EXHIBIT 10.12
137
EXCHANGE AGENCY AGREEMENT
This Agreement is entered into as of ____________________,
1997 between IBJ Xxxxxxxx Bank & Trust Company, a banking
corporation organized under the laws of the State of New York, as
Exchange Agent (the "Agent"), and Rio Hotel & Casino, Inc., a
corporation organized under the laws of the State of Nevada (the
"Company").
The Company proposes to exchange (the "Exchange Offer")
$1,000 in principal amount of its 9 1/2% Senior Subordinated
Notes due 2007 (the "New Notes") for each $1,000 in principal
amount of its outstanding 9 1/2% Senior Subordinated Notes due
2007 (the "Old Notes") (collectively the New Notes and the Old
Notes are referred to as the "Notes") of which an aggregate
principal amount of $125,000,000 is outstanding. This Exchange
Offer and withdrawal rights will expire at 5:00 p.m., New York
City time, on ____________________, 1997.
The Exchange Offer is not conditioned upon any minimum
principal amount of the Old Notes being tendered for exchange.
However, the Exchange Offer is subject to the terms and
provisions of the Registration Agreement dated as of February 4,
1997 among the Company; Rio Properties, Inc., a subsidiary of the
Company that has agreed to guarantee the Notes; and Salomon
Brothers Inc and BancAmerica Securities, Inc.
Subject to the provisions hereof, the Company hereby
appoints and the Agent hereby accepts the appointment as Agent
for the purposes of receiving, accepting for delivery and
otherwise acting upon tenders of the Old Notes (the
"Certificates") in accordance with the form of Letter of
Transmittal attached hereto (the "L/T") and with the terms and
conditions set forth herein.
The Agent has received the following documents in connection
with its appointment:
1. L/T
2. Specimen Certificates representing New Notes ("New
Certificates")
3. Letter to holders from the Company
The Agent shall obtain no later than 5:00 p.m., New York
City Time, on the effective date (as specified above), a list of
all holders of Certificates eligible to participate in the
Exchange Offer, to include the amount owned of record by each
such holder. Agent will take reasonable action to identify any
changes in the registered ownership during the Exchange Offer.
The Agent is authorized and hereby agrees to act as follows:
1. receive all tenders of Certificates made pursuant to
the L/T and stamp the L/T with the day, month and
approximate time of receipt;
2. examine each L/T and Certificate received to determine
that all requirements for a valid tender set forth in
the L/T have been met;
3. take such actions necessary and appropriate to correct
any irregularity or deficiency associated with any
tender which does not meet the requirements in the L/T;
4. follow instructions of Xxxxxx X. Xxxxxxxxx, or such
other person who is designated by the Company as its
Chief Financial Officer, with respect to the waiver of
any irregularities or deficiencies associated with any
tender;
5. render a written report, in the form of Exhibit A
attached hereto, on each business day during the
Exchange Offer and promptly confirm, by telephone, the
information contained therein to Xxxxxx X. Xxxxxxxxx,
or such other person who is designated by the Company
as its Chief Financial Officer, at (000) 000-0000.
6. return to the presentors, in accordance with the
provisions of the L/T, any Certificates that were not
received in proper order and as to which the
irregularities or deficiencies were not cured or
waived;
7. deliver by First Class Mail, postage prepaid, New
Certificates in the amount to which the presentors are
entitled, at the addresses specified in the L/T's;
8. determine that all endorsements, guarantees,
signatures, authorities, stock transfer taxes (if any)
and such other requirements are fulfilled in connection
with any request for issuance of New Certificates in a
name other than that of the registered owner of the
Certificates; and
9. retain, unless otherwise directed by the Company, all
certificates received under the Exchange Offer,
together with any related assignment forms and other
documents.
The Agent shall:
A. have no duties or obligations other than those
specifically set forth herein;
B. not be required to refer to any documents for the
performance of its obligations hereunder other than this
Agreement, the L/T and the documents required to be
submitted with the L/T; other than such documents, the
Agent will not be responsible or liable for any
directions or information in the prospectus distributed
in connection with the Exchange Offer or any other
document unless the Agent specifically agrees thereto in
writing;
C. not be required to act on the directions of any person,
including the persons named above, unless the Company
provides a corporate resolution to the Agent or other
evidence satisfactory to the Agent of the authority of
such person;
D. not be required to and shall make no representations and
have no responsibilities as to the validity, accuracy,
value or genuineness of (i) the Exchange Offer, (ii) any
Certificates, L/T's or documents prepared by the Company
in connection with the Exchange Offer or (iii) any
signatures or endorsements, other than its own;
E. not be obligated to take any legal action hereunder that
might, in its judgment, involve any expense or liability,
unless it has been furnished with reasonable indemnity by
the Company;
F. be able to rely on and shall be protected in acting on
the written or oral instructions with respect to any
matter relating to its actions as Agent specifically
covered by this Agreement, of any officer of the Company
authorized to give instructions under paragraph 4 above;
G. be able to rely on and shall be protected in acting upon
any certificate, instrument, opinion, notice, letter,
telegram or any other document or security delivered to
it and believed by it reasonably and in good faith to be
genuine and to have been signed by the proper party or
parties;
H. not be responsible for or liable in any respect on
account of the identity, authority or rights of any
person executing or delivering or purporting to execute
or deliver any document or property under this Agreement
and shall have no responsibility with respect to the use
or application of any property delivered by it pursuant
to the provisions hereof;
I. be able to consult with counsel satisfactory to it
(including counsel for the Company or staff counsel of
the Agent) and the advice or opinion of such counsel
shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it
hereunder in good faith and in accordance with advice or
opinion of such counsel;
J. not be called on at any time to advise, and shall not
advise, any person delivering an L/T pursuant to the
Exchange Offer as to the value of the consideration to be
received;
K. not be liable for anything which it may do or refrain
from doing in connection with this Agreement except for
its own gross negligence, willful misconduct or bad
faith;
L. not be bound by any notice or demand, or any waiver or
modification of this Agreement or any of the terms
hereof, unless evidenced by a writing delivered to the
Agent signed by the proper authority or authorities and,
if the Agent's duties or rights are affected, unless the
Agent shall give its prior written consent thereto;
M. have no duty to enforce any obligation of any person to
make delivery, or to direct or cause any delivery to be
made, or to enforce any obligation of any person to
perform any other act;
N. have the right to assume, in the absence of written
notice to the contrary from the proper person or persons,
that a fact or an event by reason of which an action
would or might be taken by the Agent does not exist or
has not occurred without incurring liability for any
action taken or omitted, or any action suffered by the
Agent to be taken or omitted, in good faith or in the
exercise of the Agent's best judgment, in reliance upon
such assumption; and
O. have no liability whatsoever in connection with
Certificates tendered to it which may have stops placed
against them or in connection with the payment made
against stopped Certificates unless it is furnished with
a stop list from the transfer agent.
The Agent shall be entitled to compensation as set forth in
Exhibit B attached hereto.
The Company covenants and agrees to reimburse the Agent for,
indemnify it against, and hold it harmless from any and all
reasonable costs and expenses (including reasonable fees and
expenses of counsel and allocated costs of staff counsel) that
may be paid or incurred or suffered by it or to which it may
become subject without gross negligence, willful misconduct or
bad faith on its part by reason of or as a result of its
compliance with the instructions set forth herein or with any
additional or supplemental written or oral instructions delivered
to it pursuant hereto, or which may arise out of or in connection
with the administration and performance of its duties under this
Agreement.
This Agreement shall be construed and enforced in accordance
with the laws of the State of Nevada and shall inure to the
benefit of, and the obligations created hereby shall be binding
upon, the successors and assigns of the parties hereto.
Unless otherwise expressly provided herein, all notices,
requests, demands and other communications hereunder shall be in
writing, shall be delivered by hand or by First Class Mail,
postage prepaid, shall be deemed given when received and shall be
addressed to the Agent and the Company at the respective
addresses listed below or to such other addresses as they shall
designate from time to time in writing, forwarded in like manner.
The Agent:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Agency Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Company:
Rio Hotel & Casino, Inc.
0000 X. Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Chief Financial Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with copies to:
Xxxxxxx X. Xxxxxx
Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxxx
Seventh Floor
0000 Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxxx, Xxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
In Witness Whereof, the parties hereto have caused this
Agreement to be executed on their behalf by their officers
thereunto duly authorized, all as of the day and year first set
forth above.
IBJ XXXXXXXX BANK & TRUST COMPANY
By:______________________________
Name:
Title:
RIO HOTEL & CASINO, INC.
By:______________________________
Xxxxx X. Xxxxxxx, Xx.
President
EXHIBIT A
SAMPLE REPORT LETTER
Date:___________________
Report Number:___________________
As of Date:___________________
Rio Hotel & Casino, Inc.
0000 Xxxx Xxxxxxxx Xxxx
Xxx Xxxxx, Xxxxxx 00000
Re:Offer to Exchange 9 1/2% Senior Subordinated
Notes Due 2007 ("Notes") for 9 1/2% Senior
Subordinated Notes Due 2007
Gentlemen:
As Exchange Agent for the above Offer dated ______________,
we hereby render the following report:
Principal amount of Notes previously received: ________________
Principal amount of Notes received today: ________________
Total principal amount of Notes received to date:________________
Very truly yours,
EXHIBIT B
EXCHANGE AGENCY FEE SCHEDULE
For each Letter of Transmittal received with four or less certificates.......... $ 6.00
For each Letter of Transmittal received with four or less certificates
where multiple classes of securities, rights or dividend reinvestment 7.50
are involved.................................................................
For each certificate, in excess of four, received with a Letter of .50
Transmittal..................................................................
For each defective Letter of Transmittal requiring communication with
presentor to cure deficiency, including solicitation of a properly
executed Form W-9............................................................ 7.50
For each certificate requisitioned and mailed, including transfers
resulting from partial exchanges............................................. 2.50
For each check issued and mailed................................................ 1.50
For each Form 1099 or Form 1099-B issued and mailed, including tape
supplied to the IRS.......................................................... 1.00
For each extension of the expiration date....................................... 1,000.00
For each additional midnight expiration......................................... 1,500.00
Minimum Fee:
Through first expiration date................................................. 7,500.00
Incidental or Extraordinary Services:
Charges for services of this nature will be based on an
analysis of the work to be provided.
Out-of-Pocket Expenses:
The above fees do not include out-of-pocket expenses that
include, but are not limited to, postage, stationary, fees
and expenses of counsel, telephone, messenger, overtime,
special programming, brokerage fees, FDIC assessment, if
any, etc.
