Exhibit 4.3


 


EXECUTION COPY


 


REGISTRATION RIGHTS AGREEMENT


 


dated as of May 30, 2003


 


by and between


 


HARD ROCK HOTEL, INC.,


 


and


 


BANC OF AMERICA SECURITIES LLC


 

















 


This Registration Rights Agreement (this “Agreement”) is made and entered into as of May 30, 2003 by and
among Hard Rock Hotel, Inc., a Nevada corporation (the “Company”), and Banc of America Securities
LLC, as representative of the Initial Purchasers, Comerica Securities and
Hibernia Southcoast Capital, Inc. (collectively, the “Initial Purchasers”).


 


Pursuant to the Purchase Agreement, dated May 20, 2003 (the “Purchase Agreement”), by and among the
Company and the Banc of America Securities, LLC, as representative of the
Initial Purchasers, the Initial Purchasers have agreed to purchase $140,000,000
aggregate principal amount of the Company’s 87/8 Second
Lien Notes due 2013 (the “Notes”).


 


In order to induce the Initial Purchasers to enter into the Purchase
Agreement and purchase the Notes, the Company has agreed to provide the
registration rights set forth in this Agreement.  The execution and delivery of this Agreement is a condition to
the obligations of the Initial Purchasers set forth in Section 8(j) of the
Purchase Agreement.


 


The parties hereby agree as follows:


 


SECTION 1.         DEFINITIONS


 


As used in this Agreement, the following capitalized terms shall have
the following meanings:


 


Act:  The Securities Act of 1933, as amended.


 


Broker-Dealer:  Any broker or dealer registered under the
Exchange Act.


 


Business Day:  Any day except a Saturday, Sunday or other
day in the City of New York on which banks are authorized to close or a federal
holiday, consisting, in each case, of the time period from 12:00 a.m. through
11:59 p.m. Eastern time.


 


Closing Date:  The date of this Agreement.


 


Commission:  The Securities and Exchange Commission.


 


Consummate:  An Exchange Offer shall be deemed
“Consummated” for purposes of this Agreement upon the occurrence of (i) the
filing and effectiveness under the Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange Offer,
(ii) the maintenance of such Registration Statement continuously effective and
the keeping of the Exchange Offer open for a period not less than the minimum
period required pursuant to Section 3(b) hereof, and (iii) the delivery by the
Company to the Trustee under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of the Notes that
were validly tendered by Holders thereof pursuant to the Exchange Offer.


 


Damages Payment Date:  With respect to the Notes, each Interest
Payment Date.


 


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Effectiveness Target Date:  As defined in Section 5 hereof.


 


Exchange Act:  The Securities Exchange Act of 1934, as
amended.


 


Exchange Notes:  The Company’s 87/8%
Second Lien Notes due 2013 to be issued pursuant to the Indenture in the
Exchange Offer or pursuant to a Shelf Registration Statement, in each case in
exchange for Notes.


 


Exchange Offer:  The registration by the Company under the
Act of the Exchange Notes pursuant to the Exchange Offer Registration Statement
pursuant to which the Company offers the Holders of all outstanding Transfer
Restricted Securities the opportunity to exchange all such outstanding Transfer
Restricted Securities held by such Holders for Exchange Notes in an aggregate
principal amount equal to the aggregate principal amount of the Transfer
Restricted Securities validly tendered in such exchange offer by such Holders.


 


Exchange Offer Registration Statement:  The Registration Statement relating to the
Exchange Offer, including the related Prospectus.


 


Exempt Resales:  The transactions in which the Initial
Purchasers propose to sell the Notes to (i) certain “qualified institutional
buyers,” as such term is defined in Rule 144A under the Act in reliance upon
the exemption from the registration requirements of the Act provided by Rule
144A under the Act or (ii) non-U.S. Persons in reliance upon Regulation S under
the Act.


 


Holder:  As defined in Section 2(b) hereof.


 


Indenture:  The Indenture, dated as of May 30, 2003,
between the Company and U.S. Bank National Association (formerly First Trust
National Association), as trustee (the “Trustee”),
pursuant to which the Securities are to be issued, as such Indenture is amended
or supplemented from time to time in accordance with the terms thereof.


 


Initial Purchasers:  As defined in the preamble hereto.


 


Interest Payment Date:  As defined in the Indenture and the
Securities.


 


Liquidated Damages:  As defined in Section 5 hereof.


 


NASD:  National Association of Securities Dealers,
Inc.


 


Notes:  As defined in the preamble hereto.


 


Person:  An individual, partnership, corporation,
limited liability company, joint venture, association, joint stock company,
trust or other organization whether or not a legal entity, or a government or
agency or political subdivision thereof.


 


Prospectus:  The prospectus included in a Registration
Statement (including, without limitation, any prospectus subject to completion and
a prospectus that includes any information previously omitted from a prospectus
filed as part of an effective Registration


 


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Statement in reliance upon Rule 430A promulgated under the Act), as
amended or supplemented by any prospectus supplement and by all other
amendments thereto, including post-effective amendments, and all material
incorporated by reference into such Prospectus.


 


Purchase Agreement:  As defined in the preamble hereto.


 


Record Holder:  With respect to any Damages Payment Date
relating to the Securities, each Person who is a Holder of the Securities on
the record date with respect to the Interest Payment Date on which such Damages
Payment Date shall occur.


 


Registration Default:  As defined in Section 5 hereof.


 


Registration Statement:  Any registration statement of the Company
relating to (a) an offering of Exchange Notes pursuant to an Exchange Offer or
(b) the registration for resale of Transfer Restricted Securities pursuant to
the Shelf Registration Statement, which is filed pursuant to the provisions of
this Agreement, in each case, including the Prospectus included therein, all
amendments and supplements thereto (including post-effective amendments) and
all exhibits and material incorporated by reference therein.


 


Securities:  The Notes and the Exchange Notes.


 


Shelf Filing Deadline:  As defined in Section 4 hereof.


 


Shelf Registration:  A registration effected by the filing of a
Shelf Registration Statement pursuant to Section 4 hereof.


 


Shelf Registration Statement:  As defined in Section 4 hereof.


 


TIA:  The Trust Indenture Act of 1939, as amended
(15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of the Indenture.


 


Transfer Restricted Securities:  Each of the Securities, upon original
issuance thereof, until the earliest to occur, with respect to a particular
Security, of (a) the date on which such Security is exchanged by a Holder other
than a Broker-Dealer in the Exchange Offer and entitled to be resold to the
public by the Holder thereof without complying with the prospectus delivery
requirements of the Act, (b) following the exchange by a Broker-Dealer in the
Exchange Offer of a Note for an Exchange Note, the date on which the Exchange
Note is sold to a purchaser who receives from such Broker-Dealer on or prior to
the date of such sale a copy of the Prospectus contained in the Exchange Offer
Registration Statement, (c) the date on which such Security has been
effectively registered under the Act and disposed of in accordance with a Shelf
Registration Statement, (d) the date on which such Security may be distributed
to the public pursuant to Rule 144 under the Act or by a Broker-Dealer pursuant
to the “Plan of Distribution” contemplated by the Exchange Offer Registration Statement
(including delivery of the Prospectus contained therein) or (e) the date on
which such Security ceases to be outstanding.


 


Underwritten Registration
or Underwritten Offering:  A registration on a Shelf Registration
Statement in which securities of the Company are sold to an underwriter for
re-offering to the public.


 


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SECTION 2.         SECURITIES SUBJECT TO THIS AGREEMENT


 


(a)                                  TRANSFER RESTRICTED SECURITIES.  The Securities entitled to the benefits of
this Agreement are the Transfer Restricted Securities.


 


(b)                                 HOLDERS OF TRANSFER RESTRICTED
SECURITIES.  A Person is
deemed to be a holder of Transfer Restricted Securities (each, a “Holder”) whenever such Person owns Transfer
Restricted Securities.


 


SECTION 3.         REGISTERED EXCHANGE OFFER


 


(a)                                  Unless the Exchange
Offer shall not be permissible under applicable law or Commission policy (so
long as the procedures set forth in Section 6(a) below are being or have been
complied with), the Company shall (i) use its reasonable best efforts to cause
to be filed with the Commission, on or prior to 60 days after the Closing Date,
the Exchange Offer Registration Statement, (ii) use its reasonable best efforts
to cause such Exchange Offer Registration Statement to be declared effective by
the Commission on or prior to 180 days after the Closing Date, (iii) in
connection with the foregoing, file (A) all pre-effective amendments to such
Exchange Offer Registration Statement as may be necessary in order to cause
such Exchange Offer Registration Statement to become effective, (B) if
applicable, a post-effective amendment to such Exchange Offer Registration
Statement pursuant to Rule 430A under the Act, (C) cause all necessary filings
in connection with the registration and qualification of the Exchange Notes to
be made under the Blue Sky laws of such jurisdictions as are necessary to
permit Consummation of the Exchange Offer, except as would subject the Company
to service of process or general taxation where it is not currently subject,
and (D) obtain all necessary approvals of the Nevada Gaming Commission in
connection with the issuance of the Exchange Notes, and (iv) upon the
effectiveness of such Exchange Offer Registration Statement, commence and
Consummate the Exchange Offer.


 


The Exchange Offer shall be on an appropriate form permitting
registration of the Exchange Notes to be offered in exchange for the Notes and
to permit resales of Securities held by Broker-Dealers as contemplated by
Section 3(c) below.  If, after such
Exchange Offer Registration Statement initially is declared effective by the
Commission, the Exchange Offer or the issuance of Exchange Notes thereunder or
the sale of Transfer Restricted Securities pursuant thereto as contemplated by
Section 3(c) below is interfered with by any stop order, injunction or other
order or requirement of the Commission or any other governmental agency or
court, such Exchange Offer Registration Statement shall be deemed not to have
become effective for purposes of this Agreement during the period that such
stop order, injunction or other similar order or requirement shall remain in
effect.


 


(b)                                 The Company shall use
its reasonable best efforts to cause the Exchange Offer Registration Statement
to be effective continuously and shall keep the Exchange Offer open for a
period of not less than the minimum period required under applicable federal
and state securities laws to Consummate the Exchange Offer; provided, however,
that in no event shall such period be less than 20 Business Days.  The Company shall cause the Exchange Offer
to comply with all applicable federal and state securities laws.  The Company shall use its


 


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reasonable best efforts to
cause the Exchange Offer to be Consummated on or prior to 30 Business days
after the Exchange Offer Registration Statement has become effective.


 


(c)                                  The Company shall
indicate in a “Plan of Distribution” section contained in the Prospectus
included in the Exchange Offer Registration Statement that any Broker-Dealer
who holds Notes that are Transfer Restricted Securities and that were acquired
for its own account as a result of market-making activities or other trading
activities (other than Transfer Restricted Securities acquired directly from the
Company), may exchange such Notes pursuant to the Exchange Offer; provided,
however, such Broker-Dealer may be deemed to be an “underwriter” within the
meaning of the Act and must, therefore, deliver a prospectus meeting the
requirements of the Act in connection with any resales of the Exchange Notes
received by such Broker-Dealer in the Exchange Offer, which prospectus delivery
requirement may be satisfied by the delivery by such Broker-Dealer of the
Prospectus contained in the Exchange Offer Registration Statement. Such “Plan
of Distribution” section shall also contain all other information with respect
to such resales by Broker-Dealers that the Commission may require in order to
permit such resales pursuant thereto, but such “Plan of Distribution” shall not
name any such Broker-Dealer or disclose the amount of Securities held by any
such Broker-Dealer except to the extent required by the Commission.


 


The Company shall use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective, supplemented and amended
as required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Securities acquired by
Broker-Dealers for their own accounts as a result of market-making activities
or other trading activities, and to ensure that it conforms with the
requirements of this Agreement, the Act and the policies, rules and regulations
of the Commission as announced from time to time, for a period of twelve months
from the date on which the Exchange Offer Registration Statement is declared
effective or such longer period, if extended pursuant to the provisions of
Section 6(d) hereof.


 


The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
period in order to facilitate such resales.


 


SECTION 4.         SHELF REGISTRATION


 


(a)                                  SHELF REGISTRATION.  If (i) the Company is not permitted to file
an Exchange Offer Registration Statement or consummate the Exchange Offer
because the Exchange Offer is not permitted by applicable law or Commission
policy (after the procedures set forth in Section 6(a) below have been complied
with) or (ii) any Holder of Transfer Restricted Securities shall notify the
Company on or prior to the 20th Business Day following the consummation of the
Exchange Offer that (A) such Holder is prohibited by a change in applicable law
or Commission policy from participating in the Exchange Offer, or (B) such
Holder may not resell the Exchange Notes to be acquired by it in the Exchange
Offer to the public without delivering a prospectus and that the Prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder, or (C) that such Holder is a
Broker-Dealer and holds Notes acquired directly from the Company or an
affiliate of the Company, then the Company shall:


 


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(x) use its reasonable best efforts to cause
to be filed a shelf registration statement pursuant to Rule 415 under the Act,
which may be an amendment to the Exchange Offer Registration Statement (in
either event, the “Shelf Registration
Statement”), on or prior to the 60th day after the obligation to
file such Shelf Registration Statement arises (the “Shelf Filing Deadline”), which Shelf Registration Statement
shall provide for resales of all Transfer Restricted Securities, the Holders of
which shall have provided the information required pursuant to Section 4(b)
hereof; and


 


(y) use its reasonable best efforts to cause
such Shelf Registration Statement to be declared effective by the Commission on
or before the 90th day after the obligation to file such Shelf Registration
Statement arises (or, if later, 180 days after the Closing Date).


 


The Company shall use its reasonable best efforts to keep such Shelf
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Sections 6(b) and (c) hereof to the extent
necessary to ensure that it is available for resales of Securities by the
Holders of Transfer Restricted Securities entitled to the benefit of this
Section 4(a), and to ensure that it conforms with the requirements of this
Agreement, the Act and the policies, rules and regulations of the Commission as
announced from time to time, for a period of two years following the Closing
Date (or such longer period, if extended pursuant to the provisions of Section
6(d) hereof), or such shorter period ending when either (1) all Transfer Restricted
Securities covered by the Shelf Registration Statement have been sold in the
manner set forth and as contemplated in the Shelf Registration Statement or (2)
there cease to be outstanding any Transfer Restricted Securities.


 


(b)                                 PROVISION BY HOLDERS OF CERTAIN
INFORMATION IN CONNECTION WITH THE SHELF REGISTRATION STATEMENT.  No Holder of Transfer Restricted Securities
may include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and until such Holder furnishes to
the Company in writing, within 10 Business Days after receipt of a written
request therefor, such information specified in Item 507 and Item 508, as
applicable, of Regulation S-K under the Act or any other information required
by the Act or applicable state securities laws for use in connection with any
Shelf Registration Statement or Prospectus or preliminary Prospectus included
therein.  Each Holder as to which any
Shelf Registration Statement is being effected agrees to furnish promptly to
the Company all information required to be disclosed in order to make the
information previously furnished to the Company by such Holder not materially
misleading.  No Holder of Transfer
Restricted Securities shall be entitled to Liquidated Damages pursuant to
Section 5 hereof unless and until such Holder shall have used its best efforts
to provide all such reasonably requested information.


 


SECTION 5.                            LIQUIDATED
DAMAGES


 


If (i) any of the Registration Statements required by this Agreement is
not filed with the Commission on or prior to the date specified for such filing
in this Agreement, (ii) any of such Registration Statements has not been
declared effective by the Commission on or prior to


 


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the date specified for such
effectiveness in this Agreement (the “Effectiveness
Target Date”), (iii) the Company fails to commence, accept tenders
and, in the case of accepted tenders, issue Exchange Notes, under the Exchange
Offer within 30 Business Days after the Effectiveness Target Date with respect
to the Exchange Offer Registration Statement or (iv) any Registration Statement
required by this Agreement is filed and declared effective but thereafter
ceases to be effective or (subject to the rights of the Company under Section
6(d) hereof) fails to be usable for its intended purpose without being
succeeded immediately by a post-effective amendment to such Registration
Statement that cures such failure and that is itself immediately declared
effective (each such event referred to in clauses (i) through (iv), a “Registration Default”), the Company hereby
agrees to pay liquidated damages (“Liquidated
Damages”) to each Holder of Transfer Restricted Securities on each
Interest Payment Date following the occurrence of a Registration Default.  Liquidated Damages shall accrue from and
after the date of each Registration Default, and continuing thereafter until
such Registration Default has been cured or waived, in an amount equal to $.05
per week per $1,000 principal amount of the Transfer Restricted Securities
during the first 90-day period immediately following the occurrence of the
first such Registration Default, which amount shall increase by an additional
$.05 per week per $1,000 principal amount of the Transfer Restricted Securities
during each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Liquidated Damages of $.40 per week per $1,000
principal amount of the Transfer Restricted Securities.  The Company shall notify the Trustee within
five Business Days after (i) each and every Registration Default and (ii) the
date such Registration Default has been so cured.  All accrued Liquidated Damages shall be paid to Record Holders by
the Company in New York, New York by wire transfer of immediately available
funds or by federal funds check on each Interest Payment Date following the
occurrence of a Registration Default as provided in the Indenture.  Following the cure or waiver of all
Registration Defaults relating to any particular Transfer Restricted
Securities, the accrual of Liquidated Damages with respect to such Transfer
Restricted Securities will cease.


 


All obligations of the Company set forth in the preceding paragraph
that are outstanding with respect to any Transfer Restricted Security at the
time such security ceases to be a Transfer Restricted Security shall survive
until such time as all such obligations with respect to such security shall
have been satisfied in full.


 


SECTION 6.                            REGISTRATION
PROCEDURES


 


(a)                                  EXCHANGE OFFER REGISTRATION
STATEMENT.  In connection
with the Exchange Offer, the Company shall comply with all of the provisions of
Section 6(c) below, shall use its reasonable best efforts to effect such
Exchange Offer to permit the sale of Transfer Restricted Securities being sold
in accordance with the intended method or methods of distribution thereof, and
shall comply with all of the following provisions:


 


(i)                                     If in the
reasonable opinion of counsel to the Company there is a question as to whether
the Exchange Offer is permitted by applicable law, the Company hereby agrees to
seek a no-action letter or other favorable decision from the Commission,
including oral advice from the staff of the Commission, allowing the Company to
Consummate an Exchange Offer for such Notes. 
The Company hereby agrees to pursue the issuance of such a decision to
the


 


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Commission staff level but shall not be required to take commercially
unreasonable action to effect a change of Commission policy.  In connection with the foregoing, the
Company hereby agrees, however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an analysis prepared
by counsel to the Company setting forth the legal bases, if any, upon which
such counsel has concluded that such an Exchange Offer should be permitted and
(C) diligently pursue a resolution of such submission (which need not be
favorable) by the Commission staff.


 


(ii)                                  As a condition to its
participation in the Exchange Offer pursuant to the terms of this Agreement,
each Holder of Transfer Restricted Securities shall furnish, upon the request
of the Company, prior to the Consummation thereof, a written representation to
the Company (which may be contained in the letter of transmittal contemplated
by the Exchange Offer Registration Statement) to the effect that (A) it is not
an affiliate of the Company, (B) it is not engaged in, and does not intend to
engage in, and has no arrangement or understanding with any Person to
participate in, a distribution of the Exchange Notes to be issued in the
Exchange Offer and (C) it is acquiring the Exchange Notes in its ordinary
course of business.  Each Holder hereby acknowledges
and agrees that any Broker-Dealer who acquired Notes directly from the Company
or any affiliate of the Company and any such Holder intending to use the
Exchange Offer to participate in a distribution of the securities to be
acquired in the Exchange Offer (1) could not under Commission policy as in
effect on the date of this Agreement rely on the position of the Commission
enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon
Capital Holdings Corporation (available May 13, 1988), as interpreted in the
Commission’s letter to Shearman & Sterling, dated July 2, 1993, and similar
no-action letters (including any no-action letter obtained pursuant to clause
(i) above), and (2) must comply with the registration and prospectus delivery
requirements of the Act in connection with a secondary resale transaction and
that such a secondary resale transaction should 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 or any other
information required by the Act or applicable state securities laws if the
resales are of Exchange Notes obtained by such Holder in exchange for Notes
acquired by such Holders directly from the Company.


 


(iii)                               Prior to effectiveness
of the Exchange Offer Registration Statement and if requested by the
Commission, the Company shall provide a supplemental letter to the Commission
(A) stating that the Company is registering the Exchange Offer in reliance on
the position of the Commission enunciated in Exxon Capital Holdings Corporation
(available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991)
and, if applicable, any no-action letter obtained pursuant to clause (i) above,
(B) including a representation that the Company has not entered into any
arrangement or understanding with any Person to distribute the Exchange Notes
to be received in the Exchange Offer and that, to the best of the Company’s
information and belief, each Holder participating in the Exchange Offer is
acquiring the Exchange Notes in its ordinary course of business


 


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and has no arrangement or understanding with any Person to participate
in the distribution of the Exchange Notes received in the Exchange Offer.


 


(b)                                 SHELF REGISTRATION STATEMENT.  In connection with the Shelf Registration
Statement, the Company shall comply with all the provisions of Section 6(c)
below and shall use its reasonable best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as practicable prepare and file with
the Commission a Registration Statement relating to the registration on any
appropriate form under the Act, which form shall be available for the sale of
the Transfer Restricted Securities in accordance with the intended method or
methods of distribution thereof.


 


(c)                                  GENERAL PROVISIONS.  In connection with any Registration
Statement and any related Prospectus required by this Agreement to permit the
sale or resale of Transfer Restricted Securities (including, without
limitation, any Registration Statement and the related Prospectus required to
permit resales of Securities by Broker-Dealers), the Company shall:


 


(i)                                     prepare and file
with the Commission such Registration Statement and use its reasonable best
efforts to cause such Registration Statement to become effective and keep such
Registration Statement continuously effective and provide all requisite
financial statements for the period specified in Section 3 or 4 of this
Agreement, as applicable; upon the occurrence of any event that would cause any
such Registration Statement or the Prospectus contained therein (A) to contain
a material misstatement or omission or (B) not to be effective and usable for
resale of Transfer Restricted Securities during the period required by this
Agreement, the Company shall file promptly an appropriate amendment to such Registration
Statement, in the case of clause (A), correcting any such material misstatement
or omission, and, in the case of either clause (A) or (B), use its reasonable
best efforts to cause such amendment to be declared effective and such
Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as reasonably practicable thereafter;


 


(ii)                                  prepare and file with
the Commission such amendments and post-effective amendments to the
Registration Statement as may be necessary to keep the Registration Statement
continuously effective for the applicable period set forth in Section 3 or 4 of
the Agreement, as applicable, or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Registration Statement have been
exchanged or sold or until such Transfer Restricted Securities no longer
constitute Transfer Restricted Securities or are no longer outstanding; cause
the Prospectus to be supplemented by any required Prospectus supplement, and as
so supplemented to be filed pursuant to Rule 424 under the Act (or any similar
provisions then in force), and to comply fully with the applicable provisions
of Rules 424 and 430A under the Act (or any similar provisions then in force)
in a timely manner; and comply with the provisions of the Act, the Exchange Act
and the rules and regulations of the Commission promulgated thereunder
applicable to it with respect to the disposition of all


 


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securities covered by such Registration Statement during the applicable
period in accordance with the intended method or methods of distribution by the
sellers thereof set forth in such Registration Statement or supplement to the
Prospectus;


 


(iii)                               promptly advise the underwriter(s),
if any, and selling Holders and, if requested by such Persons, to confirm such
advice in writing, (A) when the Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to any Registration
Statement or any post-effective amendment thereto, when the same has become
effective, (B) of any request by the Commission for amendments to the
Registration Statement or amendments or supplements to the Prospectus or for
additional information relating thereto, (C) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement
under the Act or of the suspension by any state securities commission of the
qualification of the Transfer Restricted Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes or (D) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto, or any document incorporated
by reference therein untrue, or that requires the making of any additions to or
changes in the Registration Statement or the Prospectus in order to make the
statements therein not misleading (in the case of the Prospectus, in the light
of the circumstances under which they were made).  If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company
shall use its reasonable best efforts to obtain the withdrawal or lifting of
such order at the earliest practicable time;


 


(iv)                              furnish to the Initial
Purchasers, each selling Holder named in any Registration Statement or
Prospectus and each of the underwriter(s) in connection with such sale, if any,
before filing with the Commission, copies of any Registration Statement or any
Prospectus included therein or any amendments or supplements to any such
Registration Statement or Prospectus (other than any documents incorporated by
reference in such Registration Statement or Prospectus) if requested by such
Person, which documents will be subject to the review and comments of such
underwriter(s) in connection with such sale, if any, and the Company will not
file any such Registration Statement or Prospectus or any amendment or
supplement to any such Registration Statement or Prospectus if requested by
such Person to which a selling Holder of Transfer Restricted Securities covered
by such Registration Statement or the underwriter(s) in connection with such
sale, if any, shall reasonably object within five Business Days after the
receipt thereof. A selling Holder or underwriter, if any, shall be deemed to
have reasonably objected to such filing if such Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission or fails to comply with the
applicable requirements of the Act;


 


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(v)                                 make available at
reasonable times for inspection by the selling Holders, any underwriter
participating in any disposition pursuant to such Registration Statement, and
any attorney or accountant retained by such selling Holders or any underwriter,
all financial and other records, pertinent corporate documents and properties
of the Company and cause the Company’s officers, directors and employees to
supply all information reasonably requested by any such Holder, underwriter,
attorney or accountant in connection with such Registration Statement
subsequent to the filing thereof and prior to its effectiveness;


 


(vi)                              if requested by any
selling Holders or any underwriter in connection with such sale, if any,
promptly include in any Registration Statement or Prospectus, pursuant to a
supplement or post-effective amendment if necessary, such information as such
selling Holders and such underwriter, if any, may reasonably request to have
included therein, including, without limitation, information relating to the
“Plan of Distribution” of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such offering;
and make all required filings of such Prospectus supplement or post-effective
amendment as soon as practicable after the Company is notified of the matters
to be included in such Prospectus supplement or post-effective amendment;


 


(vii)                           use its reasonable best
efforts to cause the Transfer Restricted Securities covered by the Registration
Statement to be rated with the appropriate rating agencies, if so requested
by  the Holders of a majority in
aggregate principal amount of Notes covered thereby or the underwriter(s), if
any;


 


(viii)                        furnish to each selling Holder
and each underwriter, if any, without charge, at least one copy of the
Registration Statement, as first filed with the Commission, and of each
amendment thereto, including all documents incorporated by reference therein
and all exhibits thereto, if so requested by such Person;


 


(ix)                                deliver to each selling
Holder and each of the underwriter(s) in connection with such sale, if any,
without charge, as many copies of the Prospectus (including each preliminary
prospectus) and any amendment or supplement thereto as such Persons reasonably
may request; the Company hereby consents to the use of the Prospectus and any
amendment or supplement thereto by each of the selling Holders and each of the
underwriter(s), if any, in connection with the offering and the sale of the
Transfer Restricted Securities covered by the Prospectus or any amendment or
supplement thereto;


 


(x)                                   in the case of the
Shelf Registration Statement, enter into such agreements (including an
underwriting agreement), and make such representations and warranties, and take
all such other actions in connection


 


11

















 


therewith in order to expedite or facilitate the disposition of the
Transfer Restricted Securities pursuant to such Shelf Registration Statement
contemplated by this Agreement, all to such extent as may be reasonably
acceptable to the Company and reasonably requested by the Initial Purchasers or
by the Holders of a majority in aggregate principal amount of Transfer
Restricted Securities or the managing underwriter in connection with any sale
or resale pursuant to such Shelf Registration Statement contemplated by this
Agreement; and whether or not an underwriting agreement is entered into and
whether or not the registration is an Underwritten Registration, the Company
shall:


 


(A)                              use its reasonable best
efforts to furnish to each underwriter, if applicable, in such substance and
scope as they may reasonably request and as are customarily made by issuers to
underwriters in primary underwritten offerings, upon the effectiveness of the
Shelf Registration Statement or, in the case of an Underwritten Registration,
on the closing date of any underwriting (and, in the case of clause (3) below,
on the date of execution of the underwriting agreement):


 


(1)                                  certificates, dated
the delivery date thereof, signed by the chief executive officer, chief
operating officer and principal financial officer of the Company, confirming,
as the date thereof, the matters set forth in paragraphs (a), (c) and (d) of
Section 8 of the Purchase Agreement;


 


(2)                                  opinions, dated the
delivery date thereof, of counsel for the Company, covering the matters
customarily covered in opinions requested in primary underwritten offerings;
and


 


(3)                                  a customary comfort
letter or letters, dated the delivery date or dates thereof, from the Company’s
independent auditors, in the customary form and covering matters of the type
customarily covered in comfort letters by underwriters in connection with
primary underwritten offerings;


 


(B)                                set forth in full or
incorporate by reference in the underwriting agreement, if any, the
indemnification provisions and procedures of Section 8 hereof with respect to
all parties to be indemnified pursuant to said Section;


 


(C)                                deliver such other
documents and certificates as may be reasonably requested by such parties to
evidence compliance with clause (A) above and with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company pursuant to this clause (x), if any; and if at any time the
representations and warranties of the Company contemplated in clause (A)(1)
above cease to be true and correct, the Company shall so advise the
underwriter(s), if


 


12

















 


any, and each Holder promptly and, if requested by such Persons, shall
confirm such advice in writing;


 


(xi)                                 prior to any public
offering of Transfer Restricted Securities, cooperate with the selling Holders,
the underwriter(s), if any, and their respective counsel in connection with the
registration and qualification of the Transfer Restricted Securities under the
securities or Blue Sky laws of such jurisdictions as the selling Holders or
underwriter(s), if any, may reasonably request and do any and all other acts or
things necessary or advisable (including, without limitation, the imposition of
such restrictions on offers or sales of the Securities as are referred to in
paragraph 3(b) of this Agreement) to enable the disposition in such
jurisdictions of the Transfer Restricted Securities covered by the applicable
Registration Statement; provided, however, that the Company shall not be
required to register or qualify as a foreign corporation in any jurisdiction where
it is not now so qualified or to take any action that would subject it to
general consent to service of process in any jurisdiction where it is not now
so subject or to subject itself to general taxation in any such jurisdiction;


 


(xii)                             upon the request of any
Holder of Notes covered by the Shelf Registration Statement, the Company shall
issue Exchange Notes having an aggregate principal amount equal to the
aggregate principal amount of Notes surrendered to the Company by such Holder
in exchange therefor or being sold by such Holder; such Exchange Notes to be
registered in the name of such Holder or in the name of the purchaser(s) of
such Exchange Notes, as the case may be; in return, the Notes held by such
Holder shall be surrendered to the Company for cancellation;


 


(xiii)                          cooperate with the selling
Holders and the underwriter(s), if any, to facilitate the timely preparation
and delivery of certificates representing Transfer Restricted Securities to be
sold and not bearing any restrictive legends; and to register such Transfer
Restricted Securities in such denominations (which denominations shall be in a
minimum of $1,000 and integral multiples thereof) and such names as the Holders
or the underwriter(s), if any, may request at least two Business Days prior to
such sale of Transfer Restricted Securities made by such underwriter(s);


 


(xiv)                         use its reasonable best
efforts to cause the Transfer Restricted Securities covered by the Registration
Statement to be registered with or approved by such other governmental agencies
or authorities as may be necessary to enable the seller or sellers thereof or
the underwriter(s), if any, to consummate the disposition of such Transfer
Restricted Securities;


 


(xv)                            if any fact or event
contemplated by Section 6(c)(iii)(D) above shall exist or have occurred,
prepare a supplement or post- effective amendment to the Registration Statement
or related Prospectus or any document incorporated therein by reference or file
any other required document so that, as thereafter delivered to the purchasers
of Transfer Restricted Securities, the Prospectus will


 


13

















 


not contain 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;


 


(xvi)                         provide a CUSIP number for all
Transfer Restricted Securities not later than the effective date of the
Registration Statement covering such Transfer Restricted Securities and provide
the Trustee with printed certificates for the Transfer Restricted Securities
which are in a form eligible for deposit with the Depository Trust Company;


 


(xvii)                      cooperate and assist in any
filings required to be made with the NASD and in the performance of any due
diligence investigation by any underwriter (including any “qualified
independent underwriter”) that is required to be retained in accordance with
the rules and regulations of the NASD, and use its reasonable best efforts to
cause such Registration Statement to become effective and approved by such
governmental agencies or authorities as may be necessary to enable the Holders
selling Transfer Restricted Securities to consummate the disposition of such
Transfer Restricted Securities;


 


(xviii)                   otherwise use its reasonable best
efforts to comply with all applicable rules and regulations of the Commission,
and make generally available to Holders, as soon as reasonably practicable, a
consolidated earnings statement meeting the requirements of Rule 158 under the
Act (which need not be audited) covering a twelve-month period beginning after
the effective date of the applicable Registration Statement;


 


(xix)                           use its reasonable best
efforts to cause the Indenture to be qualified under the TIA not later than the
effective date of the first Registration Statement required by this Agreement,
and, in connection therewith, cooperate, with the Trustee and the Holders of
Securities to effect such changes to the Indenture as may be required for such
Indenture to be so qualified in accordance with the terms of the TIA; and
execute, and use its reasonable best efforts to cause the  Trustee to execute, all documents that may
be required to effect such changes and all other forms and documents required
to be filed with the Commission to enable such Indenture to be so qualified in
a timely manner; and


 


(xx)                              provide promptly to each
Holder, upon request, each document filed with the Commission pursuant to the
requirements of Section 13 or Section 15 of the Exchange Act.


 


(d)                                 RESTRICTIONS ON HOLDERS.  Each Holder agrees by its acquisition of a
Transfer Restricted Security that, upon receipt of any notice from the Company
of the existence of any fact of the kind described in Section 6(c)(iii)(D)
hereof, such Holder will forthwith discontinue disposition of Transfer
Restricted Securities pursuant to the applicable Registration Statement until
such Holder’s receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(c)(xv) hereof, or until it is advised in writing (the
“Advice”) by the Company that the
use of the Prospectus may be resumed, and has received


 


14

















 


copies of any additional or
supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company’s expense) all copies, other than permanent file copies then in such
Holder’s possession, of the Prospectus covering such Transfer Restricted Securities
that was current at the time of receipt of such notice.  In the event the Company shall give any such
notice, the time period regarding the effectiveness of such Registration
Statement set forth in Section 3 or 4 hereof, as applicable, shall be extended
by the number of days during the period from and including the date of the
giving of such notice pursuant to Section 6(c)(iii)(D) hereof to and including
the date when each selling Holder covered by such Registration Statement shall
have received the copies of the supplemented or amended Prospectus contemplated
by Section 6(c)(xv) hereof or shall have received the Advice.


 


SECTION 7.         REGISTRATION EXPENSES


 


(a)                                  All expenses incident
to the Company’s performance of or compliance with this Agreement will be borne
by the Company, regardless of whether a Registration Statement becomes
effective, including without limitation: (i) all registration and filing fees
and expenses; (ii) all fees and expenses incurred in connection with compliance
with federal securities and state Blue Sky or securities laws; (iii) all
expenses of printing (including printing certificates for the Exchange Notes to
be issued in the Exchange Offer and printing of prospectuses), messenger and
delivery services and telephone incurred by the Company; (iv) all fees and
disbursements of counsel for the Company, and in accordance with Section 7(b)
below, counsel to the Holders of Transfer Restricted Securities; (v) if
applicable, all application and filing fees in connection with listing Securities
on a national securities exchange or automated quotation system pursuant to the
requirements hereof; and (vi) all fees and disbursements of independent
auditors of the Company (including the expenses of any special audit and
comfort letters required by or incident to such performance).


 


The Company will bear its internal expenses (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), the expenses of any annual audit and the fees and
expenses of any Person, including special experts, retained by the Company.


 


(b)                                 In connection with any
Registration Statement required by this Agreement (excluding the Exchange Offer
Registration Statement), the Company will reimburse the Initial Purchasers and
the Holders of Transfer Restricted Securities being tendered in the Exchange
Offer and/or resold pursuant to the “Plan of Distribution” contained in the
Exchange Offer Registration Statement or registered pursuant to the Shelf
Registration Statement, as applicable, for the reasonable fees and
disbursements of not more than one U.S. counsel, which shall be Milbank, Tweed,
Hadley & McCloy LLP or such other counsel as may be chosen by the Holders
of a majority in principal amount of the Transfer Restricted Securities for
whose benefit such Registration Statement is being prepared.


 


SECTION 8.                            INDEMNIFICATION


 


(a)                                  The Company agrees to
indemnify and hold harmless each of the Holders, each Person, if any, who
controls any Holder within the meaning of Section 15 of the Act or


 


15

















 


Section 20(a) of the Exchange
Act and the respective officers, directors, partners, employees,
representatives and agents of each Holder or any controlling Person, against
any and all losses, liabilities, claims, damages and expenses whatsoever
(including but not limited to reasonable attorneys’ fees and expenses and all
other expenses whatsoever incurred in investigating, preparing or defending
against any investigation or litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation) (collectively, “Losses”),
joint or several, to which they or any of them may become subject under the
Act, the Exchange Act or otherwise, insofar as such Losses (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 or
related Prospectus, or in any supplement thereto or amendment thereof, 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 light of the circumstances under which they were made, not
misleading; provided, however, that the Company will not be liable in any such
case to the extent, but only to the extent, that any such Loss arises out of or
is based upon any (i) 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 Holders
expressly for use in the Registration Statement and related Prospectus or in
any supplement or amendment thereto or (ii) any untrue statement or alleged
untrue statement or omission or alleged omission from any related preliminary
prospectus if a copy of the related Prospectus (as then amended or
supplemented) was not delivered by or on behalf of any Holder seeking indemnification
to the Person asserting the claim or action, if required by law to have been so
delivered by such Holder and the untrue statement or alleged omission from such
preliminary prospectus was corrected in the related Prospectus.  This indemnity will be in addition to any
liability which the Company may otherwise have, including, under this
Agreement.


 


(b)                                 Each of the Holders
agrees, severally and not jointly, to indemnify and hold harmless the Company,
each Person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act and the respective officers,
directors, partners, employees, representatives and agents of the Company or
any controlling Person, against any and all Losses, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such Losses (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 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, in the light of the
circumstances under which they were made, not misleading, in each case to the
extent, but only to the extent, that any such Loss arises out of or is based
upon any 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 such Holder expressly
for use therein; provided, however, that in no case shall any Holder be liable
or responsible for any amount in excess of the dollar amount of the proceeds
received by such Holder upon the sale of the Securities giving rise to such
indemnification obligation.  This
indemnity will be in addition to any liability which any Holder may otherwise
have, including under this Agreement.


 


16

















 


(c)                                  Promptly after
receipt by an indemnified party under subsection (a) or (b) above of notice of
the commencement of any action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in writing of
the commencement thereof (but the failure so to notify an indemnifying party
shall not relieve such indemnifying party from any liability which it may have
under this Section 8 except to the extent that it has been prejudiced in any
material respect by such failure, or from any liability which it may otherwise
have).  In case any such action is
brought against any indemnified party, and it notifies an indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from
such indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party. 
Notwithstanding the foregoing, the indemnified party or parties shall
have the right to employ its or their own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by the indemnifying parties in connection with the
defense of such action and the indemnifying party has agreed in writing to pay
the fees and expenses of such counsel, (ii) the indemnifying parties shall not
have employed counsel to take charge of the defense of such action within a reasonable
time after notice of commencement of the action, or (iii) such indemnified
party or parties shall have reasonably concluded, upon the advice of counsel,
that there may be defenses available to it or them which are different from or
additional to those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any
of which events such fees and expenses of counsel shall be borne by the
indemnifying parties; provided, however, that the indemnifying party under
subsection (a) or (b) above, shall only be liable for the legal expenses of one
counsel (in addition to any local counsel) for all indemnified parties in each
jurisdiction in which any claim or action is brought.  Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or
action effected without its written consent; provided, however, that such
consent was not unreasonably withheld. 
In addition, the indemnifying party will not, without the prior written
consent of the indemnified party, which consent may not be unreasonably
withheld, settle or compromise or consent to entry of any judgment in any
pending or threatened claim, action or proceeding of which indemnification may
be sought hereunder (whether or not any indemnified party is an actual or
potential party to such claim, action, or proceeding) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action or proceeding.


 


(d)                                 In order to provide
for contribution in circumstances in which the indemnification provided for in
this Section 8 is for any reason held to be unavailable or is insufficient to
hold harmless a party indemnified hereunder, the Company, on the one hand, and
each Holder, on the other hand, shall contribute to the aggregate Losses of the
nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of Losses suffered by the Company any
contribution received by the Company from Persons, other than the Holders, who
may also be liable for contribution, including Persons who control the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act)
to which the Company


 


17

















 


and such Holder may be subject,
in such proportion as is appropriate to reflect the relative benefits received
by the Company, on the one hand, and any such Holder, on the other hand, or, if
such allocation is not permitted by applicable law or if indemnification is not
available as a result of the indemnifying party not having received notice as
provided in this Section 8, in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault of the
Company, on the one hand, and the Holders, on the other hand, in connection
with the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. 
The relative benefits received by the Company, on the one hand, and any
Holder, on the other hand, shall be deemed to be in the same proportion as (x)
the total proceeds from the offering of the Securities (net of discounts and
commissions but before deducting expenses) received by the Company and (y) the
total proceeds received by such Holder upon its sale of Securities which would
otherwise give rise to the indemnification obligation, respectively.  The relative fault of the Company, on the
one hand, and of the Holders, on the other hand, shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, on the one hand,
or the Holders, on the other hand, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.  The Company and each Holder
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if all Holders were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
above. Notwithstanding the provisions of this Section 8, (i) no Holder shall be
required to contribute, in the aggregate, any amount in excess of the U.S.
dollar amount by which the proceeds received by such Holder with respect to the
sale of its Securities exceeds the amount of any damages which such Holder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission and (ii) 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 8, each Person, if any, who controls a Holder within
the meaning of Section 15 of the Act or Section 20(a) of the Exchange Act and
the respective officers, directors, partners, employees, representatives and
agents of a Holder or any controlling Person shall have the same rights to
contribution as such Holder, and each Person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act and the respective officers, directors, partners, employees,
representatives and agents of the Company or any controlling Person shall have
the same rights to contribution as the Company, subject in each case to clauses
(i) and (ii) of this Section 8(d).  Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties
under this Section 8, notify such party or parties from whom contribution may
be sought, but the failure to so notify such party or parties shall not relieve
the party or parties from whom contribution may be sought from any obligation
it or they may have under this Section 8 or otherwise.  No party shall be liable for contribution
with respect to any action or claim settled without its prior written consent;
provided, however, that such written consent was not unreasonably withheld.


 


18

















 


SECTION 9.         RULE 144A


 


The Company hereby agrees with each Holder, for so long as any Transfer
Restricted Securities remain outstanding, to make available to any Holder or
beneficial owner of Transfer Restricted Securities in connection with any sale
thereof and any prospective purchaser of such Transfer Restricted Securities
from such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Transfer Restricted
Securities pursuant to Rule 144A.


 


SECTION 10.       UNDERWRITTEN REGISTRATIONS


 


No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder’s Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.


 


SECTION 11.       SELECTION OF UNDERWRITERS


 


The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. 
In any such Underwritten Offering, the investment banker or investment
bankers and manager or managers that will administer the offering will be
selected by the Holders of a majority in aggregate principal amount of the
Transfer Restricted Securities included in such offering; provided, that such
investment bankers and managers must be reasonably satisfactory to the Company
(it being understood that Banc of America Securities LLC is reasonably
satisfactory); such investment banker or investment bankers and manager or
managers are referred to herein as the “underwriters.”


 


SECTION 12.       MISCELLANEOUS


 


(a)                                  REMEDIES.  Each Holder, in addition to being entitled
to exercise all rights provided herein, in the Indenture, in the Purchase
Agreement or granted by law, including recovery of Liquidated Damages or other
damages, will be entitled to specific performance of its rights under this Agreement.
The Company agrees that monetary damages (including the Liquidated Damages
contemplated hereby) 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.


 


(b)                                 NO INCONSISTENT AGREEMENTS.  The Company will not, on or after the date
of this Agreement, enter into any agreement with respect to its securities that
is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof.  The Company has not previously entered into any agreement
granting any registration rights with respect to the Securities to any
Person.  The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to holders of the Company’s securities under any agreement
in effect on the date hereof.


 


19

















 


(c)                                  AMENDMENTS AND WAIVERS.  The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures
from the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. 
Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
Securities are being tendered pursuant to the Exchange Offer or registered
pursuant to the Shelf Registration and that does not affect directly or
indirectly the rights of other Holders whose Securities are not being tendered
pursuant to such Exchange Offer or registered pursuant to the Shelf
Registration may be given by the Holders of a majority of the outstanding
principal amount of Transfer Restricted Securities being tendered or
registered, as applicable.


 


(d)                                 NOTICES.  All notices and other communications
provided for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:


 


(i)                                     if to a Holder, at
the address set forth on the records of the Registrar under the Indenture, with
a copy to the Registrar under the Indenture; and


 


(ii)                                  if to the Company:


 


Hard Rock Hotel, Inc.


4455 Paradise Road


Las Vegas, Nevada 89109


Phone No.:  (702) 693-5000


Telecopier No.:  (310) 652-8747


Attention:  Brian D. Ogaz


 


With copies to:


 


Skadden, Arps, Slate, Meagher & Flom LLP


300 South Grand Avenue


Los Angeles, CA 90071-3144


Phone No.:  (213) 687-5000


Telecopier No.:  (213) 687-5600


Attention:  Gregg A. Noel


 


All such notices and communications shall be deemed to have been duly
given:  at the time delivered by hand,
if personally delivered; ten Business Days after being deposited in the mail,
postage prepaid, if mailed; when answered back, if telexed; when receipt
acknowledged, if telecopied; and on the second Business Day, if timely
delivered to an air courier guaranteeing two day delivery.


 


20

















 


Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.


 


(e)                                  SUCCESSORS 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 limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; provided, however, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign
acquired Transfer Restricted Securities from such Holder.


 


(f)                                    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.


 


(g)                                 HEADINGS.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


(h)                                 SUBMISSION TO JURISDICTION.  To the fullest extent permitted by
applicable law, the Company irrevocably submits to the jurisdiction of any
Federal or State court in the City, County and State of New York, United States
of America, in any suit or proceeding based on or arising under this Agreement
(solely in connection with any such suit or proceeding), and irrevocably agree
that all claims in respect of such suit or proceeding may be determined in any
such court.  The Company irrevocably and
fully waives the defense of an inconvenient forum to the maintenance of such
suit or proceeding.  To the extent that
the Company has or hereafter may acquire any immunity from jurisdiction of any
court or from any legal process (whether through service of note, attachment
prior to judgment, attachment in aid of execution, executor or otherwise) with
respect to itself or its property, the Company hereby irrevocably waives such
immunity in respect of its obligations under this Agreement, to the extent
permitted by law.


 


(i)                                     GOVERNING LAW.  THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.


 


(j)                                     SEVERABILITY.  In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the
remaining provisions contained herein shall not be affected or impaired
thereby.


 


(k)                                  NO PIGGYBACK ON REGISTRATIONS.  Neither the Company nor any of its security
holders (other than the Holders of Transfer Restricted Securities in such
capacity) has any right (other than a right which has been irrevocably waived)
to include any securities of the Company in any Registration Statement other
than Transfer Restricted Securities. 
The Company covenants that it will not enter into any instrument,
agreement or understanding which


 


21

















 


will grant to any person
piggyback registration rights which are exercisable with respect to any
Exchange Offer Registration Statement or otherwise confer a right to include
securities in any Exchange Offer Registration Statement other than Transfer
Restricted Securities.


 


(l)                                     ENTIRE AGREEMENT.  This Agreement together with the other
Operative Documents (as defined in the Purchase Agreement) is intended by the
parties hereto as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein.  There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Transfer Restricted Securities. 
This Agreement supersedes all prior agreements and understandings among
the parties with respect to the subject matter hereof.


 


22

















 


IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.


 


 


	
   

  	
  HARD ROCK HOTEL, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:  Brian D. Ogaz

  
	
   

  	
   

  	
  Title: Senior Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  BANC OF AMERICA SECURITIES LLC,

  as representative of the Initial Purchasers

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
					



 


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