EXHIBIT 1.1
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ISLE OF CAPRI CASINOS, INC.
(a Delaware corporation)
9% Senior Subordinated Notes Due 2012
PURCHASE AGREEMENT
Dated: March 21, 2002
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Table of Contents
PURCHASE AGREEMENT
Page
SECTION 1. Representations and Warranties by the Company and Subsidiary
Guarantors .............................................................................. 3
SECTION 2. Sale and Delivery to Initial Purchasers; Closing ........................................ 15
SECTION 3. Covenants of the Company ................................................................ 16
SECTION 4. Payment of Expenses ..................................................................... 18
SECTION 5. Conditions of Initial Purchasers' Obligations ........................................... 18
SECTION 6. Subsequent Offers and Resales of the Securities ......................................... 20
SECTION 7. Indemnification ......................................................................... 24
SECTION 8. Contribution ............................................................................ 27
SECTION 9. Representations, Warranties and Agreements to Survive Delivery .......................... 28
SECTION 10. Termination of Agreement ................................................................ 28
SECTION 11. Default by One or More of the Initial Purchasers ........................................ 29
SECTION 12. Notices ................................................................................. 29
SECTION 13. Parties ................................................................................. 30
SECTION 14. Governing Law and Time .................................................................. 30
SECTION 15. Effect of Headings ...................................................................... 30
SCHEDULES
Schedule A - List of Initial Purchasers ........................................................ Sch A-1
Schedule B - Pricing Information ............................................................... Sch B-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
ISLE OF CAPRI CASINOS, INC.
(a Delaware corporation)
$200,000,000
9% Senior Subordinated Notes due 2012
PURCHASE AGREEMENT
March 21, 2002
DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇ - GRANTCHESTER, INC.
as Representative of the several Initial Purchasers
c/o
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ - Grantchester,
Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Isle of Capri Casinos, Inc., a Delaware corporation (the "Company"),
Riverboat Corporation of Mississippi, a Mississippi corporation ("RCM"),
Riverboat Corporation of Mississippi-Vicksburg, a Mississippi corporation
("RCM-Vicksburg"), Riverboat Services, Inc., an Iowa corporation ("RSI"),
CSNO, L.L.C., a Louisiana limited liability company ("CSNO"), Louisiana
Riverboat Gaming Partnership, a Louisiana general partnership ("LRGP"), St.
▇▇▇▇▇▇▇ Gaming Company, Inc., a Louisiana corporation ("SCGC"), IOC
Holdings, L.L.C., a Louisiana limited liability company ("IOCH"), Grand
Palais Riverboat, Inc., a Louisiana corporation ("GPRI"), LRGP Holdings,
L.L.C., a Louisiana limited liability company ("LRGP Holdings"), P.P.I.,
Inc., a Florida corporation ("PPI"), Isle of Capri Casino Colorado, Inc., a
Colorado corporation ("Isle Colorado"), Isle of Capri Casino-Tunica, Inc.,
a Mississippi corporation ("Isle-Tunica"), IOC-Coahoma, Inc., a Mississippi
corporation ("IOC-Coahoma"), IOC-Natchez, Inc., a Mississippi corporation,
("Isle-Natchez"), IOC-▇▇▇▇, Inc., a Mississippi corporation ("Isle-▇▇▇▇"),
IOC-Boonville, Inc., a Nevada Corporation ("Isle-Boonville"), IOC-Kansas
City, Inc., a Missouri corporation ("Isle-Kansas City"), Isle of Capri
▇▇▇▇▇▇▇▇▇▇, ▇.▇., an Iowa limited liability company ("Isle-Bettendorf"),
Isle of Capri Marquette, Inc., an Iowa corporation ("Isle-Marquette"),
IOC-Davenport, Inc., an Iowa corporation ("Isle-Davenport"), LL Holding
Corporation, a Nevada corporation ("LLHC") and Gemini, Inc., a Nevada
corporation ("Gemini" and together with RCM, RCM-Vicksburg, RSI, CSNO,
LRGP, SCGC, IOCH, GPRI, LRGP Holdings, PPI, Isle Colorado, Isle-Tunica,
IOC-Coahoma, Isle-Natchez, Isle-▇▇▇▇, Isle-Boonville, Isle-Kansas City,
Isle-Bettendorf, Isle-Marquette, Isle-Davenport and LLHC, the "Subsidiary
Guarantors"), confirm their agreement with Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ -
Grantchester, Inc. ("▇▇▇▇▇▇▇▇▇▇▇") and each of the other Initial Purchasers
named in Schedule A hereto (together with ▇▇▇▇▇▇▇▇▇▇▇, the "Initial
Purchasers," which term shall also include any initial
purchaser substituted as hereinafter provided in Section 11 hereof), for
whom ▇▇▇▇▇▇▇▇▇▇▇ is acting as representative (in such capacity, the
"Representative"), with respect to the issue and sale by the Company and
the purchase by the Initial Purchasers, acting severally and not jointly,
of the respective principal amounts set forth in said Schedule A of
$200,000,000 aggregate principal amount of the Company's Senior
Subordinated Notes due 2012 (the "Notes").
The Notes are to be issued pursuant to an indenture to be dated as of
the Closing Time (as defined) (the "Indenture") among the Company, the
Subsidiary Guarantors and State Street Bank & Trust Company, as trustee (the
"Trustee"). The Notes will be unconditionally guaranteed by the Subsidiary
Guarantors on a senior subordinated basis pursuant to the terms of the Indenture
(the "Subsidiary Guarantees"). As used herein, the term "Securities" shall
include the Notes and the Subsidiary Guarantees. Notes issued in book-entry form
will be issued to Cede & Co. as nominee of The Depository Trust Company ("DTC")
pursuant to a letter agreement, to be dated as of the Closing Time (as defined
in Section 2(b)) (the "DTC Agreement"), among the Company, the Trustee and DTC.
As used herein, the term "Operative Documents" refers to this Agreement, the
Notes, the Subsidiary Guarantees, the Indenture, that certain Registration
Rights Agreement among the parties hereto (the "Registration Rights Agreement"),
and the notes and the subsidiary guarantees to be issued in exchange for the
Securities pursuant to the Registration Rights Agreement.
The Company and the Subsidiary Guarantors understand that the Initial
Purchasers propose to make an offering of the Securities on the terms and in the
manner set forth herein and agree that the Initial Purchasers may resell,
subject to the conditions set forth herein, all or a portion of the Securities
to purchasers ("Subsequent Purchasers") at any time after this Agreement has
been executed and delivered. The Securities are to be offered and sold through
the Initial Purchasers without being registered under the Securities Act of
1933, as amended (the "1933 Act"), in reliance upon exemptions therefrom.
Pursuant to the terms of the Securities and the Indenture, investors that
acquire Securities may resell or otherwise transfer such Securities only if such
Securities are hereafter registered under the 1933 Act or if an exemption from
the registration requirements of the 1933 Act is available (including the
exemption afforded by Rule 144A ("Rule 144A") or Regulation S ("Regulation S")
of the rules and regulations promulgated under the 1933 Act by the Securities
and Exchange Commission (the "Commission")).
The Company has prepared and delivered to each Initial Purchaser copies
of a preliminary offering memorandum dated March 18, 2002 (the "Preliminary
Offering Memorandum") and has prepared and will deliver to each Initial
Purchaser, on the date hereof or the next succeeding day, copies of a final
offering memorandum dated March 21, 2002 (the "Final Offering Memorandum"), each
for use by such Initial Purchaser in connection with its solicitation of
purchases of, or offering of, the Securities. "Offering Memorandum" means, with
respect to any date or time referred to in this Agreement, the most recent
offering memorandum (whether the Preliminary Offering Memorandum or the Final
Offering Memorandum, or any amendment or supplement to either such document),
including any documents incorporated therein by reference, which has been
prepared and delivered by the Company to the Initial Purchasers in connection
with their solicitation of purchases of, or offering of, the Securities.
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All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Offering Memorandum (or other references of like import) shall be deemed to mean
and include all such financial statements and schedules and other information
which are incorporated by reference in the Offering Memorandum; and all
references in this Agreement to amendments or supplements to the Offering
Memorandum shall be deemed to mean and include the filing of any document under
the Securities Exchange Act of 1934 (the "1934 Act") which is incorporated by
reference in the Offering Memorandum.
SECTION 1. Representations and Warranties by the Company and
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Subsidiary Guarantors. The Company and the Subsidiary Guarantors represent and
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warrant to each Initial Purchaser as of the date hereof and as of the Closing
Time referred to in Section 2(b) hereof, and agree with each Initial Purchaser,
as follows:
(i) Offering Memorandum. The Offering Memorandum does not, and
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at the Closing Time will not, include an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements
in or omissions from the Offering Memorandum made in reliance upon and
in conformity with information furnished to the Company in writing by
any Initial Purchaser through ▇▇▇▇▇▇▇▇▇▇▇ expressly for use in the
Offering Memorandum.
(ii) Incorporated Documents. The Offering Memorandum as
-----------------------
delivered from time to time shall incorporate by reference the most
recent Annual Report of the Company on Form 10-K filed with the
Commission and each Quarterly Report of the Company on Form 10-Q and
each Current Report of the Company on Form 8-K filed with the
Commission since the end of the fiscal year to which such Annual
Report relates. The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time they
were or hereafter are filed with the Commission complied and will
comply in all material respects with the requirements of the 1934 Act
and the rules and regulations of the Commission thereunder (the "1934
Act Regulations"), and, when read together with the other information
in the Offering Memorandum, at the time the Offering Memorandum was
issued and at the Closing Time, did not and will not include 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, in
light of the circumstances under which they were made, not misleading.
(iii) Independent Accountants. The accountants who certified the
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financial statements and supporting schedules included in the Offering
Memorandum are independent public accountants with respect to the
Company and its subsidiaries within the meaning of Rule 101 of the
Code of Professional Conduct of the American Institute of Certified
Public Accountants and its interpretations and rulings thereunder. As
used herein, "subsidiaries" has the meaning ascribed thereto in
Regulation S-X under the 1933 Act.
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(iv) Financial Statements. The financial statements, together
--------------------
with the related notes, included in the Offering Memorandum present
fairly in all material respects the financial condition of the Company
and its consolidated subsidiaries at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the
Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved, except (in the case
of those supplying quarterly information) as to the absence of
footnotes and subject to normal year-end adjustments. The selected
historical financial data and the summary financial information
included in the Offering Memorandum present fairly, in all material
respects, the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements
included in the Offering Memorandum. The pro forma financial data of
the Company and its subsidiaries and the related notes thereto
included in the Offering Memorandum present fairly, in all material
respects, the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to
pro forma financial statements and have been properly compiled on the
bases described therein, the assumptions used in the preparation
thereof were made in good faith and are believed by the Company to be
reasonable and the adjustments used therein are believed by the
Company to be appropriate to give effect to the transactions and
circumstances referred to therein. Except as set forth in the Offering
Memorandum, the historical consolidated financial statements of the
Company together with the notes thereto forming part of the Offering
Memorandum comply as to form in all material respects with the
requirements applicable to financial statements required to be
included in registration statements on Form S-3 under the ▇▇▇▇ ▇▇▇.
The forward-looking statements contained in the Offering Memorandum
are based upon good faith estimates and assumptions believed by the
Company and the Subsidiary Guarantors to be reasonable at the time
made.
(v) No Material Adverse Change. Since the respective dates as
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of which information is given in the Offering Memorandum, except as
otherwise stated therein, (A) there has been no event or condition
that could be reasonably expected to result in a material adverse
change in the condition, financial or otherwise, or in the results of
operations, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "Material Adverse Effect"), (B)
there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
----------------------------
organized and is validly existing as a corporation in good standing
under the laws of the State of Delaware and has corporate power and
authority to own, lease and
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operate its properties and to conduct its business as described in the
Final Offering Memorandum and to enter into and perform its
obligations under this Agreement; and the Company is duly qualified as
a foreign corporation to transact business and is in good standing in
each other jurisdiction in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect.
(vii) Good Standing of Designated Subsidiaries. Each Subsidiary
----------------------------------------
Guarantor and each other "significant subsidiary" of the Company (as
such term is defined in Rule 1-02 of Regulation S-X) (collectively,
the "Designated Subsidiaries") has been duly organized and is validly
existing as an entity in good standing under the laws of the
jurisdiction of its incorporation, has all requisite power (corporate
or otherwise) and authority to own, lease and operate its properties
and to conduct its business as described in the Final Offering
Memorandum and is duly qualified as a foreign entity to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure to so qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the Offering
Memorandum, all of the issued and outstanding capital stock of each
Designated Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, directly or
through wholly-owned subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none
of the outstanding shares of capital stock of the Designated
Subsidiaries was issued in violation of any preemptive or similar
rights of any securityholder of such Designated Subsidiary.
(viii) Capitalization. The shares of issued and outstanding
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capital stock of the Company and each of its subsidiaries have been
duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the
Company or any of its subsidiaries was issued in violation of the
preemptive or other similar rights of any securityholder of the
Company or any of its subsidiaries.
(ix) Authorization of Agreements. This Agreement has been duly
---------------------------
authorized, executed and delivered by the Company and the Subsidiary
Guarantors and is a legal, valid and binding agreement of the Company
and the Subsidiary Guarantors enforceable against each of them in
accordance with its terms except as the enforcement hereof may be
limited by (A) bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium
or similar laws affecting enforcement of creditors' rights generally,
(B) general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law) and (C) with respect
to rights of indemnification or contribution, federal or state
securities laws or principles of public policy. The Registration
Rights Agreement has been duly authorized and, when duly executed and
delivered in accordance with its
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terms by each of the parties thereto, will constitute a legal, valid
and binding agreement of the Company and the Subsidiary Guarantors
enforceable against each of them in accordance with its terms except
as the enforcement thereof may be limited by (A) bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally, (B) general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) and (C) with respect to rights of
indemnification or contribution, federal or state securities laws or
principles of public policy.
(x) Authorization of the Indenture. The Indenture has been
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duly authorized by the Company and the Subsidiary Guarantors and, when
executed and delivered by the Company, the Subsidiary Guarantors and
the Trustee, will constitute a valid and binding agreement of the
Company and the Subsidiary Guarantors, enforceable against each of
them in accordance with its terms, except as the enforcement thereof
may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law).
(xi) Authorization of the Securities. The Notes and the
-------------------------------
Subsidiary Guarantees have been duly authorized and, at the Closing
Time, will have been duly executed by the Company and the Subsidiary
Guarantors, respectively, and, when authenticated, issued, executed
and delivered in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor as provided
in this Agreement, will constitute valid and binding obligations of
the Company and the Subsidiary Guarantors, respectively, enforceable
against them in accordance with their terms, and the notes and
subsidiary guarantees to be issued in exchange for the Securities
pursuant to the Registration Rights Agreement have been duly and
validly authorized by the Company and the Subsidiary Guarantors,
respectively, and if and when duly authenticated in accordance with
the terms of the Indenture and delivered in accordance with the
exchange offer provided for in the Registration Rights Agreement, will
constitute valid and binding obligations of the Company and the
Subsidiary Guarantors, respectively, enforceable against them in
accordance with their terms, except in each case as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of
creditors' rights generally and except as enforcement thereof is
subject to general principles of equity (regardless of whether
enforcement is considered in a proceeding in equity or at law), and
will be in the form contemplated by, and entitled to the benefits of,
the Indenture.
(xii) Description of Certain Operative Agreements. The
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Securities, the Indenture and the Registration Rights Agreement will
conform in all material
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respects to the respective statements relating thereto contained in
the Final Offering Memorandum.
(xiii) Absence of Defaults and Conflicts. None of the Company or
---------------------------------
any of its subsidiaries is in violation of its charter or by-laws or
in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them may be bound, or to
which any of the property or assets of the Company or any of its
subsidiaries is subject (collectively, "Agreements and Instruments")
except for such defaults that would not result in a Material Adverse
Effect; and the execution, delivery and performance of this Agreement,
the Indenture, the Registration Rights Agreement, the Securities and
any other agreement or instrument entered into or issued or to be
entered into or issued by the Company or any Subsidiary Guarantor in
connection with the transactions contemplated hereby and the
consummation of the transactions contemplated herein and therein
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Offering
Memorandum under the caption "Use of Proceeds") and compliance by the
Company and the Subsidiary Guarantors with their obligations hereunder
and under the Operative Agreements have been duly authorized by all
necessary action (corporate or otherwise) and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default or a
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to the
Agreements and Instruments, except for such conflicts, breaches or
defaults or liens, charges or encumbrances that are disclosed in the
Offering Memorandum or that, singly or in the aggregate, would not
result in a Material Adverse Effect, nor will such action result in
any violation of the provisions of the charter or by-laws of the
Company or any of its subsidiaries or any applicable law, statute,
rule, regulation, judgment, order, writ or decree of any government,
government instrumentality or court, domestic or foreign, having
jurisdiction over the Company or any of its subsidiaries or any of
their assets, properties or operations. As used herein, a "Repayment
Event" means any event or condition which gives the holder of any
note, debenture or other evidence of indebtedness (or any person
acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by
the Company or any of its subsidiaries.
(xiv) Absence of Labor Dispute. No labor dispute with the
------------------------
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is threatened, and the Company is not aware of any
existing or threatened labor disturbance by the employees of its or
any subsidiary's principal suppliers, manufacturers or contractors,
which, in either case, may reasonably be expected to result in a
Material Adverse Effect. None of the Company and its subsidiaries has
violated (i) any federal, state or local law or foreign law relating
to
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discrimination in hiring, promotion or pay of employees, (ii) any
applicable wage or hour laws or (iii) any provision of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or the
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rules and regulations thereunder, which in any such event could be
reasonably expected to have a Material Adverse Effect.
(xv) Absence of Proceedings. Except as disclosed in the
----------------------
Offering Memorandum, there is no (a) action, suit, proceeding, inquiry
or investigation before or brought by any court or governmental agency
or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries, (b) statute, rule, regulation or order that has been
enacted, adopted or issued by any governmental agency or that has, to
the Company's knowledge, been proposed by any governmental body and
that could be reasonably expected to be enacted, adopted or issued or
(c) injunction, restraining order or order of any nature by a federal
or state court of competent jurisdiction that has been issued in each
case which might reasonably be expected to result in a Material
Adverse Effect, or which might reasonably be expected to materially
and adversely affect the properties or assets of the Company or any of
its subsidiaries or the consummation of the transactions contemplated
by the Operative Documents or the performance by the Company and the
Subsidiary Guarantors of their obligations hereunder. The aggregate of
all pending legal or governmental proceedings to which the Company or
any of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the
Offering Memorandum, including ordinary routine litigation incidental
to the business, could not reasonably be expected to result in a
Material Adverse Effect.
(xvi) Possession of Intellectual Property. The Company and
-----------------------------------
its subsidiaries own or possess, or can acquire on reasonable terms,
adequate licenses, copyrights, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade
names or other intellectual property (collectively, "Intellectual
Property") necessary to carry on the business now operated by them,
and neither the Company nor any of its subsidiaries has received any
notice or is otherwise aware of any infringement of or conflict with
asserted rights of others with respect to any Intellectual Property or
of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company
or any of its subsidiaries therein, which infringement or conflict (if
the subject of any unfavorable decision, ruling or finding) or
invalidity or inadequacy, individually or in the aggregate, would
result in a Material Adverse Effect.
(xvii) Absence of Further Requirements. Except as disclosed
-------------------------------
in the Offering Memorandum, no filing with, or authorization,
approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency (including
without limitation the Louisiana Gaming Control Board, the Louisiana
Riverboat Gaming Enforcement Division of the Louisiana
-8-
State Police, the Mississippi Gaming Commission, the Florida
Department of Business and Professional Regulation Division of
Pari-Mutuel Wagering, the Colorado Department of Revenue Division of
Gaming, the Colorado Limited Control Gaming Commission, the Missouri
Gaming Commission, the Nevada Gaming Commission, the Nevada State
Gaming Control Board and the Iowa Racing and Gaming Commission
(collectively the "Gaming Authorities")) or any other person is
necessary or required for the performance by the Company and the
Subsidiary Guarantors of their obligations hereunder, in connection
with the offering, issuance or sale of the Securities hereunder or the
consummation of the transactions contemplated by this Agreement or for
the due execution, delivery or performance of the Indenture by the
Company and the Subsidiary Guarantors, except such as have been
already obtained or made prior to the Closing Time or as may be
required to be obtained under the 1933 Act and state securities laws
as provided in the Registration Rights Agreement, and except as shall
be obtained under the Nevada gaming laws, including (a) in respect of
the Notes, the approval of any restrictions on and agreements not to
encumber the stock or other equity securities of Gemini (without which
such restrictions and agreements will not be effective), (b) the
filing of applicable reports and informational filings required with
respect to the transactions contemplated hereby and the Company's
shelf approval and order of registration and (c) the filing of signed
copies of the operative documents as the gaming authorities may
request
(xviii) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and
other authorizations (collectively, "Governmental Licenses") issued by
the appropriate federal, state, local or foreign regulatory agencies
or bodies, including without limitation the Gaming Authorities,
necessary to conduct the business now operated by them, except where
failure to possess such Governmental Licenses would not, individually
or in the aggregate, have a Material Adverse Effect; the Company and
its subsidiaries are in compliance with the terms and conditions of
all such Governmental Licenses, except where the failure so to comply
would not, individually or in the aggregate, have a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force
and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and
effect would not have a Material Adverse Effect; and no event has
occurred which would allow, after notice or passage of time or both,
and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to, the revocation or modification of
any such Governmental Licenses which, individually or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect. To the knowledge
of the Company no facts or circumstances exist that could be
reasonably expected to prevent the renewal of the existing
Governmental Licenses of the Company and its subsidiaries or result in
a materially adverse modification of such existing Governmental
Licenses in connection with the annual or other periodic gaming
license renewal process undertaken by the Louisiana Gaming Control
Board and the Louisiana Riverboat Gaming Enforcement Division of the
Louisiana State Police or the renewal process of any
-9-
other Gaming Authority. Neither the Company nor any of its
subsidiaries has any reason to believe that any Governmental License
necessary to conduct their business as described in the Offering
Memorandum will not be granted or renewed upon application therefore
or that any relevant Gaming Authority is considering any suspension,
revocation, limitation or modification of any such Governmental
License.
(xix) Title to Property. The Company and its subsidiaries have
-----------------
good and marketable title to all real property owned by the Company
and its subsidiaries and good title to all other properties owned by
them, in each case, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Offering Memorandum or (b) do
not, individually or in the aggregate, materially affect the value of
such property and do not interfere with the use made and proposed to
be made of such property by the Company or any of its subsidiaries;
and all of the leases and subleases material to the business of the
Company and its subsidiaries, considered as one enterprise, and under
which the Company or any of its subsidiaries holds properties
described in the Offering Memorandum, are in full force and effect,
and neither the Company nor any of its subsidiaries has any notice of
any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any of its subsidiaries under
any of the leases or subleases mentioned above, or affecting or
questioning the rights of the Company or any subsidiary thereof to the
continued possession of the leased or subleased premises under any
such lease or sublease.
(xx) Environmental Laws. Except as described in the Offering
------------------
Memorandum and except such matters as would not, individually or in
the aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, legally binding policy or rule of common law or any judicial or
administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to
pollution or protection of human health, safety or the environment
(including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the
release or threatened release of chemicals, pollutants, contaminants,
wastes, toxic substances, hazardous substances, petroleum or petroleum
products (collectively, "Hazardous Materials") or to the generation,
manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
Governmental Licenses required under any or all applicable
Environmental Laws and are each in compliance with their requirements
or such Governmental Licenses, (C) there are no pending or, to the
Company's knowledge, threatened administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of
noncompliance or violation, investigations or proceedings relating to
or arising out of any Environmental Law against the Company or any of
its subsidiaries and (D) there
-10-
are no events or circumstances that might reasonably be expected to
form the basis of an order for clean-up or remediation, or an action,
suit or proceeding by any private party or governmental body or
agency, against or affecting the Company or any of its subsidiaries
relating to Hazardous Materials or Environmental Laws.
(xxi) Investment Company Act. The Company is not, and upon the
----------------------
issuance and sale of the Notes as herein contemplated and the
application of the net proceeds therefrom as described in the Offering
Memorandum will not be, an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 Act").
(xxii) Similar Offerings. Neither the Company nor any of its
-----------------
affiliates, as such term is defined in Rule 501(b) under the 1933 Act
(each, an "Affiliate"), has, directly or indirectly through any agent
(provided no representation is made as to the Initial Purchasers or
any person acting on their behalf), solicited any offer to buy, sold
or offered to sell or otherwise negotiated in respect of, or will
solicit any offer to buy, sell or offer to sell or otherwise negotiate
in respect of, in the United States or to any United States citizen or
resident, any security which is or would be integrated with the sale
of the Securities in a manner that would require the Securities to be
registered under the 1933 Act.
(xxiii) Rule 144A Eligibility. To the Company's knowledge,
---------------------
the Securities are eligible for resale pursuant to Rule 144A and will
not be, at the Closing Time, of the same class as securities listed on
a national securities exchange registered under Section 6 of the 1934
Act, or quoted in a U.S. automated interdealer quotation system.
(xxiv) No General Solicitation. None of the Company, its
-----------------------
Affiliates or any person acting on its or any of their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage, in connection with the
offering of the Securities, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the 1933
Act.
(xxv) No Registration Required. Subject to compliance by the
------------------------
Initial Purchasers with the representations and warranties set forth
in Section 2 and the procedures set forth in Section 6 hereof, it is
not necessary in connection with the offer, sale and delivery of the
Securities to the Initial Purchasers and to each Subsequent Purchaser
in the manner contemplated by this Agreement and the Offering
Memorandum to register the Securities under the 1933 Act or to qualify
the Indenture under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). The Indenture complies as to form, in all
material respects, with the requirements of the Trust Indenture Act
and the rules and regulations of the Commission promulgated
thereunder. No stop order or similar order or decree preventing the
use of the Offering Memorandum or any order or decree asserting that
any of the transactions contemplated by this Agreement are subject to
the
-11-
registration requirements of the 1933 Act has been issued or, to the
knowledge of the Company, is threatened.
(xxvi) Reporting Company. The Company is subject to the
-----------------
reporting requirements of Section 13 or Section 15(d) of the 1934 Act.
(xxvii) No Directed Selling Efforts. With respect to those
---------------------------
Securities sold in reliance on Regulation S, (A) none of the Company,
its Affiliates or any person acting on its or their behalf (other than
the Initial Purchasers, as to whom the Company makes no
representation) has engaged or will engage in any directed selling
efforts within the meaning of Regulation S and (B) each of the Company
and its Affiliates and any person acting on its or their behalf (other
than the Initial Purchasers, as to whom the Company makes no
representation) has complied and will comply with the offering
restrictions requirement of Regulation S.
(xxviii) Taxes and Tax Returns. All United States federal income
---------------------
tax returns of the Company and its subsidiaries required by law to be
filed on or prior to the date hereof and, at the Closing Time, on or
prior to the Closing Time, have been filed and all taxes due pursuant
to such returns or otherwise assessed, which are due and payable, have
been paid, except assessments against which appeals have been or will
be promptly taken and as to which adequate reserves have been
provided. The United States federal income tax returns of the Company
through the Company's 1996 fiscal year have been settled and no
assessment in connection therewith has been made against the Company.
The Company and its subsidiaries have filed all other tax returns that
are required to have been filed by them pursuant to any applicable
foreign, state, local or other law except insofar as the failure to
file such returns would not result in a Material Adverse Effect, and
has paid all taxes due pursuant to such returns or pursuant to any
assessment received by the Company or its subsidiaries, except for
such taxes, if any, as are being contested in good faith and as to
which adequate reserves have been provided.
(xxix) Internal Accounting. The Company and its subsidiaries
-------------------
maintain a system of internal accounting controls sufficient to
provide reasonable assurances that (A) transactions are executed in
accordance with management's general or specific authorization, (B)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets, (C) access to
assets is permitted only in accordance with management's general or
specific authorization and (D) the recorded accounting for assets is
compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxx) Insurance. The Company and its subsidiaries carry or are
---------
entitled to the benefits of insurance in such amounts and covering
such risks as the Company reasonably believes to be prudent for the
business and operations of the Company and its subsidiaries. All such
insurance is in full force and effect. None
-12-
of the Company or its subsidiaries has received notice from any
insurer or agent of any insurer that substantial capital improvements
or other expenditures will be required in order to continue such
insurance coverage.
(xxxi) Registration Rights. Except for those certain rights
-------------------
granted in connection with the Company's acquisition of a 100%
interest in the Isle of Capri casino located in Bossier City,
Louisiana and the rights granted pursuant to the Registration Rights
Agreement, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
registration statement to be filed pursuant to the Registration Rights
Agreement or otherwise registered by the Company under the 1933 Act.
(xxxii) Solvency. The Company and the Subsidiary Guarantors
--------
are, and immediately after the Closing Time will be, Solvent. As used
herein, the term "Solvent" means, with respect to any person on a
particular date, that on such date (A) the fair market value of the
assets of such person is greater than the total amount of liabilities
(including contingent liabilities) of such person, (B) the present
fair salable value of the assets of such person is greater than the
amount that will be required to pay the probable liabilities of such
person on its debts as they become absolute and matured, (C) such
person is able to realize upon its assets and pay its debts and other
liabilities, including contingent obligations, as they mature and (D)
such person does not have unreasonably small capital. Upon the
issuance of the Securities, the assets of the Company and the
Subsidiary Guarantors will not constitute unreasonably small capital
to carry out their respective businesses as described in the Offering
Memorandum, including capital needs of the Company and the Subsidiary
Guarantors taking into account projected capital requirements and
capital availability.
(xxxiii) No Default on Senior Indebtedness. No event of
---------------------------------
default exists under any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument constituting
Senior Indebtedness (as defined in the Indenture); provided, that, as
--------
described in the Offering Memorandum, such an event of default may
exist in the future as a result of the failure of the Company to meet
the Consolidated Net Worth requirements set forth in its bank credit
facility.
(xxxiv) Market Manipulation. None of the Company, its
-------------------
subsidiaries or any of their respective officers, directors or
controlling persons has taken, directly or indirectly, any action
designed to cause or to result in, or that has constituted or which
might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(xxxv) Affiliate Transaction. No relationship, direct or
---------------------
indirect, exists between or among any of the Company or any Affiliate
of the Company, on the one hand, and any director, officer,
stockholder, customer or supplier of any of them, on the other hand,
that would be required to be disclosed in a registration statement on
Form S-3 pursuant to the 1933 Act or by rules and regulations
-13-
promulgated thereunder by the Commission which is not described in the
Offering Memorandum or is not described as would be so required.
(xxxvi) Information. The Company has not distributed and,
-----------
prior to the later to occur of (i) the Closing Time and (ii)
completion of the distribution of the Securities, will not distribute
any offering material in connection with the offering and sale of the
Securities other than the Final Offering Memorandum, the Preliminary
Offering Memorandum or other materials, if any, permitted by the 1933
Act and approved by the Representative.
(xxxvii) Regulations T, U and X. None of the execution,
----------------------
delivery and performance of this Agreement, the issuance and sale of
the Securities, the application of the proceeds from the issuance and
sale of the Securities and the consummation of the transactions
contemplated thereby as set forth in the Offering Memorandum, will
violate Regulations T, U or X promulgated by the Board of Governors of
the Federal Reserve System.
(xxxviii) Events of Default. Assuming that the Indenture had
-----------------
been executed and delivered prior to or as of the date hereof, there
exist no conditions that would constitute a default (or an event which
with notice or the lapse of time, or both, would constitute a default)
under the Indenture.
(xxxix) Brokerage. Except pursuant to this Agreement, there
---------
are no contracts, agreements or understandings between either of the
Company or any of its subsidiaries and any other person that would
give rise to a valid claim against the Initial Purchasers for a
brokerage commission, finder's fee or like payment in connection with
the issuance, purchase and sale of the Securities. The Company and the
Subsidiary Guarantor will hold harmless and indemnify each of the
Initial Purchasers and each person affiliated with or under common
control with Initial Purchaser for all losses, liabilities, claims,
damages and expenses incurred by the Initial Purchasers as a result of
the incurrence of a breach of the representation contained in this
paragraph (xxxix).
(xxxx) Public Officials. None of the Company, any of its
----------------
subsidiaries or, to the Company's knowledge, any affiliate or
representative acting on behalf of the Company or any of its subsidiaries
has at any time (A) made any unlawful contribution relating to political
activity or (B) made any payment to any federal, state or local government
officer or official, or any other person charged with similar public or
quasi-public duties, or customers or suppliers other than payments which do
not constitute a violation of the law of the United States or any
jurisdiction thereof.
SECTION 2. Sale and Delivery to Initial Purchasers; Closing.
------------------------------------------------
(a) Notes. On the basis of the representations and warranties herein
-----
contained and subject to the terms and conditions herein set forth, the Company
agrees to sell to each Initial Purchaser, severally and not jointly, and each
Initial Purchaser, severally and not jointly, agrees to purchase from the
Company, at the price set forth in Schedule B, the aggregate principal
-14-
amount of Notes set forth in Schedule A opposite the name of such Initial
Purchaser, plus any additional principal amount of Notes which such Initial
Purchaser may become obligated to purchase pursuant to the provisions of Section
11 hereof, and the Subsidiary Guarantors agree to execute and deliver the
Subsidiary Guarantees of such Notes.
(b) Payment. Payment of the purchase price for, and delivery of for,
-------
the Notes shall be made at the office of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place
as shall be agreed upon by the Representative and the Company, at 10:00 A.M.
(eastern time) on March 27, 2002 (unless postponed in accordance with the
provisions of Section 11), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the Company
(such time and date of payment and delivery being herein called the "Closing
Time").
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account or accounts designated by the Company, against
delivery to the Representative for the respective accounts of the Initial
Purchasers of certificates for the Securities to be purchased by them. It is
understood that each Initial Purchaser has authorized the Representative, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Securities which it has agreed to purchase. ▇▇▇▇▇▇▇▇▇▇▇,
individually and not as representative of the Initial Purchasers, may (but shall
not be obligated to) make payment of the purchase price for the Securities to be
purchased by any Initial Purchaser whose funds have not been received by the
Closing Time, but such payment shall not relieve such Initial Purchaser from its
obligations hereunder.
(c) Denominations; Registration. Certificates for the Notes shall be
---------------------------
in definitive form, registered in the name of Cede & Co., as nominee of DTC, or
in such denominations and registered in such names as the Representative may
request in writing at least one full business day before the Closing Time. The
certificates representing the Securities shall be made available for examination
by the Initial Purchasers not later than 3:00 P.M. on the last business day
prior to the Closing Time.
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
Initial Purchaser as follows:
(a) Offering Memorandum. The Company, as promptly as possible, will,
-------------------
during the period prior to the completion of the resale of the Securities by the
Initial Purchasers, furnish to each Initial Purchaser, without charge, such
number of copies of the Preliminary Offering Memorandum, the Final Offering
Memorandum and any amendments and supplements thereto and documents incorporated
by reference therein as such Initial Purchaser may reasonably request.
(b) Notice and Effect of Material Events. The Company will
------------------------------------
immediately notify each Initial Purchaser, confirm each such notice in writing,
of (x) except for the filings made in connection with the transactions
contemplated by the Registration Rights Agreement, any filing made by the
Company of information relating to the offering of the Securities with any
securities exchange or any other securities regulatory body in the United States
or any other jurisdiction, and (y) prior to the completion of the placement of
the Securities by the Initial
-15-
Purchasers as evidenced by a notice in writing from ▇▇▇▇▇▇▇▇▇▇▇ to the Company,
any material changes in or affecting the condition, financial or otherwise, or
the results of operations, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise which (i) make any statement
in the Offering Memorandum false or misleading in any material respect or (ii)
if not disclosed in the Offering Memorandum would constitute a material omission
therefrom. In such event or if during such time any event shall occur as a
result of which it is necessary, in the reasonable opinion of any of the
Company, its counsel, the Initial Purchasers or counsel for the Initial
Purchasers, to amend or supplement the Final Offering Memorandum in order that
the Final Offering Memorandum not include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
therein not misleading in the light of the circumstances then existing, the
Company will forthwith amend or supplement the Final Offering Memorandum by
preparing and furnishing to each Initial Purchaser an amendment or amendments
of, or a supplement or supplements to, the Final Offering Memorandum (in form
and substance satisfactory in the reasonable opinion of counsel for the Initial
Purchasers) so that, as so amended or supplemented, the Final Offering
Memorandum will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered to a Subsequent
Purchaser, not misleading.
(c) Amendment to Offering Memorandum and Supplements. The Company
------------------------------------------------
will advise each Initial Purchaser promptly of any proposal to amend or
supplement the Final Offering Memorandum and will not effect such amendment or
supplement without the consent of the Initial Purchasers, which consent shall
not be unreasonably withheld or delayed. Neither the consent of the Initial
Purchasers, nor the Initial Purchaser's delivery of any such amendment or
supplement, shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(d) Qualification of Securities for Offer and Sale. The Company will
----------------------------------------------
use its best efforts, in cooperation with the Initial Purchasers, to qualify the
Securities for offering and sale under the applicable securities laws of such
states and other jurisdictions as the Representative may designate and will
maintain such qualifications in effect as long as required for the sale of the
Securities; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject.
(e) Rating of Securities. The Company shall take all reasonable
--------------------
action necessary to enable Standard & Poor's Ratings Services, a division of
McGraw Hill, Inc. ("S&P"), and ▇▇▇▇▇'▇ Investors Service Inc. ("Moody's") to
provide their respective credit ratings of the Notes.
(f) DTC. The Company will cooperate with the Representative and use
---
its best efforts to permit the Notes to be eligible for clearance and settlement
through the facilities of DTC.
(g) Use of Proceeds. The Company will use the net proceeds received
---------------
by it from the sale of the Notes in the manner specified in the Final Offering
Memorandum under "Use of Proceeds."
-16-
(h) Restriction on Sale of Securities. During a period of ninety
---------------------------------
(90) days from the date of the Offering Memorandum, the Company will not,
without the prior written consent of ▇▇▇▇▇▇▇▇▇▇▇, directly or indirectly, issue,
sell, offer or agree to sell, grant any option for the sale of, or otherwise
dispose of, any other debt securities of the Company or securities of the
Company that are convertible into, or exchangeable for, the Notes or such other
debt securities, other than the Company's bank credit facilities and the notes
to be issued pursuant to the terms of the Registration Rights Agreement.
(i) PORTAL Designation. The Company will use its best efforts to
------------------
permit the Notes to be designated PORTAL securities in accordance with the rules
and regulations adopted by the National Association of Securities Dealers, Inc.
("NASD") relating to trading in the PORTAL Market.
(j) Reporting Requirements. The Company, during the period when the
----------------------
Final Offering Memorandum is required to be delivered pursuant to Section
6(a)(vi) hereof, will file all documents required to be filed with the
Commission pursuant to the 1934 Act within the time periods required by the 1934
Act and the 1934 Act Regulations.
SECTION 4. Payment of Expenses.
-------------------
(a) Expenses. The Company will pay all expenses (other than fees and
--------
expenses of counsel for the Initial Purchasers, except for such fees and
expenses as are described in clause (iv) below which shall be paid by the
Company) incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing, delivery to the Initial Purchasers and
any filing of the Offering Memorandum (including financial statements and any
schedules or exhibits and any document incorporated therein by reference) and of
each amendment or supplement thereto, (ii) the preparation, issuance and
delivery of the certificates for the Securities to the Initial Purchasers,
including any transfer taxes, any stamp or other duties payable upon the sale,
issuance and delivery of the Securities to the Initial Purchasers and any
charges of DTC in connection therewith, (iii) the fees and disbursements of the
Company's counsel, accountants and other advisors, (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section
3(d) hereof, including filing fees and the reasonable fees and disbursements of
counsel for the Initial Purchasers in connection therewith and in connection
with the preparation of the Blue Sky Survey, any supplement thereto, (v) the
fees and expenses of the Trustee, including the fees and disbursements of
counsel for the Trustee in connection with the Indenture and the Securities,
(vi) any fees payable in connection with the rating of the Notes and (vii) any
fees and expenses payable in connection with the initial and continued
designation of the Notes as PORTAL securities under the PORTAL Market Rules
pursuant to NASD Rule 5322.
(b) Termination of Agreement. If this Agreement is terminated by the
------------------------
Representative in accordance with the provisions of Section 5 or Section
10(a)(i) hereof, the Company shall reimburse the Initial Purchasers for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Initial Purchasers.
SECTION 5. Conditions of Initial Purchasers' Obligations. The
---------------------------------------------
obligations of the several Initial Purchasers hereunder are subject to the
accuracy of the representations and
-17-
warranties of the Company contained in Section 1 hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions.
(a) Opinion of Counsel for Company. At the Closing Time, the Initial
------------------------------
Purchasers shall have received the favorable opinion substantially to the effect
set forth in Exhibit A hereto, dated as of the Closing Time, of Mayer, Brown,
▇▇▇▇ & Maw, counsel for the Company, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., in-house counsel
for the Company, and, in form and substance satisfactory to counsel for the
Initial Purchasers, of ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.P., ▇▇▇▇▇▇▇▇▇▇, Hyatt & ▇▇▇▇▇▇, P.C.,
Lane & ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Godfrey, Gallop, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, together
with signed or reproduced copies of such letter for each of the other Initial
Purchasers, and the opinion of ▇▇▇▇▇▇ & Poliakoff, P.A. as to such matters of
Florida law as the Initial Purchasers may reasonably request and the opinion of
▇▇▇▇▇ Law Firm as to such Louisiana gaming regulation matters as the Initial
Purchasers may reasonably request.
(b) Opinion of Counsel for Initial Purchasers. At the Closing Time,
-----------------------------------------
the Initial Purchasers shall have received the favorable opinion, dated as of
the Closing Time, of Milbank, Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, counsel for the
Initial Purchasers, together with signed or reproduced copies of such letter for
each of the other Initial Purchasers with respect to the matters set forth in
paragraphs (i), (ii), (iii), (v), (vi), (vii), (xiv) and the penultimate
paragraph of Exhibit A-1 hereto. In giving such opinion such counsel may rely,
as to all matters governed by the laws of jurisdictions other than the law of
the State of New York and the federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representative. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(c) Officers' Certificate. At the Closing Time, there shall not have
---------------------
been, since the date hereof or since the respective dates as of which
information is given in the Offering Memorandum, any material adverse change in
the condition, financial or otherwise, or in the results of operations, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, and
the Initial Purchasers shall have received a certificate of the President or a
Vice President of the Company and the Subsidiary Guarantors and of the chief
financial or chief accounting officer of the Company, dated as of the Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof are true and correct
with the same force and effect as though expressly made at and as of the Closing
Time, and (iii) the Company and the Subsidiary Guarantors have complied with all
agreements and satisfied all conditions on their part to be performed or
satisfied hereunder at or prior to the Closing Time.
(d) Accountants' Comfort Letter. On the date hereof, the Initial
---------------------------
Purchasers shall have received from Ernst & Young LLP a letter dated such date,
in form and substance satisfactory to the Representative, together with signed
or reproduced copies of such letter for each of the other Initial Purchasers
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to Initial Purchasers with respect to the
financial statements and certain financial information contained in the Final
Offering Memorandum.
-18-
(e) Bring-down Comfort Letter. At the Closing Time, the Initial
-------------------------
Purchasers shall have received from Ernst & Young LLP a letter, dated as of the
Closing Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (d) of this Section, except that the date as to
when such accounting procedures have been performed shall be a date not more
than three business days prior to the Closing Time.
(f) Maintenance of Rating. At the Closing Time, the Notes shall be
---------------------
rated at least B2 by Moody's and B by S&P, and the Company shall have delivered
to the Representative a letter dated the Closing Time, from each such rating
agency, or other evidence satisfactory to the Representative, confirming that
the Notes have such ratings; and since the date of this Agreement, there shall
not have occurred a downgrading in the rating assigned to the Notes or any of
the Company's other debt securities by any "nationally recognized statistical
rating agency", as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such securities rating agency shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of the Notes or any of the Company's other
debt securities.
(g) PORTAL. At the Closing Time, the Notes shall have been
------
designated for trading on PORTAL.
(h) Additional Documents. At the Closing Time, counsel for the
--------------------
Initial Purchasers shall have been furnished with such documents and opinions as
they may require for the purpose of enabling them to pass upon the issuance and
sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the Company
and the Subsidiary Guarantors in connection with the issuance and sale of the
Securities as herein contemplated shall be reasonably satisfactory in form and
substance to the Representative and counsel for the Initial Purchasers.
(i) Termination of Agreement. If any condition specified in this
------------------------
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Representative by notice to the Company at
any time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 7, 8 and 9 shall survive any such termination and remain
in full force and effect. SECTION 6. Subsequent Offers and Resales of the
Securities.
SECTION 6. Subsequent Offers and Resales of the Securities.
-----------------------------------------------
(a) Offer and Sale Procedures. Each of the Initial Purchasers and
-------------------------
the Company hereby establish and agree to observe the following procedures in
connection with the offer and sale of the Securities:
(i) Offers and Sales only to Qualified Institutional Buyers.
-------------------------------------------------------
Offers and sales of the Securities shall only be made (A) to persons
whom the offeror or seller reasonably believes to be qualified
institutional buyers, as defined in Rule 144A under the 1933 Act
("Qualified Institutional Buyers") or (B) to non-U.S. persons outside
the United States, as defined in Regulation S under the 1933 Act,
-19-
to whom the offeror or seller reasonably believes offers and sales of
the Securities may be made in reliance upon Regulation S under the
1933 Act. Each Initial Purchaser severally agrees that it will not
offer, sell or deliver any of the Securities in any jurisdiction
outside the United States except under circumstances that will result
in compliance with the applicable laws thereof, and that it will take
at its own expense whatever action is required to permit its purchase
and resale of the Securities in such jurisdictions.
(ii) No General Solicitation. No general solicitation or
-----------------------
general advertising (within the meaning of Rule 502(c) under the ▇▇▇▇
▇▇▇) will be used in the United States in connection with the offering
or sale of the Securities.
(iii) Purchases by Non-Bank Fiduciaries. In the case of a
---------------------------------
non-bank Subsequent Purchaser of Securities acting as a fiduciary for
one or more third parties, each third party shall, in the judgment of
the applicable Initial Purchaser, be a Qualified Institutional Buyer
or a non-U.S. person outside the United States.
(iv) Subsequent Purchaser Notification. Each Initial
---------------------------------
Purchaser will take reasonable steps to inform, and cause each of its
U.S. Affiliates to take reasonable steps to inform, persons acquiring
Securities from such Initial Purchaser or affiliate, as the case may
be, in the United States that the Securities (A) have not been and
will not be registered under the 1933 Act, (B) are being sold to them
without registration under the 1933 Act in reliance on Rule 144A or in
accordance with another exemption from registration under the 1933
Act, as the case may be, and (C) may not be offered, sold or otherwise
transferred except (1) to the Company, (2) outside the United States
in accordance with Regulation S, or (3) inside the United States in
accordance with (x) Rule 144A to a person whom the seller reasonably
believes is a Qualified Institutional Buyer that is purchasing such
Securities for its own account or for the account of a Qualified
Institutional Buyer to whom notice is given that the offer, sale or
transfer is being made in reliance on Rule 144A or (y) pursuant to
another available exemption from registration under the 1933 Act.
(v) Restrictions on Transfer. The transfer restrictions and
------------------------
the other provisions set forth in the Final Offering Memorandum under
the heading "Notice to Investors", including the legend required
thereby, shall apply to the Securities except as otherwise agreed by
the Company and the Initial Purchasers.
(vi) Delivery of Final Offering Memorandum. Each Initial
-------------------------------------
Purchaser will, prior or simultaneously with the confirmation of the
sale of the Securities, deliver to each purchaser of the Securities
from such Initial Purchaser, in connection with its original
distribution of the Securities, a copy of the Final Offering
Memorandum, as amended and supplemented at the date of such delivery.
-20-
(b) Covenants of the Company. The Company covenants with each
------------------------
Initial Purchaser as follows:
(i) Integration. The Company agrees that it will not and
-----------
will cause its Affiliates not to, directly or indirectly, solicit any
offer to buy, sell or make any offer or sale of, or otherwise
negotiate in respect of, securities of the Company of any class if, as
a result of the doctrine of "integration" referred to in Rule 502
under the 1933 Act, such offer or sale would render invalid (for the
purpose of (i) the sale of the Securities by the Company to the
Initial Purchasers, (ii) the resale of the Securities by the Initial
Purchasers to Subsequent Purchasers or (iii) the resale of the
Securities by such Subsequent Purchasers to others) the exemption from
the registration requirements of the 1933 Act provided by Section 4(2)
thereof or by Rule 144A or by Regulation S thereunder or otherwise.
(ii) Rule 144A Information. The Company agrees that, in
---------------------
order to render the Securities eligible for resale pursuant to Rule
144A under the 1933 Act, while any of the Securities remain
outstanding, it will make available, upon request, to any holder of
Securities or prospective purchasers of Securities the information
specified in Rule 144A(d)(4), unless the Company furnishes information
to the Commission pursuant to Section 13 or 15(d) of the 1934 Act.
(iii) Restriction on Repurchases. Until the expiration of
--------------------------
two years after the original issuance of the Securities, the Company
will not, and will cause its Affiliates not to, resell any Securities
which are "restricted securities" (as such term is defined under Rule
144(a)(3) under the 1933 Act), whether as beneficial owner or
otherwise (except as agent acting as a securities broker on behalf of
and for the account of customers in the ordinary course of business in
unsolicited broker's transactions).
(c) Qualified Institutional Buyer. Each Initial Purchaser severally
-----------------------------
and not jointly represents and warrants to, and agrees with, the Company that it
is a Qualified Institutional Buyer within the meaning of Rule 144A under the
1933 Act and an "accredited investor" within the meaning of Rule 501(a) under
the 1933 Act (an "Accredited Investor").
(d) Resale Pursuant to Rule 903 of Regulation S or Rule 144A. Each
--------------------------------------------------------
Initial Purchaser understands that the Securities have not been and will not be
registered under the 1933 Act and may not be offered or sold within the United
States or to, or for the account or benefit of, U.S. persons except in
accordance with Regulation S under the 1933 Act or pursuant to an exemption from
the registration requirements of the 1933 Act. Each Initial Purchaser severally
represents and agrees, that, except as permitted by Section 6(a) above, it has
offered and sold Securities and will offer and sell Securities (i) as part of
their distribution at any time and (ii) otherwise until forty days after the
later of the date upon which the offering of the Securities commences and the
Closing Time, only in accordance with Rule 903 of Regulation S, Rule 144A under
the 1933 Act or another applicable exemption from the registration requirements
of the 1933 Act. Accordingly, neither the Initial Purchasers, their affiliates
nor any persons acting on their behalf have engaged or will engage in any
directed selling efforts with respect to Securities sold hereunder pursuant to
Regulation S, and the Initial Purchasers, their affiliates and any
-21-
person acting on their behalf have complied and will comply with the offering
restriction requirements of Regulation S. Each Initial Purchaser severally
agrees that, at or prior to confirmation of a sale of Securities pursuant to
Regulation S, it will have sent to each distributor, dealer or person receiving
a selling concession, fee or other remuneration that purchases Securities from
it or through it during the restricted period a confirmation or notice to
substantially the following effect:
"THE SECURITY (OR ITS PREDECESSOR) EVIDENCED HEREBY WAS
ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER ▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THE
SECURITY EVIDENCED HEREBY IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE ISSUER OF THE SECURITY THAT
(A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (1)(a) TO A PERSON WHO THE SELLER BELIEVES
IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE UNITED STATES TO
A FOREIGN PERSON IN A TRANSACTION MEETING THE REQUIREMENTS
OF RULE 904 UNDER THE SECURITIES ACT, (c) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES
ACT OR (d) IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT PROVIDED
THAT THE ISSUER SHALL HAVE THE RIGHT PRIOR TO ANY SUCH
OFFER, RESALE, ASSIGNMENT, PLEDGE OR TRANSFER PURSUANT TO
CLAUSES (c) OR (d) ABOVE TO REQUIRE THE DELIVERY OF AN
OPINION (IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER)
OF COUNSEL SATISFACTORY TO THE ISSUER, CERTIFICATION AND/OR
OTHER INFORMATION SATISFACTORY TO THE ISSUER, (2) TO THE
ISSUER OR ITS SUBSIDIARIES. OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTIONS SET
FORTH IN (A) ABOVE."
Terms used in the above paragraph have the meanings given to them by
Regulation S.
(e) Each Initial Purchaser, severally and not jointly, represents
and warrants to and agrees with the Company that (i) it has not offered or sold,
and prior to the date six months after the Closing Time will not offer or sell,
any Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ and the Public
Offers of Securities Regulations 1995 with respect to anything done by it in
relation to the Securities in, from or otherwise involving the United Kingdom;
and (iii) it has only issued or passed on and will only issue or pass on in the
United Kingdom any document received by it in connection with the issue of the
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
or is a person to whom such document may otherwise lawfully be issued or passed
on.
(f) Additional Representations and Warranties of Initial Purchasers.
---------------------------------------------------------------
Each Initial Purchaser severally represents and agrees that it has not entered
and will not enter into any contractual arrangements with respect to the
distribution of the Securities, except with its affiliates or with the prior
written consent of the Company, and each Initial Purchaser has duly authorized
the Representative to act for it in such capacity.
SECTION 7. Indemnification.
---------------
(a) Indemnification of Initial Purchasers. The Company and the
-------------------------------------
Subsidiary Guarantors, jointly and severally, agree to indemnify and hold
harmless each Initial Purchaser and each person, if any, who controls any
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, and each person who is an affiliate of or under common control
with an Initial Purchaser, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement
or alleged untrue statement of a material fact contained in any
Preliminary Offering Memorandum or the Final Offering Memorandum (or
any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
-23-
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission; provided that (subject to Section 7(d) below) any such
settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by
▇▇▇▇▇▇▇▇▇▇▇) reasonably in investigating, preparing to defend or
defending against any litigation, or any investigation or proceeding
by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, to the extent that any
such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to
-------- -------
any loss, liability, claim, damage or expense to the extent arising out of any
untrue statement or omission or alleged untrue statement or omission made in
reliance upon and in conformity with written information furnished to the
Company by any Initial Purchaser through ▇▇▇▇▇▇▇▇▇▇▇ expressly for use in the
Offering Memorandum (or any amendment thereto); and provided, further, that
-------- -------
neither the Company nor any Subsidiary Guarantor shall be liable to any Initial
Purchaser or any person affiliated with or who controls an Initial Purchaser
under this subsection (a) with respect to any loss, liability, claim, damage or
expense resulting from any such untrue statement or alleged untrue statement or
omission or alleged omission if such Initial Purchaser did not send or give to
the person to whom it sold Securities, at or prior to the written confirmation
of such sale, a Final Offering Memorandum or revised Final Offering Memorandum
(in each case excluding documents incorporated by reference), as the case may
be, if such Final Offering Memorandum or revised Final Offering Memorandum
contained a correction of such untrue statement or alleged untrue statement or
omission or alleged omission and if the Company has made available copies
thereof to such Initial Purchaser prior to the confirmation of such sale.
(b) Indemnification of Company. Each Initial Purchaser severally
--------------------------
agrees to indemnify and hold harmless the Company, the Subsidiary Guarantors and
each person, if any, who controls the Company or a Subsidiary Guarantor within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section, as incurred, but only
with respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Offering Memorandum in reliance upon and in conformity
with written information furnished to the Company by such Initial Purchaser
through ▇▇▇▇▇▇▇▇▇▇▇ expressly for use in the Offering Memorandum.
(c) Actions against Parties; Notification. Each indemnified party
-------------------------------------
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall
-24-
not relieve it from any liability which it may have otherwise than on account of
this indemnity agreement. In the case of parties indemnified pursuant to Section
7(a) above, counsel to the indemnified parties shall be selected by ▇▇▇▇▇▇▇▇▇▇▇,
and, in the case of parties indemnified pursuant to Section 7(b) above, counsel
to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action;
provided, however, that counsel to the indemnifying party shall not (except with
-------- -------
the consent of the indemnified party) also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and expenses of
more than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section or Section 8
hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any
--------------------------------------------------
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 7(a)(ii) effected without its written consent if
(i) such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 8. Contribution. If the indemnification provided for in
------------
Section 7 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Subsidiary Guarantors on the one hand and the Initial Purchasers
on the other hand from the offering of the Securities pursuant to this Agreement
or (ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Subsidiary Guarantors on the one hand and of the Initial
Purchasers on the other hand in connection with the statements or omissions
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Subsidiary
Guarantors on the one hand and the Initial Purchasers on the other hand in
connection with the offering of the
-25-
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the Subsidiary Guarantors and the total underwriting discount
received by the Initial Purchasers, bear to the aggregate initial offering price
of the Securities.
The relative fault of the Company and the Subsidiary Guarantors on the
one hand and the Initial Purchasers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or a Subsidiary Guarantor or
by the Initial Purchasers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Subsidiary Guarantors and the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section were determined by pro rata allocation (even if the Initial Purchasers
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this Section. The aggregate amount of losses, liabilities, claims,
damages and expenses incurred by an indemnified party and referred to above in
this Section shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing to defend or
defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged
omission.
Notwithstanding the provisions of this Section, no Initial Purchaser
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities purchased and sold by it hereunder exceeds
the amount of any damages which such Initial Purchaser has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
Initial Purchaser within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act, and each person who is an affiliate of or under common control
with an Initial Purchaser, shall have the same rights to contribution as such
Initial Purchaser, and each person, if any, who controls the Company or a
Subsidiary Guarantor within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
such Subsidiary Guarantor. The Initial Purchasers' respective obligations to
contribute pursuant to this Section are several in proportion to the principal
amount of Securities set forth opposite their respective names in Schedule A
hereto and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of
-26-
officers of the Company or any of its subsidiaries submitted pursuant hereto
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of any Initial Purchaser or controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Initial Purchasers.
SECTION 10. Termination of Agreement.
------------------------
(a) Termination; General. The Representative may terminate this
--------------------
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Offering
Memorandum, any material adverse change in the condition, financial or
otherwise, or in the results of operations, business affairs or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the judgment of the Representative, impracticable to market the Securities or
to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the
Commission or the NASDAQ National Market, or if trading generally on the
American Stock Exchange or the New York Stock Exchange or in the NASDAQ National
Market has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by
any of said exchanges or by such system or by order of the Commission, the NASD
or any other governmental authority, or (iv) if a banking moratorium has been
declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this
-----------
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 7, 8 and 9 shall survive such termination and remain in full force and
effect.
SECTION 11. Default by One or More of the Initial Purchasers. If one
------------------------------------------------
or more of the Initial Purchasers shall fail at the Closing Time to purchase the
Securities which it or they are obligated to purchase under this Agreement (the
"Defaulted Securities"), the Representative shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Initial Purchasers, or any other initial purchasers, to purchase all, but not
less than all, of the Defaulted Securities in such amounts as may be agreed upon
and upon the terms herein set forth; if, however, the Representative shall not
have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Notes to be
purchased hereunder, each of the non-defaulting Initial
Purchasers shall be obligated, severally and not jointly, to
purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Initial
Purchasers, or
-27-
(b) if the number of Defaulted Securities exceeds 10%
of the aggregate principal amount of the Notes to be purchased
hereunder, this Agreement shall terminate without liability on
the part of any non-defaulting Initial Purchaser.
No action taken pursuant to this Section shall relieve any defaulting
Initial Purchaser from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representative or the Company shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Offering Memorandum or in
any other documents or arrangements. As used herein, the term "Initial
Purchaser" includes any person substituted for an Initial Purchaser under this
Section.
SECTION 12. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the Initial
Purchasers shall be directed to ▇▇▇▇▇▇▇▇▇▇▇ at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of General Counsel, with a copy to Milbank,
Tweed, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. Notices to the Company and the
Subsidiary Guarantors shall be directed to it at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, with a copy to Mayer,
Brown, ▇▇▇▇ & Maw, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of
▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
-------
be binding upon the Initial Purchasers, the Company and the Subsidiary
Guarantors and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Initial Purchasers, the Company and the Subsidiary
Guarantors and their respective successors and the controlling persons and
officers and directors referred to in Sections 7 and 8 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Initial Purchasers, the Company and the Subsidiary
Guarantors and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any Initial Purchaser shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
-28-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all other counterparts, will become a binding
agreement between the Initial Purchasers and the Company and Subsidiary
Guarantors in accordance with its terms.
Very truly yours,
ISLE OF CAPRI CASINOS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
RIVERBOAT CORPORATION OF MISSISSIPPI
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
RIVERBOAT CORPORATION OF MISSISSIPPI-VICKSBURG
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
RIVERBOAT SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
CSNO, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
LOUISIANA RIVERBOAT GAMING PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
ST. ▇▇▇▇▇▇▇ GAMING COMPANY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
IOC HOLDINGS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
GRAND PALAIS RIVERBOAT, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
LRGP HOLDINGS, L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
PPI, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
ISLE OF CAPRI CASINO COLORADO, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
ISLE OF CAPRI CASINO-TUNICA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
IOC-COAHOMA, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
IOC-NATCHEZ, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
IOC-▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
IOC BOONVILLE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
IOC-KANSAS CITY, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
ISLE OF CAPRI ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
ISLE OF CAPRI MARQUETTE, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
IOC-▇▇▇▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
GEMINI, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
LL HOLDING CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and CFO
CONFIRMED AND ACCEPTED,
as of the date first above written:
By: DRESDNER KLEINWORT ▇▇▇▇▇▇▇▇▇▇▇ - GRANTCHESTER, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
-------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Chief Operating Officer
For itself and as Representative of the other Initial Purchasers named in
Schedule A hereto.
SCHEDULE A
Principal
Amount of
Name of Initial Purchaser Notes
------------
Dresdner Kleinwort ▇▇▇▇▇▇▇▇▇▇▇ - Grantchester, Inc. $100,000,000
CIBC World Markets Corp. $ 60,000,000
Deutsche Banc Alex. ▇▇▇▇▇ Inc. $ 30,000,000
Credit Lyonnais Securities (USA) Inc. $ 10,000,000
--------------
Total $200,000,000
==============
SCHEDULE B
ISLE OF CAPRI CASINOS, INC.
$200,000,000 9% Senior Subordinated Notes due 2012
1. The initial public offering price of the Securities shall be 100%
of the principal amount thereof, plus accrued interest, if any, from the date of
issuance.
2. The purchase price to be paid by the Initial Purchasers for the
Securities shall be 98% of the principal amount thereof.
3. The interest rate on the Securities shall be 9% per annum.
4. The Notes are redeemable, in whole in part, at the option of the
Company, at any time on or after March 15, 2007 at the redemption prices
(expressed as percentages of principal amount) set forth below plus accrued and
unpaid interest to the applicable redemption date, if redeemed during the
12-month period beginning on March 15 of the years indicated below.
Year Percentage
---- ----------
2007 104.500%
2008 103.000%
2009 101.500%
2010 100.000%
5. On or before March 15, 2005, the Company may, at its option, use
the net proceeds of a Public Equity Offering to redeem up to 35% of the Notes at
109.00% of the principal amount thereof.
Exhibit A-1
FORM OF OPINION MAYER, BROWN, ▇▇▇▇ & MAW
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) The Company has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware.
(ii) The Company has the power (corporate or otherwise) and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Memorandum and to enter into and perform its
obligations under the Purchase Agreement, the Indenture, the Notes and the
Registration Rights Agreement.
(iii) The Purchase Agreement and the Registration Rights Agreement
have been duly authorized, executed and delivered by the Company and are the
legally valid and binding obligations of the Company and the Subsidiary
Guarantors, enforceable against them in accordance with the terms of the
Purchase Agreement and Registration Rights Agreement, respectively, except as
the enforcement thereof may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization,
moratorium or other similar laws relating to or affecting the enforcement of
creditors' rights generally, or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law).
(iv) The Notes are not of the same class (within the meaning of Rule
144A of the ▇▇▇▇ ▇▇▇) as securities of the Company or its Subsidiaries that are
listed on a national securities exchange registered under Section 6 of the 1934
Act or that are quoted in a United States automated inter-dealer quotation
system.
(v) The Indenture has been duly authorized, executed and delivered
by the Company and the Subsidiary Guarantors and (assuming the due
authorization, execution and delivery thereof by the Trustee) constitutes a
valid and binding agreement of the Company and the Subsidiary Guarantors,
enforceable against them in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or other
similar laws relating to or affecting enforcement of creditors' rights
generally, or by general principles of equity (regardless of whether enforcement
is considered in a proceeding in equity or at law).
(vi) The Notes and the Subsidiary Guarantees are in the form
contemplated by the Indenture. The Notes have been duly authorized by the
Company. When the Notes and Subsidiary Guarantees have been duly executed by the
Company and Subsidiary Guarantors, respectively, and authenticated by the
Trustee in the manner provided in the Indenture (assuming the due authorization,
execution and delivery of the Indenture by Subsidiary Guarantors and the
Trustee) and issued and delivered against payment of the purchase price
therefor, the Notes and the Subsidiary Guarantees will constitute valid and
binding obligations of the Company and the Subsidiary Guarantors, respectively,
enforceable against the Company and the Subsidiary Guarantors, respectively, in
accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium (including,
without limitation, all laws relating to fraudulent transfers), or other similar
laws relating to or affecting enforcement of creditor's rights generally, or by
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law), and will be entitled to the benefits of the
Indenture. When executed and authenticated in accordance with the terms of the
Indenture and issued in accordance with the terms of the Exchange Offer as
contemplated by the Registration Rights Agreement, the Exchange Notes and the
Private Exchange Notes, if any, will constitute the legally valid and binding
obligations of the Company and the Subsidiary Guarantors, enforceable against
them in accordance with their terms and entitled to the benefits of the
Indenture, except as the enforcement thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium (including, without limitation, all laws
relating to fraudulent transfers), or other similar laws relating to or
affecting enforcement of creditor's rights generally, or by general principles
of equity (regardless of whether enforcement is considered in a proceeding in
equity or at law), and will be entitled to the benefits of the Indenture.
(vii) The Notes, the Subsidiary Guarantees, the Indenture and the
Registration Rights Agreement conform in all material respects to the
descriptions thereof contained in the Final Offering Memorandum.
(viii) The documents incorporated by reference in the Offering
Memorandum (other than the financial statements and supporting schedules
therein, as to which no opinion need be rendered), when they were filed with the
Commission, complied as to form in all material respects with the requirements
of the 1934 Act and the rules and regulations of the Commission thereunder.
(ix) To the best of our knowledge, after due inquiry, there is not
pending or threatened any action, suit, proceeding, inquiry or investigation, to
which the Company or any Subsidiary Guarantor is a party, or to which the
property of the Company or any Subsidiary Guarantor is subject, before or
brought by any court or governmental agency or body, which might reasonably be
expected to materially and adversely affect the consummation of the transactions
contemplated in the Purchase Agreement or the performance by the Company and the
Subsidiary Guarantors of their obligations thereunder or the transactions
contemplated by the Offering Memorandum, including without limitation the
performance by the Company and the Subsidiary Guarantors of their obligations
under the Operative Documents.
(x) The information in the Final Offering Memorandum under "Certain
Transactions", "Description of the Notes", "Exchange Offer; Registration
Rights", "Certain Tax Considerations", and "Notice to Investors", to the extent
that such information constitutes matters of law, summaries of legal matters,
the Company's and its Subsidiaries charters and bylaws or legal proceedings, or
legal conclusions, has been reviewed by us and is correct in all material
respects.
(xi) The descriptions in the Final Offering Memorandum of the
Company's 8 3/4% Senior Subordinated Notes due 2009 and the Company's senior
credit facility under the caption "Description of Certain Indebtedness" and of
the agreements described under the caption "Certain Transactions" are accurate
in all material respects.
(xii) To the best of our knowledge, after due inquiry, (A) neither
the Company nor any of its Subsidiaries is in violation of its charter or
by-laws and (B) no default by the Company or any of its Subsidiaries exists in
the due performance or observance of any material obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument listed on an exhibit to
such opinion.
(xiii) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than such as may be required by
state gaming regulatory authorities or as may be required under the applicable
securities laws of the various jurisdictions in which the Notes and Subsidiary
Guarantees will be offered or sold, as to which we need express no opinion) is
necessary or required in connection with the due authorization, execution and
delivery of the Purchase Agreement, Subsidiary Guarantees or the Registration
Rights Agreement by the Company or the Subsidiary Guarantors or the due
execution, delivery or performance of the Indenture by the Company or the
Subsidiary Guarantors or for the offering, issuance, sale or delivery of the
Notes and Subsidiary Guarantees to the Initial Purchasers or the resale by the
Initial Purchasers in accordance with the terms of the Purchase Agreement.
(xiv) Assuming the accuracy of the representations and warranties of
the Initial Purchasers in this Agreement, it is not necessary in connection with
the offer, sale and delivery of the Notes and Subsidiary Guarantees to the
Initial Purchasers and to each Subsequent Purchaser in the manner contemplated
by the Purchase Agreement and the Offering Memorandum to register the Notes
under the 1933 Act or to qualify the Indenture under the Trust Indenture Act.
(xv) The execution, delivery and performance of the Purchase
Agreement, the Registration Rights Agreement, the Indenture, the Notes and the
Subsidiary Guarantees and the consummation of the transactions contemplated in
the Purchase Agreement and in the Offering Memorandum (including the use of the
proceeds from the sale of the Notes as described in the Offering Memorandum
under the caption "Use of Proceeds") and compliance by the Company and the
Subsidiary Guarantors with their obligations under the Purchase Agreement, the
Registration Rights Agreement, the Indenture, the Notes and Subsidiary
Guarantees do not and will not, whether with or without the giving of notice or
lapse of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined in Section 1(a)(xiii) of the Purchase Agreement)
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any Subsidiary Guarantor pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or any other agreement or instrument listed on an exhibit to such
opinion, nor will such action result in any violation of the provisions of the
charter or by-laws of the Company, or any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any government,
government instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its Subsidiaries or any of their respective
properties, assets or operations.
(xvi) The issuance and sale of the Notes and Subsidiary Guarantees
and the application of the proceeds thereof as provided in the Operative
Documents do not violate Regulations U, T or X of the Board of Governors of the
Federal Reserve System.
(xvii) None of the Company and the Subsidiary Guarantors is an
"investment company" or an entity "controlled" by an "investment company," as
such terms are defined in the 1940 Act.
(xviii) The Offering Memorandum, as of its date, complies as to form
in all material respects with the requirements of Part I of Form S-3 under the
1933 Act and the rules and regulations of the SEC thereunder that would be
applicable if the Offering Memorandum were a prospectus subject to such
requirements.
(xix) Assuming that the laws of the States of Iowa and Colorado are
the same as the law of the State of Illinois, the execution, delivery and
performance of the Purchase Agreement, the Indenture, the Registration Rights
Agreement and the Subsidiary Guarantees (as part of the Indenture) by Riverboat
Services, Inc. and Isle of Capri Casino Colorado, Inc., and compliance by
Riverboat Services, Inc. and Isle of Capri Casino Colorado, Inc. with all of the
provisions thereof and the consummation of the transactions contemplated
thereby, have been duly authorized and approved by Riverboat Services, Inc. and
Isle of Capri Casino Colorado, Inc.
Nothing has come to our attention that has led us to believe that the
Final Offering Memorandum (except for financial statements and schedules and
other financial data included or incorporated by reference therein or omitted
therefrom as to which such counsel need make no statement), at the time the
Final Offering Memorandum was issued or at the Closing Time, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, the Subsidiaries and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
Exhibit A-2
FORM OF OPINION OF IN HOUSE COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(a)
(i) The Company and the Subsidiary Guarantors are not required to
be qualified as foreign entities to transact business in any jurisdiction where
they are not so qualified.
(ii) The shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(iii) The Company owns 100% of the [shares of capital
stock/partnership interests/membership interests] of [name of applicable
Subsidiary Guarantors] free and clear of any security interest, claim, lien,
encumbrance or adverse interest, except as otherwise described in the Offering
Memorandum. To my knowledge, such [shares of capital stock/partnership
interests/membership interests] constitute the only ownership interests in the
[name of applicable Subsidiary Guarantors]. The [shares of capital
stock/partnership interests/membership interests] of [name of applicable
Subsidiary Guarantors] have been duly authorized and validly issued, fully paid
and non-assessable. To my knowledge, the [shares of capital stock/partnership
interests/membership interests] are not subject to any restriction, limitation,
prohibition or condition on payment of dividends, distribution or other payments
by [name of applicable Subsidiaries] with respect to equity interests in or of
[name of applicable Subsidiary Guarantors], except as otherwise described in the
Offering Memorandum. The Company does not have any Subsidiaries, other than
[_________].
(iv) There is not pending or, to the best of my knowledge,
threatened any action, suit, proceeding, inquiry or investigation, to which the
Company or any Subsidiary is a party, or to which the property of the Company or
any Subsidiary thereof is subject, before or brought by any court or
governmental agency or body, which could reasonably be expected to result in a
Material Adverse Effect or to materially and adversely affect the consummation
of the transactions contemplated in the Purchase Agreement or the performance by
the Company and the Subsidiary Guarantors of their obligations thereunder or the
transactions contemplated by the Offering Memorandum, including without
limitation the performance by the Company and the Subsidiary Guarantors of their
obligations under the Operative Documents.
(v) To the best of my knowledge there are no franchises, contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments that
would be required to be described in the Offering Memorandum that are not
described or referred to in the Offering Memorandum other than those described
or referred to therein or incorporated by reference thereto.
(vi) The Company and its Subsidiaries have all licenses, permits,
franchises, authorizations and approvals of governmental and regulatory
authorities (collectively, the
"Permits"), including under and applicable Environmental Laws of the State of
Louisiana, Mississippi, Colorado, Florida, Iowa, Missouri and Nevada or any
political subdivision thereof and any applicable Permits necessary under the
gaming laws of the States of Louisiana, Mississippi, Colorado, Florida, Iowa,
Missouri and Nevada and any other law, statute, ordinance, rule or regulation in
connection with the current operation of the [names of applicable Company
facilities] or necessary to enable the Company and [name of applicable
Subsidiaries] to conduct their business as described in the Offering Memorandum.
To the best of my knowledge, after due inquiry, the Company and [name of
applicable Subsidiaries] have fulfilled and performed all of their material
obligations with respect to such Permits. To the best of my knowledge, no event
has occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results, or after notice or lapse of time
would result, in any material impairment of the rights of the holder of any such
Permit; and such Permits contain no restrictions that are materially burdensome
to the Company or [name of applicable Subsidiaries].
(vii) The Gaming Authorities of the States of Mississippi, Louisiana,
Colorado, Iowa, Missouri and Nevada have reviewed the ownership structure of the
Company and certain of its subsidiaries and the operation of the [names of
applicable Company facilities] and have required certain owners and key
operators to be found suitable under the gaming laws of the States of
Mississippi, Louisiana, Colorado, Iowa, Missouri and Nevada to be associated
with the Company and [name of applicable Subsidiaries]. Each of the person so
requested by such Gaming Authorities to be found suitable has been found
suitable.
Nothing has come to my attention that has led me to believe that the
Offering Memorandum (except for financial statements and schedules and other
financial data included or incorporated by reference therein or omitted
therefrom as to which I need make no statement), at the time the Offering
Memorandum was issued, at the time any such amended or supplemented Offering
Memorandum was issued or at the Closing Time, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
In rendering such opinion, such counsel may rely, as to matters of
fact (but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company, the Subsidiaries and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).