UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
December 13, 2012 (December 13, 2012)
Date of Report (Date of earliest event reported)
Caesars Entertainment Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 001-10410 | 62-1411755 | ||
| (State of Incorporation) |
(Commission File Number) |
(IRS Employer Identification Number) | ||
| One Caesars Palace Drive Las Vegas, Nevada |
89109 | |||
| (Address of principal executive offices) | (Zip Code) | |||
(702) 407-6000
(Registrant’s telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Section 1—Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement.
On December 13, 2012, Caesars Operating Escrow LLC and Caesars Escrow Corporation (the “Escrow Issuers”), wholly owned subsidiaries of Caesars Entertainment Operating Company, Inc. (the “Company”), a wholly owned subsidiary of Caesars Entertainment Corporation (the “Registrant” or the “Parent Guarantor”), completed the offering of $750,000,000 aggregate principal amount of 9% Senior Secured Notes due 2020 (the “Additional Notes”). The Additional Notes were offered only to qualified institutional buyers in reliance on Rule 144A under the Securities Act of 1933, as amended (the “Securities Act”), and outside the United States, only to non-U.S. investors pursuant to Regulation S under the Securities Act. The Additional Notes have not been registered under the Securities Act or any state securities laws and may not be offered or sold in the United States absent an effective registration statement or an applicable exemption from registration requirements or a transaction not subject to the registration requirements of the Securities Act or any state securities laws. The Additional Notes were issued under the same indenture governing the 9% Senior Secured Notes due 2020 that were issued on August 22, 2012 (the “Existing Notes” and, together with the Additional Notes, the “Notes”), but the Additional Notes and the Existing Notes will not be fungible until the completion of a registered exchange offer pursuant to which holders that exchange their Additional Notes and/or Existing Notes will collectively receive registered 9% Senior Secured Notes due 2020 that will have a single CUSIP number and thereafter be fungible.
1. Escrow Agreement
Pursuant to an escrow agreement, dated as of December 13, 2012, among U.S. Bank National Association, as escrow agent and securities intermediary, U.S. Bank National Association, as trustee (the “Trustee”) under the Indenture (as defined below), and the Escrow Issuers (the “Escrow Agreement”), the Escrow Issuers deposited the gross proceeds of the offering of the Additional Notes (which, for the avoidance of doubt, includes an amount of cash equal to accrued interest on the Additional Notes from August 22, 2012 to December 13, 2012 that was funded by the purchasers of the Additional Notes in connection with the issuance of the Additional Notes on December 13, 2012 (the “Pre-funded Interest Amount”)), together with additional amounts necessary to redeem the Additional Notes, if applicable, into a segregated escrow account until the date that certain escrow conditions are satisfied. The escrow conditions include, among other things, the assumption by the Company of all obligations of the Escrow Issuers under the Additional Notes (the “CEOC Assumption”) and the receipt of all required regulatory approvals.
The funds held in the Escrow Account will be released to the Company upon delivery by the Company to the escrow agent and the Trustee of an officer’s certificate certifying that, prior to or concurrently with the release of funds from the Escrow Account, the escrow conditions have been met.
The Escrow Issuers granted the Trustee, for the benefit of the holders of the Additional Notes, a first-priority security interest in the Escrow Account and all deposits therein to secure the note obligations pending disbursement.
2. Indenture and 9% Senior Secured Notes due 2020
The Additional Notes, which mature on February 15, 2020, were issued pursuant to an indenture, dated as of August 22, 2012, among the Escrow Issuers, the Parent Guarantor, as parent guarantor, and the Trustee, as supplemented by a supplemental indenture, dated as of October 5, 2012, and as further supplemented by an additional notes supplemental indenture, dated as of December 13, 2012 (as so supplemented, the “Indenture”)
The Indenture provides that the Additional Notes are guaranteed by the Parent Guarantor. Upon the consummation of the CEOC Assumption and the execution and delivery of security documents creating liens securing the Additional Notes, the Additional Notes will be secured by first-priority security interests in substantially all of the property and assets held by the Company and each wholly-owned, domestic subsidiary of the Company that is a subsidiary pledgor with respect to the senior secured credit facilities.
The Indenture provides that if the escrow conditions are not satisfied on or prior to March 15, 2013 or such earlier date as the Company determines in its sole discretion that any of the escrow conditions cannot be satisfied, the Additional Notes will be subject to a special mandatory redemption at a price of 100% of the gross proceeds of the Additional Notes, offered (which, for the avoidance of doubt, includes the Prefunded Interest Amount) plus accrued and unpaid interest to, but not including, the date of redemption.
The Company will pay interest on the Additional Notes at 9.00% per annum, semiannually to holders of record at the close of business on February 1 or August 1 immediately preceding the interest payment date on February 15 and August 15 of each year, commencing on February 15, 2013.
The Company may redeem the Notes at its option, in whole or part, at any time prior to February 15, 2016, at a price equal to 100% of the principal amount of the Notes redeemed plus accrued and unpaid interest to the redemption date and a “make-whole” premium. The Company may redeem the Notes, in whole or in part, on or after February 15, 2016, at the redemption
prices set forth in the Indenture. In addition, at any time and from time to time on or before February 15, 2015, the Company may choose to redeem in the aggregate up to 35% of the original aggregate principal amount of the Notes (calculated after giving effect to the further issuance of additional notes) at a redemption price equal to 109.000% of the face amount thereof with the net proceeds of one or more equity offerings so long as at least 50% of the original aggregate principal amount of the Notes (calculated after giving effect to any further issuance of additional notes) remain outstanding after each such redemption.
The Indenture contains covenants that limit the Company’s (and most of its subsidiaries’) ability to, among other things: (i) incur additional debt or issue certain preferred shares; (ii) pay dividends on or make other distributions in respect of its capital stock or make other restricted payments; (iii) make certain investments; (iv) sell certain assets; (v) create or permit to exist dividend and/or payment restrictions affecting its restricted subsidiaries; (vi) create liens on certain assets to secure debt; (vii) consolidate, merge, sell or otherwise dispose of all or substantially all of its assets; (viii) enter into certain transactions with its affiliates; and (ix) designate its subsidiaries as unrestricted subsidiaries. These covenants are subject to a number of important limitations and exceptions. The Indenture also provides for events of default, which, if any of them occurs, would permit or require the principal, premium, if any, interest and any other monetary obligations on all the then outstanding Notes to be due and payable immediately.
3. Registration Rights Agreement
On December 13, 2012, in connection with the issuance of the Additional Notes, the Escrow Issuers and the Parent Guarantor entered into a registration rights agreement with Citigroup Global Markets Inc., as representative of the initial purchasers, relating to, among other things, the exchange offer for the Additional Notes and the related parent guarantee (as described above) (the “Registration Rights Agreement”).
Upon the consummation of the CEOC Assumption, the Company will execute a joinder to the Registration Rights Agreement.
Subject to the terms of the Registration Rights Agreement, the Company and the Parent Guarantor will use their reasonable best efforts to either (a) register with the Securities and Exchange Commission, and cause to become effective a registration statement relating to an offer to exchange, Additional Notes having substantially identical terms as the Additional Notes as part of offers to exchange freely tradable exchange notes for Additional Notes, or (b) cause to make available an effective shelf registration statement relating to resales of certain registrable Additional Notes. In the exchange offer, holders that exchange Additional Notes and/or Existing Notes will collectively receive registered 9% Senior Secured Notes due 2020 having a single CUSIP number, and such Additional Notes and Existing Notes will thereafter be fungible.
Under option (a) above, (1) the exchange offer registration statement needs to become effective by the fifth business day following the one-year anniversary of the issuance of the Additional Notes, and (2) the exchange offer needs to be completed within 45 days after the exchange offer registration statement becomes effective. Under option (b) above, (1) an effective shelf registration statement needs to be made available by the 90th day following the date on which the requirement to make such shelf registration statement arises, and (2) following effectiveness of the shelf registration statement, subject to limited exceptions, it must not cease to remain effective or otherwise available for more than 60 days in any 12-month period prior to the time the Additional Notes cease to be registrable notes.
If the Company and the Parent Guarantor fail to meet these targets (a “registration default”), the annual interest rate on the Additional Notes will increase by 0.25%. The annual interest rate on the Additional Notes will increase by an additional 0.25% for each subsequent 90-day period during which the registration default continues, up to a maximum additional interest rate of 1.0% per year. If the registration default is corrected, the applicable interest rate will revert to the original level.
The foregoing summary is qualified in its entirety by reference to the Escrow Agreement, additional notes supplemental indenture and the Registration Rights Agreement, attached hereto as Exhibit 10.1, Exhibit 4.1 and Exhibit 4.2, respectively, and the indenture, dated as of August 22, 2012, filed as Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on August 22, 2012, which are incorporated herein by reference.
Section 2—Financial Information
| Item | 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The information set forth under Item 1.01 above is incorporated by reference into this Item 2.03.
Section 9—Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. |
Description | |
| 4.1 | Additional Notes Supplemental Indenture, dated as of December 13, 2012, by and among Caesars Operating Escrow LLC, Caesars Escrow Corporation, Caesars Entertainment Corporation and U.S. Bank National Association, as trustee. | |
| 4.2 | Registration Rights Agreement, dated as of December 13, 2012, by and among Caesars Operating Escrow LLC, Caesars Escrow Corporation, Caesars Entertainment Corporation and Citigroup Global Markets Inc., as representative of the initial purchasers. | |
| 10.1 | Escrow Agreement, dated as of December 13, 2012, by and among Caesars Operating Escrow LLC, Caesars Escrow Corporation, U.S. Bank National Association, as escrow agent and securities intermediary, and U.S. Bank National Association, as trustee. | |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CAESARS ENTERTAINMENT CORPORATION | ||||
| Date: December 13, 2012 | By: | /s/ MICHAEL D. COHEN | ||
| Michael D. Cohen | ||||
| Senior Vice President, Deputy General Counsel and Corporate Secretary | ||||
EXHIBIT INDEX
| Exhibit No. |
Description | |
| 4.1 | Additional Notes Supplemental Indenture, dated as of December 13, 2012, by and among Caesars Operating Escrow LLC, Caesars Escrow Corporation, Caesars Entertainment Corporation and U.S. Bank National Association, as trustee. | |
| 4.2 | Registration Rights Agreement, dated as of December 13, 2012, by and among Caesars Operating Escrow LLC, Caesars Escrow Corporation, Caesars Entertainment Corporation and Citigroup Global Markets Inc., as representative of the initial purchasers. | |
| 10.1 | Escrow Agreement, dated as of December 13, 2012, by and among Caesars Operating Escrow LLC, Caesars Escrow Corporation, U.S. Bank National Association, as escrow agent and securities intermediary, and U.S. Bank National Association, as trustee. | |
Exhibit 4.1
EXECUTION VERSION
ADDITIONAL NOTES SUPPLEMENTAL INDENTURE
ADDITIONAL NOTES SUPPLEMENTAL INDENTURE (this “Additional Notes Supplemental Indenture”) dated as of December 13, 2012 (the “Additional Notes Issue Date”), among CAESARS OPERATING ESCROW LLC, a Delaware limited liability company (“Escrow LLC”), and CAESARS ESCROW CORPORATION, a Delaware corporation (“Escrow Corporation” and, together with Escrow LLC, the “Escrow Issuers”), CAESARS ENTERTAINMENT CORPORATION, a Delaware corporation (the “Parent Guarantor”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H :
WHEREAS, the Escrow Issuers and the Parent Guarantor have heretofore executed and delivered to the Trustee an indenture (the “Base Indenture”) dated as of August 22, 2012, providing for the issuance of 9% Senior Secured Notes due 2020 (the “Existing Notes”), initially in the aggregate principal amount of $750,000,000;
WHEREAS, Caesars Entertainment Operating Company, Inc., a Delaware corporation (“CEOC”), has heretofore executed and delivered to the Trustee a supplemental indenture (the “Prior Assumption Indenture” and, together with the Base Indenture, and as further amended, supplemented or otherwise modified, the “Existing Indenture”) dated as of October 5, 2012, pursuant to which the Company assumed all of the obligations of the Escrow Issuers under the Base Indenture and the Existing Notes;
WHEREAS, pursuant to Section 2.01 of the Existing Indenture, the Escrow Issuers may issue Additional Notes under the Existing Indenture subject to certain conditions as set forth therein;
WHEREAS, the Escrow Issuers desire to issue an additional $750,000,000 aggregate principal amount of such Additional Notes (hereinafter, the “Additional Notes”);
WHEREAS, pursuant to Section 9.01(a) of the Existing Indenture, the Escrow Issuers, the Parent Guarantor and the Trustee are authorized to execute and deliver this Additional Notes Supplemental Indenture;
NOW THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Escrow Issuers, the Parent Guarantor and the Trustee mutually covenant and agree for the equal and ratable benefit of the holders of the Notes (as defined in the Existing Indenture) as follows:
1. Defined Terms. As used in this Additional Notes Supplemental Indenture, terms defined in the Existing Indenture or in the preamble or recital hereto are used herein as therein defined, except that the term “holders” in this Additional Notes Supplemental Indenture shall refer to the term “holders” as defined in the Existing Indenture and the Trustee acting on behalf of and for the benefit of such holders. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Additional Notes Supplemental Indenture refer to this Additional Notes Supplemental Indenture as a whole and not to any particular section hereof.
a. For purposes of the Existing Indenture, the following terms shall have the meaning indicated below with respect to the Additional Notes:
i. “Additional Notes Issue Date” means December 13, 2012.
ii. “CEOC Assumption” means, with respect to the Additional Notes, the consummation of the transactions whereby CEOC will assume all of the obligations of the Escrow Issuers under the Additional Notes and the Additional Notes Supplemental Indenture pursuant to a supplemental indenture and other agreements.
iii. “Conditions Precedent Date” means, in respect of the Additional Notes, March 15, 2013.
iv. “Escrow Agreement” means the Escrow Agreement, dated as of December 13, 2012, among U.S. Bank National Association, as escrow agent and securities intermediary, the Trustee and the Escrow Issuers.
v. “Escrow Period” means, with respect to the Additional Notes, that period beginning on the Additional Notes Issue Date and ending on the date on which the funds held in the escrow account are released upon satisfaction of all conditions precedent to such release, as set forth in the Escrow Agreement.
vi. “Escrow Redemption Date” means, with respect to the Additional Notes, the date that is no later than 30 days after the Conditions Precedent Date with respect to the Additional Notes.
vii. “Escrow Redemption Price” means, with respect to the Additional Notes, an amount of cash equal to $757,687,500 (which amount includes the Pre-Funded Interest Amount), plus interest accrued and unpaid on $750,000,000 from the Additional Notes Issue Date to, but excluding, the Escrow Redemption Date, calculated using a rate of 9.00% per annum.
viii. “Pre-Funded Interest Amount” means an amount of cash equal to accrued interest on $750,000,000 from the Issue Date to (but excluding) the Additional Notes Issue Date, calculated using a rate of 9.00% per annum, funded by the purchasers of the Additional Notes in connection with the issuance of the Additional Notes on the Additional Notes Issue Date.
2. Additional Notes. The Escrow Issuers shall issue the Additional Notes under the Existing Indenture, subject to compliance with the terms thereof, with such Additional Notes to have identical terms, from and after the CEOC Assumption, to those of the Existing Notes; provided that:
a. The aggregate amount of Additional Notes to be authenticated and delivered under this Additional Notes Supplemental Indenture on the Additional Notes Issue Date is $750,000,000;
b. The issue price of the Additional Notes is 98.25%, plus accrued interest from August 22, 2012;
c. The Additional Notes will be issued on the Additional Notes Issue Date;
d. The Additional Notes shall be issued as “Initial Notes” under the Existing Indenture (including Appendix A thereto), shall in all respects be subject to the terms applicable to Initial Notes as provided in Appendix A to the Existing Indenture, except that:
i. “Purchase Agreement” means the Purchase Agreement dated December 6, 2012 among the Escrow Issuers, the Parent Guarantor and the Representative of the Initial Purchasers entered into in connection with the sale and issuance of the Additional Notes.
ii. “Registration Rights Agreement” means (a) the Registration Rights Agreement dated as of December 13, 2012 among the Issuer, the Parent Guarantor and the Representative of the Initial Purchasers relating to the Additional Notes and (b) any other similar registration rights agreement relating to Additional Notes.
e. The Additional Notes shall be issuable in whole or in part in the form of one or more Global Notes as provided in Section 2.1(b) of Appendix A to the Existing Indenture and in the form provided in Exhibit A to the Existing Indenture (except that the Additional Notes shall bear the name and signature of the Escrow Issuers rather than the Company, and, until the Additional Notes and the Existing Notes are exchanged for freely tradable notes, the Additional Notes shall bear different CUSIP and ISIN Numbers). The Additional Notes shall be registered in the name of the Depository (as defined in Appendix A to the Existing Indenture) or the nominee of such Depository, in each case for credit to an account of an Agent Member (as defined in Appendix A of the Existing Indenture);
f. The Additional Notes shall be, and may be exchanged or transferred on, the terms provided for Initial Notes in Appendix A to the Existing Indenture;
g. After the CEOC Assumption, the Additional Notes and the Existing Notes shall be a single class for all purposes under the Existing Indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase; and
h. Holders of Additional Notes shall have the benefit of a separate Registration Rights Agreement dated the date hereof.
3. Ratification of Existing Indenture; Additional Notes Supplemental Indenture Part of Existing Indenture. Except as expressly amended hereby, the Existing Indenture is in all respects ratified and confirmed and all the terms, conditions and provisions thereof shall remain in full force and effect. This Additional Notes Supplemental Indenture shall form a part of the Existing Indenture for all purposes, and every holder of Notes heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Governing Law. THIS ADDITIONAL NOTES SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
5. Trustee Makes No Representation. The Trustee makes no representation as to the validity or sufficiency of this Additional Notes Supplemental Indenture.
6. Counterparts. The parties may sign any number of copies of this Additional Notes Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
7. Effect of Headings. The Section headings herein are for convenience only and shall not effect the construction thereof.
8. Severability. In case any provision of this Additional Notes Supplemental Indenture shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
[Signature pages follow]
IN WITNESS WHEREOF, the parties hereto have caused this Additional Notes Supplemental Indenture to be duly executed as of the date first above written.
| CAESARS OPERATING ESCROW LLC | ||
| By: | /s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Secretary | ||
| CAESARS ESCROW CORPORATION | ||
| By: | /s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Secretary | ||
| CAESARS ENTERTAINMENT CORPORATION, as Parent Guarantor | ||
| By: | /s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Senior Vice President, Deputy General Counsel and Corporate Secretary | ||
| U.S. BANK NATIONAL ASSOCIATION, as Trustee | ||
| By: | /s/ Raymond S. Haverstock | |
| Name: Raymond S. Haverstock | ||
| Title: Vice President | ||
Exhibit 4.2
EXECUTION VERSION
CAESARS OPERATING ESCROW LLC
CAESARS ESCROW CORPORATION
$750,000,000 9% Senior Secured Notes due 2020
REGISTRATION RIGHTS AGREEMENT
December 13, 2012
CITIGROUP GLOBAL MARKETS INC.
As Representative of the Initial Purchasers
listed on Schedule I to the Purchase Agreement,
c/o Citigroup Global Markets Inc.,
388 Greenwich Street,
New York, New York 10013
Ladies and Gentlemen:
Caesars Operating Escrow LLC, a limited liability company organized under the laws of Delaware (“Escrow LLC”), and Caesars Escrow Corporation, a corporation organized under the laws of Delaware (“Escrow Corporation” and, together with Escrow LLC, the “Issuers”), propose to issue and sell to certain purchasers (the “Initial Purchasers”), for whom you (the “Representative”) are acting as representative, $750,000,000 aggregate principal amount of their 9% Senior Secured Notes due 2020 (the “Notes”), upon the terms set forth in the Purchase Agreement between the Issuers, Caesars Entertainment Corporation, a corporation organized under the laws of Delaware (the “Parent Guarantor”), and the Representative dated December 6, 2012 (the “Purchase Agreement”), relating to the initial placement of the Notes (the “Initial Placement”) and the related Guarantee (as defined below). To induce the Initial Purchasers to enter into the Purchase Agreement and to satisfy a condition to your obligations thereunder, the Issuers, the Company (as of the date of the CEOC Assumption, as defined below) and the Parent Guarantor agree with you for your benefit and the benefit of the holders from time to time of the Securities (as defined below) (including the Initial Purchasers) (each a “Holder” and, collectively, the “Holders”), as follows:
The Notes will be unconditionally guaranteed (the “Guarantee”) on a senior basis by the Parent Guarantor. The Notes, together with the Guarantee, are referred to herein as the “Securities.”
1. Definitions. Capitalized terms used herein without definition shall have their respective meanings set forth in the Purchase Agreement. As used in this Agreement, the following capitalized defined terms shall have the following meanings:
“Additional Interest” shall have the meaning ascribed to it in Section 8 hereof.
“Additional Notes Supplemental Indenture” shall mean the Additional Notes Supplemental Indenture, dated as of December 13, 2012, by and among the Issuers, the Parent Guarantor and U.S. Bank National Association, as trustee.
“Affiliate” shall have the meaning specified in Rule 405 under the Securities Act and the terms “controlling” and “controlled” shall have meanings correlative thereto.
“broker-dealer” shall mean any broker or dealer registered as such under the Exchange Act.
“Business Day” shall mean any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorized or obligated by law to close in New York City.
“CEOC Assumption” means the consummation of the transactions whereby the Company will assume all of the obligations of the Issuers under the Notes pursuant to a supplemental indenture.
“Commission” shall mean the Securities and Exchange Commission.
“Company” shall mean Caesars Entertainment Operating Company, Inc.
“Deferral Period” shall have the meaning ascribed to it in Section 4(k)(ii) hereof.
“Event Date” shall have the meaning ascribed to it in Section 8(b) hereof.
“Exchange Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Exchange Offer Registration Period” shall mean the one-year period following the consummation of the Registered Exchange Offer, exclusive of any period during which any stop order shall be in effect suspending the effectiveness of the Exchange Offer Registration Statement.
“Exchange Offer Registration Statement” shall mean a registration statement of the Company on an appropriate form under the Securities Act with respect to the Registered Exchange Offer, all amendments and supplements to such registration statement, including post-effective amendments thereto, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Exchanging Dealer” shall mean any Holder (which may include any Initial Purchaser) that is a broker-dealer and elects to exchange for New Securities any Securities that it acquired for its own account as a result of market-making activities or other trading activities (but not directly from the Company or any Affiliate of the Company) for New Securities.
2
“Final Memorandum” shall mean the offering memorandum, dated December 6, 2012, relating to the offer and sale of the Notes, including any and all exhibits thereto and any information incorporated by reference therein as of such date.
“FINRA Rules” shall mean the Conduct Rules and the By-Laws of the Financial Industry Regulatory Authority, Inc.
“Freely Tradable Security” shall mean any security at any time of determination if at such time of determination such security (i) may be sold to the public pursuant to Rule 144 under the Securities Act by a person that is not an “affiliate” (as defined in Rule 144 under the Securities Act) of the Company where no conditions of Rule 144 under the Securities Act are then applicable (other than the holding period requirement in paragraph (d) of Rule 144 under the Securities Act so long as such holding period requirement is satisfied at such time of determination), (ii) does not bear any restrictive legends relating to the Securities Act and (iii) does not bear a restricted CUSIP number.
“Guarantee” shall have the meaning ascribed to it in the preamble.
“Holder” shall have the meaning ascribed to it in the preamble.
“Indenture” shall mean the Indenture relating to the Securities, dated as of August 22, 2012, as supplemented by the Prior Assumption Indenture, as further supplemented by the Additional Notes Supplemental Indenture, among the Issuers, the Parent Guarantor and U.S. Bank National Association, as trustee, as the same may be amended from time to time in accordance with the terms thereof.
“Initial Placement” shall have the meaning ascribed to it in the preamble.
“Initial Purchasers” shall have the meaning ascribed to it in the preamble.
“Inspector” shall have the meaning ascribed to it in Section 4(q)(ii) hereof.
“Issuers” shall have the meaning ascribed to it in the preamble.
“Losses” shall have the meaning ascribed to it in Section 6(d) hereof.
“Majority Holders” shall mean, on any date, Holders of a majority of the aggregate principal amount of the Notes registered under a Registration Statement.
“Managing Underwriters” shall mean the investment banker or investment bankers and manager or managers that administer an underwritten offering, if any, under a Registration Statement.
“New Securities” shall mean debt securities of the Company and the Guarantee by the Parent Guarantor, in each case, substantially identical in all material respects to the Notes and the related Guarantee (except that the transfer restrictions shall be modified or eliminated, as appropriate) to be issued under the Indenture in connection with sales or exchanges effected pursuant to this Agreement.
3
“Notes” shall have the meaning ascribed to it in the preamble.
“Parent Guarantor” shall have the meaning ascribed to it in the preamble.
“Prior Assumption Indenture” shall mean the First Supplemental Indenture, dated as of October 5, 2012, by and among the Issuers, the Company and U.S. Bank National Association, as trustee.
“Prospectus” shall mean the prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A under the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Securities or the New Securities covered by such Registration Statement, and all amendments and supplements thereto, including any and all exhibits thereto and any information incorporated by reference therein.
“Purchase Agreement” shall have the meaning ascribed to it in the preamble.
“Registered Exchange Offer” shall mean the proposed offer of the Company and the Parent Guarantor to issue and deliver to the Holders of the Securities that are not prohibited by any law or policy of the Commission from participating in such offer, in exchange for the Securities, a like aggregate principal amount of the New Securities.
“Registrable Securities” shall mean (i) Securities other than those that have been (A) registered under a Registration Statement and exchanged or disposed of in accordance therewith or (B) sold to the public pursuant to Rule 144 under the Securities Act or any successor rule or regulation thereto that may be adopted by the Commission and (ii) any New Securities resale of which by the Holder thereof requires compliance with the prospectus delivery requirements of the Securities Act.
“Registration Default” shall have the meaning ascribed to it in Section 8(a) hereof.
“Registration Statement” shall mean any Exchange Offer Registration Statement or Shelf Registration Statement that covers any of the Securities or the New Securities pursuant to the provisions of this Agreement, any amendments and supplements to such registration statement, including post-effective amendments (in each case including the Prospectus contained therein), all exhibits thereto and all material incorporated by reference therein.
“Registration Trigger Date” shall mean the fifth Business Day following the one-year anniversary of the date hereof.
“Securities” shall have the meaning ascribed to it in the preamble.
“Securities Act” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
4
“Shelf Registration” shall mean a registration effected pursuant to Section 3 hereof.
“Shelf Registration Period” shall have the meaning ascribed to it in Section 3(b)(ii) hereof.
“Shelf Registration Statement” shall mean a “shelf” registration statement of the Company pursuant to the provisions of Section 3 hereof which covers some or all of the Securities or New Securities, as applicable, on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the Commission, amendments and supplements to such registration statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated by reference therein.
“Shelf Request” shall have the meaning ascribed to it in Section 3(a) hereof.
“Trustee” shall mean the trustee with respect to the Securities under the Indenture.
“underwriter” shall mean any underwriter of Securities in connection with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) Unless the Registered Exchange Offer would violate applicable law or any applicable interpretation of the staff of the Commission, with respect to any Securities that on the Registration Trigger Date are Registrable Securities, the Company and the Parent Guarantor shall use their reasonable best efforts to prepare, to cause to be filed with the Commission and to become effective, the Exchange Offer Registration Statement with respect to the Registered Exchange Offer; provided, however, that the Company and the Parent Guarantor shall not be required to consummate such Registered Exchange Offer if the Securities are Freely Tradable Securities.
(b) If an Exchange Offer Registration Statement is filed and becomes effective pursuant to Section 2(a) above, upon the effectiveness of the Exchange Offer Registration Statement, the Company and the Parent Guarantor shall promptly commence the Registered Exchange Offer, it being the objective of such Registered Exchange Offer to enable each Holder electing to exchange Securities for New Securities (assuming that such Holder is not an Affiliate of the Company or the Parent Guarantor, acquires the New Securities in the ordinary course of such Holder’s business, has no arrangements with any person to participate in the distribution of the New Securities and is not prohibited by any law or policy of the Commission from participating in the Registered Exchange Offer) to trade such New Securities from and after their receipt without any limitations or restrictions under the Securities Act and without material restrictions under the securities laws of a substantial proportion of the several states of the United States. The Company and the Parent Guarantor shall use their reasonable best efforts to complete the Registered Exchange Offer not later than 45 days after the Exchange Offer Registration Statement becomes effective.
(c) In connection with the Registered Exchange Offer, if an Exchange Offer Registration Statement is required to be filed and becomes effective pursuant to Section 2(a) above, the Company and the Parent Guarantor shall:
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(i) mail or cause to be mailed to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than 20 Business Days after the date notice thereof is mailed to the Holders (or, in each case, longer if required by applicable law);
(iii) use their commercially reasonable efforts to keep the Exchange Offer Registration Statement continuously effective under the Securities Act, supplemented and amended as required, to ensure that it is available for sales of New Securities by Exchanging Dealers during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered Exchange Offer with an address in the Borough of Manhattan in New York City, which may be the Trustee or an Affiliate of the Trustee;
(v) permit Holders to withdraw tendered Securities at any time prior to the close of business, New York time, on the last Business Day on which the Registered Exchange Offer is open;
(vi) prior to effectiveness of the Exchange Offer Registration Statement, provide a supplemental letter to the Commission (A) stating that the Company and the Parent Guarantor are conducting the Registered Exchange Offer in reliance on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991); and (B) including a representation that the Company and the Parent Guarantor have not entered into any arrangement or understanding with any person to distribute the New Securities to be received in the Registered Exchange Offer and that, to the best knowledge of the Company and the Parent Guarantor, each Holder participating in the Registered Exchange Offer is acquiring the New Securities in the ordinary course of business and has no arrangement or understanding with any person to participate in the distribution of the New Securities; and
(vii) comply in all respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange Offer, the Company and the Parent Guarantor shall:
(i) accept for exchange all Securities tendered and not validly withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation in accordance with Section 4(s) all Securities so accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver to each Holder of Securities a principal amount of New Securities equal to the principal amount of the Securities of such Holder so accepted for exchange.
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(e) Each Holder hereby acknowledges and agrees that any broker-dealer and any such Holder using the Registered Exchange Offer to participate in a distribution of the New Securities (x) could not under Commission policy as in effect on the date of this Agreement rely on the position of the Commission in Exxon Capital Holdings Corporation (pub. avail. May 13, 1988) and Morgan Stanley and Co., Inc. (pub. avail. June 5, 1991), as interpreted in the Commission’s letter to Shearman & Sterling dated July 2, 1993 and similar no-action letters; and (y) must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any secondary resale transaction, which must be covered by an effective registration statement containing the selling security holder information required by Item 507 or 508, as applicable, of Regulation S-K under the Securities Act if the resales are of New Securities obtained by such Holder in exchange for Securities acquired by such Holder directly from the Company, the Parent Guarantor or their respective Affiliates. Accordingly, each Holder participating in the Registered Exchange Offer shall be required to represent to the Company and the Parent Guarantor that, at the time of the consummation of the Registered Exchange Offer:
(i) any New Securities to be received by such Holder will be acquired in the ordinary course of business;
(ii) such Holder will have no arrangement or understanding with any person to participate in the distribution of the Securities or the New Securities within the meaning of the Securities Act; and
(iii) such Holder is not an Affiliate of the Company or the Parent Guarantor.
(f) If any Initial Purchaser determines that it is not eligible to participate in the Registered Exchange Offer with respect to the exchange of Securities constituting any portion of an unsold allotment, at the request of such Initial Purchaser, the Company and the Parent Guarantor shall issue and deliver to such Initial Purchaser or the person purchasing New Securities registered under a Shelf Registration Statement as contemplated by Section 3 hereof from such Initial Purchaser, in exchange for such Securities, a like principal amount of New Securities. The Company and the Parent Guarantor shall use their commercially reasonable efforts to cause the CUSIP Service Bureau to issue the same CUSIP number for such New Securities as for New Securities issued pursuant to the Registered Exchange Offer.
3. Shelf Registration. (a) If (i) due to any change in law or applicable interpretations thereof by the Commission’s staff, the Company and the Parent Guarantor determine upon advice of their outside counsel that they are not permitted to effect the Registered Exchange Offer as contemplated by Section 2 hereof; (ii) for any other reason the Registered Exchange Offer is not completed within 45 days following the date the Exchange Offer Registration Statement becomes effective; (iii) any Initial Purchaser so requests (a “Shelf Request”) with respect to Securities that are not eligible to be exchanged for New Securities in the Registered Exchange Offer and that are held by it following consummation of the Registered Exchange Offer; (iv) any Holder (other than an Initial Purchaser) is not eligible to participate in the Registered Exchange Offer or (v) in the case of any Initial Purchaser that participates in the Registered Exchange Offer or acquires New Securities pursuant to Section 2(f) hereof, such Initial Purchaser does not receive Freely Tradable Securities in exchange for Securities constituting any portion of an unsold allotment (it being understood that (x) the requirement that
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an Initial Purchaser deliver a Prospectus containing the information required by Item 507 or 508 of Regulation S-K under the Securities Act in connection with sales of New Securities acquired in exchange for such Securities shall result in such New Securities being not Freely Tradeable Securities; and (y) the requirement that an Exchanging Dealer deliver a Prospectus in connection with sales of New Securities acquired in the Registered Exchange Offer in exchange for Securities acquired as a result of market-making activities or other trading activities shall not result in such New Securities being not “freely tradeable”), the Company and the Parent Guarantor shall effect a Shelf Registration Statement in accordance with subsection (b) below.
(b) If a Shelf Registration Statement is required to be filed and becomes effective pursuant to Section 3(a), (i) the Company and the Parent Guarantor shall, as promptly as practicable, file the Shelf Registration Statement with the Commission, and shall use their reasonable best efforts to cause the Shelf Registration Statement to become effective under the Securities Act within 90 days after so required or requested by the Holders thereof from time to time in accordance with the methods of distribution elected by such Holders and set forth in such Shelf Registration Statement; provided, however, that no Holder (other than an Initial Purchaser) shall be entitled to have the Securities held by it covered by such Shelf Registration Statement unless such Holder agrees in writing to be bound by all of the provisions of this Agreement applicable to such Holder; and provided further, that with respect to New Securities received by an Initial Purchaser in exchange for Securities constituting any portion of an unsold allotment, the Company and the Parent Guarantor may, if permitted by current interpretations by the Commission’s staff, file a post-effective amendment to the Exchange Offer Registration Statement containing the information required by Item 507 or 508 of Regulation S-K, as applicable, in satisfaction of their obligations under this subsection with respect thereto, and any such Exchange Offer Registration Statement, as so amended, shall be referred to herein as, and governed by the provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company and the Parent Guarantor shall use their reasonable best efforts to keep the Shelf Registration Statement continuously effective, supplemented and amended as required by the Securities Act, in order to permit the Prospectus forming part thereof to be usable by Holders for a period (the “Shelf Registration Period”) from the date the Shelf Registration Statement becomes effective until the earlier of (A) the date upon which the Securities cease to be Registrable Securities or (B) the date upon which all the Securities or New Securities, as applicable, covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement. The Company and the Parent Guarantor shall be deemed not to have used their reasonable best efforts to keep the Shelf Registration Statement effective during the Shelf Registration Period if they voluntarily take any action that would result in Holders of Securities covered thereby not being able to offer and sell such Securities at any time during the Shelf Registration Period, unless such action is (x) required by applicable law or otherwise undertaken by the Company and the Parent Guarantor in good faith and for valid business reasons (not including avoidance of the Company’s and the Parent Guarantor’s obligations hereunder), including the acquisition or divestiture of assets, and (y) permitted pursuant to Section 4(k)(ii) hereof.
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(iii) The Company and the Parent Guarantor shall cause the Shelf Registration Statement and the related Prospectus and any amendment or supplement thereto, as of the effective date of the Shelf Registration Statement or such amendment or supplement, (A) to comply in all material respects with the applicable requirements of the Securities Act; and (B) not to contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
4. Additional Registration Procedures. In connection with any Shelf Registration Statement and, to the extent applicable, any Exchange Offer Registration Statement, the following provisions shall apply.
(a) The Company and the Parent Guarantor shall:
(i) furnish to each of the Initial Purchasers and to counsel for the Holders, not less than five Business Days prior to the filing thereof with the Commission, a copy of any Exchange Offer Registration Statement and any Shelf Registration Statement, and each amendment thereof and each amendment or supplement, if any, to the Prospectus included therein (including all documents incorporated by reference therein after the initial filing) and shall use their commercially reasonable efforts to reflect in each such document, when so filed with the Commission, such comments as the Initial Purchasers reasonably propose;
(ii) include the information set forth in Annex A hereto on the facing page of the Exchange Offer Registration Statement, in Annex B hereto in the forepart of the Exchange Offer Registration Statement in a section setting forth details of the Exchange Offer, in Annex C hereto in the underwriting or plan of distribution section of the Prospectus contained in the Exchange Offer Registration Statement, and in Annex D hereto in the letter of transmittal delivered pursuant to the Registered Exchange Offer;
(iii) if requested by an Initial Purchaser, include the information required by Item 507 or 508 of Regulation S-K, as applicable, in the Prospectus contained in the Exchange Offer Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the names of the Holders that propose to sell Securities pursuant to the Shelf Registration Statement as selling security holders.
(b) The Company and the Parent Guarantor shall use their commercially reasonable efforts to ensure that:
(i) any Registration Statement and any amendment thereto and any Prospectus forming part thereof and any amendment or supplement thereto complies in all material respects with the Securities Act; and
(ii) any Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.
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(c) The Company and the Parent Guarantor shall advise counsel for the Initial Purchasers, the Holders of Securities covered by any Shelf Registration Statement and any Exchanging Dealer under any Exchange Offer Registration Statement that has provided in writing to the Company and the Parent Guarantor a telephone or facsimile number and address for notices, and, if requested by any Initial Purchaser or any such Holder or Exchanging Dealer, shall confirm such advice in writing (which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by an instruction to suspend the use of the Prospectus until the Company and the Parent Guarantor shall have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has been filed with the Commission and when the Registration Statement or any post-effective amendment thereto has become effective;
(ii) of any request by the Commission after the effective date for any amendment or supplement to the Registration Statement or the Prospectus or for additional information;
(iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the institution of any proceeding for that purpose;
(iv) of the receipt by the Company or the Parent Guarantor of any notification with respect to the suspension of the qualification of the securities included therein for sale in any jurisdiction or the institution of any proceeding for such purpose; and
(v) of the happening of any event that requires any change in the Registration Statement or the Prospectus so that, as of such date, they (A) do not contain any untrue statement of a material fact and (B) do not omit to state a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in the light of the circumstances under which they were made) not misleading.
(d) The Company and the Parent Guarantor shall use their commercially reasonable efforts to obtain the withdrawal of any order suspending the effectiveness of any Registration Statement or the qualification of the securities therein for sale in any jurisdiction.
(e) The Company and the Parent Guarantor shall furnish to each Holder of Securities covered by any Shelf Registration Statement, without charge, at least one copy of such Shelf Registration Statement and any post-effective amendment thereto, including all material incorporated therein by reference, and, if the Holder so requests in writing, all exhibits thereto (including exhibits incorporated by reference therein).
(f) The Company and the Parent Guarantor shall, during the Shelf Registration Period, deliver to each Holder of Securities covered by any Shelf Registration Statement, without charge, as many copies of the Prospectus (including the preliminary prospectus) included in such Shelf Registration Statement and any amendment or supplement thereto as such Holder may reasonably request. The Company and the Parent Guarantor consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders of Securities in connection with the offering and sale of the Securities covered by the Prospectus, or any amendment or supplement thereto, included in the Shelf Registration Statement.
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(g) The Company and the Parent Guarantor shall furnish to each Exchanging Dealer which so requests, without charge, at least one (1) conformed copy of the Exchange Offer Registration Statement and any post-effective amendment thereto, including all material incorporated by reference therein, and, if the Exchanging Dealer so requests in writing, all exhibits thereto (including exhibits incorporated by reference therein).
(h) The Company and the Parent Guarantor shall promptly deliver to each Initial Purchaser, each Exchanging Dealer and each other person required to deliver a Prospectus during the Exchange Offer Registration Period, without charge, as many copies of the Prospectus included in such Exchange Offer Registration Statement and any amendment or supplement thereto as any such person may reasonably request. The Company and the Parent Guarantor consent to the use of the Prospectus or any amendment or supplement thereto by any Initial Purchaser, any Exchanging Dealer and any such other person that may be required to deliver a Prospectus following the Registered Exchange Offer in connection with the offering and sale of the New Securities covered by the Prospectus, or any amendment or supplement thereto, included in the Exchange Offer Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of Securities pursuant to any Registration Statement, the Company and the Parent Guarantor shall arrange, if necessary, for the qualification of the Securities or the New Securities for sale under the laws of such jurisdictions as any Holder shall reasonably request and shall maintain such qualification in effect so long as required; provided that in no event shall the Company and the Parent Guarantor be obligated (A) to qualify to do business in any jurisdiction where they are not then so qualified or to take any action that would subject them to service of process in suits, other than those arising out of the Initial Placement, the Registered Exchange Offer or any offering pursuant to a Shelf Registration Statement, in any such jurisdiction where they are not then so subject or (B) to subject itself to taxation in excess of a nominal amount in respect of doing business in such jurisdiction.
(j) The Company shall cooperate with the Holders of Securities to facilitate the timely preparation and delivery of certificates representing New Securities or Securities to be issued or sold pursuant to any Registration Statement free of any restrictive legends and in such denominations and registered in such names as Holders may request in writing at least three (3) Business Days prior to the closing date of any sales of New Securities.
(k) (i) Upon the occurrence of any event contemplated by subsections (c)(ii) through (v) above, the Company and the Parent Guarantor shall promptly (or within the time period provided for by clause (ii) hereof, if applicable) prepare a post-effective amendment to the applicable Registration Statement or an amendment or supplement to the related Prospectus or file any other required document so that, as thereafter delivered to Holders of the securities included therein, the Prospectus will not include an untrue statement of a material fact or omit to state any 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 such circumstances, the period of effectiveness of the Exchange Offer
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Registration Statement provided for in Section 2 shall be extended by the number of days from and including the date of the giving of a notice of suspension pursuant to Section 4(c) to and including the date when the Initial Purchasers, the Holders of the Securities and any known Exchanging Dealer shall have received such amended or supplemented Prospectus pursuant to this Section.
(ii) Upon the occurrence or existence of any pending corporate development or any other material event that, in the reasonable judgment of the Company and the Parent Guarantor, makes it appropriate to suspend the availability of a Shelf Registration Statement and the related Prospectus, the Company and the Parent Guarantor shall give notice (without notice of the nature or details of such events) to the Holders that the availability of the Shelf Registration is suspended and, upon actual receipt of any such notice, each Holder agrees not to sell any Registrable Securities pursuant to the Shelf Registration until such Holder’s receipt of copies of the supplemented or amended Prospectus provided for in Section 3(i) hereof, or until it is advised in writing by the Company and the Parent Guarantor that the Prospectus may be used, and has received copies of any additional or supplemental filings that are incorporated or deemed incorporated by reference in such Prospectus. The period during which the availability of the Shelf Registration and any Prospectus is suspended (the “Deferral Period”) (A) shall not exceed 60 consecutive days, (B) shall not occur more than three (3) times during any calendar year and (C) shall extend the number of days the Shelf Registration or any Prospectus is available by an amount equal to the Deferral Period.
(l) Not later than the effective date of any Registration Statement, the Company and the Parent Guarantor shall provide a CUSIP number for the Securities or the New Securities, as the case may be, registered under such Registration Statement and provide the Trustee with printed certificates for such Securities or New Securities, in a form eligible for deposit with The Depository Trust Company.
(m) The Company and the Parent Guarantor shall comply in all material respects with all applicable rules and regulations of the Commission and shall make generally available to their security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act as soon as practicable after the effective date of the applicable Registration Statement and in any event no later than 45 days after the end of a 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the applicable Registration Statement.
(n) [Reserved].
(o) The Company and the Parent Guarantor may require each Holder of securities to be sold pursuant to any Shelf Registration Statement to furnish to the Company and the Parent Guarantor such information regarding the Holder and the distribution of such securities as the Company and the Parent Guarantor may from time to time reasonably require for inclusion in such Registration Statement. The Company and the Parent Guarantor may exclude from such Shelf Registration Statement the Securities of any Holder that fails to furnish such information within a reasonable time after receiving such request.
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(p) In the case of any Shelf Registration Statement, upon the request of the Majority Holders, the Company and the Parent Guarantor shall enter into customary agreements (including, if requested, an underwriting agreement in customary form) and take all other appropriate actions if any, as the Majority Holders shall reasonably request in order to expedite or facilitate the registration or the disposition of the Securities, and in connection therewith, if an underwriting agreement is entered into, cause the same to contain indemnification provisions and procedures no less favorable than those set forth in Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company and the Parent Guarantor shall:
(i) make reasonably available for inspection at a location where they are normally kept and during normal business hours by the Majority Holders of Securities to be registered thereunder, any underwriter participating in any disposition pursuant to such Registration Statement, and any attorney, accountant or other agent retained by the Holders or any such underwriter all relevant financial and other records and pertinent corporate documents of the Company and its subsidiaries;
(ii) use their commercially reasonable efforts to cause the Company’s officers, directors, employees, accountants and auditors to supply all relevant information reasonably requested by the Holders or any such underwriter, attorney, accountant or agent (each, an “Inspector”) in connection with any such Registration Statement as is customary for similar due diligence examinations; provided, however, that such Inspector shall first agree in writing with the Company and the Parent Guarantor that any information that is reasonably and in good faith designated by the Company and the Parent Guarantor in writing as confidential at the time of delivery of such information shall be kept confidential by such Inspector, unless (1) disclosure of such information is required by court or administrative order or is necessary to respond to inquiries of regulatory authorities, (2) disclosure of such information is required by law (including any disclosure requirements pursuant to federal securities laws in connection with the filing of such Registration Statement or the use of any Prospectus), (3) such information becomes generally available to the public other than as a result of a disclosure or failure to safeguard such information by such person or (4) such information becomes available to such Inspector from a source other than the Company or the Parent Guarantor and such source is not known, after due inquiry, by the relevant Holder to be bound by a confidentiality agreement or is not otherwise under a duty of trust to the Company or the Parent Guarantor;
(iii) make such representations and warranties to the Holders of Securities registered thereunder and the underwriters, if any, in form, substance and scope as are customarily made by issuers to underwriters in primary underwritten offerings and covering matters including, but not limited to, those set forth in the Purchase Agreement;
(iv) obtain opinions of counsel to the Company and updates thereof (which counsel and opinions (in form, scope and substance) shall be reasonably satisfactory to the Managing Underwriters, if any) addressed to each selling Holder and the underwriters, if any, covering such matters as are customarily covered in opinions requested in underwritten offerings and such other matters as may be reasonably requested by such Holders and underwriters;
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(v) obtain “comfort” letters and updates thereof from the independent certified public accountants of the Company (and, if necessary, any other independent certified public accountants of any subsidiary of the Company or of any business acquired by the Company or any Guarantor for which financial statements and financial data are, or are required to be, included in the Registration Statement), addressed to each selling Holder of Securities registered thereunder and the underwriters, if any, in customary form and covering matters of the type customarily covered in “comfort” letters in connection with primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably requested by the Majority Holders or the Managing Underwriters, if any, including those to evidence compliance with Section 4(k) and with any customary conditions contained in the underwriting agreement or other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this paragraph (q) shall be performed at (A) the effectiveness of such Registration Statement and each post-effective amendment thereto; and (B) each closing under any underwriting or similar agreement as and to the extent required thereunder.
(r) [Reserved].
(s) If a Registered Exchange Offer is to be consummated, upon delivery of the Securities by Holders to the Company (or to such other person as directed by the Company) in exchange for the New Securities, the Company and the Parent Guarantor shall mark, or caused to be marked, on the Securities so exchanged that such Securities are being cancelled in exchange for the New Securities. In no event shall the Securities be marked as paid or otherwise satisfied.
(t) The Company and the Parent Guarantor shall use their commercially reasonable efforts if the Securities have been rated prior to the initial sale of such Securities, to confirm such ratings will apply to the Securities or the New Securities, as the case may be, covered by a Registration Statement.
(u) In the event that any broker-dealer shall underwrite any Securities or participate as a member of an underwriting syndicate or selling group or “assist in the distribution” (within the meaning of FINRA Rules) thereof, whether as a Holder of such Securities or as an underwriter, a placement or sales agent or a broker or dealer in respect thereof, or otherwise, the Company and the Parent Guarantor shall assist such broker-dealer in complying with the FINRA Rules.
(v) The Company and the Parent Guarantor shall use their commercially reasonable efforts to take all other steps necessary to effect the registration of the Securities or the New Securities, as the case may be, covered by a Registration Statement.
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5. Registration Expenses. The Company and the Parent Guarantor shall bear all expenses incurred in connection with the performance of their obligations under Sections 2, 3 and 4 hereof and, in the event of any Shelf Registration Statement, will reimburse the Holders for the reasonable fees and disbursements of one firm or counsel (which shall initially be Cahill Gordon & Reindel LLP, but which may be another nationally recognized law firm experienced in securities matters designated by the Majority Holders) to act as counsel for the Holders in connection therewith, and, in the case of any Exchange Offer Registration Statement, will reimburse the Initial Purchasers for the reasonable fees and disbursements of counsel acting in connection therewith in each case which counsel shall be approved by the Company (such approval not to be unreasonably withheld). Each Holder shall pay all expenses of its counsel other than as set forth in the preceding sentence, underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Securities or New Securities.
6. Indemnification and Contribution. (a) The Company and the Parent Guarantor agree to indemnify and hold harmless each Holder of Securities or New Securities, as the case may be, covered by any Registration Statement, each Initial Purchaser and, with respect to any Prospectus delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer, the directors, officers, employees, Affiliates and agents of each such Holder, Initial Purchaser or Exchanging Dealer and each person who controls any such Holder, Initial Purchaser or Exchanging Dealer within the meaning of either the Securities Act or the Exchange Act against any and all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement as originally filed or in any amendment thereof, or in any preliminary Prospectus or the 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 case of any preliminary Prospectus or the Prospectus, in the light of the circumstances under which they were made) not misleading, and agree to reimburse each such indemnified party, as incurred, for any legal or other expenses reasonably incurred by it in connection with investigating or defending any such loss, claim, damage, liability or action; provided, however, that the Company and the Parent Guarantor will not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon any such untrue statement or alleged untrue statement or omission or alleged omission made therein in reliance upon and in conformity with written information furnished to the Company and the Parent Guarantor by or on behalf of the party claiming indemnification specifically for inclusion therein. This indemnity agreement shall be in addition to any liability that the Company and the Parent Guarantor may otherwise have.
The Company and the Parent Guarantor also agree to indemnify as provided in this Section 6(a) or contribute as provided in Section 6(d) hereof to Losses of each underwriter, if any, of Securities or New Securities, as the case may be, registered under a Shelf Registration Statement, their directors, officers, employees, Affiliates or agents and each person who controls such underwriter on substantially the same basis as that of the indemnification of the Initial Purchasers and the selling Holders provided in this Section 6(a) and shall, if requested by any Holder, enter into an underwriting agreement reflecting such agreement, as provided in Section 4(p) hereof.
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(b) Each Holder of securities covered by a Registration Statement (including each Initial Purchaser that is a Holder, in such capacity) severally and not jointly agrees to indemnify and hold harmless the Company and the Parent Guarantor, each of their respective directors and officers who sign such Registration Statement and each person who controls the Issuers or any Guarantor within the meaning of either the Securities Act or the Exchange Act, to the same extent as the foregoing indemnity from the Company and the Parent Guarantor to each such Holder, but only with reference to written information relating to such Holder furnished to the Company and the Parent Guarantor by or on behalf of such Holder specifically for inclusion in the documents referred to in the foregoing indemnity. This indemnity agreement will be in addition to any liability that any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 or notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against the indemnifying party under this Section, notify the indemnifying party in writing of the commencement thereof; but the failure so to notify the indemnifying party (i) will not relieve it from liability under paragraph (a) or (b) above unless and to the extent it did not otherwise learn of such action and such failure results in the forfeiture by the indemnifying party of substantial rights and defenses; and (ii) will not, in any event, relieve the indemnifying party from any obligations to any indemnified party other than the indemnification obligation provided in paragraph (a) or (b) above. The indemnifying party shall be entitled to appoint counsel (including local counsel) of the indemnifying party’s choice at the indemnifying party’s expense to represent the indemnified party in any action for which indemnification is sought (in which case the indemnifying party shall not thereafter be responsible for the fees and expenses of any separate counsel, other than local counsel if not appointed by the indemnifying party, retained by the indemnified party or parties except as set forth below); provided, however, that such counsel shall be satisfactory to the indemnified party. Notwithstanding the indemnifying party’s election to appoint counsel (including local counsel) to represent the indemnified party in an action, the indemnified party shall have the right to employ separate counsel (including local counsel), and the indemnifying party shall bear the reasonable fees, costs and expenses of such separate counsel if (i) the use of counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with a conflict of interest (based on the advice of counsel to the indemnified person); (ii) the actual or potential defendants in, or targets of, any such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded (based on the advice of counsel to the indemnified person) that there may be legal defenses available to it and/or other indemnified parties that are different from or additional to those available to the indemnifying party; (iii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of the institution of such action; or (iv) the indemnifying party shall authorize the indemnified party to employ separate counsel at the expense of the indemnifying party. An indemnifying party will not, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by the indemnifying party, as applicable (which consent shall not be unreasonably withheld) and includes an unconditional release of each indemnified party from all liability arising out of such claim, action, suit or proceeding.
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(d) In the event that the indemnity provided in paragraph (a) or (b) of this Section is unavailable to or insufficient to hold harmless an indemnified party for any reason, then each applicable indemnifying party shall have a joint and several obligation to contribute to the aggregate losses, claims, damages and liabilities (including legal or other expenses reasonably incurred in connection with investigating or defending any loss, claim, liability, damage or action) (collectively “Losses”) (other than by virtue of the failure of an indemnified party to notify the indemnifying party of its right to indemnification pursuant to paragraph (a) or (b) of this Section 8, where such failure materially prejudices the indemnifying party (through the forfeiture of substantial rights or defenses)), each indemnifying party, in order to provide for just and equitable contribution, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses, in such proportion as is appropriate to reflect the relative benefits received by such indemnifying party, on the one hand, and such indemnified party, on the other hand, from the Initial Placement and the Registration Statement which resulted in such Losses; provided, however, that in no case shall any Initial Purchaser be responsible, in the aggregate, for any amount in excess of the purchase discount or commission applicable to such Security, or in the case of a New Security, applicable to the Security that was exchangeable into such New Security, as set forth in the Final Memorandum, nor shall any underwriter be responsible for any amount in excess of the underwriting discount or commission applicable to the securities purchased by such underwriter under the Registration Statement which resulted in such Losses. If the allocation provided by the immediately preceding sentence is unavailable for any reason, the indemnifying party and the indemnified party shall contribute in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of such indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the statements or omissions which resulted in such Losses as well as any other relevant equitable considerations. Benefits received by the Company shall be deemed to be equal to the aggregate principal amount of Notes issued in the Initial Placement as set forth in the Final Memorandum. Benefits received by the Initial Purchasers shall be deemed to be equal to the total fees received in the Initial Placement, and benefits received by any other Holders shall be deemed to be equal to the value of receiving Securities or New Securities, as applicable, registered under the Securities Act. Benefits received by any underwriter shall be deemed to be equal to the total underwriting discounts and commissions, as set forth on the cover page of the Prospectus forming a part of the Registration Statement which resulted in such Losses. Relative fault shall be determined by reference to, among other things, whether any untrue or any alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information provided by the indemnifying party, on the one hand, or by the indemnified party, on the other hand, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The parties agree that it would not be just and equitable if contribution were determined by pro rata allocation (even if the Holders were treated as one entity for such purpose) or any other method of allocation which does not take account of the equitable considerations referred to above. Notwithstanding the provisions of this paragraph (d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section, each
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person who controls a Holder within the meaning of either the Securities Act or the Exchange Act and each director, officer, employee and agent of such Holder shall have the same rights to contribution as such Holder, and each person who controls the Company or any Guarantor within the meaning of either the Securities Act or the Exchange Act, each officer of the Company or any Guarantor who shall have signed the Registration Statement and each director of the Company or any Guarantor shall have the same rights to contribution as the Company and the Parent Guarantor, subject in each case to the applicable terms and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and effect, regardless of any investigation made by or on behalf of any Holder or the Company and the Parent Guarantor or any of the indemnified persons referred to in this Section 6, and will survive the sale by a Holder of securities covered by a Registration Statement.
7. Underwritten Registrations. (a) If any of the Securities or New Securities, as the case may be, covered by any Shelf Registration Statement are to be sold in an underwritten offering, the Managing Underwriters shall be selected by the Majority Holders, subject to the consent of the Company (which shall not be unreasonably withheld), and the Holders of Securities or New Securities covered by such Shelf Registration Statement shall be responsible for all underwriting commissions and discounts.
(b) No person may participate in any underwritten offering pursuant to any Shelf Registration Statement, unless such person (i) agrees to sell such person’s Securities or New Securities, as the case may be, on the basis reasonably provided in any underwriting arrangements approved by the persons entitled hereunder to approve such arrangements; and (ii) completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents reasonably required under the terms of such underwriting arrangements.
8. Registration Defaults.
(a) In the event that (i) an Exchange Offer Registration Statement is required pursuant to Section 2(a) and (x) such Exchange Offer Registration Statement does not become effective on or prior to the Registration Trigger Date or (y) the Exchange Offer is not completed within 45 days after the date on which the Exchange Offer Registration Statement becomes effective, or (ii) a Shelf Registration Statement is required in accordance with Section 3(a) and such Shelf Registration Statement (x) does not become effective on or prior to the 90th day following (A) the date of such determination, in the case of a Shelf Registration Statement required pursuant to Section 3(a)(i), (B) such date, in the case of a Shelf Registration Statement required pursuant to Section 3(a)(ii), (C) the date of such Shelf Request, in the case of a Shelf Registration Statement required pursuant to Section 3(a)(iii), or (D) the Registration Trigger Date, in the case of a Shelf Registration Statement required pursuant to Section 3(a)(iv) or Section 3(a)(v), or (y) becomes effective but ceases to be effective or the corresponding Prospectus ceases to be usable at any time during the Shelf Registration Period, and such failure to remain effective or usable exists for more than 60 days (whether or not consecutive) in any 12-month period (any event referred to in the foregoing clauses (i) or (ii) a “Registration Default”), then, in each case, the interest rate on the Securities will be increased by 0.25% per annum for the first 90-day period
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immediately following such Registration Default and (ii) an additional 0.25% per annum with respect to each subsequent 90-day period, up to a maximum of 1.00% per annum, in each case until the earlier of the date such Registration Default is cured or the Securities become Freely Tradable Securities. Any amounts payable under this paragraph shall also be deemed “Additional Interest” for purposes of this Agreement.
(b) The Company shall notify the Trustee within five business days after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an “Event Date”). Any Additional Interest due shall be payable on each interest payment date to the Holder of Notes with respect to which Additional Interest is due and owing. Each obligation to pay Additional Interest shall be deemed to accrue from and including the day following the applicable Event Date.
9. No Inconsistent Agreements. The Company and the Parent Guarantor have not entered into, and agree not to enter into, any agreement with respect to their securities that is inconsistent with the rights granted to the Holders herein or that otherwise conflicts with the provisions hereof.
10. Amendments and Waivers. The provisions of this Agreement may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company and the Parent Guarantor have obtained the written consent of the Holders of a majority of the aggregate principal amount of Notes outstanding; provided that, with respect to any matter that directly or indirectly affects the rights of any Initial Purchaser hereunder, the Company and the Parent Guarantor shall obtain the written consent of each such Initial Purchaser against which such amendment, qualification, supplement, waiver or consent is to be effective; provided, further, that no amendment, qualification, supplement, waiver or consent with respect to Section 8 hereof shall be effective as against any Holder of Registered Securities unless consented to in writing by such Holder; and provided, further, that the provisions of this Article 10 may not be amended, qualified, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company and the Parent Guarantor have obtained the written consent of the Initial Purchasers and each Holder. Notwithstanding the foregoing (except the foregoing provisos), a waiver or consent to departure from the provisions hereof with respect to a matter that relates exclusively to the rights of Holders whose Securities or New Securities, as the case may be, are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Holders may be given by the Majority Holders, determined on the basis of Securities or New Securities, as the case may be, being sold rather than registered under such Registration Statement.
11. Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, first-class mail, telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder to the Company in accordance with the provisions of this Section 11, which address initially is, with respect to each Holder, the address of such Holder maintained by the Registrar under the Indenture;
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(b) if to the Initial Purchasers, initially at the address or addresses set forth in the Purchase Agreement; and
(c) if to the Company, initially at its address set forth in the Purchase Agreement.
All such notices and communications shall be deemed to have been duly given when received.
The Initial Purchasers or the Company by notice to the other parties may designate additional or different addresses for subsequent notices or communications.
12. Remedies. Each Holder, in addition to being entitled to exercise all rights provided to it herein, in the Indenture or in the Purchase Agreement or granted by law, including recovery of liquidated or other damages, will be entitled to specific performance of its rights under this Agreement. The Company and the Parent Guarantor agree that monetary damages would not be adequate compensation for any loss incurred by reason of a breach by them of the provisions of this Agreement and hereby agree to waive in any action for specific performance the defense that a remedy at law would be adequate.
13. Successors. This Agreement shall inure to the benefit of and be binding upon the parties hereto, their respective successors and assigns, including, without the need for an express assignment or any consent by the Company and the Parent Guarantor thereto, subsequent Holders of Securities and the New Securities, and the indemnified persons referred to in Section 6 hereof. The Company and the Parent Guarantor hereby agree to extend the benefits of this Agreement to any Holder of Securities and the New Securities, and any such Holder may specifically enforce the provisions of this Agreement as if an original party hereto.
14. Counterparts. This Agreement may be signed in one or more counterparts, each of which shall constitute an original and all of which together shall constitute one and the same agreement.
15. Headings. The section headings used herein are for convenience only and shall not affect the construction hereof.
16. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed in the State of New York. The parties hereto each hereby waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this Agreement.
17. Severability. In the event that any one of more of the provisions contained herein, or the application thereof in any circumstances, is held invalid, illegal or unenforceable in any respect for any reason, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions hereof shall not be in any way impaired or affected thereby, it being intended that all of the rights and privileges of the parties shall be enforceable to the fullest extent permitted by law.
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18. Securities Held by the Company, etc. Whenever the consent or approval of Holders of a specified percentage of principal amount of Securities or New Securities is required hereunder, Securities or New Securities, as applicable, held by the Company or its Affiliates (other than subsequent Holders of Securities or New Securities if such subsequent Holders are deemed to be Affiliates solely by reason of their holdings of such Securities or New Securities) shall not be counted in determining whether such consent or approval was given by the Holders of such required percentage.
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If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Issuers, the Company, the Parent Guarantor and the Initial Purchasers.
| Very truly yours, | ||
| CAESARS OPERATING ESCROW LLC | ||
| By: | /s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Secretary | ||
| CAESARS ESCROW CORPORATION | ||
| By: | /s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Secretary | ||
| CAESARS ENTERTAINMENT CORPORATION | ||
| By: | /s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Senior Vice President, Deputy General Counsel and Corporate Secretary | ||
[Registration Rights Agreement]
| The foregoing Agreement is hereby confirmed and | ||
| accepted as of the date first above written. | ||
| CITIGROUP GLOBAL MARKETS INC. | ||
| By: | /s/ Caesar Wyszomirski | |
| Name: Caesar Wyszomirski | ||
| Title: Director | ||
For itself and as Representative of the other Initial Purchasers named in Schedule I to the Purchase Agreement.
[Registration Rights Agreement]
ANNEX A
Each broker-dealer that receives new securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new securities. The Letter of Transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new securities received in exchange for securities where such securities were acquired by such broker-dealer as a result of market-making activities or other trading activities. The company has agreed that, starting on the expiration date and ending on the close of business one year after the expiration date, it will make this prospectus available to any broker-dealer for use in connection with any such resale. See “Plan of Distribution”.
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ANNEX B
Each broker-dealer that receives new securities for its own account in exchange for securities, where such securities were acquired by such broker-dealer as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of such new securities. See “Plan of Distribution”.
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ANNEX C
PLAN OF DISTRIBUTION
Each broker-dealer that receives new securities for its own account pursuant to the Exchange Offer must acknowledge that it will deliver a prospectus in connection with any resale of such new securities. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new securities received in exchange for securities where such securities were acquired as a result of market-making activities or other trading activities. The company has agreed that, starting on the expiration date and ending on the close of business one year after the expiration date, it will make this prospectus, as amended or supplemented, available to any broker-dealer for use in connection with any such resale. In addition, until , , all dealers effecting transactions in the new securities may be required to deliver a prospectus.
The company will not receive any proceeds from any sale of new securities by brokers-dealers. New securities received by broker-dealers for their own account pursuant to the Exchange Offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new securities or a combination of such methods of resale, at market prices prevailing at the time of resale, at prices related to such prevailing market prices or negotiated prices. Any such resale may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any such broker-dealer and/or the purchasers of any such new securities. Any broker-dealer that resales new securities that were received by it for its own account pursuant to the Exchange Offer and any broker or dealer that participates in a distribution of such new securities may be deemed to be an “underwriter” within the meaning of the Securities Act and any profit of any such resale of new securities and any commissions or concessions received by any such persons may be deemed to be underwriting compensation under the Securities Act. The Letter of Transmittal states that by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
For a period of one year after the expiration date, the company will promptly send additional copies of this prospectus and any amendment or supplement to this prospectus to any broker-dealer that requests such documents in the Letter of Transmittal. The company has agreed to pay all expenses incident to the Exchange Offer (including the expenses of one counsel for the holder of the securities) other than commissions or concessions of any brokers or dealers and will indemnify the holders of the securities (including any broker-dealers) against certain liabilities, including liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507 and/or 508.]
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ANNEX D
Rider A
PLEASE FILL IN YOUR NAME AND ADDRESS BELOW IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
| Name: | ||
| Address: |
Rider B
If the undersigned is not a broker-dealer, the undersigned represents that it acquired the New Securities in the ordinary course of its business, it is not engaged in, and does not intend to engage in, a distribution of New Securities and it has no arrangements or understandings with any person to participate in a distribution of the New Securities. If the undersigned is a broker-dealer that will receive New Securities for its own account in exchange for Securities, it acknowledges that it will deliver a prospectus in connection with any resale of such New Securities; however, by so acknowledging and by delivering a prospectus, the undersigned will not be deemed to admit that it is an “underwriter” within the meaning of the Securities Act.
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Exhibit 10.1
EXECUTION VERSION
ESCROW AGREEMENT
ESCROW AGREEMENT (this “Agreement”), dated as of December 13, 2012, among U.S. Bank National Association, as escrow agent and securities intermediary (in such capacities, the “Escrow Agent”), U.S. Bank National Association, as Trustee (in such capacity, the “Trustee”) under the Indenture (as defined herein), and Caesars Escrow Corporation, a Delaware corporation, and Caesars Operating Escrow LLC, a Delaware limited liability company (each an “Issuer” and together the “Issuers”).
R E C I T A L S
WHEREAS, this Agreement is being entered into in connection with the Purchase Agreement (the “Purchase Agreement”) dated December 6, 2012, among the Issuers, Caesars Entertainment Corporation, a Delaware corporation (the “Parent”), and the Representative (as defined therein) of the initial purchasers listed on Schedule I to the Purchase Agreement (collectively, the “Initial Purchasers”) and in connection with that certain indenture (the “Base Indenture”) dated as of August 22, 2012, as supplemented by a supplemental indenture dated October 5, 2012 (the “Prior Assumption Indenture”, and, together with the Base Indenture, the “Existing Indenture”), as further supplemented by a supplemental indenture (the “Additional Notes Supplemental Indenture”, and together with the Existing Indenture, the “Indenture”) dated as of December 13, 2012 (the “Issue Date”), among the Issuers, the Parent and the Trustee, relating to the Securities (as defined below) (for the avoidance of doubt U.S. Bank National Association, whether in its capacity as Escrow Agent, Trustee, Securities Intermediary or Collateral Agent is not a party to the Purchase Agreement, shall have no duties or obligations hereunder and shall not be deemed to have knowledge of its terms);
WHEREAS, pursuant to the terms of the Indenture and Purchase Agreement, the Issuers are selling $750,000,000 aggregate principal amount of their 9% Senior Secured Notes due 2020 (the “Securities”);
WHEREAS, concurrently with the closing of the sale of the Securities, the Initial Purchasers, on behalf of the Issuers, will deposit with the Escrow Agent, as hereinafter provided, the gross proceeds (which, for the avoidance of doubt, shall equal $757,687,500 and includes the Pre-Funded Interest Amount (as defined below)), which together with the Additional Amount (as defined below) deposited directly by or on behalf of the Issuers (in both cases, in the form of immediately available funds, Treasury Securities (as defined below) or Cash Equivalents (as defined below)) shall equal an amount sufficient to pay when due the Escrow Redemption Price (as defined below), assuming redemption of the Securities occurs on the Escrow Redemption Date (as defined below);
WHEREAS, such funds will be used (i) (A) upon satisfaction of the conditions set forth in Section 3(a), by Caesars Entertainment Operating Company, Inc., a Delaware corporation (the “Company”), for the purposes set forth in Section 3(a) or (B) to fund the Escrow Redemption Price, and (ii) to pay all reasonable out-of-pocket expenses incurred by the Initial Purchasers in connection with the purchase and sale of the Securities pursuant to the terms of the Purchase Agreement (for the avoidance of doubt U.S. Bank National Association, whether in its capacity as Escrow Agent, Trustee, Securities Intermediary or Collateral Agent is not a party to the Purchase Agreement, shall have no duties or obligations hereunder and shall not be deemed to have knowledge of its terms);
WHEREAS, as security for its obligations under the Securities and the Indenture, the Issuers hereby grant to the Trustee, for the sole and exclusive benefit of the holders of the Securities, a first priority security interest in and lien on the Escrow Account (as defined herein) and the Collateral (as defined herein); and
WHEREAS, the parties have entered into this Agreement in order to set forth the conditions upon which, and the manner in which, funds will be held in and disbursed from the Escrow Account and released from the security interest and lien described above.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Defined Terms. All terms used but not defined herein shall have the meanings ascribed to them in the Indenture. Unless the context otherwise requires, references herein to the “Issuer” shall mean (x) prior to the Assumption Date, Caesars Escrow Corporation and Caesars Operating Escrow LLC and (y) as of the Assumption Date, all of the Company, Caesars Escrow Corporation and Caesars Operating Escrow LLC. In addition to any other defined terms used herein, the following terms shall constitute defined terms for purposes of this Agreement and shall have the meanings set forth below:
“Additional Amount” means an amount of cash, Treasury Securities or Cash Equivalents or any combination thereof, which will, with the gross proceeds of the offering and with the anticipated income thereon which, for the avoidance of doubt, includes the Pre-Funded Interest Amount, provide cash to the Escrow Agent in an amount sufficient to pay the Escrow Redemption Price (which, for the avoidance of doubt, assuming a redemption date of December 27, 2012, shall equal $2,625,000).
“Assumption Date” means the date on which the Assumption Documents become effective in accordance with their terms.
“Assumption Documents” means each of the Joinder Agreement, the Supplemental Indenture and the Registration Rights Agreement Joinder (each as defined in the Purchase Agreement) and the joinders and consents to the Second Lien Intercreditor Agreement (as defined in the Indenture) and to the Security Documents (as defined in the Indenture) and such other documents necessary to effect the CEOC Assumption (as defined below).
“Business Day” means a day other than a Saturday, Sunday or other day on which banking institutions are authorized or required by law to close in New York City.
“Cash Equivalents” means any investment in time deposits, demand deposits, certificates of deposit or money market deposits maturing on or before the Conditions Precedent Date, entitled to U.S. Federal deposit insurance for the full amount thereof or issued by a bank or trust company that is organized under the laws of the United States of America or any state thereof having capital in excess of $500.0 million, so long as such investment is convertible into cash on not more than one Business Day’s notice. The Escrow Agent may purchase from or sell to itself or an Affiliate, as principal or agent, securities herein authorized.
“CEOC Assumption” means the Company’s assumption of the various obligations of the Issuers under the Securities pursuant to the Assumption Documents.
“Collateral” see Section 6(a).
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“Collateral Agreement” means the collateral agreement, dated as of January 28, 2008, as amended and restated as of June 10, 2009, by and among the Company, the subsidiary pledgors party thereto and Bank of America, N.A., as amended and supplemented from time to time.
“Conditions Precedent Date” means the earlier of (x) the date on which the Company determines in its sole discretion that any of the Escrow Conditions cannot be satisfied and (y) March 15, 2013.
“Escrow Account” means the escrow account established pursuant to Section 2.
“Escrow Funds” see Section 2(a)(i).
“Escrow Redemption” means the obligation of the Issuer to redeem all of the Securities, pursuant to Section 3.09 of the Indenture if the assumption is not consummated by the Conditions Precedent Date.
“Escrow Redemption Date” means a day selected by the Issuers that is not more than 30 days following the Conditions Precedent Date.
“Escrow Redemption Price” means 100% of the gross proceeds received from the sale of the Securities, which, for the avoidance of doubt, includes the Pre-Funded Interest Amount, plus accrued and unpaid interest on the Securities from the date hereof to, but not including, the Escrow Redemption Date.
“Indemnified Person” see Section 5.
“Notes Collateral” means all property subject or purported to be subject, from time to time, to a lien under the Security Documents.
“Pre-Funded Interest Amount” means the amount of cash equal to accrued interest on $750,000,000 from August 22, 2012 to (but excluding) the issue date of the Securities, calculated using a rate of 9.00% per annum, funded by the purchasers of the Securities in connection with the issuance of the Securities on the issue date of the Securities (which, for the avoidance of doubt, shall equal $20,812,500).
“Release Date” shall mean the date when all of the conditions precedent to the release of the Escrowed Property described in Section 3(a) hereof are satisfied.
“Release Request” means an Officer’s Certificate requesting release of the Escrow Funds signed by Officers of the Issuer in the form attached hereto as Annex I, certifying as to the matters specified therein.
“Representative Officer” means any officer of the Escrow Agent who has direct responsibility for the administration of this Agreement and shall also mean any other officer of the Escrow Agent to whom any matter related to this Agreement is referred because of such person’s knowledge of and familiarity with the particular subject matter.
“Secured Obligations” see Section 6(a).
“Security Documents” means the Collateral Agreement and the security agreements, pledge agreements, collateral assignments, mortgages and related agreements, mortgages and related agreements, as amended, supplemented, restated, renewed, refunded, replaced, restructured, repaid, refinanced or otherwise modified from time to time, creating a security interest in the collateral as contemplated in the Indenture.
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“Treasury Securities” means any of the following that may be convertible into cash on not more than one Business Day’s notice: (i) debt obligations issued or guaranteed by the government of the United States of America or any agency thereof for which the full faith and credit of the United States of America is pledged to secure payment in full at maturity and which are not redeemable at the option of the Issuers prior to maturity, (ii) repurchase agreements with respect to debt obligations referred to in clause (i) above and (iii) money market accounts that invest solely in the debt obligations referred to in clause (i) above and/or repurchase agreements referred to in clause (ii) above.
“UCC” means the Uniform Commercial Code as in effect in the State of New York.
2. Escrow Account; Escrow Agent.
(a) Establishment of Escrow Account.
(i) Concurrently with the execution and delivery hereof, (A) the Escrow Agent shall establish an escrow account in the name of the Trustee entitled “Escrow Account of U.S. Bank National Association, as Trustee” (the “Escrow Account”) at its office located at 60 Livingston Avenue St. Paul, Minnesota 55107, (B) the Initial Purchasers at the direction of the Issuer will deposit with the Escrow Agent the gross proceeds from the sale of the Securities, which, for the avoidance of doubt, includes the Pre-Funded Interest Amount, and (C) the Issuers (or the Company on behalf of the Issuers) shall deposit with the Escrow Agent the Additional Amount (the amounts referred to in clauses (B) through (C) the “Escrow Funds”).
(ii) The Escrow Agent shall accept the Escrow Funds and shall hold such securities, funds and the proceeds thereof in the Escrow Account. All amounts so deposited, and the interest on, and dividends, distributions and other payments or proceeds in respect of, any such deposits, less any amounts released pursuant to the terms of this Agreement, shall constitute the “Escrowed Property.” The Escrow Agent shall invest any portion of the Escrowed Property that is cash in cash, in Treasury Securities or Cash Equivalents as may be directed by the Issuer in writing from time to time. If and until the Trustee receives such a written direction the funds in the escrow account shall remain uninvested. In selecting any Treasury Securities or Cash Equivalents, the Issuer shall determine that the proceeds thereof at maturity, when added to the balance of the Escrowed Property without the reinvestment thereof or sale prior to maturity, provide funds to the Escrow Agent in an amount at least equal to the Escrow Redemption Price on the assumed Escrow Redemption Date. All such property shall be held in the Escrow Account until disbursed in accordance with the terms hereof. The Escrow Account and all property held therein by the Escrow Agent shall be under the control (within the meaning of Section 9-104 of the UCC) of the Trustee for the benefit of the holders of the Securities.
(iii) The obligation and liability of the Escrow Agent to make the payments and transfers required by this Agreement shall be limited to the Escrowed Property and any other moneys on deposit with it pursuant to this Agreement, including any interest accruing thereon. The Escrow Agent shall not be liable for any loss resulting from any investment made pursuant to this Agreement in compliance with the provisions hereof or from the sale of any Treasury Securities or Cash Equivalents required by the terms hereof or any shortfall in the value of the Escrowed Property that might result therefrom.
(b) Security Interest in Escrow Funds. On the Issue Date, each of the Trustee and the Escrow Agent shall receive an opinion of counsel to the Issuer, which shall comply with Section 13.04 of the Indenture.
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(c) Escrow Agent Compensation; Expense Reimbursement.
(i) The Issuer shall pay to Escrow Agent for services to be performed by it under this Agreement in accordance with the Escrow Agent’s fee schedule attached hereto as Exhibit I. The Escrow Agent shall be paid any compensation owed to it directly by the Issuer and shall not disburse from the Escrow Account any such amounts, nor shall the Escrow Agent have any interest in the Escrow Account with respect to such amounts. The provisions of this clause (i) shall survive the termination of this Agreement and survive the resignation or removal of the Escrow Agent.
(ii) The Issuer shall reimburse the Escrow Agent upon request for all reasonable expenses, disbursements and advances incurred or made by the Escrow Agent in implementing any of the provisions of this Agreement, including compensation and the reasonable expenses and disbursements of its counsel. The Escrow Agent shall be paid any such expenses owed to it directly by the Issuer and shall not disburse from the Escrow Account any such amounts, nor shall the Escrow Agent have any interest in the Escrow Account with respect to such amounts. The provisions of this clause (ii) shall survive the termination of this Agreement and survive the resignation or removal of the Escrow Agent.
(d) Substitution of Escrow Agent. The Escrow Agent may resign by giving no less than 30 Business Days’ prior written notice to the Issuer and the Trustee. Such resignation shall take effect upon the later to occur of (i) delivery of all Escrowed Property maintained by the Escrow Agent hereunder and copies of all books, records, plans and other documents in the Escrow Agent’s possession relating to such funds, or this Agreement, to a successor escrow agent mutually approved by the Issuer and the Trustee (which approvals shall not be unreasonably withheld or delayed) and (ii) the Issuer, the Trustee and such successor escrow agent entering into this Agreement or any written successor agreement no less favorable to the interests of the holders of the Securities and the Trustee than this Agreement. The Escrow Agent shall thereupon be discharged of all obligations under this Agreement and shall have no further duties, obligations or responsibilities in connection herewith, except to the limited extent set forth in Section 4. If a successor escrow agent has not been appointed or has not accepted such appointment within 30 Business Days after notice of resignation is given to the Issuer, the Escrow Agent may apply to a court of competent jurisdiction for the appointment of a successor escrow agent.
3. Release of Escrowed Property.
(a) If at any time on or prior to the Conditions Precedent Date, the Escrow Agent receives a Release Request from the Issuer that includes the following (i) as of the Release Date, no Event of Default under the Indenture has occurred and is continuing; (ii) the Company has received approval from the applicable gaming authorities for the offering of the Securities; (iii) the CEOC Assumption has been consummated; and (iv) concurrently with the release of the Escrowed Property to the Company (the “Release”): (A) the Assumption Documents will have been executed and delivered by all parties thereto; (B) the Escrow Funds will be used to pay the fees and expenses related to the issuance and sale of the Securities (including the Deferred Discount (as defined in the Purchase Agreement) and the out of pocket expenses of the Initial Purchasers payable by the Issuers pursuant to the terms of the Purchase Agreement, if any), as set forth in a written direction to the Escrow Agent substantially as set forth in Annex I, the Escrow Agent will release all Escrowed Property then held by it to or for the account of the Issuer, upon presentation of a Release Request no later than 3 p.m. Eastern on the business day prior to such Release.
(b) If the Escrow Agent receives a written notice from the Issuer or the Trustee substantially in the form of Annex II that the conditions specified in 3(a) will not be satisfied and/or that the Escrow Redemption is to occur, which notice shall state the Escrow Redemption Date and the Escrow Redemption Price, the Escrow Agent will on or before the Business Day prior to the Escrow Redemption Date release to the Paying Agent an amount of Escrowed Property in cash equal to the Escrow Redemption Price specified in such notice from the Issuer or the Trustee. Concurrently with such release to the Paying Agent, the Escrow Agent shall release any excess of Escrowed Property over the Escrow Redemption Price to the Company.
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(c) Notwithstanding paragraphs 3(a) and (b) above, if the Escrow Agent receives a notice from the Trustee or the Issuer or otherwise has actual knowledge that a Default has occurred and is continuing, the Escrow Agent will not release any Escrowed Property to the Issuer unless and until the Escrow Agent receives a notice from the Trustee that such Default is not continuing.
(d) If the Escrow Agent receives a notice from the Trustee that the principal of and accrued interest on the Securities (the “Default Amount”) has become immediately due and payable pursuant to Section 6.02 of the Indenture (an “Acceleration Event”) and either (i) a court of competent jurisdiction by final and nonappealable judgment determines that the acceleration of the Securities was appropriate as a result of a bona fide Event of Default under the Indenture or (ii) such acceleration is not rescinded on or prior to the Conditions Precedent Date (either such event, a “Remedies Trigger Event”), the Escrow Agent will liquidate all Escrowed Property then held by it within one Business Day after it receives notice of such court determination or on the Business Day after the Conditions Precedent Date, as the case may be, and will release to the Paying Agent for payment to the holders of the Securities an amount of Escrowed Property sufficient to pay the Default Amount. The Escrow Agent will release all remaining Escrowed Property in excess of such Default Amount to the Company.
If the Escrow Agent receives a notice that an Escrow Redemption is to occur, this Section 3(d) and Section 3(c) shall be of no further effect and all Escrowed Property then held by the Escrow Agent shall be released in accordance with Section 3(b).
4. Limitation of Escrow Agent’s Liability; Responsibilities of Escrow Agent. The Escrow Agent’s responsibility and liability under this Agreement shall be limited as follows: (i) the Escrow Agent does not represent, warrant or guaranty to the Trustee or the holders of the Securities from time to time the performance of the Issuer; (ii) the Escrow Agent shall have no responsibility to the Issuer or the Trustee or the holders of the Securities from time to time as a consequence of performance or non-performance by the Escrow Agent hereunder, except for any gross negligence or willful misconduct of the Escrow Agent; (iii) the Issuer shall remain solely responsible for all aspects of the Issuer’s business and conduct; and (iv) the Escrow Agent shall not be obligated to supervise, inspect or inform the Issuer or any third party of any matter referred to above. In no event shall the Escrow Agent be liable (i) for relying upon any judicial or administrative order or judgment, upon any opinion of counsel or upon any certification, instruction, notice, or other writing delivered to it by the Issuer or the Trustee in compliance with the provisions of this Agreement, (ii) for acting in accordance with or relying upon any instruction, notice, demand, certificate or document believed by it in good faith to be genuine and to have been signed or presented by the proper person, (iii) for any consequential, punitive or special damages, (iv) for the acts or omissions of its nominees, correspondents, designees, subagents or subcustodians or (v) for an amount in excess of the value of the Escrow Account, valued as of the date of deposit.
The rights and powers granted to the Escrow Agent hereunder are being granted in order to preserve and protect the Trustee’s and the holders’ of Securities security interest in and to the Collateral granted hereby and shall not be interpreted to, and shall not, impose any duties on the Escrow Agent in connection therewith other than those imposed under applicable law. The Escrow Agent shall exercise the same degree of care in the custody and preservation of the Collateral in its possession as it exercises toward its own similar property and shall not be held to any higher standard of care under this Agreement, nor be deemed to owe any fiduciary duty to the Issuers or any other party.
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At any time the Escrow Agent may request in writing an instruction in writing from the Issuer (other than any disbursement pursuant to Section 6(b)(iii)), and may at its own option include in such request the course of action it proposes to take and the date on which it proposes to act, regarding any matter arising in connection with its duties and obligations hereunder; provided, however, that the Escrow Agent shall state in such request that it believes in good faith that such proposed course of action is not contrary to another identified provision of this Agreement. The Escrow Agent shall not be liable to the Issuer for acting without the Issuer’s consent in accordance with such a proposal on or after the date specified therein if (i) the specified date is at least five Business Days after the Issuers receive the Escrow Agent’s request for instructions and its proposed course of action, and (ii) prior to so acting, the Escrow Agent has not received the written instructions requested from the Issuer.
At the expense of the Issuer, the Escrow Agent may act pursuant to the advice of counsel chosen by it with respect to any matter relating to this Agreement and shall not be liable for any action taken or omitted in accordance with such advice, except for any such action taken or omitted in bad faith.
In the event of any ambiguity in the provisions of this Agreement with respect to any funds, securities or property deposited hereunder, or instruction, notice or certification delivered hereunder, the Escrow Agent shall be entitled to refuse to comply with any and all claims, demands or instructions with respect to such funds, securities or property, and the Escrow Agent shall not be or become liable for its failure or refusal to comply with conflicting claims, demands or instructions. The Escrow Agent shall be entitled to refuse to act until either any conflicting or adverse claims or demands shall have been finally determined by a court of competent jurisdiction or settled by agreement between the conflicting claimants as evidenced in a writing reasonably satisfactory to the Escrow Agent, or the Escrow Agent shall have received security or an indemnity satisfactory to the Escrow Agent sufficient to save the Escrow Agent harmless from and against any and all loss, liability or expense which the Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition elect in its sole option to commence an interpleader action or seek other judicial relief or orders as the Escrow Agent may deem necessary. The costs and expenses (including reasonable attorney’s fees and expenses) incurred in connection with such proceedings shall be paid by, and shall be deemed an obligation of the Issuer.
No provision of this Agreement shall require the Escrow Agent to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder.
The Escrow Agent shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the control of the Escrow Agent (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God, terrorism or war, the failure or malfunction of communication or computer systems, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility).
5. Indemnity. The Issuer shall indemnify, hold harmless and defend the Trustee and the Escrow Agent and their respective directors, officers, agents, employees and controlling persons, (each, an “Indemnified Person”) from and against any and all claims, actions, obligations, liabilities and expenses, including reasonable defense costs, reasonable investigative fees and costs, reasonable legal fees, and claims for damages, arising from the Trustee’s or the Escrow Agent’s performance or non-performance, or in connection with the Escrow Agent’s acceptance of appointment as the Escrow Agent under this Agreement, except to the extent that such liability, expense or claim is solely and directly attributable to the gross negligence or willful misconduct of any such Indemnified Person. The provisions of this Section 5 shall survive any termination, satisfaction or discharge of this Agreement as well as the resignation or removal of the Escrow Agent.
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6. Grant of Security Interest; Instructions to Escrow Agent.
(a) The Issuer hereby irrevocably grants a first priority security interest in and lien on, and pledges, assigns, transfers and sets over to the Trustee for its own benefit and the benefit of the holders of the Securities, all of its respective right, title and interest in, to the extent applicable, (i) the Escrow Account, and all financial assets (as such term is defined in Section 8-102(a) of the UCC) and other property now or hereafter placed or deposited in, or delivered to the Escrow Agent for placement or deposit in, the Escrow Account, including, without limitation, all funds held therein, and all Treasury Securities or Cash Equivalents held by (or otherwise maintained in the name of) the Escrow Agent pursuant to Section 2; (ii) all security entitlements (as such term is defined in Section 8-102(a) of the UCC) from time to time credited to the Escrow Account; (iii) all claims and rights of whatever nature which the Issuer may now have or hereafter acquire against any third party in respect of any of the Collateral described in this Section 6 (including any claims or rights in respect of any security entitlements credited to an account of the Escrow Agent maintained at The Depository Trust Company or any other clearing corporation) or any other securities intermediary (as such terms are defined in Section 8-102(a) of the UCC); (iv) all rights which the Issuer has under this Agreement and all rights it may now have or hereafter acquire against the Escrow Agent in respect of its holding and managing all or any part of the Collateral; and (v) all proceeds (as such term is defined in Section 9-102(a) of the UCC) of any of the foregoing (collectively, the “Collateral”), in order to secure all obligations and indebtedness of the Issuer under the Indenture, the Securities and any other obligation, now or hereafter arising, of every kind and nature, owed by the Issuer under the Indenture or the Securities to the holders of the Securities or to the Trustee or any predecessor Trustee (collectively, the “Secured Obligations”). The Escrow Agent hereby acknowledges the Trustee’s security interest and lien as set forth above. The Issuer shall take all actions and shall direct the Trustee in writing to take all actions necessary on its part to insure the continuance of a perfected first priority security interest in the Collateral in favor of the Trustee in order to secure all Secured Obligations. The Issuer shall not grant or cause or permit any other person to obtain a security interest, encumbrance, lien or other claim, direct or indirect, in the Issuer’s right, title or interest in the Escrow Account or any Collateral.
(b) The Issuer and the Trustee hereby irrevocably instruct the Escrow Agent to, and the Escrow Agent shall:
(i) maintain the Escrow Account for the sole and exclusive benefit of the Trustee on its behalf and on behalf of the holders of the Securities to the extent specifically required herein; treat all property in the Escrow Account as financial assets (as defined in Section 8-102(a) of the UCC); take all steps reasonably specified in writing by the Issuer pursuant to this Section 6 to cause the Trustee to enjoy continuous perfected first priority security interest under the UCC, any other applicable statutory or case law or regulation of the State of New York and any applicable law or regulation of the United States in the Collateral and except as otherwise required by law, maintain the Collateral free and clear of all liens, security interests, safekeeping or other charges, demands and claims of any nature now or hereafter existing in favor of anyone other than the Trustee;
(ii) promptly notify the Trustee if a Representative Officer of the Escrow Agent receives written notice that any Person other than the Trustee has or purports to have a lien or security interest upon any portion of the Collateral; and
(iii) in addition to disbursing amounts held in escrow pursuant to and in accordance with Section 3, upon receipt of written notice from the Trustee of the acceleration of the maturity of the Securities and direction from the Trustee to disburse the Escrow Funds to the Trustee, as promptly as practicable, disburse all funds and other Collateral held in the Escrow Account to or as directed by the Trustee and, to the extent permissible by applicable law, transfer title to all
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Cash Equivalents held by the Escrow Agent hereunder to or as directed by the Trustee. In addition, upon an Event of Default and for so long as such Event of Default continues, the Trustee may, and the Escrow Agent shall on behalf of the Trustee when instructed by the Trustee, exercise in respect of the Collateral, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC or other applicable law.
The lien and security interest provided for in this Section 6 shall automatically terminate and cease as to, and shall not extend or apply to, and the Trustee and the Escrow Agent shall have no security interest in, any funds disbursed by the Escrow Agent to the Issuer pursuant to this Agreement to the extent not inconsistent with the terms hereof. The Escrow Agent shall not have any right to receive compensation from the Trustee and shall have no authority to obligate the Trustee or to compromise or pledge its security interest hereunder. Accordingly, the Escrow Agent is hereby directed to cooperate with the Trustee in the exercise of its rights in the Collateral provided for herein.
(c) Any money collected by the Trustee pursuant to Section 6(b)(iii) shall be applied as provided in Section 6.10 of the Indenture. Any surplus of such cash or cash proceeds held by the Trustee and remaining after indefeasible payment in full of all the obligations under the Indenture shall be paid over to the Company promptly or as a court of competent jurisdiction may direct. Neither the Trustee nor the Escrow Agent shall have any liability for any shortfall to the extent of Escrow Redemption Price.
(d) The Issuer will execute and deliver or cause to be executed and delivered, or use its reasonable best efforts to procure, all assignments, instruments and other documents, deliver any instruments to the Trustee and take any other actions that are necessary or desirable to perfect, continue the perfection of, or protect the first priority of the Trustee’s security interest in and to the Collateral, to protect the Collateral against the rights, claims, or interests of third persons or to effect the purposes of this Agreement. The Issuer also hereby authorizes the Trustee to file any financing or continuation statements with respect to the Collateral without their respective signature (to the extent permitted by applicable law). The Issuer shall pay all reasonable costs incurred in connection with any of the foregoing, it being understood that the Trustee shall have no duty to determine whether to file or record any document or instrument relating to Collateral. Neither the Trustee nor the Escrow Agent shall have any duty or obligation to file or record any document or otherwise to see to the grant or perfection of any security interest granted hereunder.
(e) The Issuer hereby appoints the Trustee as attorney-in-fact with full power of substitution to do any act that the Issuer is obligated hereby to do, and the Trustee may, but shall not be obligated to, exercise such rights as the Issuer might exercise with respect to the Collateral and take any action in the Issuer’s or the Company’s name to protect the Trustee’s security interest hereunder.
(f) If at any time the Escrow Agent shall receive any “entitlement order” (as such term is defined in Section 8-102(a)(8) of the UCC) or any other instructions issued by the Trustee directing the disposition of funds in the Escrow Account or otherwise related to the Escrow Account, the Escrow Agent shall comply with such instructions without further consent by the Issuer or any other person.
(g) The Escrow Agent represents that it is a “securities intermediary” and that the Escrow Account is a “securities account” (as each such term is defined in the UCC).
(h) The Issuer hereby confirms that the arrangements established under this Section 6 constitute “control” by the Trustee of the Escrow Account, as each of those terms is defined in Article 9 of the UCC as adopted in the State of New York. The Escrow Agent and the Issuer have not entered and will not enter into any other agreement with respect to control of the Escrow Account or purporting to
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limit or condition the obligation of the Escrow Agent to comply with any orders or instructions of the Trustee with respect to the Escrow Account as set forth in this Section 6. In the event of any conflict with respect to control over the Escrow Account between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into, the terms of this Agreement shall prevail.
(i) The Escrow Agent hereby agrees that any security interest in, lien on, encumbrance, claim or right of setoff against, the Escrow Account or any funds therein that it now has or subsequently obtains shall be subordinate to the security interest of the Trustee in the Escrow Account and the funds therein or credited thereto. The Escrow Agent agrees not to exercise any present or future right of recoupment or set-off against the Escrow Account or to assert against the Escrow Account any present or future security interest, banker’s lien or any other lien or claim (including claim for penalties) that the Escrow Agent may at any time have against or in the Escrow Account or any funds therein.
7. Termination. This Agreement and the security interest in the Escrowed Property evidenced by this Agreement shall terminate automatically and be of no further force or effect upon the distribution of all Escrowed Property in accordance with Section 3 hereof; provided, however, that the obligations of the Issuer under Section 2(c) and Section 5 (and any existing claims thereunder) shall survive termination of this Agreement and the resignation or removal of the Escrow Agent. At such time, upon the written request of the Issuer, the Escrow Agent shall deliver to the Issuer all of the Escrowed Property hereunder that has not been disbursed or applied by the Escrow Agent in accordance with the terms of this Agreement and the Indenture. Such delivery shall be without warranty by or recourse to the Escrow Agent in its capacity as such, except as to the absence of any liens on the Escrowed Property created by the Escrow Agent, and shall be at the sole expense of the Issuer.
8. Security Interest Absolute. All rights of the Trustee for its own benefit and the benefit of the holders of the Notes and security interests hereunder, and all obligations of the Issuer hereunder, shall be absolute and unconditional irrespective of:
(a) any lack of validity or enforceability of the Indenture or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Secured Obligations, or any other amendment or waiver of or any consent to any departure from the Indenture;
(c) any exchange, surrender, release or non-perfection of any Liens on any other collateral for all or any of the Secured Obligations; or
(d) to the extent permitted by applicable law, any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Issuer in respect of the Secured Obligations or of this Agreement.
9. Miscellaneous.
(a) Waiver. Any party hereto may specifically waive any breach of this Agreement by any other party, but no such waiver shall be deemed to have been given unless such waiver is in writing, signed by the waiving party and specifically designating the breach waived, nor shall any such waiver constitute a continuing waiver of similar or other breaches.
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(b) Invalidity. If for any reason whatsoever any one or more of the provisions of this Agreement shall be held or deemed to be inoperative, unenforceable or invalid in a particular case or in all cases, such circumstances shall not have the effect of rendering any of the other provisions of this Agreement inoperative, unenforceable or invalid, and the inoperative, unenforceable or invalid provision shall be construed as if it were written so as to effectuate, to the maximum extent possible, the parties’ intent.
(c) Assignment. This Agreement is personal to the parties hereto, and the rights and duties of the Issuer hereunder shall not be assignable except with the prior written consent of the other parties. Notwithstanding the foregoing, this Agreement shall inure to and be binding upon the parties and their successors and permitted assigns.
(d) Benefit. This Agreement shall be binding upon the parties hereto and their successors and permitted assigns. Nothing in this Agreement, express or implied, shall give to any person, other than the parties hereto and their successors hereunder any benefit or any legal or equitable right, remedy or claim under this Agreement.
(e) Entire Agreement; Amendments. This Agreement and the Indenture contain the entire agreement among the parties with respect to the subject matter hereof and supersede any and all prior agreements, understandings and commitments, whether oral or written. Any amendment or waiver of any provision of this Agreement and any consent to any departure by the Issuer from any provision of this Agreement shall be effective only if made or duly given in compliance with all of the terms and provisions of the Indenture, and neither the Escrow Agent nor the Trustee shall be deemed, by any act, delay, indulgence, omission or otherwise, to have waived any right or remedy hereunder or to have acquiesced in any Default or Event of Default or in any breach of any of the terms and conditions hereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. A waiver by the Escrow Agent or the Trustee of any right or remedy hereunder on any one occasion shall not be construed as a bar to any right or remedy that the Escrow Agent or the Trustee would otherwise have on any future occasion. The rights and remedies herein provided are cumulative, may be exercised singly or concurrently and are not exclusive of any rights or remedies provided by law.
(f) Notices. All notices and other communications required or permitted to be given or made under this Agreement shall be in writing and shall be deemed to have been duly given and received when actually received (i) on the day of delivery; (ii) three business days following the day sent, when sent by United States certified mail, postage and certification fee prepaid, return receipt requested, addressed as set forth below; (iii) when transmitted by telecopy to the telecopy number set forth below with verbal confirmation of receipt by the telecopy operator; or (iv) one business day following the day timely delivered to a next-day air courier addressed as set forth below:
To the Escrow Agent:
US Bank -Corporate Trust Services
EP-MN-WS3C
60 Livingston Avenue
St. Paul MN 55107-1419
Attention: Raymond S. Haverstock
Facsimile: (651) 466-7430
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To the Trustee:
US Bank -Corporate Trust Services
EP-MN-WS3C
60 Livingston Avenue
St. Paul MN 55107-1419
Attention: Raymond S. Haverstock
Facsimile: (651) 466-7430
To the Issuer:
Caesars Escrow Corporation
Caesars Operating Escrow LLC
c/o Caesars Entertainment Corporation
One Caesars Palace Drive
Las Vegas, Nevada 89109
Attention: General Counsel
Facsimile: (702) 407-6418
With a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Monica K. Thurmond, Esq.
Facsimile: (212) 492-0055
or at such other address as the specified entity most recently may have designated in writing in accordance with this Section 13(f). Notwithstanding the foregoing, notices and other communications to the Trustee or the Escrow Agent pursuant to clauses (ii) and (iv) of this Section 13(f) shall not be deemed duly given and received until actually received by the Trustee or the Escrow Agent, as applicable, at its address set forth above.
(g) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
(h) Captions. Captions in this Agreement are for convenience only and shall not be considered or referred to in resolving questions of interpretation of this Agreement.
(i) Choice of Law; Submission to Jurisdiction. THE EXISTENCE, VALIDITY, CONSTRUCTION, OPERATION AND EFFECT OF ANY AND ALL TERMS AND PROVISIONS OF THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. THE PARTIES TO THIS AGREEMENT HEREBY AGREE THAT JURISDICTION OVER SUCH PARTIES AND OVER THE SUBJECT MATTER OF ANY ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT MAY BE EXERCISED BY A COMPETENT COURT OF THE CITY AND STATE OF NEW YORK, OR BY A COMPETENT UNITED STATES COURT, SITTING IN NEW YORK CITY. THE ISSUER, THE TRUSTEE AND THE ESCROW AGENT HEREBY SUBMITS TO THE PERSONAL JURISDICTION OF SUCH COURTS. EACH OF THE PARTIES HERETO WAIVES THE RIGHT TO A TRIAL BY JURY AND TO ASSERT COUNTERCLAIMS OTHER THAN MANDATORY COUNTERCLAIMS IN ANY
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ACTION OR PROCEEDING RELATING TO OR ARISING FROM, DIRECTLY OR INDIRECTLY, THIS AGREEMENT. THE ISSUER HEREBY WAIVES PERSONAL SERVICE OF PROCESS AND CONSENTS TO SERVICE OF PROCESS BY CERTIFIED OR REGISTERED MAIL, RETURN RECEIPT REQUESTED, DIRECTED TO IT AT THE ADDRESS LAST SPECIFIED FOR NOTICES HEREUNDER, AND SUCH SERVICE SHALL BE DEEMED COMPLETED TEN (10) CALENDAR DAYS AFTER THE SAME IS SO MAILED. FOR PURPOSES OF THE UNIFORM COMMERCIAL CODE, NEW YORK SHALL BE THE ESCROW AGENT’S JURISDICTION.
(j) Representations and Warranties of Issuers. Each Issuer hereby represents and warrants that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms (except as the enforcement thereof may be limited by bankruptcy, reorganization, insolvency (including without limitation, all laws relating to fraudulent transfers), moratorium or other laws relating to or affecting creditors’ rights and remedies generally and except as the enforcement thereof is subject to equitable principles regardless of whether enforcement is considered in a proceeding at law or in equity). The execution, delivery and performance of this Agreement by the Issuers does not violate any applicable law or regulation to which the Issuers are subject and does not require the consent of any governmental or other regulatory body to which the Issuer is subject, except for such consents and approvals as have been obtained and are in full force and effect. The Issuers are, with respect to the Collateral they are delivering pursuant to this Agreement, the beneficial owners of such Collateral, free and clear of any Lien or claims of any Person (except for the security interest granted under this Agreement) and are the only entitlement holders (as defined in Section 8-102(a)(7) of the UCC) of the Escrow Account and the financial assets (as defined in Section 8-102(a) of the UCC).
(k) Representations and Warranties of Escrow Agent and Trustee. The Escrow Agent hereby represents and warrants that this Agreement has been duly authorized, executed and delivered on its behalf and constitutes its legal, valid and binding obligation enforceable in accordance with its terms. The Trustee hereby represents and warrants that the person executing this Agreement is duly authorized to so execute this Agreement, and that this Agreement has been duly executed and delivered on its behalf.
(l) No Adverse Interpretation of Other Agreements. This Agreement may not be used to interpret another pledge, security or debt agreement of any Issuer or any subsidiary thereof. No such pledge, security or debt agreement may be used to interpret this Agreement.
(m) Interpretation of Agreement. All terms not defined herein or in the Indenture shall have the meaning set forth in the UCC, except where the context otherwise requires. To the extent a term or provision of this Agreement relating to the Trustee or the Issuer conflicts with the Indenture, the Indenture shall control with respect to the subject matter of such term or provision. Acceptance of or acquiescence in a course of performance rendered under this Agreement shall not be relevant to determine the meaning of this Agreement even though the accepting or acquiescing party had knowledge of the nature of the performance and opportunity for objection.
(n) Survival of Provisions. All representations, warranties and covenants of the Issuer contained herein shall survive the execution and delivery of this Agreement, and shall terminate only upon the termination of this Agreement.
(o) Patriot Act. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a Trust or other legal entity Agent will ask for documentation to verify its formation and existence as a legal entity. Agent may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation.
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(p) Security Advice. The Issuers acknowledge that regulations of the Comptroller of the Currency grant the Issuers the right to receive brokerage confirmations of the security transactions as they occur. The Issuers specifically waive such notification to the extent permitted by law and will receive periodic cash transaction statements that will detail all investment transactions.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed and delivered this Agreement as of the day first above written.
[Signature Pages Follow]
S-1
| U.S. BANK NATIONAL ASSOCIATION, | ||
| as Escrow Agent | ||
| By: |
/s/ Raymond S. Haverstock | |
| Name: Raymond S. Haverstock | ||
| Title: Vice President | ||
| U.S. BANK NATIONAL ASSOCIATION, | ||
| not in its individual capacity but solely as Trustee | ||
| By: |
/s/ Raymond S. Haverstock | |
| Name: Raymond S. Haverstock | ||
| Title: Vice President | ||
S-2
| CAESARS ESCROW CORPORATION | ||
| By: |
/s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Secretary | ||
| CAESARS OPERATING ESCROW LLC | ||
| By: |
/s/ Michael D. Cohen | |
| Name: Michael D. Cohen | ||
| Title: Secretary | ||
S-4
ANNEX I
FORM OF OFFICER’S CERTIFICATE—RELEASE REQUEST
CAESARS ESCROW CORPORATION
CAESARS OPERATING ESCROW LLC
c/o CAESARS ENTERTAINMENT CORPORATION
One Caesars Palace Drive
Las Vegas, Nevada 89109
[ ], 2013
[ ] as Escrow Agent
[ ]
[ ]
Attention: [ ]
Re: Release Request Officer’s Certificate
Ladies and Gentlemen:
We refer to the Escrow Agreement, dated as of December 13, 2012 (the “Escrow Agreement”), among you (the “Escrow Agent”), Caesars Escrow Corporation, a Delaware corporation, and Caesars Operating Escrow LLC, a Delaware limited liability company (each, an “Issuer” and together, the “Issuers”) and the Trustee under the indenture (the “Base Indenture”) dated as of August 22, 2012, as supplemented by a supplemental indenture dated October 5, 2012 (the “Prior Assumption Indenture”, and together with the Base Indenture, the “Existing Indenture”), as further supplemented by a supplemental indenture (the “Additional Notes Supplemental Indenture”, and together with the Existing Indenture, the “Indenture”) dated as of December 13, 2012. Capitalized terms used herein shall have the meaning given in the Escrow Agreement.
This Officer’s Certificate constitutes the Release Request under the Escrow Agreement.
The Issuers and the Company hereby notify you and certify to you as follows pursuant to Section 3(a) of the Escrow Agreement:
1. As of the date hereof, no Event of Default under the Indenture has occurred and is continuing.
2. As of the date hereof, the Company has assumed the obligations of the Issuers under the Securities (the CEOC Assumption”) pursuant to the Assumption Documents and has executed and delivered each Assumption Document to the Trustee and the Initial Purchasers.
3. As of the date hereof, the Company has received approval from the applicable gaming authorities for the offering of the Securities.
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4. Concurrently with the release of the Escrow Funds to the Company, the Assumption Documents will have been executed and delivered by all parties thereto.
5. Concurrently with the release of the Escrow Funds to the Company, the Escrow Funds will be used to pay the fees and expenses related to the issuance and sale of the Securities (including the out of pocket expenses of the Initial Purchasers, if any).
6. The Release Documents (as defined in the Purchase Agreement) have been executed by all parties thereto and delivered to the Trustee and the Initial Purchasers pursuant to Section 5(d) of the Purchase Agreement (attached hereto as Annex A).
7. The opinions of counsel contemplated by Section 5(c) of the Purchase Agreement (attached hereto as Annex A) have been furnished to the Trustee and the Initial Purchasers.
[SIGNATURE PAGES FOLLOW]
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The Issuers hereby notify you and certify to you that the release of the entire amount of funds from the Escrow Account is currently permitted in accordance with Section 3 of the Escrow Agreement and requests that you release such amount as set forth on Schedule A hereto. The Escrow Agent is entitled to rely on the foregoing in disbursing Escrow Funds as specified in this Release Request.
| CAESARS ESCROW CORPORATION | ||
| By: |
||
| Name: | ||
| Title: | ||
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| CAESARS OPERATING ESCROW LLC | ||
| By: |
||
| Name: | ||
| Title: | ||
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Schedule A
WIRE INSTRUCTIONS
| [Company] | ||
| Proceeds to be delivered: |
[ ] | |
| Name of Bank: |
[ ] | |
| ABA Number of Bank: |
[ ] | |
| Account Number at Bank: |
[ ] | |
| Name of Account: |
[ ] | |
| OBI Field F/F/C #: |
[ ] | |
| Attention: |
[ ] | |
| [Initial Purchasers] | ||
| Proceeds to be delivered: |
[ ] | |
| Name of Bank: |
[ ] | |
| ABA Number of Bank: |
[ ] | |
| Account Number at Bank: |
[ ] | |
| Name of Account: |
[ ] | |
| OBI Field F/F/C #: |
[ ] | |
| Attention: |
[ ] | |
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ANNEX II
FORM OF FAILURE OF CONDITION NOTICE
CAESARS ESCROW CORPORATION
CAESARS OPERATING ESCROW LLC
c/o CAESARS ENTERTAINMENT CORPORATION
One Caesars Palace Drive
Las Vegas, Nevada 89109
[ ], 2013
[ ] as Escrow Agent
[ ]
[ ]
Attention: [ ]
Re: Failure of Conditions
Ladies and Gentlemen:
We refer to the Escrow Agreement, dated as of December 13, 2012 (the “Escrow Agreement”), among you (the “Escrow Agent”), Caesars Escrow Corporation, a Delaware corporation, and Caesars Operating Escrow LLC, a Delaware limited liability company (each, an “Issuer” and together, the “Issuers”) and the Trustee under the indenture (the “Base Indenture”) dated as of August 22, 2012, as supplemented by a supplemental indenture dated October 5, 2012 (the “Prior Assumption Indenture”, and together with the Base Indenture, the “Existing Indenture”) as further supplemented by a supplemental indenture (the “Additional Notes Supplemental Indenture”, and together with the Existing Indenture, the “Indenture”) dated as of December 13, 2012. Capitalized terms used herein shall have the meaning given in the Escrow Agreement.
This Officer’s Certificate constitutes notice that the required conditions set forth in Section 3(a) shall not be satisfied on or prior to the Escrow Redemption Date.
Escrow Redemption Date: [ ], 2013
Escrow Redemption Price: $[ ]
| CAESARS ESCROW CORPORATION | ||
| By: |
| |
| Name: | ||
| Title: | ||
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| CAESARS OPERATING ESCROW LLC | ||
| By: |
| |
| Name: | ||
| Title: | ||
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EXHIBIT I
FUNDS TO BE WIRED
| Description |
Amount | Instructions | ||||||||||
| Escrow Fee |
$ | [ | ] | RBK: | U.S. Bank, N.A. | |||||||
| ABA: | [ | ] | ||||||||||
| BNF: | [ | ] | ||||||||||
| BNF ACCT: | [ | ] | ||||||||||
| OBI: | [ | ] | ||||||||||
| REF | #: | [ | ] | |||||||||
| ATTN: | [ | ] | ||||||||||
| [ | ] | |||||||||||
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