**Exhibit10.1**

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**HARDROCK HOTEL, INC.**

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**REGISTRATIONRIGHTS AGREEMENT**

 

This REGISTRATION RIGHTS AGREEMENTdated as of September 17, 2004 is made and entered into by and between BANC OFAMERICA SECURITIES LLC (“Investor”), and HARD ROCK HOTEL, INC., a Nevadacorporation (the “Company”).  Certaincapitalized terms not otherwise defined herein have the meanings set forth in Section 9.

 

WHEREAS, Investor has on thedate hereof purchased fifteen million eight hundred and ninety-eight thousandeight hundred and fifty-seven dollars and forty-two cents ($15,898,857.42) inoutstanding principal amount of the junior subordinated notes (the “PurchasedNotes”) from Peter Morton Living Trust, the holder of the Purchased Notes andan affiliate of the Company (the “Trust”), pursuant to a Purchase Agreementdated as of September 17, 2004, by and between Investor and the Trust (the “PurchaseAgreement”); and

 

WHEREAS, in order to induceInvestor to purchase the Purchased Notes, and as a condition precedent to suchpurchase, the Purchase Agreement requires that the Company enter into thisAgreement with Investor simultaneously with Investor’s purchase of thePurchased Notes.

 

NOW, THEREFORE, inconsideration of the mutual covenants and agreements set forth in thisAgreement, and for other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto agree asfollows:

 

1.             *Requested Registrations*.

 

(a)           Registration Requests.  At any time after the date hereof, upon thewritten request of one or more Initiating Holders requesting that the Companyeffect the registration under the Securities Act of all or part of suchInitiating Holders’ Registrable Securities and specifying the number ofRegistrable Securities to be registered and the intended method of dispositionthereof, the Company will promptly, and in no event more than ten (10) BusinessDays after receipt of such request, give written notice (a “Notice ofRequested Registration”) of such request to all other holders of RegistrableSecurities, and thereupon will use its reasonable best efforts to effect theregistration under the Securities Act of:

 

(i)            the Registrable Securities which theCompany has been so requested to register by such Initiating Holder or Holders,and

 

(ii)           all other Registrable Securities theholders of which have made written requests to the Company for registrationthereof within twenty (20) days after the giving of the Notice of RequestedRegistration (which requests shall specify the intended method of dispositionthereof),

 

all to the extent requisiteto permit the disposition (in accordance with the intended methods thereof) ofthe Registrable Securities so to be registered. If requested by the holders of a majority of the Registrable Securitiesrequested to be included in any Requested Registration, the 

 

 

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method of disposition of allRegistrable Securities included in such registration shall be an underwrittenoffering effected in accordance with Section 4(a).  Neither the Company nor any of its securityholdersshall have the right to include any of the Company’s securities (other thanRegistrable Securities) in a registration statement to be filed as part of aRequested Registration unless (i) such securities are of the same class as theRegistrable Securities, (ii) the holders of a majority of the RegistrableSecurities covered by such registration statement consent to such inclusion inwriting and (iii) if such Requested Registration is an underwritten offering,the Company or such securityholders, as applicable, agree in writing to sell,subject to paragraph (e), their securities on the same terms andconditions as apply to the Registrable Securities being sold.  If any securityholders of the Company (otherthan the holders of Registrable Securities in such capacity) registersecurities of the Company in a Requested Registration in accordance with thisSection, such holders shall pay the fees and expenses of their counsel andtheir prorata share, on the basis of the respective amounts ofthe securities included in such registration on behalf of each such holder, ofthe Registration Expenses if the Registration Expenses for such registrationare not paid by the Company for any reason.

 

(b)           Limitations on RequestedRegistrations.  Notwithstandinganything herein to the contrary, the Company shall not be required to honor arequest for a Requested Registration if:

 

(i)            the Company has previously effected one(1) Effective Registration;

 

(ii)           the Registrable Securities requestedby Initiating Holders to be so registered does not constitute a majority of thetotal outstanding principal amount of the Registrable Securities; or

 

(iii)          such request is received by theCompany less than ninety (90) days following the effective date of any previousregistration statement filed in connection with a Requested Registration or aPiggyback Registration, regardless of whether any holder of RegistrableSecurities exercised its rights under this Agreement with respect to suchregistration, unless such previous registration constituted a CutbackRegistration in which the number of Registrable Securities actually included insuch registration was not at least eighty percent (80%) of the number ofRegistrable Securities requested to be included in such registration.

 

(c)           Registration Statement Form.  The Company may, if permitted by law, effectany Requested Registration by the filing of a registration statement on FormS-3 unless the holders of a majority of the Registrable Securities to whichsuch registration relates (or, if such registration involves an underwrittenPublic Offering, the Managing Underwriter) shall notify the Company in writingthat, in the judgment of such holders (or, if applicable, such ManagingUnderwriter), the use of a more detailed form specified in such notice is ofmaterial importance to the success of the Public Offering of such RegistrableSecurities, in which case such registration shall be effected on the form sospecified.  Requested Registrations shallbe on such appropriate registration form promulgated by the Commission as shallbe selected by the Company, and shall be reasonably acceptable to the holdersof a majority of the Registrable Securities to which such registration relates,and shall permit the disposition of such Registrable 

 

 

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Securities in accordance with the intendedmethod or methods specified in their request for such registration, includingwithout limitation on a delayed or continuous basis to the extent that theCompany is permitted under applicable law and Commission Rules to effect aregistration permitting such distribution.

 

(d)           Registration Expenses.  The Company will pay all RegistrationExpenses incurred in connection with any Requested Registration.

 

(e)           Priority in Cutback Registrations.  If a Requested Registration becomes a CutbackRegistration, the Company will include in any such registration to the extentof the number which the Managing Underwriter advises the Company can be sold insuch offering (i) first, Registrable Securities requested to be included insuch registration, pro rata on the basis of the number of RegistrableSecurities requested to be included by such holders and (ii) second, othersecurities of the Company proposed to be included in such registration,allocated among the holders thereof in accordance with the priorities thenexisting among the Company and the holders of such other securities; and anysecurities so excluded shall be withdrawn from and shall not be included insuch Requested Registration.

 

2.             *Piggyback Registrations*.

 

(a)           Right to Include RegistrableSecurities.  Notwithstanding anylimitation contained in Section 1, if the Company at any time proposes afterthe date hereof to effect a Piggyback Registration, including in accordancewith Section 1(f), it will each such time give prompt written notice (a “Noticeof Piggyback Registration”), at least twenty (20) days prior to theanticipated filing date, to all holders of Registrable Securities of itsintention to do so and of such holders’ rights under this Section 2, whichNotice of Piggyback Registration shall include a description of the intendedmethod of disposition of such securities. Upon the written request of any such holder made within twenty (20) daysafter receipt of a Notice of Piggyback Registration (which request shallspecify the Registrable Securities intended to be disposed of by such holderand the intended method of disposition thereof), the Company will use its reasonablebest efforts to include in the registration statement relating to suchPiggyback Registration all Registrable Securities which the Company has been sorequested to register.  Notwithstandingthe foregoing, if, at any time after giving a Notice of Piggyback Registrationand prior to the effective date of the registration statement filed inconnection with such registration, the Company shall determine for any reasonnot to register or to delay registration of such securities, the Company may,at its election, give written notice of such determination to each holder ofRegistrable Securities and, thereupon, (i) in the case of a determination notto register, shall be relieved of its obligation to register any RegistrableSecurities in connection with such registration (but not from its obligation topay the Registration Expenses in connection therewith) without prejudice,however, to the rights of any Requesting Holder entitled to do so to requestthat such registration be effected as a Requested Registration under Section 1,and (ii) in the case of a determination to delay registering, shall bepermitted to delay registering any Registrable Securities for the same periodas the delay in registering such other securities.  No registration effected under this Section 2shall relieve the Company of its obligations to effect a Requested Registrationunder Section 1.

 

 

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(b)           Registration Expenses.  TheCompany will pay all Registration Expenses incurred in connection with eachPiggyback Registration.

 

(c)           Priority in Cutback Registrations.  If a Piggyback Registration becomes a CutbackRegistration, the Company will include in such registration to the extent ofthe amount of the securities which the Managing Underwriter advises the Companycan be sold in such offering:

 

(i)            if such registration as initiallyproposed by the Company was solely a primary registration of its securities,(x) first, the securities proposed by the Company to be sold for its ownaccount, (y) second, any Registrable Securities requested to be includedin such registration by Requesting Holders, prorata on the basisof the number of Registrable Securities requested to be included by suchholders, and (z) third, any other securities of the Company proposed tobe included in such registration, allocated among the holders thereof inaccordance with the priorities then existing among the Company and such holders;and

 

(ii)           if such registration as initiallyproposed by the Company was in whole or in part requested by holders ofsecurities of the Company, other than holders of Registrable Securities intheir capacities as such, pursuant to demand registration rights, (x) first,such securities held by the holders initiating such registration and, ifapplicable, any securities proposed by the Company to be sold for its ownaccount, allocated in accordance with the priorities then existing among theCompany and such holders, (y) second, any Registrable Securitiesrequested to be included in such registration by Requesting Holders, prorata on the basis of the number of Registrable Securities requested tobe included by such holders, and (z) third, any other securities of theCompany proposed to be included in such registration, allocated among theholders thereof in accordance with the priorities then existing among theCompany and the holders of such other securities;

 

and any securities soexcluded shall be withdrawn from and shall not be included in such PiggybackRegistration.

 

3.             *Registration Procedures*. If and whenever the Company is required to use its reasonable bestefforts to effect the registration of any Registrable Securities under theSecurities Act pursuant to Section 1 or Section 2, the Companywill use its reasonable best efforts to effect the registration and sale ofsuch Registrable Securities in accordance with the intended methods ofdisposition thereof specified by the Requesting Holders.  Without limiting the foregoing, the Companyin each such case will, as expeditiously as possible:

 

(a)           prepare and filewith the Commission (in the case of a Requested Registration, not later thansixty (60) days after the Company’s receipt of the request therefor from theInitiating Holders or as soon thereafter as possible) the requisiteregistration statement to effect such registration and use its reasonable bestefforts to cause such registration statement to become effective, providedthat as far in advance as practical before filing such registration statementor any amendment thereto, the Company will furnish to the Requesting Holderscopies of reasonably complete drafts of all such documents proposed to be filed(including exhibits), 

 

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and any such holder shall have theopportunity to object to any information pertaining solely to such holder thatis contained therein and the Company will make the corrections reasonablyrequested by such holder with respect to such information prior to filing anysuch registration statement or amendment;

 

(b)           prepare and filewith the Commission such amendments and supplements to such registrationstatement and any prospectus used in connection therewith as may be necessaryto maintain the effectiveness of such registration statement and to comply withthe provisions of the Securities Act with respect to the disposition of allRegistrable Securities covered by such registration statement, in accordancewith the intended methods of disposition thereof, until the earlier of (i) suchtime as all of such securities have been disposed of in accordance with theintended methods of disposition by the seller or sellers thereof set forth insuch registration statement and (ii) one year after such registration statementbecomes effective;

 

(c)           promptly notify eachRequesting Holder and the underwriter or underwriters, if any:

 

(i)            when suchregistration statement or any prospectus used in connection therewith, or anyamendment or supplement thereto, has been filed and, with respect to suchregistration statement or any post-effective amendment thereto, when the samehas become effective;

 

(ii)           of any writtencomments from the Commission with respect to any filing referred to inclause (i) and of any written request by the Commission for amendments orsupplements to such registration statement or prospectus;

 

(iii)          of the notificationto the Company by the Commission of its initiation of any proceeding withrespect to the issuance by the Commission of, or of the issuance by theCommission of, any stop order suspending the effectiveness of such registrationstatement; and

 

(iv)          of the receipt bythe Company of any notification with respect to the suspension of thequalification of any Registrable Securities for sale under the applicablesecurities or blue sky laws of any jurisdiction;

 

(d)           furnish to suchholder of Registrable Securities covered by such registration statement suchnumber of conformed copies of such registration statement and of each amendmentand supplement thereto (in each case including all exhibits and documentsincorporated by reference), such number of copies of the prospectus containedin such registration statement (including each preliminary prospectus and anysummary prospectus) and any other prospectus filed under Rule 424 promulgatedunder the Securities Act relating to such holder’s Registrable Securities, andsuch other documents, as such holder may reasonably request to facilitate thedisposition of its Registrable Securities;

 

(e)           use its reasonable bestefforts to register or qualify all Registrable Securities covered by suchregistration statement under such other securities or blue sky laws of suchjurisdictions as each holder thereof shall reasonably request in writing, tokeep such registration or qualification in effect for so long as suchregistration statement remains in effect, 

 

 

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and take any other action which may bereasonably necessary or advisable to enable such holder to consummate thedisposition in such jurisdictions of the Registrable Securities owned by suchholder, except that the Company shall not for any such purpose be required to (i)qualify generally to do business as a foreign corporation in any jurisdictionwherein it would not but for the requirements of this paragraph (e) beobligated to be so qualified, (ii) subject itself to taxation in any suchjurisdiction or (iii) consent to general service of process in anyjurisdiction;

 

(f)            use its reasonable bestefforts to cause all Registrable Securities covered by such registrationstatement to be registered with or approved by such other governmental agenciesor authorities as may be necessary to enable each holder thereof to consummatethe disposition of such Registrable Securities;

 

(g)           to the extentreasonably requested by any holder of Registrable Securities, furnish to eachRequesting Holder a signed counterpart, addressed to such holder (and theunderwriters, if any), of

 

(i)            an opinion ofcounsel for the Company, dated the effective date of such registrationstatement (or, if such registration includes an underwritten Public Offering,dated the date of any closing under the underwriting agreement), reasonablysatisfactory in form and substance to such holder, and

 

(ii)           a “comfort” letter,dated the effective date of such registration statement (and, if such registrationincludes an underwritten Public Offering, dated the date of any closing underthe underwriting agreement), signed by the independent public accountants whohave certified the Company’s financial statements included in such registrationstatement, in each case covering substantially the same matters with respect tosuch registration statement (and the prospectus included therein) and, in thecase of the accountants’ letter, with respect to events subsequent to the dateof such financial statements, as are customarily covered in opinions of issuer’scounsel and in accountants’ letters delivered to the underwriters inunderwritten Public Offerings of securities and, in the case of the accountants’letter, such other financial matters, as such holder (or the underwriters, ifany) may reasonably request;

 

(h)           notify each holderof Registrable Securities covered by such registration statement, at any timewhen a prospectus relating thereto is required to be delivered under theSecurities Act, of the happening of any event as a result of which anyprospectus included in such registration statement, as then in effect, includesan untrue statement of a material fact or omits to state any material factrequired to be stated therein or necessary to make the statements therein, inthe light of the circumstances under which they were made, not misleading, andat the request of any such holder promptly prepare and furnish to such holder areasonable number of copies of a supplement to or an amendment of suchprospectus as may be necessary so that, as thereafter delivered to thepurchasers of such securities, such prospectus shall not include an untruestatement of a material fact or omit to state a material fact required to bestated therein or necessary to make the statements therein, in the light of thecircumstances under which they were made, not misleading;

 

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(i)            otherwise use its reasonablebest efforts to comply with all applicable rules and regulations of the Commission,and make available to its securityholders, as soon as reasonably practicable,an earnings statement covering the period of at least twelve (12) months, butnot more than eighteen (18) months, beginning with the first full calendarmonth after the effective date of such registration statement, which earningsstatement shall satisfy the provisions of Section 11(a) of the Securities Actand Rule 158 promulgated thereunder;

 

(j)            make reasonably availablefor inspection by any Requesting Holder, any underwriter participating in anydisposition pursuant to such registration statement and any attorney,accountant or other agent retained by any such seller or underwriter(collectively, the “Inspectors”), all financial and other records,pertinent corporate documents and properties of the Company (collectively, the “Records”)as shall be reasonably necessary to enable them to conduct a “reasonable”investigation for purposes of Section 11(a) of the Securities Act, and causethe Company’s officers, directors and employees to supply all informationreasonably requested by any such Inspector in connection with such registrationstatement, in each case, as is customary for similar due diligenceinvestigations.  Records which theCompany determines, in good faith, to be confidential and which it notifies theInspectors are confidential shall not be disclosed by the Inspectors unless (i)the disclosure of such Records is necessary to avoid or correct a misstatementor omission in the registration statement, (ii) the release of such Records isordered pursuant to a subpoena or other order from a court of competentjurisdiction or (iii) the information in such Records has been made generallyavailable to the public.  The seller of RegistrableSecurities agrees by acquisition of such Registrable Securities that it will,upon learning that disclosure of such Records is sought in a court of competentjurisdiction, give prompt notice to the Company and allow the Company, at theCompany’s expense, to undertake appropriate action to prevent disclosure of theRecords deemed confidential; and

 

(k)           provide a transferagent and registrar for all Registrable Securities covered by such registrationstatement not later than the effective date of such registration statement.

 

The Company may require eachholder of Registrable Securities as to which any registration is being effectedto, and each such holder, as a condition to including Registrable Securities insuch registration, shall, furnish the Company with such information and affidavitsregarding such holder and the distribution of such securities as the Companymay from time to time reasonably request in writing in connection with suchregistration.  Each holder further agreesto furnish as soon as reasonably practicable to the Company all informationrequired to be disclosed in order to make information previously furnished tothe Company by such holder not materially misleading.

 

Each holder of RegistrableSecurities agrees by acquisition of such Registrable Securities that upon receiptof any notice from the Company of the happening of any event of the kinddescribed in paragraph (h), such holder will forthwith discontinue suchholder’s disposition of Registrable Securities pursuant to the registrationstatement relating to such Registrable Securities until such holder’s receiptof the copies of the supplemented or amended prospectus contemplated by paragraph(h) and, if so directed by the Company, will deliver to the Company (at theCompany’s expense) all copies, other than permanent file copies then in suchholder’s 

 

 

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possessionof the prospectus relating to such Registrable Securities current at the timeof receipt of such notice.  In the eventthe Company shall give any such notice, the period referred to in paragraph(b) shall be extended by a number of days equal to the number of daysduring the period from and including the giving of notice pursuant to paragraph(h) and to and including the date when each holder of any RegistrableSecurities covered by such registration statement shall receive the copies ofthe supplemented or amended prospectus contemplated by paragraph (h).

 

4.             *Underwritten Offerings*.

 

(a)           Underwritten Requested Offerings.  In the case of any underwritten PublicOffering being effected pursuant to a Requested Registration, the ManagingUnderwriter and any other underwriter or underwriters with respect to suchoffering shall be selected, after consultation with the holders of theRegistrable Securities to be included in such underwritten offering, by theCompany with the consent of the holders of a majority of the RegistrableSecurities to be included in such underwritten offering, which consent shallnot be unreasonably withheld.  TheCompany shall enter into an underwriting agreement in customary form with suchunderwriter or underwriters, which shall include, among other provisions,indemnities to the effect and to the extent provided in Section 6.  The holders of Registrable Securities to bedistributed by such underwriters shall be parties to such underwritingagreement and may, at their option, require that any or all of therepresentations and warranties by, and the other agreements on the part of, theCompany to and for the benefit of such underwriters also be made to and fortheir benefit and that any or all of the conditions precedent to theobligations of such underwriters under such underwriting agreement also beconditions precedent to their obligations. No holder of Registrable Securities shall be required to make anyrepresentations or warranties to or agreements with the Company other thanrepresentations, warranties or agreements regarding such holder, its ownershipof the securities being registered on its behalf and such holder’s intendedmethod of distribution or any other representation required by law.  No Requesting Holder may participate in suchunderwritten offering unless such holder agrees to sell its RegistrableSecurities on the basis provided in such underwriting agreement and completesand executes all questionnaires, powers of attorney, indemnities and otherdocuments reasonably required under the terms of such underwritingagreement.  If any Requesting Holderdisapproves of the terms of an underwriting, such holder may elect to withdrawtherefrom and from such registration by notice to the Company and the ManagingUnderwriter, and each of the remaining Requesting Holders shall be entitled toincrease the number of Registrable Securities being registered to the extent ofthe Registrable Securities so withdrawn in the proportion which the number ofRegistrable Securities being registered by such remaining Requesting Holderbears to the total number of Registrable Securities being registered by allsuch remaining Requesting Holders.

 

(b)           Underwritten Piggyback Offerings.  If the Company at any time proposes toregister any of its securities in a Piggyback Registration and such securitiesare to be distributed by or through one or more underwriters, the Company will,subject to the provisions of Section 2(c), use its reasonable best efforts, ifrequested by any holder of Registrable Securities, to arrange for suchunderwriters to include the Registrable Securities to be offered and sold byRequesting Holders among the securities to be distributed by such underwriters,and such holders shall be obligated to sell their Registrable Securities insuch Piggyback Registration through such underwriters on the same terms andconditions as apply to the other Company 

 

 

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securities to be sold by such underwriters inconnection with such Piggyback Registration. The holders of Registrable Securities to be distributed by suchunderwriters shall be parties to the underwriting agreement between the Companyand such underwriter or underwriters and may, at their option, require that anyor all of the representations and warranties by, and the other agreements onthe part of, the Company to and for the benefit of such underwriters also bemade to and for their benefit and that any or all of the conditions precedentto the obligations of such underwriters under such underwriting agreement alsobe conditions precedent to their obligations. No holder of Registrable Securities shall be required to make anyrepresentations or warranties to or agreements with the Company other thanrepresentations, warranties or agreements regarding such holder, its ownershipof the securities being registered on its behalf and such holder’s intendedmethod of distribution or any other representation required by law.  No Requesting Holder may participate in suchunderwritten offering unless such holder agrees to sell its RegistrableSecurities on the basis provided in such underwriting agreement and completesand executes all questionnaires, powers of attorney, indemnities and otherdocuments reasonably required under the terms of such underwritingagreement.  If any Requesting Holderdisapproves of the terms of an underwriting, such holder may elect to withdrawtherefrom and from such registration by notice to the Company and the ManagingUnderwriter, and each of the remaining Requesting Holders shall be entitled toincrease the number of Registrable Securities being registered to the extent ofthe Registrable Securities so withdrawn in the proportion which the number ofRegistrable Securities being registered by such remaining Requesting Holderbears to the total number of Registrable Securities being registered by allsuch remaining Requesting Holders.

 

5.             *Holdback Agreement*.  Ifand to the extent requested by the Managing Underwriter (or, in the case of anon-underwritten Public Offering, the Company), each holder of RegistrableSecurities, by acquisition of such Registrable Securities, agrees, to theextent permitted by law, not to effect any public sale or distribution(including a sale under Rule 144) of such securities, during the ten (10) daysprior to and the ninety (90) days after the effective date of any registrationstatement filed by the Company in connection with an underwritten PublicOffering (or for such shorter period of time as is sufficient and appropriate,in the opinion of the Managing Underwriter (or, in the case of anon-underwritten Public Offering, the Company), in order to complete the saleand distribution of the securities included in such registration), except aspart of such registration statement, whether or not such holder participates insuch registration.

 

6.             *Indemnification*.

 

(a)           Indemnification by the Company.  The Company shall, to the full extent permittedby law, indemnify and hold harmless each holder of Registrable Securitiesincluded in any registration statement filed in connection with a RequestedRegistration or a Piggyback Registration, its directors and officers, and eachother Person, if any, who controls any such holder within the meaning of theSecurities Act and, unless indemnification of such Persons is otherwiseprovided for in the applicable underwriting agreement, each underwriter, itsdirectors, officers and each Person, if any, who controls such underwriterwithin the meaning of the Securities Act, against any losses, claims, damages,expenses (including reasonable costs of investigation and reasonable legal feesand expenses) or liabilities, joint or several (together, “Losses”), towhich such holder or any such director or officer or controlling Person maybecome subject under the Securities Act or otherwise, insofar as such Losses(or actions or 

 

 

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proceedings, whether commenced or threatened, in respect thereof) ariseout of or are based upon any untrue statement or alleged untrue statement ofany material fact contained in any such registration statement, any preliminaryprospectus, final prospectus or summary prospectus contained therein, or anyamendment or supplement thereto, or any omission or alleged omission to statetherein a material fact required to be stated therein or necessary to make thestatements therein (in the case of a prospectus, in the light of thecircumstances under which they were made) not misleading; provided thatthe Company shall not be liable in any such case to the extent that any suchLoss (or action or proceeding in respect thereof) arises out of or is basedupon an untrue statement or alleged untrue statement or omission or allegedomission made in any such registration statement, preliminary prospectus, finalprospectus, summary prospectus, amendment or supplement in reliance upon and inconformity with written information or affadavit furnished to the Companythrough an instrument duly executed by such seller specifically stating that itis for use in the preparation thereof. Such indemnity shall remain in full force and effect regardless of anyinvestigation made by or on behalf of such holder or any such director, officeror controlling Person, and shall survive the transfer of such securities bysuch holder.

 

(b)           Indemnification by the Sellers.  Each holder of Registrable Securities whichare included or are to be included in any registration statement filed inconnection with a Requested Registration or a Piggyback Registration, as acondition to including Registrable Securities in such registration statement,shall, to the full extent permitted by law, indemnify and hold harmless theCompany, its directors and officers, and each other Person, if any, whocontrols the Company within the meaning of the Securities Act and, unlessindemnification of such Persons is otherwise provided for in the applicableunderwriting agreement, each underwriter, its directors, officers and eachPerson, if any, who controls such underwriter within the meaning of theSecurities Act, against any Losses to which the Company or any such director orofficer or controlling Person may become subject under the Securities Act or otherwise,insofar as such Losses (or actions or proceedings, whether commenced orthreatened, in respect thereof) arise out of or are based upon any untruestatement or alleged untrue statement of any material fact contained in anysuch registration statement, any preliminary prospectus, final prospectus orsummary prospectus contained therein, or any amendment or supplement thereto,or any omission or alleged omission to state therein a material fact requiredto be stated therein or necessary to make the statements therein (in the caseof a prospectus, in the light of the circumstances under which they were made)not misleading, if such untrue statement or alleged untrue statement oromission or alleged omission was made in reliance upon and in conformity withwritten information or affidavit furnished to the Company through an instrumentduly executed by such seller specifically stating that it is for use in thepreparation of such registration statement, preliminary prospectus, finalprospectus, summary prospectus, amendment or supplement; provided, however,that the obligation to provide indemnification pursuant to this Section 6(b)shall be several, and not joint and several, among such Indemnifying Parties onthe basis of the number of Registrable Securities included in such registrationstatement and the aggregate amount which may be recovered from any holder ofRegistrable Securities pursuant to the indemnification provided for in this Section 6(b)in connection with any registration and sale of Registrable Securities shall belimited to the total proceeds received by such holder from the sale of such RegistrableSecurities.  Such indemnity shall remainin full force and effect regardless of any investigation made by or on behalfof the 

 

 

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Company or any such director, officer or controlling Person and shallsurvive the transfer of such securities by such seller.

 

(c)           Notices of Claims, etc.  Promptly after receipt by an IndemnifiedParty of notice of the commencement of any action or proceeding involving aclaim referred to in the preceding paragraph (a) or (b) of this Section6, such Indemnified Party will, if a claim in respect thereof is to be madeagainst an Indemnifying Party pursuant to such paragraphs, give written noticeto the latter of the commencement of such action, provided that thefailure of any Indemnified Party to give notice as provided herein shall notrelieve the Indemnifying Party of its obligations under the precedingparagraphs of this Section 6, except to the extent that the IndemnifyingParty is actually prejudiced by such failure to give notice.  In case any such action is brought against anIndemnified Party, the Indemnifying Party shall be entitled to participate inand, unless, in the reasonable judgment of any Indemnified Party, a conflict ofinterest between such Indemnified Party and any Indemnifying Party exists withrespect to such claim, to assume the defense thereof, jointly with any otherIndemnifying Party similarly notified to the extent that it may wish, withcounsel reasonably satisfactory to such Indemnified Party, and after noticefrom the Indemnifying Party to such Indemnified Party of its election so toassume the defense thereof, the Indemnifying Party shall not be liable to suchIndemnified Party for any legal or other expenses subsequently incurred by thelatter in connection with the defense thereof other than reasonable costs ofinvestigation; provided that the Indemnified Party may participate insuch defense at the Indemnified Party’s expense; and providedfurtherthat the Indemnified Party or Indemnified Parties shall have the right toemploy one counsel to represent it or them if, in the reasonable judgment ofthe Indemnified Party or Indemnified Parties, it is advisable for it or them tobe represented by separate counsel by reason of having legal defenses which aredifferent from or in addition to those available to the Indemnifying Party, andin that event the reasonable fees and expenses of such one counsel shall bepaid by the Indemnifying Party.  If theIndemnifying Party is not entitled to, or elects not to, assume the defense ofa claim, it will not be obligated to pay the fees and expenses of more than onecounsel for the Indemnified Parties with respect to such claim, unless in thereasonable judgment of any Indemnified Party a conflict of interest may existbetween such Indemnified Party and any other Indemnified Parties with respectto such claim, in which event the Indemnifying Party shall be obligated to paythe fees and expenses of such additional counsel for the IndemnifiedParties.  No Indemnifying Party shallconsent to entry of any judgment or enter into any settlement without the consentof the Indemnified Party.  NoIndemnifying Party shall be subject to any liability for any settlement madewithout its consent, which consent shall not be unreasonably withheld.

 

(d)           Contribution. If the indemnity and reimbursement obligation provided for in Sections 6(a)or Section 6(b) is unavailable or insufficient to hold harmless anIndemnified Party in respect of any Losses (or actions or proceedings inrespect thereof) referred to therein, then the Indemnifying Party shallcontribute to the amount paid or payable by the Indemnified Party as a result ofsuch Losses (or actions or proceedings in respect thereof) in such proportionas is appropriate to reflect the relative fault of the Indemnifying Party onthe one hand and the Indemnified Party on the other hand in connection withstatements or omissions which resulted in such Losses, as well as any otherrelevant equitable considerations.  Therelative fault shall be determined by reference to, among other things, whetherthe untrue or alleged untrue statement of a material fact or the omission oralleged omission to state a material fact relates to information supplied bythe Indemnifying Party or the Indemnified Party and the parties’ relative 

 

 

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intent,knowledge, access to information and opportunity to correct or prevent suchuntrue statement or omission.  Theparties hereto agree that it would not be just and equitable if contributionspursuant to this paragraph were to be determined by prorataallocation or by any other method of allocation which does not take account ofthe equitable considerations referred to in the first sentence of thisparagraph.  The amount paid by anIndemnified Party as a result of the Losses referred to in the first sentenceof this paragraph shall be deemed to include any legal and other expensesreasonably incurred by such Indemnified Party in connection with investigatingor defending any Loss which is the subject of this paragraph.

 

No Indemnified Party guiltyof fraudulent misrepresentation (within the meaning of Section 11(f) ofthe Securities Act) shall be entitled to contribution from the IndemnifyingParty if the Indemnifying Party was not guilty of such fraudulentmisrepresentation.

 

(e)           Other Indemnification.  Indemnification similar to that specified inthe preceding paragraphs of this Section 6 (with appropriatemodifications) shall be given by the Company and each seller of RegistrableSecurities with respect to any required registration or other qualification ofsecurities under any federal or state law or regulation of any governmentalauthority other than the Securities Act. The provisions of this Section 6 shall be in addition to anyother rights to indemnification or contribution which an Indemnified Party mayhave pursuant to law, equity, contract or otherwise.

 

(f)            Indemnification Payments.  The indemnification required by this Section6 shall be made by periodic payments of the amount thereof during thecourse of the investigation or defense, as and when bills are received orLosses are incurred.

 

7.             *Covenants Relating to Rule 144*.  The Company will file reports in compliancewith the Exchange Act, will comply with all rules and regulations of theCommission applicable in connection with the use of Rule 144 and take suchother actions and furnish such holder with such other information as suchholder may reasonably request in order to avail itself of such rule or anyother rule or regulation of the Commission allowing such holder to sell anyRegistrable Securities without registration. If at any time the Company is not required to file reports in compliancewith either Section 13 or Section 15(d) of the Exchange Act, theCompany at its expense will, forthwith upon the written request of the holderof any Registrable Securities, make available adequate current publicinformation with respect to the Company within the meaning ofparagraph (c)(2) of Rule 144.

 

8.             *Other Registration Rights*.

 

(a)           No Existing Agreements.  The Company represents and warrants to theInvestor that there is not in effect on the date hereof any agreement by theCompany (other than this Agreement) pursuant to which any holders of securitiesof the Company have a right to cause the Company to register or qualify suchsecurities under the Securities Act or any securities or blue sky laws of anyjurisdiction that would conflict or be inconsistent with any provision of thisAgreement.

 

(b)           Future Agreements.  The Company shall not hereafter agree withthe holders of any securities issued or to be issued by the Company to registeror qualify such 

 

 

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securities under the Securities Act or any securities or blue sky lawsof any jurisdiction if the exercise of such registration rights conflict withthe exercise of the registration rights granted hereunder.

 

9.             *Definitions*.

 

(a)           Except as otherwisespecifically indicated, the following terms will have the following meaningsfor all purposes of this Agreement:

 

“Agreement” meansthis Registration Rights Agreement, as the same shall be amended from time totime.

 

“Business Day” meansa day other than Saturday, Sunday or any other day on which banks located inthe State of New York are authorized or obligated to close.

 

“Commission” meansthe United States Securities and Exchange Commission, or any successorgovernmental agency or authority.

 

“Company” has themeaning ascribed to it in the preamble.

 

“Cutback Registration”means any Requested Registration or Piggyback Registration to be effected as anunderwritten Public Offering in which the Managing Underwriter with respectthereto advises the Company and the Requesting Holders in writing that, in itsopinion, the number of securities requested to be included in such registration(including securities of the Company which are not Registrable Securities)exceed the number which can be sold in such offering without a materialreduction in the selling price anticipated to be received for the securities tobe sold in such Public Offering.

 

“Effective Registration”means, subject to the last sentence of Section 1(f), a RequestedRegistration which (a) has been declared or ordered effective in accordance withthe rules of the Commission, (b) has been kept effective for the period of timecontemplated by Section 3(b) and (c) has resulted in theRegistrable Securities requested to be included in such registration actuallybeing sold (except by reason of some act or omission on the part of theRequesting Holders); provided that a Cutback Registration shall not bean Effective Registration for purposes of this Agreement.

 

“Exchange Act” meansthe Securities Exchange Act of 1934, as amended, and the rules and regulationspromulgated thereunder.

 

“Form S-1” meansForm S-1 promulgated by the Commission under the Securities Act, or anysuccessor or similar long-form registration statement.

 

“Form S-3” meansForm S-3 promulgated by the Commission under the Securities Act, or anysuccessor or similar short-form registration statement.

 

“Indemnified Party”means a party entitled to indemnity in accordance with Section 6.

 

“Indemnifying Party”means a party obligated to provide indemnity in accordance with Section 6.

 

 

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“Initiating Holders”means any holder or holders of Registrable Securities making a written requestpursuant to Section 1 for the registration of Registrable Securities.

 

“Inspectors” has themeaning ascribed to it in Section 3(i).

 

“Losses” has themeaning ascribed to it in Section 6(a).

 

“Managing Underwriter”means, with respect to any Public Offering, the underwriter or underwritersmanaging such Public Offering.

 

“NASD” means theNational Association of Securities Dealers, Inc.

 

“Notice of PiggybackRegistration” has the meaning ascribed to it in Section 2(a).

 

“Notice of RequestedRegistration” has the meaning ascribed to it in Section 1(a).

 

“Person” means anynatural person, corporation, general partnership, limited partnership,proprietorship, other business organization, trust, union or association.

 

“Piggyback Registration”means any registration of junior subordinated notes of the Company under theSecurities Act (other than a registration in respect of a dividend reinvestmentor similar plan for stockholders of the Company or on Form S-4 orForm S-8 promulgated by the Commission, or any successor or similar formsthereto), whether for sale for the account of the Company or for the account ofany holder of securities of the Company (other than Registrable Securities),including a registration by the Company under the circumstances described in Section 1(f).

 

“Public Offering”means any offering of securities to the public, either on behalf of the Companyor any of its securityholders, pursuant to an effective registration statementunder the Securities Act.

 

“Purchase Agreement”has the meaning ascribed to it in the preamble.

 

“Records” has themeaning ascribed to it in Section 3(i).

 

“Registrable Securities”means (i) the Purchased Notes and (ii) any additional junior subordinated notesdistributed to or acquired by any holder of Registrable Securities, includingin payment of any accrued interest in respect of any Junior Subordinated Notes.  As to any particular Registrable Securities,once issued such securities shall cease to be Registrable Securities when (i) aregistration statement with respect to the sale of such securities shall havebecome effective under the Securities Act and such securities shall have beendisposed of in accordance with such registration statement, (ii) they shallhave been distributed to the public pursuant to Rule 144 or (iii) they shallhave ceased to be outstanding.

 

 

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“Registration Expenses”means all expenses incident to the Company’s performance of or compliance withits obligations under this Agreement to effect the registration of RegistrableSecurities in a Requested Registration or a Piggyback Registration, including,without limitation, all registration, filing, securities exchange listing andNASD fees, all registration, filing, qualification and other fees and expensesof complying with securities or blue sky laws, all word processing, duplicatingand printing expenses, messenger and delivery expenses, the fees anddisbursements of counsel for the Company and of its independent publicaccountants, including the expenses of any special audits or “cold comfort”letters required by or incident to such performance and compliance, thereasonable fees and disbursements of a single counsel and single firm ofaccountants retained by the holders of a majority of the Registrable Securitiesbeing registered, premiums and other costs of policies of insurance againstliabilities arising out of the Public Offering of the Registrable Securitiesbeing registered and any fees and disbursements of underwriters customarilypaid by issuers or sellers of securities, but excluding underwriting discountsand commissions and transfer taxes, if any, in respect of RegistrableSecurities, which shall be payable by each holder thereof.

 

“Requesting Holders”means, with respect to any Requested Registration or Piggyback Registration,the holders of Registrable Securities requesting to have Registrable Securitiesincluded in such registration in accordance with this Agreement.

 

“Requested Registration”means any registration of Registrable Securities under the Securities Acteffected in accordance with Section 1.

 

“Rule 144” meansRule 144 promulgated by the Commission under the Securities Act, and anysuccessor provision thereto.

 

“Securities Act”means the Securities Act of 1933, as amended, and the rules and regulationspromulgated thereunder.

 

(b)           Unless the contextof this Agreement otherwise requires, (i) words of any gender include eachother gender; (ii) words using the singular or plural number also includethe plural or singular number, respectively; (iii) the terms “hereof,” “herein,”“hereby” and derivative or similar words refer to this entire Agreement; and(iv) the term “Section” refers to the specified Section of this Agreement.  Whenever this Agreement refers to a number ofdays, such number shall refer to calendar days unless Business Days arespecified.

 

10.           *Miscellaneous*.

 

(a)           Notices.  Allnotices, requests and other communications hereunder must be in writing andwill be deemed to have been duly given only if delivered personally or byfacsimile transmission or mailed (first class postage prepaid) to the partiesat the following addresses or facsimile numbers:

 

If to Investor, to:

 

Banc of America SecuritiesLLC9 West 57th Street, 6th Floor

New York, NY 10019Facsimile No.: (704) 387-3621Attn:  Leon Bourn

 

 

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with a copy to:

 

Milbank Tweed Hadley &McCloy LLP601 S. Figueroa St., 31st FloorLos Angeles, CA 90017Facsimile No.:  (213) 892-4771Attn:  Deborah J. Ruosch

 

If to the Company, to:

 

Hard Rock Hotel, Inc4455 Paradise RoadLas Vegas, Nevada 89109Facsimile No.:  (310) 652-8747Attn:  Brian Ogaz

 

with a copy to:

 

Skadden, Arps, Slate,Meagher & Flom LLP300 South Grand AvenueLos Angeles, CA 90071Facsimile No.:  (213) 687-5600Attn: Gregg A. Noel

 

All such notices, requestsand other communications will (i) if delivered personally to the address asprovided in this Section, be deemed given upon delivery, (ii) if delivered byfacsimile transmission to the facsimile number as provided in this Section, bedeemed given upon receipt, and (iii) if delivered by mail in the mannerdescribed above to the address as provided in this Section, be deemed givenupon receipt (in each case regardless of whether such notice, request or other communicationis received by any other Person to whom a copy of such notice is to bedelivered pursuant to this Section).  Anyparty from time to time may change its address, facsimile number or otherinformation for the purpose of notices to that party by giving noticespecifying such change to the other parties hereto.

 

(b)           Entire Agreement.  This Agreement supersedes all priordiscussions and agreements between the parties with respect to the subjectmatter hereof, and contains the sole and entire agreement between the partieshereto with respect to the subject matter hereof.

 

(c)           Amendment.  ThisAgreement may be amended, supplemented or modified only by a written instrument(which may be executed in any number of counterparts) duly executed by or onbehalf of each of the Company and Persons owning a majority of the RegistrableSecurities.

 

 

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(d)           Waiver.  Subjectto paragraph (e) of this Section, any term or condition of thisAgreement may be waived at any time by the party that is entitled to thebenefit thereof, but no such waiver shall be effective unless set forth in awritten instrument duly executed by or on behalf of the party waiving such termor condition.  No waiver by any party ofany term or condition of this Agreement, in any one or more instances, shall bedeemed to be or construed as a waiver of the same term or condition of thisAgreement on any future occasion.

 

(e)           Consents and Waivers by Holders ofRegistrable Securities.  Anyconsent of the holders of Registrable Securities pursuant to this Agreement,and any waiver by such holders of any provision of this Agreement, shall be inwriting (which may be executed in any number of counterparts) and may be givenor taken by Persons owning a majority of the Registrable Securities, and anysuch consent or waiver so given or taken will be binding on all the holders ofRegistrable Securities.

 

(f)            No Third Party Beneficiary.  The terms and provisions of this Agreementare intended solely for the benefit of each party hereto, their respectivesuccessors or permitted assigns and any other holder of Registrable Securities,and it is not the intention of the parties to confer third-party beneficiaryrights upon any other Person other than any Person entitled to indemnity under Section6.

 

(g)           Successors and Assigns.  This Agreement is binding upon, inures to thebenefit of and is enforceable by the parties hereto and their respectivesuccessors and assigns.  This Agreementis not assignable by Company without the prior written consent of Investor.  The rights of any holder hereunder may beassigned to any transferee of Registrable Securities.

 

(h)           Headings.  Theheadings used in this Agreement have been inserted for convenience of referenceonly and do not define or limit the provisions hereof.

 

(i)            Invalid Provisions.  If any provision of this Agreement is held tobe illegal, invalid or unenforceable under any present or future law, and ifthe rights or obligations of any party hereto under this Agreement will not bematerially and adversely affected thereby, (i) such provision will be fullyseverable, (ii) this Agreement will be construed and enforced as if suchillegal, invalid or unenforceable provision had never comprised a part hereof,(iii) the remaining provisions of this Agreement will remain in full force andeffect and will not be affected by the illegal, invalid or unenforceableprovision or by its severance herefrom and (iv) in lieu of such illegal,invalid or unenforceable provision, there will be added automatically as a partof this Agreement a legal, valid and enforceable provision as similar in termsto such illegal, invalid or unenforceable provision as may be possible.

 

(j)            Remedies.  Exceptas otherwise expressly provided for herein, no remedy conferred by any of thespecific provisions of this Agreement is intended to be exclusive of any otherremedy, and each and every remedy shall be cumulative and shall be in additionto every other remedy given hereunder or now or hereafter existing at law or inequity or by statute or otherwise.  Theelection of any one or more remedies by any party hereto shall not constitute awaiver by any such party of the right to pursue any other available remedies.

 

 

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Damages in the event ofbreach of this Agreement by a party hereto or any other holder of RegistrableSecurities would be difficult, if not impossible, to ascertain, and it istherefore agreed that each such Person, in addition to and without limiting anyother remedy or right it may have, will have the right to an injunction orother equitable relief in any court of competent jurisdiction, enjoining anysuch breach, and enforcing specifically the terms and provisions hereof and theCompany and each holder of Registrable Securities, by its acquisition of suchRegistrable Securities, hereby waives any and all defenses it may have on theground of lack of jurisdiction or competence of the court to grant such aninjunction or other equitable relief.  Theexistence of this right will not preclude any such Person from pursuing anyother rights and remedies at law or in equity which such Person may have.

 

(k)           Governing Law. This Agreement shall be governed by and construed in accordance with thelaws of the State of New York applicable to a contract executed and performedin such State, including, without limitation, Section 5-1401 of the New YorkGeneral Obligations Law.

 

(l)            Counterparts. This Agreement may be executed in any number of counterparts, each ofwhich will be deemed an original, but all of which together will constitute oneand the same instrument.

 

 

 

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IN WITNESS WHEREOF, thisAgreement has been duly executed and delivered by the duly authorized officerof each party hereto as of the date first above written.

 
|   | BANC OF AMERICA SECURITIES LLC |
|--------|--------------------------------|
|   |                           |   |
|   | By:                            |  /s/ Bruce  R. Thompson |
|   |                           | Name: Bruce R. Thompson |
|   |                           | Title: Managing Director |
|   |                           |   |
|   |                           |   |
|   | HARD ROCK HOTEL, INC.          |
|   |                           |   |
|   | By:                            |  /s/ Brian  Ogaz |
|   |                           | Name: Brian Ogaz |
|   |                           | Title: Senior Vice President |

 

 

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