statement which had
ceased to remain effective (in the case of paragraph (iii) above), Registration Default Damages
shall cease to accrue.




          (b) The Issuer and the Guarantors shall notify the Trustee within one Business Day after each
and every date on which an event occurs in respect of which Registration Default Damages are
required to be paid and within one Business Day after such Registration Default Damages cease to
accrue. Any amounts of Registration Default Damages due pursuant to Section 8(a) will be payable
in cash on each interest payment date specified by the Indenture to the record holder entitled to
receive the interest payment to be made on such date, commencing with the first such date occurring
after any such Registration Default Damages commences to accrue.



          (c) The parties hereto agree that the liquidated damages in the form of Registration Default
Damages provided for in this Section 8 constitute a reasonable estimate



23









 







of and are intended to constitute the sole damages payable under this Agreement that will be
suffered by Holders of Securities by reason of the failure of (i) the Registered Exchange Offer to
be completed; or (ii) the Shelf Registration Statement, if required hereby, to be declared or to be
kept effective, in each case to the extent required by this Agreement.



          9. No Inconsistent Agreements. The Issuer has not, nor has any Guarantor, entered
into, and each of the Issuer and the Guarantors agrees not to enter into, any agreement with
respect to its securities that is inconsistent with the rights granted to the Holders herein or
that otherwise conflicts with the provisions hereof.



          10. Amendments and Waivers. The provisions of this Agreement may not be amended,
qualified, modified or supplemented, and waivers or consents to departures from the provisions
hereof may not be given, unless the Issuer has obtained the written consent of the Holders of a
majority of the aggregate principal amount of the Registrable Securities outstanding;
provided, that no amendment, qualification, supplement, waiver or consent with
respect to Section 8 hereof shall be effective as against any Holder of Registered Securities
unless consented to in writing by such Holder; and provided, further, that the
provisions of this Article 10 may not be amended, qualified, modified or supplemented, and waivers
or consents to departures from the provisions hereof may not be given, unless the Issuer and the
Guarantors have obtained the written consent of the Initial Purchasers and each Holder.
Notwithstanding the foregoing (except the foregoing provisos), a waiver or consent to depart
from the provisions hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities or New Securities, as the case may be, are being sold pursuant to a
Registration Statement and that does not directly or indirectly affect the rights of other Holders
may be given by the Majority Holders, determined on the basis of Securities or New Securities, as
the case may be, being sold rather than registered under such Registration Statement.



          11. Notices. All notices and other communications provided for or permitted hereunder
shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier
guaranteeing overnight delivery:




     (a) if to a Holder, at the most current address given by such Holder to the Issuer in
accordance with the provisions of this Section 11, which address initially is, with respect
to each Holder, the address of such Holder maintained by the Registrar (as such term is
defined in the Indenture) under the Indenture;




     (b) if to the Initial Purchasers, initially at the address or addresses set forth in
the Purchase Agreements; and




     (c) if to the Issuer or any Guarantor, initially at its address set forth in the
Purchase Agreements.



          All such notices and communications shall be deemed to have been duly given when received.



24









 





          The Initial Purchasers or the Issuer by notice to the other parties may designate additional
or different addresses for subsequent notices or communications.



          12. Remedies. Each of the Issuer and the Guarantors hereby agrees that monetary
damages would not be adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any action for specific
performance that a remedy at law would be adequate.



          13. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their respective successors and assigns, including, without the
need for an express assignment or any consent by the Issuer thereto, subsequent Holders of
Securities and the New Securities, and the indemnified parties referred to in Section 6 hereof.
The Issuer and the Guarantors hereby agree to extend the benefits of this Agreement to any Holder
of Securities and the New Securities, and any such Holder may specifically enforce the provisions
of this Agreement as if an original party hereto.



          14. Counterparts. This Agreement may be signed in any number of counterparts which
may be delivered in original form or by telecopier, each of which when so executed shall constitute
an original and all of which together shall constitute one and the same agreement.



          15. Headings. The section headings used herein are for convenience only and shall not
affect the construction hereof.



          16. Applicable Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts made and to be performed in the
State of New York. The parties hereto each hereby waive any right to trial by jury in any action,
proceeding or counterclaim arising out of or relating to this Agreement.



          17. Severability. In the event that any one or more of the provisions contained
herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable
in any respect for any reason, the validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions hereof shall not be in any way impaired or
affected thereby, it being intended that all of the rights and privileges of the parties shall be
enforceable to the fullest extent permitted by law.



          18. Securities Held by Issuer, etc. Whenever the consent or approval of Holders of a
specified percentage of principal amount of Securities or New Securities is required hereunder,
Securities or New Securities, as applicable, held by the Issuer or any Guarantor or their
Affiliates (other than Holders of Securities or New Securities if such Holders are deemed to be
Affiliates solely by reason of their holdings of such Securities or New Securities) shall not be
counted in determining whether such consent or approval was given by the Holders of such required
percentage.



25









 





[Signature pages follow.]





26











 





     If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall
represent a binding agreement by and among the Issuer and the Guarantors and the several Initial
Purchasers.



	 	 	 	 	 
	 	Very truly yours,



AMERISTAR CASINOS, INC.

 	 
	 	By:  	/s/ PETER C. WALSH
 	 
	 	 	Name:  	Peter C. Walsh 	 
	 	 	Title:  	Senior Vice President and General
Counsel 	 
	 



[Signature Page to Registration Rights Agreement]




 









 








	 	 	 
	 

	 	A.C. FOOD SERVICES, INC.
	 

	 	AMERISTAR CASINO BLACK HAWK, INC.
	 

	 	AMERISTAR CASINO COUNCIL BLUFFS, INC.
	 

	 	AMERISTAR CASINO EAST CHICAGO, LLC
	 

	 	AMERISTAR CASINO KANSAS CITY, INC.
	 

	 	AMERISTAR CASINO LAS VEGAS, INC.
	 

	 	AMERISTAR CASINO ST. CHARLES, INC.
	 

	 	AMERISTAR CASINO ST. LOUIS, INC.
	 

	 	AMERISTAR CASINO VICKSBURG, INC.
	 

	 	AMERISTAR EAST CHICAGO HOLDINGS, LLC
	 

	 	CACTUS PETE’S, INC.






	 	 	 	 	 
	 	 	 
	 	By:  	                   /s/ PETER C. WALSH
 	 
	 	 	Name:  	Peter C. Walsh 	 
	 	 	Title:  	Vice President 	 
	 



[Signature Page to Registration Rights Agreement]




 









 








The foregoing Agreement is hereby

confirmed and accepted as of the

date first above written:




BANC OF AMERICA SECURITIES LLC 

for itself and
as representative of the several 
Initial
Purchasers




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ EVAN LADOUCEUR
 	 
	 	 	Name:  	Evan Ladouceur 	 
	 	 	Title:  	Managing Director 	 
	 



[Signature Page to Registration Rights Agreement]






 









 








WACHOVIA CAPITAL MARKETS, LLC

 for itself and
as representative of the several 
Initial
Purchasers




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ JASON S. MILLER
 	 
	 	 	Name:  	Jason S. Miller 	 
	 	 	Title:  	Director 	 
	 



[Signature Page to Registration Rights Agreement]







 









 








DEUTSCHE BANK SECURITIES INC., 
for itself and
as representative of the several 
Initial
Purchasers




	 	 	 	 	 
	 	 	 
	 	By:  	/s/ NIKKI HAYES
 	 
	 	 	Name:  	Nikki Hayes 	 
	 	 	Title:  	MD 	 
	 



[Signature Page to Registration Rights Agreement]




 









 








ANNEX A





     Each broker-dealer that receives New Securities for its own account pursuant to the Exchange
Offer must acknowledge that it shall deliver a prospectus in connection with any resale of such New
Securities. The Letter of Transmittal states that by so acknowledging and by delivering a
Prospectus, a broker-dealer shall not be deemed to admit that it is an “underwriter” within the
meaning of the Act. This Prospectus, as it may be amended or supplemented from time to time, may
be used by a broker-dealer in connection with resales of New Securities received in exchange for
Securities where such Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Issuer and the Guarantors have agreed that, for a
period of 180 days after consummation of the Registered Exchange Offer, they shall make this
Prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of
Distribution.”




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ANNEX B




     Each broker-dealer that receives New Securities for its own account in exchange for
Securities, where such Securities were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it shall deliver a Prospectus in
connection with any resale of such New Securities. See “Plan of Distribution.”




B-1









 








ANNEX C




PLAN OF DISTRIBUTION




     Each broker-dealer that receives New Securities for its own account pursuant to the Registered
Exchange Offer must acknowledge that it will deliver a Prospectus in connection with any resale of
such New Securities. This Prospectus, as it may be amended or supplemented from time to time, may
be used by a broker-dealer in connection with resales of New Securities received in exchange for
Securities where such Securities were acquired as a result of market-making activities or other
trading activities. The Issuer and the Guarantors have agreed that, for a period of 180 days after
the consummation of the Registered Exchange Offer, they will make this Prospectus, as amended or
supplemented, available to any broker-dealer for use in connection with any such resale. In
addition, until                     , 20___, all dealers effecting transactions in the New Securities may be
required to deliver a Prospectus.



     The Issuer and the Guarantors will not receive any proceeds from any sale of New Securities by
brokers-dealers. New Securities received by broker-dealers for their own account pursuant to the
Registered Exchange Offer may be sold from time to time in one or more transactions in the
over-the-counter market, in negotiated transactions, through the writing of options on the New
Securities or a combination of such methods of resale, at market prices prevailing at the time of
resale, at prices related to such prevailing market prices or negotiated prices. Any such resale
may be made directly to purchasers or to or through brokers or dealers who may receive compensation
in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any
such New Securities. Any broker-dealer that resells New Securities that were received by it for
its own account pursuant to the Registered Exchange Offer and any broker or dealer that
participates in a distribution of such New Securities may be deemed to be an “underwriter” within
the meaning of the Act and any profit on any such resale of New Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting compensation under the
Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering
a Prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the
meaning of the Act.



     For a period of 180 days after the consummation of the Registered Exchange Offer, the Issuer
will promptly send additional copies of this Prospectus and any amendments or supplements to this
Prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The
Issuer and the Guarantors have agreed to pay all reasonable expenses incident to the Registered
Exchange Offer (including the expenses of one counsel for the holder of the Securities) other than
commissions or concessions of any brokers or dealers and will indemnify the holders of the
Securities (including any broker-dealers) against certain liabilities, including liabilities under
the Act.



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     [If applicable, add information required by Regulation S-K Items 507 and/or 508.]




C-2









 








ANNEX D




LANGUAGE TO BE INCLUDED IN LETTER OF TRANSMITTAL





	1.	 	PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.





	 	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Address:
	 	 

	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 

	 	 	 	 	 	 






	2.	 	If the undersigned is not a Broker-Dealer, the undersigned represents that it acquired the
New Securities in the ordinary course of its business, it is not engaged in, and does not
intend to engage in, a distribution of New Securities and it has no arrangements or
understandings with any person to participate in a distribution of the New Securities. If the
undersigned is a Broker-Dealer that will receive New Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for New Securities
were acquired by it as a result of market-making activities or other trading activities and
acknowledges that it shall deliver a Prospectus in connection with any resale of such New
Securities; however, by so acknowledging and by delivering a Prospectus, the undersigned shall
not be deemed to admit that it is an “underwriter” within the meaning of the Act.






D-1