APPLICABLE PLACEMENT OR BROKERAGE FEES,
IF ANY AND (Z) ITS PRO RATA SHARE (CALCULATED IN ACCORDANCE WITH SECTION 3.2(B))
OF ANY EXPENSES INCURRED BY THE TRANSFERRING INVESTOR FOR THE BENEFIT OF ALL
PARTICIPATING SECURITYHOLDERS, AND (II) THE TRANSFERRING INVESTOR SHALL BEAR ITS
OWN EXPENSES.
AT THE TIME OF CONSUMMATION OF THE TRANSACTION OFFER, THE OFFEROR
SHALL REMIT DIRECTLY TO EACH RELEVANT CO-SELLING INVESTOR THAT PORTION OF THE
SALE PROCEEDS TO WHICH THE RELEVANT CO-SELLING INVESTOR IS ENTITLED BY REASON OF
ITS PARTICIPATION THEREIN (LESS ANY ADJUSTMENTS DUE TO THE CONVERSION OF ANY
CONVERTIBLE SECURITIES OR THE EXERCISE OF ANY EXERCISABLE SECURITIES AND ANY
REQUIRED TAX WITHHOLDING).
NO SECURITIES MAY BE PURCHASED BY THE OFFEROR FROM
THE TRANSFERRING INVESTOR UNLESS THE OFFEROR SIMULTANEOUSLY PURCHASES FROM THE
PARTICIPATING CO-SELLING INVESTORS ALL OF THE SECURITIES THAT THEY HAVE ELECTED
TO SELL PURSUANT TO THIS SECTION 3.2.
(E)
ANY SECURITIES HELD BY A TRANSFERRING INVESTOR WHICH ARE THE
SUBJECT OF THE TRANSACTION OFFER THAT THE TRANSFERRING INVESTOR DESIRES TO SELL
FOLLOWING COMPLIANCE WITH THIS SECTION 3.2 MAY BE SOLD TO THE OFFEROR ONLY
DURING THE PERIOD SPECIFIED IN SECTION 3.2(C) AND ONLY ON TERMS NO MORE
FAVORABLE TO THE TRANSFERRING INVESTOR THAN THOSE CONTAINED IN THE CO-SALE OFFER
NOTICE.
PROMPTLY AFTER SUCH SALE, THE TRANSFERRING INVESTOR SHALL NOTIFY THE
CO-SELLING INVESTORS OF THE CONSUMMATION THEREOF AND SHALL FURNISH SUCH EVIDENCE
OF THE COMPLETION AND TIME OF COMPLETION OF SUCH SALE AND OF THE TERMS THEREOF
AS MAY REASONABLY BE REQUESTED BY THE CO-SELLING INVESTORS.
THE OFFEROR SHALL
TAKE SUCH SECURITIES SUBJECT TO THE PROVISIONS OF THIS ARTICLE III.
IN THE
EVENT THAT THE TRANSACTION OFFER IS NOT CONSUMMATED WITHIN THE PERIOD REQUIRED
BY THIS SECTION 3.2 OR THE OFFEROR FAILS TIMELY TO REMIT TO EACH PARTICIPATING
MEZZANINE INVESTOR ITS PORTION OF THE SALE PROCEEDS, THE TRANSACTION OFFER SHALL
BE DEEMED TO LAPSE, AND ANY TRANSFERS OF SECURITIES PURSUANT TO SUCH TRANSACTION
OFFER SHALL BE DEEMED TO BE
16
IN VIOLATION OF THE PROVISIONS OF THIS AGREEMENT UNLESS THE TRANSFERRING
INVESTOR ONCE AGAIN COMPLIES WITH THE PROVISIONS OF THIS SECTION 3.2 HEREOF WITH
RESPECT TO SUCH TRANSACTION OFFER.
(F)
IF (I) ANY INDIVIDUAL INVESTOR PROPOSES TO TRANSFER ALL OR A
PORTION OF ITS EQUITY INTERESTS IN BH/RE THAT, WHEN TAKEN TOGETHER WITH ALL
PREVIOUS TRANSFERS OF EQUITY INTERESTS BY SUCH INDIVIDUAL INVESTOR (EXCEPT FOR
ANY TRANSACTIONS SPECIFICALLY EXCLUDED BY THIS SECOND TO LAST SENTENCE OF THIS
SECTION 3.2(F)) WOULD EQUAL AN AGGREGATE AMOUNT OF EQUITY INTERESTS EQUAL TO OR
GREATER THAN 5% OF ALL SUCH INVESTOR'S EQUITY INTERESTS IN BH/RE HELD AS OF THE
DATE HEREOF, THEN THE INDIVIDUAL INVESTOR SHALL (SUBJECT TO ANY REQUIRED
CONSENTS OR APPROVALS OF GAMING AUTHORITIES) OFFER TO EXCHANGE THE SECURITIES
HELD BY EACH MEZZANINE INVESTOR FOR EQUITY INTERESTS IN BH/RE OF THE KIND
PROPOSED TO BE TRANSFERRED IN SUCH SALE AT THEIR RESPECTIVE FAIR MARKET VALUES
AS AGREED TO BY THE INDIVIDUAL INVESTORS AND THE MAJORITY HOLDERS OR (II) BH/RE
PROPOSES TO TRANSFER ALL OR A PORTION OF