EXHIBIT 4.2
RIO HOTEL & CASINO, INC.
9 1/2% Senior Subordinated Notes Due 2007
REGISTRATION AGREEMENT
New York, New York
February 4, 1997
To: SALOMON BROTHERS INC
BANCAMERICA SECURITIES, INC.
In care of:
Salomon Brothers Inc
Seven Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Rio Hotel & Casino, Inc., a Nevada corporation (the
"Company"), proposes to issue and sell to certain purchasers (the
"Purchasers"), upon the terms set forth in a purchase agreement
of even date herewith (the "Purchase Agreement"), its 9 1/2%
Senior Subordinated Notes Due 2007 (the "Securities") (the
"Initial Placement"), which Securities are to be unconditionally
guaranteed on a senior subordinated and unsecured basis by Rio
Properties, Inc. (the "Guarantor"). As an inducement to the
Purchasers to enter into the Purchase Agreement and in
satisfaction of a condition to your obligations thereunder, the
Company and the Guarantor jointly and severally agree with you,
(i) for your benefit and the benefit of the other Purchasers and
(ii) for the benefit of the holders from time to time of the
Securities (including you and the other Purchasers) (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein
without definition shall have their respective meanings set forth
in the purchase agreement. As used in this agreement, the
following capitalized defined terms shall have the following
meanings:
"Act" means the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated
thereunder.
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"Affiliate" of any specified person means any
other person which directly or indirectly, is in control of, is
controlled by, or is under common control with, such specified
person. For purposes of this definition, control of a person
means the power, direct or indirect, to direct or cause the
direction of the management and policies of such person whether
by contract or otherwise; and the terms "controlling" and
"controlled "have meanings correlative to the foregoing.
"Closing Date" has the meaning set forth in the
Purchase Agreement.
"Commission" means the Securities and Exchange
Commission.
"Exchange Act" means the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Exchange Offer Registration Period" means the 1 year
period 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" means a
registration statement of the Company 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, in each case including the
Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchanging Dealer" means any Holder (which may include
the Purchasers) which is a broker-dealer, electing to exchange
Securities acquired for its own account as a result of market-
making activities or other trading activities, for New
Securities.
"Final Memorandum" has the meaning set forth in the
Purchase Agreement.
"Holder" has the meaning set forth in the preamble
hereto.
"Indenture" means the Indenture relating to the
Securities and the New Securities dated as of February 11, 1997,
between the Company, the Guarantor and IBJ Xxxxxxxx Bank and
Trust Company, as trustee, as the same may be amended from time
to time in accordance with the terms thereof.
"Initial Placement" has the meaning set forth in the
preamble hereto.
"Majority Holders" means the Holders of a majority of
the aggregate principal amount of securities registered under a
Registration Statement.
"Managing Underwriters" means the investment banker or
investment bankers and manager or managers that shall administer
an underwritten offering.
"New Securities" means debt securities of the Company
unconditionally guaranteed on a senior subordinated basis by the
Guarantor and identical in all material respects to
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the Securities (except that the cash interest and
interest rate step-up provisions and the transfer restrictions
will be modified or eliminated, as appropriate), to be issued
under the Indenture.
"Prospectus" means 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 to the Prospectus, including post-
effective amendments.
"Registered Exchange Offer" means the proposed offer to
the Holders to issue and deliver to such Holders, in exchange for
the Securities, a like principal amount of the New Securities.
"Registrable Securities" has the meaning set forth in
Section 3(a).
"Registration Statement" means 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, 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" has the meaning set forth in the preamble
hereto.
"Shelf Registration" means a registration effected
pursuant to Section 3 hereof.
"Shelf Registration Period" has the meaning set forth
in Section 3(b) hereof.
"Shelf Registration Statement" means a "shelf"
registration statement of the Company pursuant to the provisions
of Section 3 hereof which covers some or all of the Securities or
New Securities, as applicable, 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" means the trustee with respect to the
Securities and the New Securities under the Indenture.
"underwriter" means any underwriter of Securities in
connection with an offering thereof under a Shelf Registration
Statement.
2. Registered Exchange Offer; Resales of New
Securities by Exchanging Dealers; Private Exchange. (a) The
Company and the Guarantor shall prepare and, not later than
60 days following the Closing Date, shall file with the
Commission the Exchange Offer Registration Statement with respect
to the Registered Exchange Offer. The Company and the
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Guarantor shall cause the Exchange Offer Registration Statement
to become effective under the Act within 150 days of the
Closing Date.
(b) Upon the effectiveness of the Exchange Offer
Registration Statement, the Company and the Guarantor shall
promptly commence the Registered Exchange Offer, it being the
objective of such Registered Exchange Offer to enable each Holder
electing to exchange Securities for New Securities (assuming that
such Holder is not an affiliate of the Company or the Guarantor
within the meaning of the Act, acquires the New Securities in the
ordinary course of such Holder's business and has no arrangements
with any person to participate in the distribution of the New
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 Company and the Guarantor shall:
(i) mail 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
not less than 30 days and not more than 45 days after the date
notice thereof is mailed to the Holders (or longer if required by
applicable law);
(iii) utilize the services of a depositary for the
Registered Exchange Offer with an address in the Borough of
Manhattan, The City of New York; and
(iv) comply in all respects with all applicable
laws.
(d) As soon as practicable after the close of the
Registered Exchange Offer, the Company and the Guarantor shall:
(i) accept for exchange all Securities validly
tendered and not validly withdrawn pursuant to the Registered
Exchange Offer;
(ii) deliver to the Trustee for cancellation all
Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate
and deliver to each Holder of Securities New Securities equal in
principal amount to the Securities of such Holder so accepted for
exchange.
(e) The Purchasers, the Company and the Guarantor
acknowledge that, pursuant to interpretations by the Commission's
staff of Section 5 of the Act, and in the absence of an
applicable exemption therefrom, each Exchanging Dealer is
required to deliver a Prospectus in connection with a sale of any
New Securities received by such Exchanging Dealer pursuant to the
Registered Exchange Offer in exchange for Securities acquired for
its own account as a result of
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market-making activities or other trading activities.
Accordingly, the Company and the Guarantor shall:
(i) include the information set forth in Annex A
hereto on the cover 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, and in Annex C hereto in the underwriting or plan
of distribution section of the Prospectus forming a part of the
Exchange Offer Registration Statement, and include the
information set forth in Annex D hereto in the Letter of
Transmittal delivered pursuant to the Registered Exchange Offer;
and
(ii) use their best efforts to keep the
Exchange Offer Registration Statement continuously effective
under the Act during the Exchange Offer Registration Period for
delivery by Exchanging Dealers in connection with sales of New
Securities received pursuant to the Registered Exchange Offer, as
contemplated by Section 4(h) below.
(f) In the event that any 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 Purchaser,
the Company and the Guarantor shall issue and deliver to such
Purchaser or the party purchasing New Securities registered under
a Shelf Registration Statement as contemplated by Section 3
hereof from such Purchaser, in exchange for such Securities, a
like principal amount of New Securities. The Company and the
Guarantor shall seek to cause the CUSIP Service Bureau to issue
the same CUSIP number for such New Securities as for New
Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. If, (i) because of any change
in law or applicable interpretations thereof by the Commission's
staff, the Company and the Guarantor determine upon advice of
their outside counsel that it is not permitted to effect the
Registered Exchange Offer as contemplated by Section 2 hereof, or
(ii) if for any other reason the Registered Exchange Offer is not
declared effective within 150 days of the date hereof, or
(iii) if any Purchaser so requests with respect to Securities
held by it following consummation of the Registered Exchange
Offer, or (iv) if any Holder (other than an Exchanging Dealer) is
not eligible to participate in the Registered Exchange Offer or
(v) in the case of any Purchaser that participates in the
Registered Exchange Offer or acquires New Securities pursuant to
Section 2(f) hereof, such Purchaser does not receive freely
tradeable New Securities in exchange for Securities constituting
any portion of an unsold allotment (it being understood that, for
purposes of this Section 3, (x) the requirement that a Purchaser
deliver a Prospectus containing the information required by
Items 507 and/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" but (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 following
provisions shall apply:
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(a) The Company and the Guarantor shall as
promptly as practicable (but in no event more than 30 days after
so required or requested pursuant to this Section 3), file with
the Commission and thereafter shall cause to be declared
effective under the Act by the 150th day after the original
issuance of the Securities a Shelf Registration Statement
relating to the offer and sale of the Securities or the New
Securities, as applicable, by the Holders from time to time in
accordance with the methods of distribution elected by such
Holders and set forth in such Shelf Registration Statement (such
Securities or New Securities, as applicable, to be sold by
Holders under such Shelf Registration Statement being referred to
herein as "Registrable Securities"); provided, that with respect
to New Securities received by a Purchaser in exchange for
Securities, constituting any portion of an unsold allotment, the
Company and the Guarantor 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 Regulation S-K Items 507 and/or 508,
as applicable, in satisfaction of its obligations under this
paragraph (a) 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.
(b) The Company and the Guarantor shall keep the Shelf
Registration Statement continuously effective in order to permit
the Prospectus forming part thereof to be usable by Holders for a
period of three years from the date the Shelf Registration
Statement is declared effective by the Commission or until one
year after such effective date if such Shelf Registration
Statement is filed at the request of a Purchaser (in any such
case, such period being called the "Shelf Registration Period").
The Company and the Guarantor shall be deemed not to have used
their best efforts to keep the Shelf Registration Statement
effective during the requisite period if any of them voluntarily
takes any action that would result in Holders of securities
covered thereby not being able to offer and sell such securities
during that period, unless (i) such action is required by
applicable law, or (ii) such action is taken by the Company or
the Guarantor in good faith and for valid business reasons (not
including avoidance of the Company's or the Guarantor's
obligations hereunder), including the acquisition or divestiture
of assets, so long as the Company or the Guarantor, as
applicable, promptly thereafter complies with the requirements of
Section 4(k) hereof, if applicable.
4. 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 Company or the Guarantor shall furnish to you
and to each Holder, prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement and any
Exchange Offer Registration Statement, and each amendment thereof
and each amendment or supplement, if any, to the Prospectus
included therein and shall use their best efforts to reflect in
each such document, when so filed with the Commission, such
comments as you or any Holder reasonably may propose.
(b) The Company and the Guarantor shall ensure that
(i) any Registration Statement and any amendment thereto and any
Prospectus forming part thereof and any
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amendment or supplement thereto complies in all
material respects with the Act and the rules and regulations
thereunder, (ii) any Registration Statement and any amendment
thereto 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 and (iii) any Prospectus forming part of
any Registration Statement, and any amendment or supplement to
such Prospectus, does not include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements, in the light of the circumstances under
which they were made, not misleading.
(c) (1) The Company or the Guarantor shall advise you
and, in the case of a Shelf Registration Statement, the Holders
of securities covered thereby, and, if requested by you or any
such Holder, confirm such advice in writing:
(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; and
(ii) of any request by the Commission for
amendments or supplements to the Registration Statement or the
Prospectus included therein or for additional information.
(2) The Company or the Guarantor shall advise you
and, in the case of a Shelf Registration Statement, the Holders
of securities covered thereby, and, in the case of an Exchange
Offer Registration Statement, any Exchanging Dealer which has
provided in writing to the Company a telephone or facsimile
number and address for notices, and, if requested by you or any
such Holder or Exchanging Dealer, confirm such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose;
(ii) of the receipt by the Company or the
Guarantor of any notification with respect to the suspension of
the qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the happening of any event that
requires the making of any changes in the Registration Statement
or the Prospectus so that, as of such date, the statements
therein are not misleading and 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 light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been
made).
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(d) The Company and the Guarantor shall use
their best efforts to obtain the withdrawal of any order
suspending the effectiveness of any Registration Statement
at the earliest possible time.
(e) The Company or the Guarantor shall furnish to
each Holder of securities included within the coverage of any
Shelf Registration Statement, without charge, at least one copy
of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules,
and, if the Holder so requests in writing, any documents
incorporated by reference therein and all exhibits (including
those incorporated by reference).
(f) The Company and the Guarantor shall, during
the Shelf Registration Period, deliver to each Holder of
securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Shelf
Registration Statement and any amendment or supplement thereto as
such Holder may reasonably request; and the Company and the
Guarantor 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.
(g) The Company and the Guarantor shall furnish
to each Exchanging Dealer which so requests, without charge, at
least one copy of the Exchange Offer Registration Statement and
any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference
therein, and, if the Exchanging Dealer so requests in writing any
documents incorporated by reference therein and all exhibits
(including those incorporated by reference).
(h) The Company and the Guarantor shall, during
the Exchange Offer Registration Period, promptly deliver to each
Exchanging Dealer, without charge, as many copies of the
Prospectus included in such Exchange Offer Registration Statement
and any amendment or supplement thereto as such Exchanging Dealer
may reasonably request for delivery by such Exchanging Dealer in
connection with a sale of New Securities received by it pursuant
to the Registered Exchange Offer; and the Company and the
Guarantor consent to the use of the Prospectus or any amendment
or supplement thereto by any such Exchanging Dealer, as
aforesaid.
(i) Prior to the Registered Exchange Offer or any
other offering of securities pursuant to any Registration
Statement, the Company and the Guarantor shall register or
qualify or cooperate with the Holders of securities included
therein and Holders' counsel in connection with the registration
or qualification of such securities for offer and sale under the
securities or blue sky laws of such jurisdictions as any such
Holder reasonably requests in writing and do any and all other
acts or things necessary or advisable to enable the offer and
sale in such jurisdictions of the securities covered by such
Registration Statement; provided, however, that neither the
Company nor the Guarantor will be required to qualify generally
to do business in any jurisdiction where it is not then so
qualified or to take any action which would subject it to general
service of process or to taxation in any such jurisdiction where
it is not then so subject.
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(j) The Company and the Guarantor shall
cooperate with the Holders of Securities to facilitate
the timely preparation and delivery of certificates representing
Securities to be sold pursuant to any Registration Statement free
of any restrictive legends and in such denominations and
registered in such names as Holders may request prior to sales
of securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated
by paragraph (c)(2)(iii) above, the Company and the Guarantor
shall promptly prepare a post-effective amendment to any
Registration Statement or an amendment or supplement to the
related Prospectus or file any other required document so that,
as thereafter delivered to purchasers of the securities included
therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading.
(l) Not later than the effective date of any such
Registration Statement hereunder, the Company and the Guarantor
shall provide a CUSIP number for the Securities or New
Securities, as the case may be, registered under such
Registration Statement, and provide the applicable trustee with
printed certificates for such Securities or New Securities, in a
form eligible for deposit with The Depository Trust Company.
(m) The Company and the Guarantor shall use their
best efforts to comply with all applicable rules and regulations
of the Commission and shall make generally available to its
security holders as soon as practicable after the effective date
of the applicable Registration Statement an earnings statement
satisfying the provisions of Section 11(a) of the Act.
(n) The Company and the Guarantor shall cause the
Indenture to be qualified under the Trust Indenture Act in a
timely manner.
(o) The Company may require each Holder of
securities to be sold pursuant to any Shelf Registration
Statement to furnish to the Company such information regarding
the holder and the distribution of such securities as the Company
may from time to time reasonably require for inclusion in such
Registration Statement.
(p) The Company and the Guarantor shall, if
requested, promptly incorporate in a Prospectus supplement or
post-effective amendment to a Shelf Registration Statement, such
information as the Managing Underwriters and Majority Holders
reasonably agree should be included therein and shall make all
required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated
in such Prospectus supplement or post-effective amendment.
(q) In the case of any Shelf Registration
Statement, the Company and the Guarantor shall enter into such
agreements (including underwriting agreements) and take all other
appropriate actions 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
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and the Managing Underwriters, if any) with respect to
all parties to be indemnified pursuant to Section 6 hereof from
Holders of Securities to the Company and the Guarantor.
(r) In the case of any Shelf Registration
Statement, the Company and the Guarantor shall (i) make
reasonably available for inspection by the 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 the Holders or
any such underwriter all relevant financial and other records,
pertinent corporate documents and properties of the Company and
its subsidiaries; (ii) cause the Company's and the Guarantor's
officers, directors and employees to supply all relevant
information reasonably requested by the Holders or any such
underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such
information shall be kept confidential by the Holders or any such
underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court proceeding or
required by law, or such information becomes available to the
public generally or through a third party without an accompanying
obligation of confidentiality; (iii) make such representations
and warranties to the Holders of securities registered thereunder
and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and the Guarantor
and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to the Managing
Underwriters, if any) addressed to each selling Holder and the
underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such
other matters as may be reasonably requested by such Holders and
underwriters; (v) obtain "cold comfort" letters and updates
thereof from the independent certified public accountants of the
Company and the Guarantor (and, if necessary, any other
independent certified public accountants of any subsidiary of the
Company or of any business acquired by the Company for which
financial statements and financial data are, or are required to
be, included in the Registration Statement), addressed to each
selling Holder of securities registered thereunder and the
underwriters, if any, in customary form and covering matters of
the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings; and (vi) deliver
such documents and certificates as may be reasonably requested by
the Majority Holders and the Managing Underwriters, if any,
including those to evidence compliance with Section 4(k) and with
any customary conditions contained in the underwriting agreement
or other agreement entered into by the Company and the Guarantor.
The foregoing actions set forth in clauses (iii), (iv), (v) and
(vi) of this Section 4(r) shall be performed at (A) the effective
date of such Registration Statement and each post-effective
amendment thereto and (B) each closing under any underwriting or
similar agreement as and to the extent required thereunder.
(s) In the case of any Exchange Offer
Registration Statement, the Company and the Guarantor shall
(i) make reasonably available for inspection by such Purchaser,
and any attorney, accountant or other agent retained by such
Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries; (ii) cause the Company's and the Guarantor's
officers, directors and employees to supply all
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relevant information reasonably requested by such Purchaser or
any such attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided however, that any information
that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such
information shall be kept confidential by such Purchaser or
any such attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or required by law,
or such information becomes available to the public generally or
through a third party without an accompanying obligation of
confidentiality; (iii) make such representations and warranties
to such Purchaser, in form, substance and scope as are
customarily made by issuers to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement; (iv)
obtain opinions of counsel to the Company and the Guarantor
and updates thereof (which counsel and opinions (in form, scope
and substance) shall be reasonably satisfactory to such
Purchaser and its counsel, addressed to such Purchaser, covering
such matters as are customarily covered in opinions requested
in underwritten offerings and such other matters as may be
reasonably requested by such Purchaser or its counsel; (v)
obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company and the
Guarantor (and, if necessary, any other independent certified
public accountants of any subsidiary of the Company or of any
business acquired by the Company for which financial statements
and financial data are, or are required to be, included in the
Registration Statement), addressed to such Purchaser, in
customary form and covering matters of the type customarily
covered in "cold comfort" letters in connection with primary
underwritten offerings, or if requested by such Purchaser or its
counsel in lieu of a "cold comfort" letter, an agreed-upon
procedures letter under Statement on Auditing Standards No. 35,
covering matters requested by such Purchaser or its counsel; and
(vi) deliver such documents and certificates as may be reasonably
requested by such Purchaser or its counsel, including those to
evidence compliance with Section 4(k) and with conditions
customarily contained in underwriting agreements. The foregoing
actions set forth in clauses (iii), (iv), (v), and (vi) of this
Section 4(s) shall be performed at the close of the
Registered Exchange Offer and the effective date of any
post-effective amendment to the Exchange Offer Registration
Statement.
5. Registration Expenses. The Company and the
Guarantor shall bear all expenses incurred in connection with the
performance of its obligations under Sections 2, 3 and 4 hereof
and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements
of one firm or counsel designated by the Majority Holders to act
as counsel for the Holders in connection therewith, and, in the
case of any Exchange Offer Registration Statement, will reimburse
the Purchasers for the reasonable fees and disbursements of
counsel acting in connection therewith.
6. Indemnification and Contribution. (a) In
connection with any Registration Statement, the Company and the
Guarantor, jointly and severally, agree to indemnify and hold
harmless each Holder of securities covered thereby (including
each Purchaser and, with respect to any Prospectus delivery as
contemplated in Section 4(h) hereof, each Exchanging Dealer), the
directors, officers, employees and agents of each such Holder and
each person who controls any such Holder 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
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under the Act, the Exchange Act or other 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 the Registration Statement as originally filed or in
any amendment thereof, or in any preliminary Prospectus or
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 not misleading, and
agree 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 neither the
Company nor the Guarantor will be liable in any 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 Company by or on behalf of any such Holder
specifically for inclusion therein. This indemnity agreement
will be in addition to any liability which the Company or the
Guarantor may otherwise have.
The Company and the Guarantor also agree to indemnify
or contribute to Losses of, as provided in Section 6(d), any
underwriters of Securities registered under a Shelf Registration
Statement, their officers and directors and each person who
controls such underwriters on substantially the same basis as
that of the indemnification of the Purchasers and the selling
Holders provided in this Section 6(a) and shall, if requested by
any Holder, enter into an underwriting agreement reflecting such
agreement, as provided in Section 4(q) hereof.
(b) Each Holder of securities covered by a
Registration Statement (including each Purchaser and, with
respect to any Prospectus delivery as contemplated in
Section 4(h) hereof, each Exchanging Dealer) severally agrees to
indemnify and hold harmless (i) the Company and the Guarantor,
(ii) each of their directors, (iii) each of their respective
officers who signs such Registration Statement and (iv) each
person who controls the Company or the Guarantor within the
meaning of either the Act or the Exchange Act to the same extent
as the foregoing indemnity from the Company and the Guarantor to
each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf
of such Holder specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement
will be in addition to any liability which 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 so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b)
above 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 event, relieve the indemnifying party from
any obligations to any indemnified party other than the
indemnification obligation provided in paragraph (a) or (b)
above. The indemnifying party shall be entitled to appoint as
counsel one firm of attorneys of the indemnifying party's choice
at the indemnifying party's expense to represent the indemnified
party (together with one local counsel in each jurisdiction)
in
13
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
retained by the indemnified party or parties except as set forth
below); provided, however, that such counsel shall be
satisfactory to the indemnified party. Notwithstanding the
indemnifying party's election to appoint 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 (and local counsel) if
(i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a
conflict of interest, (ii) the actual or potential defendants in,
or targets of, any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party,
(iii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will
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.
(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 for any
reason, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall have a joint and
several obligation to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending
same) (collectively "Losses") to which such indemnified party may
be subject 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
Purchaser or any subsequent Holder of any Security or New
Security 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 which was exchangeable into such New Security, 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, 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 Company and
the Guarantor shall be deemed to be equal to the sum of (x) the
total net proceeds from the Initial Placement (before deducting
expenses) and (y) the total amount of
14
additional interest which the Company and the Guarantor
were not required to pay as a result of registering the
securities covered by the Registration Statement which resulted
in such Losses. Benefits received by the Purchasers shall be
deemed to be equal to the total purchase discounts and
commissions, 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 whether any alleged untrue statement
or omission relates to information provided by the indemnifying
party, on the one hand, or by the indemnified party, on the other
hand. The parties agree that it would not be just and equitable
if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of 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, each person who controls a Holder within the
meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of such Holder shall have the same
rights to contribution as such Holder, and each person who
controls the Company or the Guarantor within the meaning of
either the Act or the Exchange Act, each officer of the Company
or the Guarantor who shall have signed the Registration Statement
and each director of the Company or the Guarantor shall have the
same rights to contribution as the Company and the Guarantor,
subject in each case to the applicable terms and conditions of
this paragraph (d).
(e) The provisions of this Section 6 will remain in
full force and effect, regardless of any investigation made by or
on behalf of any Holder, the Guarantor or the Company or any of
the officers, directors or controlling persons referred to in
Section 6 hereof, and will survive the sale by a Holder of
securities covered by a Registration Statement.
7. Miscellaneous.
(a) No Inconsistent Agreements. Neither the Company
nor the Guarantor has, as of the date hereof, entered into, nor
shall it, on or after the date hereof, enter into, any agreement
with respect to its securities that is inconsistent with the
rights granted to the Holders herein or otherwise conflicts with
the provisions hereof.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, qualified, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate
principal amount of Securities (or, after the consummation of any
Exchange Offer in accordance with Section 2 hereof, of New
Securities); provided that, with respect to any matter that
directly or indirectly affects the rights of any Purchaser
hereunder, the Company shall obtain the written consent of each
such Purchaser against which such amendment, qualification,
supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a
waiver or consent to departure from the provisions hereof
with
15
respect to a matter that relates exclusively to the
rights of Holders whose securities 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 being sold rather
than registered under such Registration Statement.
(c) 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:
(1) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the provisions
of this Section 7(c), which address initially is, with respect to
each Holder, the address of such Holder maintained by the
Registrar under the Indenture, with a copy in like manner to
Salomon Brothers Inc;
(2) if to you, initially at the respective addresses
set forth in the Purchase Agreement; and
(3) if to the Company or the Guarantor, initially at
its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to
have been duly given when received.
The Purchasers or the Company by notice to the other
may designate additional or different addresses for subsequent
notices or communications.
(d) Successor and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors and assigns
of each of the parties, including, without the need for an
express assignment or any consent by the Company or the Guarantor
thereto, subsequent Holders of Securities and/or New Securities.
The Company and the Guarantor hereby agree to extend the benefits
of this Agreement to any Holder of Securities and/or New
Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This Agreement may be executed in
any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to
be an original and all of which taken together shall constitute
one and the same agreement.
(f) Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(g) Governing Law. This Agreement shall be governed
by and construed in accordance with the internal laws of the
State of New York (without regard to the conflict of law
provisions thereof).
(h) Severability. In the event that any one of more
of the provisions contained herein, or the application thereof in
any circumstances, is held invalid, illegal or unenforceable
in
16
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.
(i) Securities Held by the Company, 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 Company or its Affiliates (other than subsequent Holders of
Securities or New Securities if such subsequent 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.
17
Please confirm that the foregoing correctly sets
forth the agreement between the Company, the Guarantor and you.
Very truly yours,
RIO HOTEL & CASINO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Treasurer
GUARANTOR:
RIO PROPERTIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
Name: Xxxxxx X. Xxxxxxxxx
Title: Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date first above
written.
SALOMON BROTHERS INC
BANCAMERICA SECURITIES, INC.
By: SALOMON BROTHERS INC
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ANNEX A
Each broker-dealer that receives New Securities for its own account
pursuant to the Exchange Offer must acknowledge that it will
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
will not be deemed to admit that it is an "underwriter" within
the meaning of the Securities 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 New Securities were
acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed
that, starting on the Expiration Date (as defined herein) and
ending on the close of business on the 180th day following the
Expiration Date, it will make this Prospectus available to any
broker-dealer for use in connection with any such resale. See
"Plan of Distribution."
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 will deliver a prospectus in connection with any resale of such
New Securities. See "Plan of Distribution."
ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Securities for its
own account pursuant to the Exchange Offer must acknowledge that
it will deliver a prospectus in connection with any resale of
such New Securities. The 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. Each of
the Company and the Guarantor has agreed that, starting on the
Expiration Date and ending on the close of business on the 180th
day following the Expiration Date, it will make this Prospectus,
as amended or supplemented, available to any broker-dealer for
use in connection with any such resale. In addition, until,
199 , all dealers effecting transactions in the
Exchange Securities may be required to deliver a prospectus.*/
Neither the Company nor the Guarantor will receive any
proceeds from any sale of New Securities by broker-dealers. New
Securities received by broker-dealers for their own account
pursuant to the 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 purchaser 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 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
Securities Act and any profit of 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 Securities 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 Securities Act.
For a period of 180 days after the Expiration Date, the
Company will promptly send additional copies of this Prospectus
and any amendment or supplement to this Prospectus to any broker-
dealer that requests such documents in the Letter of Transmittal.
The Company and the Guarantor have jointly and severally agreed
to pay all expenses incident to the Exchange Offer (including the
reasonable expenses of one counsel for the holders of the
Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the
________________________
*/In addition, the legend required by Item 502(e) of
Regulation S-K will appear on the back cover page of the Exchange
Offer prospectus.
2
Securities (including any broker-dealers) against certain
liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items
507 and/or 508.]
ANNEX D
Rider A
CHECK HERE 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:___________________________________
___________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned
represents that it is not engaged in, and does not intend to
engage in, a distribution of New Securities. If the undersigned
is a broker-dealer that will receive New Securities for its own
account in exchange for Securities that were acquired as a result
of market-making activities or other trading activities, it
acknowledges that it will deliver a prospectus in connection with
any resale of such New Securities; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be
deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
