Exhibit 4.3
EXECUTION VERSION
HARRAH’S OPERATING ESCROW
LLC
HARRAH’S ESCROW CORPORATION
$1,375,000,000
11 1 / 4 % Senior Secured Notes due
2017
REGISTRATION RIGHTS
AGREEMENT
June 10, 2009
Banc of America Securities
LLC
As Representative of the
Initial Purchasers listed on Schedule I to the Purchase
Agreement
c/o Banc of America Securities LLC
One Bryant Park
New York, New York 10036
Ladies and Gentlemen:
Harrah’s
Operating Escrow LLC, a limited liability company organized under
the laws of Delaware (“ Escrow LLC ”) and
Harrah’s Escrow Corporation, a corporation organized under
the laws of Delaware (“ Escrow Corporation ”
and, together with Escrow LLC, the “ Issuers ”),
propose to issue and sell to certain purchasers (the “
Initial Purchasers ”), for whom you (the “
Representative ”) are acting as representative,
$1,375,000,000 aggregate principal amount of their 11
1 / 4 % Senior Secured Notes due
2017 (the “ Notes ”), upon the terms set forth
in the Purchase Agreement between the Issuers, Harrah’s
Entertainment, Inc., a corporation organized under the laws of
Delaware (the “ Parent Guarantor ”), and the
Representative dated May 27, 2009 (the “ Purchase
Agreement ”), relating to the initial placement of the
Notes (the “ Initial Placement ”) and the
related Guarantee (as defined below). To induce the Initial
Purchasers to enter into the Purchase Agreement and to satisfy a
condition to your obligations thereunder, the Issuers, the Company
(as defined below) and Parent Guarantor agree with you for your
benefit and the benefit of the holders from time to time of the
Securities (as defined below) (including the Initial Purchasers)
(each a “ Holder ” and, collectively, the
“ Holders ”), as follows:
The Notes will be unconditionally
guaranteed (the “ Guarantee ”) on a senior basis
by Parent Guarantor. The Notes, together with the Guarantee, are
referred to herein as the “ Securities
.”
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:
“ Additional Interest
” shall have the meaning ascribed to it in Section 8
hereof.
“ Affiliate ”
shall have the meaning specified in Rule 405 under the Securities
Act and the terms “controlling” and
“controlled” shall have meanings correlative
thereto.
“ broker-dealer ”
shall mean any broker or dealer registered as such under the
Exchange Act.
“ Business Day ”
shall mean any day other than a Saturday, a Sunday or a legal
holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York
City.
“ Commission ”
shall mean the Securities and Exchange Commission.
“ Company ” shall
mean Harrah’s Operating Company, Inc.
“ Deferral Period
” shall have the meaning ascribed to it in
Section 4(k)(ii) hereof.
“ Event Date ”
shall have the meaning ascribed to it in Section 8(b)
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 one-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 ” shall mean a registration
statement of the Company on an appropriate form under the
Securities 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 Company or any Affiliate of the Company) for
New Securities.
“ Final Memorandum
” shall mean the offering memorandum, dated May 27,
2009, relating to the offer and sale of the Notes, 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, Inc.
“ Freely Tradable
Security ” shall mean any security at any time of
determination if at such time of determination such security
(i) may be sold to the public pursuant to Rule 144 under the
Securities Act by a person that is not an “affiliate”
(as defined in Rule 144 under the Securities Act) of the Company
where no conditions of Rule 144 under the Securities Act
are
then applicable (other than the holding period
requirement in paragraph (d) of Rule 144 under the Securities
Act so long as such holding period requirement is satisfied at such
time of determination), (ii) does not bear any restrictive
legends relating to the Securities Act and (iii) does not bear
a restricted CUSIP number.
“ Guarantee ”
shall have the meaning ascribed to it in the preamble.
“ Holder ” shall
have the meaning ascribed to it in the preamble.
“ Indenture ”
shall mean the Indenture relating to the Securities, dated as of
June 10, 2009, among the Issuers, the Company, Parent
Guarantor and U.S. Bank National Association, as trustee, as the
same may be amended from time to time in accordance with the terms
thereof.
“ Initial Placement
” shall have the meaning ascribed to it in the
preamble.
“ Initial Purchasers
” shall have the meaning ascribed to it in the
preamble.
“ Inspector ”
shall have the meaning ascribed to it in Section 4(q)(ii)
hereof.
“ Issuers ” shall
have the meaning ascribed to it in the preamble.
“ Losses ” shall
have the meaning ascribed to it in Section 6(d)
hereof.
“ Majority Holders
” shall mean, on any date, Holders of a majority of the
aggregate principal amount of the Notes registered under a
Registration Statement.
“ Managing Underwriters
” shall mean the investment banker or investment bankers and
manager or managers that administer an underwritten offering, if
any, under a Registration Statement.
“ New Securities
” shall mean debt securities of the Company and the Guarantee
by Parent Guarantor, in each case, identical in all material
respects to the Notes and the related Guarantee (except that the
transfer restrictions shall be modified or eliminated, as
appropriate) to be issued under the Indenture in connection with
sales or exchanges effected pursuant to this Agreement.
“ Notes ” shall
have the meaning ascribed to it in the preamble.
“ Parent Guarantor
” shall have the meaning ascribed to it in the
preamble.
“ 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 Securities 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 Agreement
” shall have the meaning ascribed to it in the
preamble.
“ Registered Exchange
Offer ” shall mean the proposed offer of the Company and
Parent Guarantor to issue and deliver to the Holders of the
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.
“ Registrable
Securities ” shall mean (i) Securities other than
those that have been (A) registered under a Registration
Statement and exchanged or disposed of in accordance therewith or
(B) sold to the public pursuant to Rule 144 under the
Securities Act or any successor rule or regulation thereto that may
be adopted by the Commission and (ii) any New Securities
resale of which by the Holder thereof requires compliance with the
prospectus delivery requirements of the Securities Act.
“ Registration Default
” shall have the meaning ascribed to it in Section 8(a)
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.
“ Registration Trigger
Date ” shall mean the fifth Business Day following the
one year anniversary of the date hereof.
“ Securities ”
shall have the meaning ascribed to it in the preamble.
“ Securities Act
” shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated
thereunder.
“ Shelf Registration
” shall mean a registration effected pursuant to
Section 3 hereof.
“ Shelf Registration
Period ” shall have the meaning ascribed to it in
Section 3(b)(ii) hereof.
“ Shelf Registration
Statement ” shall mean 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 Securities 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.
“ Shelf Request ”
shall have the meaning ascribed to it in Section 3(a)
hereof.
“ Trustee ” shall
mean the trustee with respect to the Securities under the
Indenture.
“ underwriter ”
shall mean any underwriter of Securities in connection with an
offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer
. (a) Unless the Registered Exchange Offer would violate
applicable law or any applicable interpretation of the staff of the
Commission, with respect to any Securities that on the Registration
Trigger Date are Registrable Securities, the Company and Parent
Guarantor shall use their reasonable best efforts to prepare, to
cause to be filed with the Commission and to become effective the
Exchange Offer Registration Statement with respect to the
Registered Exchange Offer; provided , however , that
the Company and Parent Guarantor shall not be required to
consummate such Registered Exchange Offer if the Securities are
Freely Tradable Securities.
(b) If an Exchange Offer
Registration Statement is filed and becomes effective pursuant to
Section 2(a) above, upon the effectiveness of the Exchange
Offer Registration Statement, the Company and Parent 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 Parent Guarantor,
acquires the New Securities in the ordinary course of such
Holder’s business, has no arrangements with any person to
participate in the distribution of the New Securities and is not
prohibited by any law or policy of the Commission from
participating in the Registered Exchange Offer) to trade such New
Securities from and after their receipt without any limitations or
restrictions under the Securities Act and without material
restrictions under the securities laws of a substantial proportion
of the several states of the United States. The Company and the
Parent Guarantor shall use their reasonable best efforts to
complete the Registered Exchange Offer not later than 45 days after
the Exchange Offer Registration Statement becomes
effective.
(c) In connection with the
Registered Exchange Offer, if an Exchange Offer Registration
Statement is required to be filed and becomes effective pursuant to
Section 2(a) above, the Company and Parent Guarantor
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 not less than 20 Business Days after the date notice
thereof is mailed to the Holders (or, in each case, longer if
required by applicable law);
(iii) use their commercially
reasonable efforts to keep the Exchange Offer Registration
Statement continuously effective under the Securities Act,
supplemented and amended as required, 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 or
an Affiliate of the Trustee;
(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 a supplemental
letter to the Commission (A) stating that the Company and
Parent Guarantor are conducting the Registered Exchange Offer in
reliance on the position of the Commission in Exxon Capital
Holdings Corporation (pub. avail. May 13, 1988), Morgan
Stanley and Co., Inc . (pub. avail. June 5, 1991); and
(B) including a representation that the Company and Parent
Guarantor 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 knowledge of
the Company and Parent Guarantor, 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 respects with
all applicable laws.
(d) As soon as practicable after the
close of the Registered Exchange Offer, the Company and Parent
Guarantor shall:
(i) accept for exchange all
Securities tendered and not validly withdrawn pursuant to the
Registered Exchange Offer;
(ii) deliver to the Trustee for
cancellation in accordance with Section 4(s) all Securities so
accepted for exchange; and
(iii) cause the Trustee promptly to
authenticate and deliver to each Holder of Securities a principal
amount of New Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(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 Securities 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 Securities Act if the resales are of New Securities
obtained by such Holder in exchange for Securities acquired by such
Holder directly from the Company, Parent Guarantor or their
respective Affiliates. Accordingly, each Holder participating in
the Registered Exchange Offer shall be required to represent to the
Company and Parent Guarantor that, at the time of the consummation
of the Registered Exchange Offer:
(i) any New Securities to be
received by such Holder will be acquired in the ordinary course of
business;
(ii) such Holder will have no
arrangement or understanding with any person to participate in the
distribution of the Securities or the New Securities within the
meaning of the Securities Act; and
(iii) such Holder is not an
Affiliate of the Company or Parent Guarantor.
(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 Company and Parent Guarantor 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 Purchaser, in exchange for such Securities, a like
principal amount of New Securities. The Company and Parent
Guarantor shall use their commercially reasonable efforts 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 .
(a) If (i) due to any change in law or applicable
interpretations thereof by the Commission’s staff, the
Company and Parent Guarantor determine upon advice of their outside
counsel 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
completed within 45 days following the date the Exchange Offer
Registration Statement becomes effective; (iii) any Initial
Purchaser so requests (a “ Shelf Request ”) with
respect to Securities that are not eligible to be exchanged for New
Securities in the Registered Exchange Offer and that are held by it
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 any Initial Purchaser that participates in
the Registered Exchange Offer or acquires New Securities pursuant
to Section 2(f) hereof, such Initial Purchaser does not
receive Freely Tradable 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 Securities Act in
connection with sales of New Securities acquired in exchange for
such Securities shall result in such New Securities being not
Freely Tradeable Securities; 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 Company
and Parent Guarantor shall effect a Shelf Registration Statement in
accordance with subsection (b) below.
(b) If a Shelf Registration
Statement is required to be filed and becomes effective pursuant to
Section 3(a), (i) the Company and Parent Guarantor shall,
as promptly as practicable, file the Shelf Registration Statement
with the Commission and shall use their reasonable best efforts to
cause the Shelf Registration Statement to become effective under
the Securities Act within 90 days after so required or requested 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
Company and Parent 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 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.
(ii) The Company and Parent
Guarantor shall use their reasonable best efforts to keep the Shelf
Registration Statement continuously effective, supplemented and
amended as required by the Securities Act, in order to permit the
Prospectus forming part thereof to be usable by Holders for a
period (the “ Shelf Registration Period ”) from
the date the Shelf Registration Statement becomes effective until
the earlier of (A) the date upon which the Securities cease to
be Registrable Securities 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. The Company and Parent Guarantor 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 undertaken by the Company and Parent
Guarantor in good faith and for valid business reasons (not
including avoidance of the Company’s and Parent
Guarantor’s obligations hereunder), including the acquisition
or divestiture of assets, and (y) permitted pursuant to
Section 4(k)(ii) hereof.
(iii) The Company and Parent
Guarantor shall cause the Shelf Registration Statement and the
related Prospectus and any amendment or supplement thereto, as of
the effective date of the Shelf Registration Statement or such
amendment or supplement, (A) to comply in all material
respects with the applicable requirements of the Securities Act;
and (B) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein (in the case of
the Prospectus, in the light of the circumstances under which they
were made) not misleading.
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 Company and Parent Guarantor
shall:
(i) furnish to each of the Initial
Purchasers and to counsel for the Holders, not less than five
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 the Initial
Purchasers reasonably propose;
(ii) include the information 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
of Regulation S-K, as applicable, in the Prospectus contained in
the Exchange Offer Registration Statement; 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.
(b) The Company and Parent Guarantor
shall use their commercially reasonable efforts to ensure
that:
(i) any Registration Statement and
any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto complies in all material
respects with the Securities Act; and
(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.
(c) The Company and Parent Guarantor
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 Company and Parent Guarantor 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 Company
and Parent Guarantor 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 or for additional
information;
(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;
(iv) of the receipt by the Company
or Parent 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) 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 Company and Parent Guarantor
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 Company and Parent Guarantor
shall furnish to each Holder of Securities covered by any Shelf
Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment
thereto, including 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 Company and Parent Guarantor
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 Company and Parent 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, included in the Shelf Registration
Statement.
(g) The Company and Parent Guarantor
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 amendment thereto,
including all material incorporated by reference therein, and, if
the Exchanging Dealer so requests in writing, a
