CASINO MAGIC OF LOUISIANA, CORP.
$115,000,000 13% First Mortgage Notes due 2003
With Contingent Interest
PURCHASE AGREEMENT
August 16, 1996
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇.▇. ▇▇▇▇▇▇▇▇ INC.
c/o ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc. 1999 Avenue of the Stars, ▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Casino Magic of Louisiana, Corp., a Louisiana corporation (the
"Company"), proposes, subject to the terms and conditions stated herein, to
issue and sell to ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc., ▇▇▇▇▇▇▇▇▇ & Company,
Inc. and Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇. ▇. ▇▇▇▇▇▇▇▇ Inc. (each, individually, an
"Initial Purchaser" and collectively, the "Initial Purchasers") an
aggregate principal amount of $115,000,000 of its 13 % Series A First Mortgage
Notes due 2003 With Contingent Interest (the "Series A Notes").
The Series A Notes and the Series B Notes (as defined below) (the Series
A Notes and the Series B Notes being collectively referred to herein as the
"Notes") will be issued pursuant to an Indenture (the "Indenture") to be dated
as of the Closing Date (as defined below) among the Company, Jefferson Casino
Corporation (the "Guarantor") and First Union Bank of Connecticut, as trustee
(the "Trustee"). The Notes will be unconditionally guaranteed by the
Guarantor on a senior secured basis pursuant to the terms of the Indenture
(the "Guarantee"). The obligations under the Notes and the Guarantees will be
secured by security interests in or pledges of (the "Security Interests")
certain assets (the "Collateral") as set forth in the Offering Memorandum (as
defined below). As used herein, the term "Notes" shall include the Guarantees
whenever the context permits.
1. Issuance of Securities
The Company proposes to issue and sell to the Initial Purchasers an aggregate
of $115,000,000 principal amount of Series A Notes pursuant to the Indenture.
The Series A Notes will be offered and sold to the Initial Purchasers pursuant
to an exemption or exemptions from the registration requirements under the
Securities Act of 1933, as amended (the "Securities Act"). The Company has
prepared a preliminary offering memorandum dated August 2, 1996 (the
"Preliminary Offering Memorandum") and a final offering memorandum dated the
date hereof (the "Offering Memorandum") relating to the Company, the
Guarantor, the Series A Notes and the Guarantee.
The Initial Purchasers have advised the Company and the Guarantor that
the Initial Purchasers will make offers (the "exempt Resales") of the Series
A Notes on the terms set forth in the Offering Memorandum, as amended or
supplemented, solely to persons whom the Initial Purchasers reasonably believe
to be "qualified institutional buyers, " as defined in Rule 144A under the
Securities Act ("QIBs"), and to a limited number of other "accredited
investors," as defined in Rule 501(a) under Regulation D of the Securities Act
that execute Annex A to the Offering Memorandum (each, an "Accredited
Investor"). The QlBs and the Accredited Investors are referred to herein as
the "Eligible Purchasers. "
Holders (including subsequent transferees) of the Series A Notes will be
entitled to certain registration rights provided under a registration rights
agreement (the "Registration Rights Agreement")to be dated as of the Closing
Date among the Company, the Guarantor and the Initial Purchasers, in
substantially the form of Exhibit A hereto. Pursuant to the Registration
Rights Agreement, the Company and the Guarantor will agree to file with the
Securities and Exchange Commission (the "Commission"), under the
circumstances set forth therein, (i) a registration statement under the
Securities Act (the "Exchange Offer Registration Statement") relating to the
13% Series B First Mortgage Notes due 2003 With Contingent Interest (the
"Series B Notes") to be offered in exchange for the Series A Notes (the
"Exchange Offer") and (ii) under certain circumstances set forth in the
Registration Rights Agreement, a shelf registration statement pursuant to Rule
415 under the Securities Act (the "Shelf Registration Statement") relating
to the resale by certain holders of the Series A Notes, and to use its best
efforts to cause such registration statements to be declared effective and
consummate the Exchange Offer. The Notes are or will be secured obligations
and the Company and the Guarantor will enter into security agreements,
mortgages, pledge agreements, a disbursement agreement, environmental
indemnifications and certain other collateral assignment agreements
(collectively, the "Collateral Documents") dated as of the Closing Date in
favor of the Trustee that will provide for the grant of Security Interests in
the Collateral to the Trustee for the benefit of the holders of the Notes.
The Security Interests will secure the payment and performance when due of all
the respective obligations of the Company and the Guarantor under the
Indenture, the Notes and the Collateral Documents. This Agreement, the Notes,
the Indenture, the Registration Rights Agreement, the Guarantee and the
Collateral Documents are hereinafter referred to collectively as the
"Transaction Documents."
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE GUARANTOR
The Company and the Guarantor, jointly and severally, represent and warrant
to, and agree with, the Initial Purchasers that as of the date hereof (except
as otherwise expressly provided):
a. The Preliminary Offering Memorandum as of its date does not, and
the Offering Memorandum as of its date and the date hereof does not and as of
the Closing Date will not, and any supplement or amendment thereto will not,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading. No representation and warranty is made in this subsection (a)
with respect to any information contained in or omitted from the Preliminary
Offering Memorandum and the Offering Memorandum (or any amendment thereof or
supplement thereto) made in reliance upon and in conformity with information
relating to the Initial Purchasers (as set forth in Section 8(b) hereof)
furnished in writing to the Company by the Initial
Purchasers expressly for use therein. No stop order preventing the use of the
Preliminary Offering Memorandum or the Offering Memorandum, or any amendment
or supplement thereto, or any order asserting that any of the transactions
contemplated by this Agreement are subject to the registration requirements of
the Securities Act, has been issued and no proceeding for that purpose has
been commenced or is pending or, to the knowledge of the Company and the
Guarantor, is contemplated.
▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public accountants with
respect to the Company and the Guarantor as required by the Securities Act and
the rules and regulations thereunder. Except as set forth in the Offering
Memorandum, the historical consolidated financial statements of the Company
and the Guarantor, together with the notes thereto, forming part of the
Preliminary Offering Memorandum and the Offering Memorandum (and any amendment
or supplement thereto) comply as to form with the requirements applicable to
financial statements required to be included in registration statements on
Form S-1 under the Securities Act and present fairly the financial position
and cash flows of the Company and the Guarantor at the date and for the period
indicated. Such consolidated financial statements have been prepared in
accordance with generally accepted accounting principles applied on a
consistent basis throughout the period presented except as stated therein.
Except as set forth in the Offering Memorandum, the financial and statistical
information and data included in the Offering Memorandum, historical and pro
forma, are accurately presented and prepared on a basis consistent with the
relevant financial statements, historical and pro forma, and the books and
records of the Company and the Guarantor, as applicable. The forward-looking
statements contained in the Offering Memorandum are based upon good faith
estimates and assumptions believed by the Company and the Guarantor to be
reasonable at the time made.
c. Subsequent to the respective dates as of which information is
given in the Offering Memorandum, except as set forth therein, (i) there has
not been, singly or in the aggregate, any material adverse change or
development which might reasonably be expected to result in any material
adverse change in the business, properties, operations, condition (financial
or other) or results of operations of the Company, whether or not arising from
transactions in the ordinary course of business, (ii) neither the Company nor
the Guarantor has incurred or undertaken any liabilities or obligations,
direct or contingent, which are material, individually or in the aggregate, to
the Company or the Guarantor, as the case may be, nor entered into any
transaction not in the ordinary course of business and (iii) there has not
been any material change in the Company's or the Guarantor's capital stock or
any material increase in long-term or short-term indebtedness of the Company
or the Guarantor or any dividend or distribution of any kind declared, paid or
made by the Company or the Guarantor on any class of its capital stock (any
such event referred to in clauses (i), (ii) or (iii), a "Material Adverse
Change").
d. Each of the Company and the Guarantor has all requisite corporate
power and authority to own, lease and operate its properties and to conduct
its business as described in the Offering Memorandum and to execute, deliver
and perform its obligations under this Agreement and the other Transaction
Documents to which it is a party and to consummate the transactions
contemplated hereby and thereby, including without limitation, the corporate
power and authority to issue, sell and deliver the Notes and the Guarantee.
e. None of (i) the execution, delivery, and performance of this
Agreement and each of the other Transaction Documents by the Company and the
Guarantor, to the extent it is a party thereto, (ii) the issuance, sale or
delivery of the Notes and the Guarantee, or (iii) the consummation of the
transactions contemplated hereby and thereby will (A) conflict with or result
in a breach of any of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both,
would constitute a default) under, or, except as provided in the Collateral
Documents, result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Guarantor
pursuant to, any agreement, indenture, note, instrument, franchise, license or
permit to which the Company, the Guarantor or Casino Magic Corp. ("Casino
Magic") is a party or by which their respective properties or assets may be
bound or (B) violate or conflict with any judgment, decree, order, statute,
rule or regulation of any court or any public, governmental or regulatory
agency or body applicable to the Company, the Guarantor or Casino Magic or any
of their respective properties or assets. The execution, delivery and
performance of this Agreement and the other Transaction Documents by the
Company and the Guarantor, to the extent it is a party thereto, and the
consummation of the transactions contemplated hereby and thereby, as described
in the Offering Memorandum, do not and will not violate or conflict with any
provision of the charter or bylaws, as amended or restated, of the Company or
the Guarantor as currently in effect. No consent, waiver, approval,
authorization, order, registration, filing, qualification, license or permit
of or with any court or any public, governmental or regulatory agency or body,
or any other person, is required for the execution, delivery and performance
of this Agreement, the other Transaction Documents or the consummation of the
transactions contemplated hereby and thereby, including the issuance, sale and
delivery of the Notes (including the Guarantee) to be issued, sold and
delivered by the Company and the Guarantor hereunder except such consents,
waiver, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws in connection with the purchase and distribution of the Notes
by the Initial Purchasers, or as may be required under applicable gaming laws,
all of which either shall have been made and obtained on the Closing Date (and
copies of which have been delivered to the Initial Purchasers) or shall have
no bearing on the validity and enforceability of this Agreement, the other
Transaction Documents and the Notes, except for such filings, qualifications,
orders and approvals as may in the future be required under the Registration
Rights Agreement.
f. The Company had, as of June 30, 1996, an authorized and
outstanding capitalization as set forth in the Offering Memorandum and the
capital of the Company conforms in all material respect to the description
thereof contained in the Offering Memorandum prior to and after giving pro
forma effect to the consummation of the offering of the Notes and the
application of the net proceeds therefrom and the related transactions on the
terms described in the Offering Memorandum.
g. Each of the Company and the Guarantor is duly organized, validly
existing and in good standing under the laws of its jurisdiction of
incorporation and is duly qualified or licensed to do business as a foreign
corporation in good standing in all jurisdictions in which it owns or leases
property or in which the conduct of its business makes such qualification or
license necessary.
h. Each of the Company, the Guarantor and Casino Magic has such
permits, licenses, franchises, certificates, consents, orders, qualifications,
approvals, registrations and authorizations ("Permits") of and from, and has
made all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all courts and
other tribunals as are necessary to own, lease and operate its respective
properties and to conduct its business in the manner described in the
Preliminary Offering Memorandum and the Offering Memorandum, except as set
forth in the Offering Memorandum and except for Permits which the Company
would not customarily possess at the date hereof but which will be obtained in
the ordinary course as development continues of Casino Magic-Bossier City (as
defined in the Offering Memorandum), and no such Permit contains, or will upon
issue contain, a materially burdensome restriction not adequately disclosed in
the Offering Memorandum. Except as set forth in the immediately preceding
sentence, all such Permits are in full force and effect, and each of the
Company, the Guarantor and Casino Magic has fulfilled and performed all of its
material obligations with respect to such Permits. No event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination by the issuer thereof or which results in any other material
impairment of the rights of the holder of any such Permits. The Company, the
Guarantor and Casino Magic have no reason to believe that any governmental
body or agency is considering limiting, suspending or revoking any such
Permit.
i. There is (i) no action, suit, proceeding or investigation pending
or, to the best knowledge of the Company and the Guarantor, threatened to
which the Company or the Guarantor is a party or to which any property of the
Company or the Guarantor is subject in any court or before any governmental
authority, arbitration board or tribunal, foreign or domestic, (ii) to the
best knowledge of the Company and the Guarantor, no statute, rule, regulation
or order that has been enacted, adopted or issued by any government agency
since the date of the consolidated financial statements included in the
Offering Memorandum or (iii) no injunction, restraining order or order of any
nature by a federal or state court or foreign court of competent jurisdiction
to which the Company or the Guarantor, or any of their respective business,
assets or property, is subject, which might in any such case reasonably be
expected to have a material adverse effect on (A) the business, properties,
operations, condition (financial or other) or results of operations of such
person, or (B) the issuance and sale of the Notes or the Guarantee or the
consummation of the transactions contemplated by this Agreement or any of the
other Transaction Agreements, including without limitation the perfection or
priority of any security interest in the Collateral (a "Material Adverse
Effect"), and there is no such action seeking to restrain, enjoin, prevent
the consummation of or otherwise challenge this Agreement or any of the other
Transaction Documents or the transactions contemplated hereby or thereby.
There is no contract or document that is material to the business of the
Company or the Guarantor that would be required to be described in the
Preliminary Offering Memorandum and the Offering Memorandum if the Preliminary
Offering Memorandum and Offering Memorandum were Registration Statements on
Form S-1 under the Act that is not so described therein.
j. None of the Company, the Guarantor or any of their respective
affiliates (i) has taken or will take, directly or indirectly, any action
designed to cause or result in, or which constitutes or which might reasonably
be expected to constitute, the stabilization or manipulation of the price of
any security of the Company or the Guarantor to facilitate the sale or resale
of the Notes or (ii) since the date of the Preliminary Offering Memorandum (A)
sold, bid for, purchased or paid any person any compensation for soliciting
purchases of, any of the Notes (including the Guarantee) or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company or the Guarantor.
k. Neither the Company nor the Guarantor is (i) an "investment
company" or a company "controlled" by an investment company within the meaning
of the Investment Company Act of 1940, as amended, (ii) a "holding company" or
a "subsidiary company" of a holding company or an "affiliate" thereof within
the meaning of the Public Utility Holding Company Act of 1935, as amended, or
(iii) subject to regulation under the Federal Power Act or any federal or
state statute or regulation limiting its ability to incur indebtedness for
borrowed money, except as disclosed in the Offering Memorandum.
l. Assuming (a) the accuracy of the Initial Purchasers'
representations and warranties set forth in Section 3 of this Agreement and
the compliance by the Initial Purchaser with the procedures set forth in
Section 4 of this Agreement and (b) that the purchasers who buy the Series A
Notes in the Exempt Resales are either QIBs or Accredited Investors, the offer
and sale of the Series A Notes (including the Guarantee) to the Initial
Purchasers as contemplated hereby and the Exempt Resales are exempt from the
registration requirements of the Securities Act and the qualification
requirements under the Trust Indenture Act. No form of general solicitation
or general advertising was used by the Company, the Guarantor or any of their
representatives (although no representation or warranty is made as to actions
taken by the Initial Purchasers and their representatives) in connection with
the offer and sale of any of the Series A Notes (including the Guarantee) or
in connection with Exempt Resales, including, but not limited to, articles,
notices or other communications published in any newspaper, magazine, or
similar medium or broadcast over television or radio, or any seminar or
meeting whose attendees have been invited by any general solicitation or
general advertising. No securities of the same class as the Series A Notes
have been issued and sold by the Company or the Guarantor within the six month
period immediately prior to the date hereof.
m. None of the Company, the Guarantor, or any of their respective
affiliates (as defined in Rule 501(b) under the Securities Act) or any person
authorized to act on their respective behalf (excluding the Initial
Purchasers, as to which no representation is made) has sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of any security (as
such ten-n is defined in the Securities Act) of the Company in a manner which
would require registration under the Securities Act.
n. The Series A Notes are eligible for resale pursuant to Rule 144A
under the Securities Act and, when issued, will not be of the same class as
securities listed on a national securities exchange registered under Section 6
of the Securities Exchange Act of 1934, as amended (the "Exchange Act") or
quoted in a U.S. automated inter-dealer quotation system.
o. Neither the Company nor the Guarantor has any material liabilities
or obligations absolute, accrued, contingent or otherwise, ("Liabilities"),
except (i) as reflected or reserved against in the consolidated balance sheet
of the Company and the Guarantor as of June 30, 1996, and not heretofore
discharged, (ii) as specifically disclosed or specifically contemplated in the
Offering Memorandum or (iii) liabilities incurred in the ordinary course of
business since June 30, 1996. Casino Magic has no material liabilities except
as reflected or reserved against in the consolidated balance sheet of Casino
Magic as of June 30, 1996 included in Casino Magic's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1996 or incurred in the ordinary
course of business since June 30, 1996.
p. None of the Company, the Guarantor or Casino Magic is in violation
of its respective charter or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any bond, debenture, note or any other evidence of indebtedness or any
indenture, mortgage, deed of trust or other contract, lease or other
instrument to which any of them is a party or by which any of them or any of
their respective properties are bound except where such default would not,
singly or in the aggregate, have a Material Adverse Effect. There does not
exist any state of facts which constitutes an event of default on the part of
the Company, the Guarantor or Casino Magic as defined in such documents or
which, with notice or lapse of time or both, would constitute such an event of
default.
q. Each of the Company, the Guarantor and Casino Magic is in
compliance, and has complied in all material respects, at all times during its
existence, and all transactions involving the issuance, offer, placement and
sale, pursuant to the terms of the Transaction Documents, of the Notes comply,
in all material respects, with all applicable federal, state and local
statutes, codes, ordinances, rules and regulations of the United States and
all other countries and subdivisions thereof (the "Laws"), except where the
failure to so comply would not, singly or in the aggregate, have a Material
Adverse Effect on the Company, the Guarantor or Casino Magic. None of the
Company, the Guarantor or Casino
Magic has received notice within the past three (3) years of any violations of
any Laws.
r. The Company and the Guarantor are each in compliance with any and
all Laws relating to the environment or health and safety, except where the
failure to so comply would not, singly or in the aggregate, have a Material
Adverse Effect on the Company or the Guarantor. There exists no fact, and no
event has occurred, which has or is reasonably likely to result in material
liability (including, without limitation, alleged or potential liability for
investigatory costs, cleanup costs, governmental response costs, natural
resource damages, property damages, personal injuries or penalties) of the
Company or the Guarantor arising out of, based on or resulting from the
presence or release into the environment of any hazardous material (including,
without limitation, any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material, waste or substance regulated under or within the
meaning of any Law) or any violation of any Law relating to the environment.
s. This Agreement has been duly and validly authorized, executed and
delivered by the Company and the Guarantor and is a valid and binding
obligation of the Company and the Guarantor, enforceable against the Company
and the Guarantor in accordance with its terms except as such enforcement may
be subject to or limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally, (ii) general principles of equity
(regardless of whether such enforcement may be sought in a proceeding in
equity or at law) and (iii) with respect to any rights to indemnification or
contribution, federal securities laws.
t. The Series A Notes have been duly and validly authorized by the
Company, the Guarantee endorsed on the Series A Notes have been duly and
validly authorized by the Guarantor, and the Series A Notes (including the
Guarantee endorsed thereon), when authenticated by the Trustee and issued,
sold and delivered in accordance with this Agreement and the Indenture, will
have been duly and validly executed, authenticated, issued and delivered and
will constitute legally valid and binding obligations of the Company and the
Guarantor, enforceable against the Company and the Guarantor in accordance
with their terms and entitled to the benefits provided by the Indenture except
as such enforcement may be subject to or limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and remedies generally and (ii)
general principles of equity (regardless of whether such enforcement may be
sought in a proceeding in equity or at law). The Series A Notes and the
Guarantee endorsed thereon, when executed, authenticated, issued and delivered
as provided in the Indenture, will conform to the description thereof
contained in the Offering Memorandum.
u. The Series B Notes have been duly and validly authorized for
issuance by the Company, the Guarantee endorsed on the Series B Notes have
been duly and validly authorized by the Guarantor, and the Series B Notes
(including the Guarantee endorsed thereon), when authenticated by the Trustee
and issued and delivered in accordance with the Exchange Offer and the
Indenture, will have been duly and validly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the Company and
the Guarantor, enforceable against the Company and the Guarantor in accordance
with their terms and entitled to the benefits provided by the Indenture except
as such enforcement may be subject to or limited by (i) bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect relating to creditors' rights and remedies generally and (ii)
general principles of equity (regardless of whether such enforcement may be
sought in a proceeding in equity or at law). The Series B Notes and the
Guarantee endorsed thereon, when executed, authenticated, issued and delivered
as provided in the Indenture and Exchange Offer will conform to the
description thereof contained in the Offering Memorandum.
v. When issued, the Notes and the Guarantee will rank pari passu
in right of
payment with all of the Company's and the Guarantor's other unsubordinated
indebtedness, respectively.
w. The Indenture has been duly and validly authorized by the Company
and the Guarantor, and the Indenture, when executed and delivered by the
Company, the Guarantor and the Trustee, will constitute a valid and binding
obligation of the Company and the Guarantor, enforceable against the Company
and the Guarantor in accordance with its terms, except as such enforcement may
be subject to or limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally and (ii) general principles of equity
(regardless of whether such enforcement may be sought in a proceeding in
equity or at law). The Indenture, when executed and delivered by the Company,
the Guarantor and the Trustee, will conform to the description thereof
contained in the Offering Memorandum.
x. The Registration Rights Agreement has been duly and validly
authorized by the Company and the Guarantor, and the Registration Rights
Agreement, when executed and delivered by the Company, the Guarantor and the
Initial Purchasers, will constitute a legally valid and binding obligation of
the Company and the Guarantor, enforceable against the Company and the
Guarantor in accordance with its terms, except as such enforcement may be
subject to or limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally, (ii) general principles of equity
(regardless of whether such enforcement may be sought in a proceeding in
equity or at law) and (iii) with respect to any rights to indemnification or
contribution, federal securities laws. The Registration Rights Agreement,
when executed and delivered by the Company, the Guarantor and the Initial
Purchasers, will conform to the description thereof contained in the Offering
Memorandum.
y. Each of the Collateral Documents to be executed by the Company or
the Guarantor (to the extent it is a party thereto) has been duly and validly
authorized by the Company and the Guarantor, as the case may be, and the
Collateral Documents, when executed and delivered by the Company, the
Guarantor, and the other parties thereto, will constitute a legally valid and
binding obligation of the Company and the Guarantor, enforceable against the
Company and the Guarantor, as the case may be, except as such enforcement may
be subject to or limited by (i) bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights and remedies generally and (ii) general principles of equity
(regardless of whether such enforcement may be sought in a proceeding in
equity or at law). The Collateral Documents, when executed and delivered by
the parties thereto. will conform to the descriptions thereof contained in the
Offering Memorandum.
z. All of the outstanding shares of capital stock in the Company and the
Guarantor are duly and validly authorized and issued, fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued and are not now in violation of or
subject to any preemptive rights. Neither the Company nor the Guarantor has
outstanding any options to purchase, or any preemptive rights or other rights
to subscribe for or to purchase, any securities or obligations convertible
into, or any contracts or commitments to issue or sell, shares of capital
stock or any such options, rights, convertible securities or obligations. The
Guarantor owns 100% of the outstanding capital stock of the Company, which,
upon payment of the outstanding aggregate principal amount of the Company's 11
1/2 % senior secured notes due 1999 on the Closing Date, will be free and
clear of any security interest, claim, lien, encumbrance, transfer restriction
or limitation on voting rights. The Company has no subsidiaries and the
Guarantor has no subsidiaries other than the Company.
aa. No preemptive rights or other rights to subscribe for or purchase
securities exist with respect to the issuance and sale of the Notes by the
Company pursuant to this Agreement. No security holder of the Company has any
right which has not been satisfied or waived to require the Company to
register the sale of any securities owned by such security holder under the
Securities Act, except as contemplated by the Registration Rights Agreement.
bb. Each of the Company and the Guarantor has good and marketable
title to all the properties and assets reflected in the financial statements
in the Preliminary Offering Memorandum and the Offering Memorandum or
elsewhere in the Preliminary Offering Memorandum or the Offering Memorandum as
owned by it, which, upon payment of the outstanding aggregate principal amount
of the Company's 11 1/2% senior secured notes due 1999 on the Closing Date,
will be free and clear of all liens, except as described in the Preliminary
Offering Memorandum and the Offering Memorandum. All material leases to which
the Company is, or on the Closing Date will be, a party are valid and binding
and in full force and effect and no default by the Company, or to the
knowledge of the Company, by any other party thereto, has occurred or is
continuing thereunder and the Company enjoys peaceful and undisturbed
possession under all such leases as to which it is a party as lessee. Except
as disclosed in the Offering Memorandum, the Company owns or leases, or has
commitments for the construction of, all such properties as are necessary to
its operations as contemplated in the Offering Memorandum.
cc. The Company and the Guarantor own, possess or currently have the
right to use the trademarks, service marks, trade names, patent rights,
copyrights, licenses, inventions, know-how (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) (collectively, "Intellectual Property") presently
employed by them in connection with, or necessary for the conduct of, the
businesses now operated by them or to be operated by them as contemplated in
the Offering Memorandum, and neither the Company nor the Guarantor has
received any notice of, or is otherwise aware of, any infringement of, or
conflict with, asserted rights of others with respect to the foregoing.
dd. Each of the Company and the Guarantor has timely filed all
necessary federal, state and foreign income and franchise tax returns and all
material taxes, including without limitation, withholding taxes, penalties and
interest, assessments fees and other charges due or claimed to be due, have
been paid; all such tax returns were correct and complete in all material
respects when so filed; and neither the Company nor the Guarantor has any
knowledge of any tax deficiency which has been asserted or threatened against
the Company or the Guarantor.
ee. Each of the Company and the Guarantor maintains insurance
covering the properties, operations, personnel and business, including without
limitation, comprehensive general liability, property and casualty and
business interruption insurance, and builders risk coverage insurance is in
effect with respect to Casino Magic-Bossier City, in each case on such terms
and in the amounts as are customarily carried by similar businesses against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against, all of which insurance is in full force and effect on the
date hereof and on the Closing Date, except for insurance which the Company
would not customarily possess at the date hereof but which will be obtained in
the ordinary course as development continues of Casino Magic-Bossier City.
ff. None of the Company, the Guarantor, Casino Magic or any affiliate
or representative acting on the behalf of any of them has at any time (i) made
any unlawful contribution to any candidate for office, or failed to disclose
fully any contribution in violation of law or (ii) made any payment to any
federal, state or local governmental officer or official, or other person
charged with similar public or quasi-public duties, or customers or suppliers
other than payments required or permitted by the laws of the United States or
any jurisdiction thereof.
gg. No action has been taken and no law, statute, rule or regulation
or order has been enacted, adopted or issued by any governmental agency or
body which prevents the issuance of the Notes or the Guarantee, prevents or
suspends the use of any Preliminary Offering Memorandum or the Offering
Memorandum, or suspends the sale of the Notes in any jurisdiction referred to
in Section 5(e) hereof; no injunction, restraining order or other order or
relief of any nature by a federal or state court or other tribunal of
competent jurisdiction has been issued with respect to the Company that would
prevent or suspend the issuance or sale of the Notes or the use of any
Preliminary Offering Memorandum or the Offering Memorandum in any jurisdiction
referred to in Section 5(e) hereof; no action, suit or proceeding is pending
or threatened against or affecting the Company or the Guarantor before any
court or arbitrator or any governmental body, agency or official, domestic or
foreign, which, if adversely determined, would materially interfere with or
adversely affect the issuance of the Notes or the Guarantee or in any manner
draw into question the validity of the Transaction Documents, the Notes or the
Guarantee; and every request of any securities authority or agency of any
jurisdiction for additional information (to be included in the Offering
Memorandum or otherwise) has been complied with.
hh. All roads, easements and rights of way necessary for the full
utilization of and access to the vessel to be operated by the Company and the
conduct of its business have been completed or the necessary steps have been
taken by the Company to assure the complete construction and installation
thereof as contemplated in the Offering Memorandum. By the scheduled
commencement date of casino operations at Casino Magic-Bossier City in
September of 1996, Casino Magic-Bossier City will have unlimited access of
ingress and egress to publicly dedicated streets. All utility services
necessary for the operation of the business of the Company will be available
at the scheduled time for commencement of operation of the vessel to be
operated by the Company and, to the best knowledge of the Company, there are
no conditions that would inhibit or impair any utility services necessary for
the operation of the business of the Company from providing appropriate
utility services to the Company and Casino Magic-Bossier City.
ii. The Initial Purchasers have been furnished with a copy of the
material plans and specifications for the construction of the improvements at
Casino Magic-Bossier City and other necessary capital expenditures. Such
plans and specifications are satisfactory to the Company. The anticipated
cost of such improvements (including interest, legal, architectural,
engineering, planning, zoning and other similar costs) does not exceed the
amount set forth under the caption "Use of Proceeds" in the Offering
Memorandum. The Company is not aware of any material defects in such
improvements.
jj. Set forth on Exhibit B hereto is a description of the employee
pension, welfare or benefit plans with respect to which the Company or any
corporation considered an affiliate of the Company within the meaning of
Section 407(d)(7) of ERISA is a party in interest or disqualified person. The
execution and delivery of this Agreement, the other Transaction Documents and
the sale of the Series A Notes to be purchased by the Eligible Purchasers will
not involve any non-exempt prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Internal Revenue Code of 1986.
The representations made in the preceding sentence are made in reliance upon
and subject to the accuracy of, and compliance with, the representations and
covenants made or deemed made by the Initial Purchasers as set forth in the
Offering Memorandum under the caption "Notice to Investors."
kk. Each of the Preliminary Offering Memorandum and the Offering
Memorandum, as of its date, contains all the information specified in, and
meeting the requirements of, Rule 144A(d)(4) under the Securities Act.
ll. Each of the Company and the Guarantor does not intend to, nor
does it believe that it will, incur debts beyond its ability to pay such debts
as they mature. Immediately after the consummation of the transactions
contemplated by the Transaction Documents, the fair value and present fair
saleable value of the assets of each of the Company and the Guarantor will
exceed the sum of its respective Liabilities and neither the Company nor the
Guarantor will be, after giving effect to the execution, delivery and
performance of the Transaction Documents, to the extent each is a party
thereto, and the consummation of the transactions contemplated thereby, (i)
left with unreasonably small capital with which to carry on its business as it
is proposed to be conducted or (ii) unable to pay its debts (contingent or
otherwise) as they mature.
mm. Each of the Company and the Guarantor maintains a system of
internal accounting controls sufficient to provide reasonable assurance that:
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access
to assets is permitted only in accordance with management's general or
specific authorization and (iv) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
nn. None of the execution, delivery and performance of this
Agreement, the issuance and sale of the Notes (including the issuance of the
Guarantee), the application of the proceeds from the issuance and sale of the
Notes and the consummation of the transactions contemplated thereby by the
Company as set forth in the Offering Memorandum, will violate Regulations G,
T, U or X promulgated by the Board of Governors of the Federal Reserve System.
oo. Other than this Agreement, there are no contracts, agreements or
understandings between or among the Company or the Guarantor, on the one hand,
and any other person, on the other hand, that could give rise to a valid claim
against the Company, the Guarantor or the Initial Purchasers for a brokerage
commission, finder's fee or like payment in connection with the issuance,
purchase and sale of the Notes (including the Guarantee).
pp. Each certificate signed by any officer of the Company or the
Guarantor and delivered to the Initial Purchasers or counsel for the Initial
Purchasers on or prior to the Closing Date shall be deemed to be a
representation and warranty by Company or such Guarantor to the Initial
Purchasers as to the matters covered thereby.
qq. No statement, representation, warranty or covenant made by the
Company or the Guarantor in any of the Transaction Documents or made in any
certificate or document required by this Agreement to be delivered to the
Initial Purchasers was or will be, when made, inaccurate, untrue or incorrect
in any material respect.
rr. By the scheduled commencement date of casino operations at Casino
Magic Bossier City in September of 1996, appropriate signage will be
constructed, in accordance with all applicable governmental rules and
regulations, and erected within 100 feet of the off-ramp of Traffic St.
located on Interstate Highway 20, advertising Casino Magic-Bossier City. Such
signage shall be of a size and type equivalent to other signage for casinos in
the Bossier City/Shreveport, Louisiana area of similar size and scope as
Casino Magic-Bossier City.
ss. The vessel "Mary's Prize" (the "Bossier Riverboat") is a
"Riverboat" as that term is defined in the Louisiana Riverboat Economic
Development and Gaming Control Act, La. R.S. 4:504, and is otherwise fully
suitable for the Company's intended purposes of utilizing the same in the
Company's casino operations at Casino Magic-Bossier City, as set forth in the
Offering Memorandum. The Bossier Riverboat has the specifications set forth
in the Offering Memorandum. The Company has obtained or will obtain all
licenses, permits, consents and approvals necessary for the relocation of the
Bossier Riverboat from its present location at Morgan City, Louisiana to the
intended site (including, without limitation, licenses, permits, consents and
approval from, as applicable, the Louisiana Gaming Control Board, the Gaming
Enforcement Division of the Louisiana State Police and the U.S. Coast Guard)
so as to enable the Bossier Riverboat to be present at Casino Magic-Bossier
City for the commencement of gaming operations in September of 1996,
including, without limitation, licenses, permits, consents and approvals from
the Louisiana Gaming Control Board, the Gaming Enforcement Division of the
Louisiana State Police, the U.S. Coast Guard, Bossier Parish, the City of
Bossier, Caddo Parish, the City of Shreveport and any other governmental
entity which has authority over the operation or location or condition of the
Bossier Riverboat, or over the conduct of gaming operations thereon.
Each of the Company and the Guarantor acknowledges that the Initial
Purchasers and, for purposes of the opinions to be delivered to the Initial
Purchasers pursuant to Section 8 hereof, counsel to each of the Company and
the Guarantor and counsel to the Initial Purchasers will rely upon the
accuracy and truth of the foregoing representations and hereby consents to
such reliance.
3. PURCHASE, SALE AND DELIVERY OF THE NOTES
a. On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to sell to each Initial Purchaser and each
Initial Purchaser agrees to purchase, severally and not jointly, from the
Company the Notes in the respective principal amounts set forth opposite their
names on Schedule I hereto at a purchase price of 100% of their principal
amount, plus accrued interest, if any.
b. Payment of the purchase price for, and delivery of, the Notes
shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 12:00 p.m. (New York City time) on August 22, 1996 or such
other time and date as shall be mutually agreed between the Company and the
Initial Purchasers (such time and date of such payment and delivery being
herein called the "Closing Date"). At or prior to the Closing Date, the
Company shall execute and deliver for authentication one or more certificates
in global or definitive form for the Notes in such denominations and
registered in such names as the Initial Purchasers request upon notice to the
Company at least two business days prior to the Closing Date. Against such
delivery of the Notes, the Initial Purchasers shall pay or cause to be paid to
the Company the purchase price for the Notes. Payment shall be made to the
Company by wire transfer of immediately available funds to an account
designated by the Company.
c. Each of the Initial Purchasers hereby each represents, warrants
and covenants with respect to itself to the Company and the Guarantor that:
(i) it is either a QIB or an Accredited Investor, with such knowledge
and experience in financial and business matters as are necessary in order to
evaluate the merits and risks of an investment in the Series A Notes;
(ii) it (A) is not acquiring the Series A Notes with a view to any
distribution thereof that would violate the Securities Act or the securities
laws of any state of the United States or any other applicable jurisdiction
and (B) will be reoffering and reselling the Series A Notes only to QlBs in
reliance on the exemption from the registration requirements of the Securities
Act provided by Rule 144A and to a limited number of Accredited Investors that
execute and deliver a letter containing certain representations and agreements
in the form attached as Annex A to the Offering Memorandum;
(iii) no form of general solicitation or general advertising has been
or will be used by such Initial Purchaser or any of its representatives in
connection with the offer and sale of any of the Series A Notes, including,
but not limited to, articles, notices or other communications published in any
newspaper, magazine, or similar medium or broadcast over television or radio,
or any seminar or meeting whose attendees have been invited by any general
solicitation or general advertising;
(iv) it will otherwise act in accordance with the terms and
conditions set forth in this Agreement and in the Offering Memorandum in
connection with the placement of the Notes contemplated hereby; and
(v) it understands that the Company and, for purposes of the opinions
to be delivered to the Initial Purchasers pursuant to Section 7 hereof,
counsel to the Company and counsel to the Initial Purchasers will rely upon
the accuracy and truth of the foregoing representations and hereby consents to
such reliance.
4. SUBSEQUENT OFFERS AND RESALES OF THE NOTES
The Initial Purchasers and the Company hereby establish and agree to
observe the following procedures in connection with the offer and resale by
the Initial Purchasers of the Notes:
a. In connection with the Exempt Resales, the Initial Purchasers will
solicit offers to buy the Series A Notes only from, and will offer to sell the
Series A Notes only to Eligible Purchasers. The Initial Purchasers (i) will
offer to sell the Series A Notes only to, and will solicit offers to buy the
Series A Notes only from (A) QIB's who in purchasing such Series A Notes will
be deemed to have represented and agreed that they are purchasing the Series A
Notes for their own accounts or accounts with respect to which they exercise
sole investment discretion and that they or such accounts are QlBs and (B)
Accredited Investors who make the representations contained in, and execute
and return to such Initial Purchaser, a certificate in the form of Annex A
attached to the Offering Memorandum and (ii) that such QlBs and Accredited
Investors will acknowledge and agree that such Series A Notes will not have
been registered under the Act and may be resold, pledged or otherwise
transferred only (A)(1) inside the United States to a person whom the seller
reasonably believes is a QIB in a transaction meeting the requirements of Rule
144A, or in a transaction meeting the requirements of Rule 144 under the
Securities Act, or in accordance with another exemption from the registration
requirements of the Securities Act (and based upon an opinion of counsel if
the Company or the Guarantor so requests), (2) outside the United States to a
foreign person in a transaction meeting the requirements of Rule 904 under the
Securities Act, (3) to the Company, or (4) pursuant to an effective
registration statement under the Securities Act, and (B) in each case, in
accordance with any applicable securities laws of any state of the United
States or any other applicable jurisdiction and (iii) that such QIBs and
Accredited Investors will acknowledge and agree that the holder will, and each
subsequent holder is required to, notify any purchaser of the security
evidenced thereby of the resale restrictions set forth in (ii) above.
b. The Series A Notes will be offered by the Initial Purchasers only
by approaching prospective purchasers on an individual basis. No general
solicitation or general advertising (as such terms are used in Regulation D
under the Securities Act) will be used in connection with the offering of the
Series A Notes.
c. The transfer restrictions and the other provisions set forth in
the Indenture, including the legend required thereby, shall apply to the
Series A Notes except as otherwise agreed by the Company and the Initial
Purchasers. Following the sale of the Series A Notes by the Initial
Purchasers to Eligible Purchasers pursuant to the terms hereof, the Initial
Purchasers shall not be liable or responsible to the Company for any losses,
damages or liabilities suffered or incurred by the Company, including any
losses, damages or liabilities under the Securities Act, arising from or
relating to any subsequent resale or transfer of any Series A Notes.
d. The Initial Purchasers will deliver to each purchaser of the
Series A Notes from the Initial Purchasers, in connection with its original
distribution of the Series A Notes, a copy of the Offering Memorandum, as
amended and supplemented, if applicable, at the date of such delivery.
e. In connection with its original distribution of the Series A
Notes, the Company agrees that, prior to any offer or resale of the Series A
Notes by the Initial Purchasers, the Initial Purchasers and Counsel for the
Initial Purchasers shall have the right to make reasonable due diligence
inquiries into the business of the Company. The Company also agrees to
provide answers to questions from each prospective Eligible Purchaser
concerning the Company (to the extent that such information can be made
available to prospective Eligible Purchasers without unreasonable effort or
expense and to the extent the provision thereof is not prohibited by
applicable law) and the terms and conditions of the offering of the Series A
Notes, as provided in the Offering Memorandum.
5. COVENANTS OF THE COMPANY AND THE GUARANTOR
Each of the Company and the Guarantor, jointly and severally, covenants
and agrees with the Initial Purchasers as follows:
a. To advise the Initial Purchasers promptly and, if requested by the
Initial Purchasers, confirm such advice in writing, (i) after it receives
notice of the issuance by any state securities commission, of any stop order
suspending the qualification or exemption from qualification of any Notes for
offering or sale in any jurisdiction, or the initiation of any proceeding for
such purpose by any state securities commission or other regulatory authority
and (ii) during the time in which the Offering Memorandum is required to be
delivered in connection with Exempt Resales, of the happening of any event
that makes any statement of a material fact made in the Preliminary Offering
Memorandum, as then amended or supplemented, or the Offering Memorandum, as
then amended or supplemented, untrue or that requires the making of any
additions to or changes in the Preliminary Offering Memorandum, as then
amended or supplemented, or the Offering Memorandum in order to make the
statements therein, in the light of the circumstances under which they are
made, not misleading. Each of the Company and the Guarantor shall use its
best efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of any Notes (including the Guarantee) under any
state securities or Blue Sky laws and, if at any time any state securities
commission or other regulatory authority shall issue an order suspending the
qualification or exemption of any Notes under any state securities or Blue Sky
laws, each of the Company and the Guarantor shall use its best efforts to
obtain the withdrawal or lifting of such order at the earliest possible time.
b. To promptly deliver to the Initial Purchasers such number of
copies of the Offering Memorandum and all amendments of and supplements
thereto as the Initial Purchasers may reasonably request. The Company and the
Guarantor consents to the use of the Preliminary Offering Memorandum up to the
time at which the Offering Memorandum is available and the Offering
Memorandum, and any amendments and supplements thereto, by the Initial
Purchasers in connection with Exempt Resales.
c. Not to amend or supplement the Preliminary Offering Memorandum or
the Offering Memorandum prior to the Closing Date unless the Initial
Purchasers shall previously have been advised thereof and shall have consented
to or not have reasonably objected thereto in writing within a reasonable time
after being furnished a copy thereof. Each of the Company and the Guarantor
shall promptly prepare, upon the Initial Purchasers' request, any amendment or
supplement to the Offering Memorandum that the Initial Purchasers believe
reasonably necessary or advisable in connection with Exempt Resales.
d. If, after the date hereof and prior to consummation of any Exempt
Resale, any event shall occur as a result of which, in the judgment of either
the Company or the Guarantor or in the reasonable judgment of counsel to the
Initial Purchasers, it becomes necessary to amend or supplement the
Preliminary Offering Memorandum (prior to the availability of the Offering
Memorandum) or Offering Memorandum in order to make the statements therein, in
the light of the circumstances existing when such Preliminary Offering
Memorandum or Offering Memorandum is delivered to an Eligible Purchaser which
is a prospective purchaser, not misleading, or if it is necessary to amend or
supplement the Preliminary Offering Memorandum (prior to the availability of
the Offering Memorandum) or Offering Memorandum to comply with applicable law,
(i) to notify the Initial Purchasers and (ii) forthwith to prepare an
appropriate amendment or supplement to such Preliminary Offering Memorandum or
Offering Memorandum so that the statements therein as so amended or
supplemented will not, in the light of the circumstances when it is so
delivered, be misleading, or so that such Preliminary Offering Memorandum or
Offering Memorandum will comply with applicable law.
e. The Company and the Guarantor will endeavor in good faith, in
cooperation with the Initial Purchasers, to qualify the Notes for offering and
sale under the securities laws relating to the offering or sale of the Notes
in such jurisdictions as the Initial Purchasers may designate and to maintain
such qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company and the Guarantor be
obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process.
f. The Company will apply the proceeds from the sale of the Series A
Notes as set forth under the caption "Use of Proceeds" in the Offering
Memorandum, subject to such procedural modifications that are permitted under
the Cash Collateral and Disbursement Agreement (as defined in the Indenture).
The Company will comply with the provisions of the Collateral Documents
concerning disbursement of funds.
g. Each of the Company and the Guarantor will use its best efforts to
cause the Notes to be designated Private Offerings, Resales and Trading
through Automated Linkages ("PORTAL") market securities in accordance with
the rules and regulations adopted by the National Association of Securities
Dealers, Inc., relating to trading in the PORTAL market.
h. The Company and the Guarantor will comply with all of the
agreements (to the extent each of the Company and the Guarantor is a party
thereto) set forth in the Registration Rights Agreement, the Indenture, the
Collateral Documents and in the representation letter of the Company to The
Depository Trust Company ("DTC") relating to the approval of the Notes by
DTC for "book-entry" transfer.
i. During the period of 90 days from the date hereof, the Company
will not, withoutprior written consent of the Initial Purchasers or as
permitted in the Indenture, issue, sell, offer or contract to sell, grant any
option for the sale of, or otherwise dispose of, directly or indirectly, any
debt securities in any such case for cash, other than the Company's sale of
Notes hereunder.
j. None of the Company, the Guarantor, their respective affiliates
(as defined in Rule 501(b) of the Securities Act) or any person acting on
their behalf (other than the Initial Purchasers and their affiliates) will (i)
distribute prior to the Closing Date any offering material in connection with
the offering or sale of the Notes other than the Preliminary Offering
Memorandum and the Offering Memorandum and any amendments and supplements to
the Offering Memorandum prepared in compliance with Section 5(c) hereof or
(ii) solicit any offer to buy or offer or sell the Notes by means of any form
of general solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
k. None of the Company, the Guarantor or any of their respective
affiliates (as defined in Rule 501(b) of the Securities Act) or any person
acting on their behalf will offer, sell or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) of the
Company in a manner that would require the registration of the Series A Notes
under the Securities Act.
1. During the period from the Closing Date to three years after the
Closing Date, the Company will not, and will not permit any of its
"affiliates" (as defined in Rule 144 under the Securities Act) to, resell any
of the Notes that have been reacquired by them, except for Notes purchased by
the Company or any of its affiliates and resold in a transaction registered
under the Securities Act or are exempt from such registration requirements
under the Securities Act.
m. Each of the Company and the Guarantor will, so long as the Notes
are outstanding and are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act, either (i) file reports and other
information with the Commission under Section 13 or 15(d) of the Exchange Act,
or (ii) in the event it is not subject to Section 13 or 15(d) of the Exchange
Act, make available to holders of the Notes and prospective purchasers of the
Notes designated by such holders, upon request of such prospective purchasers,
the information required to be delivered pursuant to Rule 144A(d)(4) under the
Securities Act to permit compliance with Rule 144A in connection with resales
of the Notes.
n. Each of the Company and the Guarantor will use its best efforts to
cause the Notes to be eligible for clearance and settlement through the DTC.
o. Each of the Notes will bear the legend contained in "Notice to
Investors" in the Offering Memorandum for the time period and upon the other
terms stated therein, except after such Note is resold pursuant to a
registration statement effective under the Securities Act.
p. To cause the Exchange Offer to be made in accordance with and
subject to the terms set forth in the Registration Rights Agreement.
q. Not to insist upon, plead or in any manner whatsoever claim or
take the benefit or advantage of any usury law wherever enacted, now or at any
time hereafter in force, that may affect the covenants or the performance of
the Indenture.
r. Not to (i) take, directly or indirectly, any action designed to
cause or 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 or the Guarantor to facilitate the sale or resale of
any of the Series A Notes or (ii) sell, bid for, purchase or pay anyone other
than the Initial Purchasers any compensation for soliciting purchases of, any
of the Series A Notes or pay or agree to pay to any person any compensation
for soliciting another to purchase any other securities of the Company.
6. PAYMENT OF EXPENSES
Whether or not the transactions contemplated in this Agreement are
consummated or this Agreement becomes effective or is terminated, the Company
and the Guarantor hereby agree, jointly and severally, to pay all costs,
expenses, fees and taxes incident to and in connection with this Agreement and
the transactions contemplated hereby and by the other Transaction Documents,
including without limitation all costs, expenses, fees and taxes relating to:
(i) preparing, printing, duplicating, filing and distributing the Preliminary
Offering Memorandum and the Offering Memorandum (including, without
limitation, financial statements and exhibits) and any amendments or
supplements thereto (including, without limitation, fees and expenses of the
Company's accountants and counsel and up to $85,000 of the fees and expenses
of the Initial Purchasers' Counsel), (ii) preparing, printing (including,
without limitation, word processing and duplication costs) and delivery of
this Agreement, the other Transaction Documents and all agreements, memoranda,
correspondence and other documents prepared and delivered in connection
herewith and with the Exempt Resales, (iii) the issuance, transfer and
delivery of the Notes to the Initial Purchasers, including any transfer or
other taxes payable thereon, (iv) the qualification of the Notes under state
or foreign securities or Blue Sky laws, including the costs of printing and
mailing a preliminary and final "Blue Sky Memorandum" and the fees of counsel
for the Initial Purchasers and such counsel's disbursements and expenses in
relation thereto, (v) furnishing such copies of the Preliminary Offering
Memorandum and the Offering Memorandum, and all amendments and supplements
thereto, as may be reasonably requested for use in connection with the Exempt
Resales, (vi) the preparation of certificates for the Notes (including,
without limitation, the printing or engraving thereof), (vii) all expenses and
listing fees in connection with the application for quotation of the Notes in
the National Association of Securities Dealers, Inc. Automated Quotation
System - PORTAL ("PORTAL"), (ix) all fees and expenses (including fees and
expenses of counsel) of the Company and the Guarantor in connection with
approval of the Notes by DTC for "book-entry" transfer, (x) the performance by
the Company and the Guarantor of their other obligations under this Agreement
and the other Transaction Documents, (xi) rating the Notes by rating agencies,
(xi) the fees and expenses of the Trustee and its counsel pursuant to the
Indenture and (xii) the fees and expenses of the Disbursement Agent (as
defined in the Indenture) pursuant to the Cash Collateral and Disbursement
Agreement (as defined in the Indenture).
7. CONDITIONS OF INITIAL PURCHASERS' OBLIGATIONS
The obligations of the Initial Purchasers to purchase and pay for the
Notes as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Guarantor herein
contained, as of the date hereof and as of the Closing Date, to the absence
from any certificates, opinions, written statements or letters furnished to
the Initial Purchasers or to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ("Initial Purchasers'
Counsel") pursuant to this Section 7 of any misstatement or omission, to the
performance by each of the Company and the Guarantor of its obligations
hereunder, and to the following additional conditions:
a. At the Closing Date the Initial Purchasers shall have received the
opinion (in form and substance satisfactory to the Initial Purchasers and
Initial Purchasers' Counsel) of Akin, Gump, ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, L.L.P.,
counsel for the Company and the Guarantor, addressed to the Initial Purchasers
and dated the Closing Date, substantially to the effect set forth in Exhibit C
hereto. In providing such opinion, such counsel shall opine as to the federal
laws of the United States and the laws of the State of New York.
b. At the Closing Date the Initial Purchasers shall have received the
opinion (in formand substance satisfactory to the Initial Purchasers and
Initial Purchasers' Counsel) of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, counsel for the
Company and the Guarantor, addressed to the Initial Purchasers and dated the
Closing Date, substantially to the effect set forth in Exhibit D hereto. In
providing such opinion, such counsel shall opine as to the federal laws of the
United States and the laws of the State of Louisiana.
c. All proceedings taken in connection with the sale of the Notes as
herein contemplated shall be satisfactory in form and substance to the Initial
Purchasers and to Initial Purchasers' Counsel, and the Initial Purchasers
shall have received from said Initial Purchasers' Counsel a favorable opinion,
dated the Closing Date with respect to the issuance and sale of the Notes, the
Offering Memorandum and such other related matters as the Initial Purchasers
may reasonably require, and the Company shall have furnished to Initial
Purchasers' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters. At the Closing Date, the Initial Purchasers
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇, L.L.P. a favorable opinion dated the
Closing Date with respect to the Bossier Riverboat Mortgage (as defined in the
Indenture) and the Crescent City Riverboat Mortgage (as defined in the
Indenture) and the remaining term of the Company's Louisiana gaming license in
the event the voters in the Louisiana Referendum (as defined in the Offering
Memorandum) do not approve the continuation of riverboat gaming in Bossier
Parish or Caddo Parish, Louisiana.
d. At the Closing Date the Initial Purchasers shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer of the
Company and the Guarantor, dated the Closing Date, to the effect that (i) as
of the date hereof and as of the Closing Date, the representations and
warranties of the Company and the Guarantor set forth in Section 2 hereof are
accurate, (ii) as of the Closing Date, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed, (iii)
subsequent to the respective dates as of which information is given in the
Offering Memorandum, the Company has not sustained any material loss or
interference with its business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, and there has not been
any Material Adverse Change, or any development involving a prospective
Material Adverse Change, (iv) each signer of such certificate has examined the
Offering Memorandum and that (A) as of the date of such certificate, the
Offering Memorandum does not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading and (B) since the date of the Offering
Memorandum no event has occurred as a result of which it is necessary to amend
or supplement the Offering Memorandum in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading
and (v) no action shall have been taken and, to the best knowledge of each of
the Company and the Guarantor, no statute, rule, regulation or order shall
have been enacted, adopted or issued by any governmental agency which would,
as of the Closing Date, have a Material Adverse Effect; no action, suit or
proceeding shall have been commenced and be pending against or affecting or,
to the best knowledge of each of the Company and the Guarantor, threatened
against, the Company or the Guarantor, before any court or arbitrator or any
governmental body, agency or official that, if adversely determined, would
result in a Material Adverse Effect; and no stop order preventing the use of
the Offering Memorandum, or any amendment or supplement thereto or any order
asserting that any of the transactions contemplated by this Agreement are
subject to the registration requirements of the Securities Act shall have been
issued.
e. At the time this Agreement is executed and at the Closing Date,
you shall have received a comfort letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, LLP,
independent accountants for the Company, dated, respectively, as of the date
of this Agreement and as of the Closing Date, addressed to the Initial
Purchasers in form and substance satisfactory to the Initial Purchasers.
f. Prior to the Closing Date, the Company shall have furnished to the
Initial Purchasers or the Initial Purchasers' Counsel such further
information, certificates and documents as the Initial Purchasers or the
Initial Purchasers' Counsel may reasonably request.
g. At the Closing Date, the Notes shall have been approved for
quotation in the PORTAL market.
h. The Company, to the extent applicable, the Guarantor and each of
the other parties thereto shall have executed and delivered the Transaction
Documents and the Initial Purchasers shall have received fully executed copies
thereof. The Transaction Documents shall be in full force and effect. The
Company shall have received the requisite governmental and regulatory approval
in connection with each of the Transaction Documents and the transactions
contemplated by the Offering Memorandum to be completed on or before the
Closing Date.
i. The Initial Purchasers shall have received (i) certificates of the
Secretaries of the Company and the Guarantor, dated the Closing Date and in
form and substance satisfactory to the Initial Purchasers, certifying as true,
accurate and complete, the by-laws, resolutions with respect to the
transactions contemplated herein and incumbency of certain officers; and (ii)
certified Certificates or Articles of Incorporation issued as of a recent date
by the Secretary of State of the state of incorporation of the Company and the
Guarantor; and (iii) appropriate certificates of qualification to do business
and of good standing, issued on a recent date by the Secretary of State of
each jurisdiction, if any, in which the failure of the Company or the
Guarantor, as the case may be, to be qualified to do business would have a
Material Adverse Effect.
j. On the Closing Date, the Initial Purchasers shall have received
certificates of solvency, giving effect to the offering of the Series A Notes
contemplated hereby, signed by the chief executive officer and chief financial
officer of each of the Company and the Guarantor substantially in the form
previously approved by the Initial Purchasers.
k. Counsel for the Initial Purchasers shall have been furnished with
such documents as are necessary to confirm that there are no liens against any
of the personal or real property of the Company or the Guarantor unless such
liens are permitted under the Indenture or have otherwise been approved by the
Initial Purchasers.
1. The Trustee shall have received (i) a certificate of insurance
demonstrating insurance coverage of types, in amounts, with insurers and with
other terms required by the terms of the Transaction Documents, (ii) executed
copies of each UCC-I financing statement signed y t Company and the Guarantor,
naming the Trustee as secured party and filed in such jurisdictions as the
Initial Purchasers may reasonably require, and (iii) to the extent required by
the Transaction Documents, the original stock certificates, promissory notes
and other instruments pledged to the Trustee pursuant to the Transaction
Documents, together with undated stock powers or endorsements duly executed in
blank in connection therewith.
m. All documents and agreements shall have been filed, and other
actions shall have been taken, as may be required to perfect the Security
Interests of the Trustee in the Collateral of the Company and the Guarantor,
and to accord the Trustee the priorities over other creditors of either the
Company or the Guarantor as contemplated by the Offering Memorandum and the
Transaction Documents.
n. The Trustee shall have received irrevocable commitments for title
insurance from Louisiana Title Company, in a form and substance reasonably
satisfactory to the Initial Purchasers, subject only to Liens permitted under
the Indenture.
If any of the conditions specified in this Section 7 shall not have been
fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
the Initial Purchasers' Counsel pursuant to this Section 7 shall not be
reasonably satisfactory in form and substance to the Initial Purchasers and to
the Initial Purchasers' Counsel, all obligations of the Initial Purchasers
hereunder may be canceled by you at, or at any time prior to, the Closing
Date. Notice or such cancellation shall be given to the Company in writing,
or by telephone, telex or telegraph, confirmed in writing.
8. INDEMNIFICATION
a. The Company and the Guarantor, jointly and severally, agree to
indemnify and hold harmless each of the Initial Purchasers, each person, if
any, who controls any of the Initial Purchasers within the meaning of Section
15 of the Securities Act or Section 20(a) of the Exchange Act and the
respective officers, directors, partners, employees, representatives and
agents of any Initial Purchaser or controlling person, against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and all expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Offering Memorandum or the Preliminary Offering Memorandum or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading or arise out of or are based upon any inaccuracy in the
representations and warranties of the Company contained herein or any failure
of the Company to perform its obligations hereunder or under applicable law;
and will reimburse the Initial Purchasers and each such controlling person for
any legal and other expenses as such expenses are reasonably incurred by the
Initial Purchasers or such controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the
Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of
or is based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of the
Initial Purchasers expressly for use therein; and provided, further, that this
indemnity agreement with respect to the Preliminary Offering Memorandum shall
not inure to the benefit of any Initial Purchaser from whom the person
asserting any such losses, liabilities, claims, damages or expenses purchased
Notes, or any person controlling the Initial Purchasers, if a copy of the
Offering Memorandum (as then amended or supplemented if the Company shall have
furnished any such amendments or supplements thereto) was not sent or given by
or on behalf of the Initial Purchaser to such person at or prior to the
written confirmation of the sale of such Notes to such person and if the
Offering Memorandum (as so amended or supplemented) would have corrected the
defect giving rise to such loss, liability, claim, damage or expense. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
b. The Initial Purchasers agree to indemnify and hold harmless each
of the Company, the Guarantor, the officers and the directors of the Company,
the Guarantor and each other person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any
and all expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation), jointly or
severally, to which they or any of them may become subject under the
Securities Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Offering Memorandum or the Preliminary Offering
Memorandum, or in any amendment thereof or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Initial Purchasers
expressly for use therein and will reimburse the Company, the Guarantor, or
any such director, officer, or controlling person for any legal and other
expense reasonably incurred by the Company, or any such director, officer or
controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or
action; provided, however, that in no case shall any Initial Purchaser be
liable or responsible for any amount in excess of the selling concession
applicable to the Notes purchased by the such Initial Purchaser hereunder.
This indemnity will be in addition to any liability which the Initial
Purchasers may otherwise have, including under this Agreement. The Company
and the Guarantor acknowledge that the statements set forth in the first
paragraph under the caption "Plan of Distribution" in the Offering Memorandum
constitutes the only information furnished in writing by or on behalf of the
Initial Purchasers expressly for use in the Offering Memorandum or amendment
thereof or supplement thereto, as the case may be.
c. Promptly after receipt by an indemnified party, under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party, under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but
the failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 8 except to the extent that it
has been prejudiced in any material respect by such failure). In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by written
notice delivered to the indemnified party, promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof
with counsel reasonably satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the defense
of such action, (ii) the indemnifying parties shall not have employed counsel
to take charge of the defense of such action within a reasonable time after
notice of commencement of the action, or (iii) such indemnified party or
parties shall have reasonably concluded that there may be defenses available
to it or them which are different from or additional to those available to one
or all of the indemnifying parties (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf of the
indemnified party or parties) in any of which events such fees and expenses
shall be borne by the indemnifying parties; provided, however, that the
indemnifying party under subsection (a) or (b) above shall only be liable for
the legal expenses of one counsel (and any local counsel) for all indemnified
parties and that all such fees and expenses of counsel shall be reimbursed as
they are incurred. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of any claim or action effected without its written consent; provided,
however, that such consent was not unreasonably withheld.
9. CONTRIBUTION
In order to provide for contribution in circumstances in which the
indemnification provided for in Section 8 hereof is for any reason held by a
court to be unavailable to any indemnifying party, the Company, the Guarantor
and the Initial Purchasers shall contribute to the aggregate losses, claims,
damages, liabilities and expenses of the nature contemplated by such
indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after deducting in
the case of losses, claims, damages, liabilities and expenses suffered by the
Company any contribution received by the Company from persons other than the
Initial Purchasers, who may also be liable for contribution, including persons
who control the Company within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act, officers and managers of the Company) as
incurred to which the Company, the Guarantor and one or more of the Initial
Purchasers may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company, and the Guarantor, on the one
hand, and the Initial Purchasers, on the other hand, from the offering of the
Notes or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 5 hereof, in such proportion as
is appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Company and the Guarantor, on the one hand, and
the Initial Purchasers, on the other hand, in connection with the statements
or omissions or inaccuracies in the representations and warranties herein
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Guarantor, on the one hand, and each Initial
Purchaser, on the other hand, shall be deemed to be in the same proportion as
(x) the total proceeds from the offering (net of selling concessions but
before deducting expenses) received by the Company and (y) the selling
concessions received by such Initial Purchaser, respectively. The relative
fault of the Company and each Initial Purchaser shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact or the inaccurate or the alleged inaccurate representation or
warranty relates to information supplied by the Company and the Guarantor, on
the one hand, or any such Initial Purchaser, on the other hand, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Guarantor and
the Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 9 were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 9, (i) in no case shall any Initial Purchaser be liable or
responsible for any amount in excess of the selling concession applicable to
the Notes purchased by such Initial Purchaser hereunder and (ii) no person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Notwithstanding the
provisions of this Section 9, no Initial Purchaser shall be required to
contribute any amount in excess of the amount by which the total price at
which the Notes sold hereunder and distributed to the public were offered to
the public exceeds the amount of any damages that such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. For purposes of this Section 9,
each person, if any, who controls any of the Initial Purchasers within the
meaning of Section 15 of the Securities Act or Section 20(a) of the Exchange
Act shall have the same rights to contribution as such Initial Purchaser, and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20(a) of the Exchange Act, each officer and
each manager of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 9. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect
of which a claim for contribution may be made against another party or
parties, notify each party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the
party or parties from whom contribution may be sought from any obligation it
or they may have under this Section 9 or otherwise. No party shall be liable
for contribution with respect to any action or claim settled without its
consent; provided, however, that such consent was not unreasonably withheld.
10. DEFAULT BY THE INITIAL PURCHASERS
If any Initial Purchaser shall fail at the Closing Date to purchase the
Notes it is obligated to purchase under this Agreement, then this Agreement
shall terminate subject to the provisions of Section 11 hereof. Nothing in
this Section shall relieve such defaulting Initial Purchaser from its
liability to reimburse the Company for its costs, expenses and damages
resulting from such Initial Purchaser's default.
11. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS
All representations and warranties, covenants and agreements of the
Initial Purchasers, the Company and the Guarantor contained in this Agreement,
including the agreements contained in Section 6, the indemnity agreements
contained in Section 8 and the contribution agreements contained in Section 9,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Initial Purchasers or any
controlling person thereof or on behalf of the Company, any of its officers
and managers or any controlling person thereof, and shall survive delivery of
and payment for the Notes to and by the Initial Purchasers. The
representations contained in Sections 2 and 3(c) and the agreements contained
in Sections 6, 8, 9 and 12(c) hereof shall survive the termination of this
Agreement, including termination pursuant to Section 10 or 12 hereof.
12. TERMINATION
a. The Initial Purchasers shall have the right to terminate this
Agreement at any time prior to the Closing Date, without liability on the
Initial Purchasers' part to the Company and the Guarantor, if (i) any domestic
or international event or act or occurrence has materially disrupted, or in
your opinion will in the immediate future materially disrupt, the United
States or international securities markets; (ii) if trading on the New York
Stock Exchange or the Nasdaq Stock Market shall have been suspended or
materially limited; (iii) if a banking moratorium has been declared by any
United States federal or New York State authority or if any new restriction
materially adversely affecting the sale of the Notes shall have become
effective; (iv) (A) if the United States becomes engaged in hostilities or
there is an escalation of hostilities involving the United States or there is
a declaration of a national emergency or war by the United States (B) if there
shall have been such change in political, financial or economic conditions if
the effect of any such event in (A) or (B) in your judgment makes it
impracticable or inadvisable to proceed with the offering, sale and delivery
of the Notes on the terms contemplated by the Offering Memorandum; (v) any
condition of the obligations of the Initial Purchasers hereunder as provided
in Section 7 is not fulfilled when and as required in any material respect;
(vi) any Material Adverse Change or any development involving a prospective
Material Adverse Change shall have occurred since the respective dates as of
which information is given in the Offering Memorandum in the condition
(financial or otherwise), business, properties, prospects, net worth or
results of operations of the Company whether or not arising in the ordinary
course of business other than as set forth in the Offering Memorandum; (vii)
any downgrading shall have occurred in the rating of the Company's debt
securities by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Securities Act or any such
organization shall have publicly announced that it has under surveillance or
review, with possible negative implications, its ruling of any of the debt
securities of the Company; (viii) there has been an enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of any court or other governmental authority which in your opinion
materially and adversely affects, or will materially and adversely affect, the
business or operations of the Company, or (ix) if any action has been taken by
any federal, state, local or foreign government or agency in respect of its
monetary or fiscal affairs which in your opinion has a material adverse effect
on the financial markets in the United States and would make it impracticable
or inadvisable to market the Series A Notes.
24
b. Any notice of termination pursuant to this Section 12 shall be by
telephone, telex, or telegraph, confirmed in writing by letter.
c. If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to Section 10 hereof), or if the
sale of the Notes provided for herein is not consummated because any condition
to the obligations of the Initial Purchasers set forth herein is not satisfied
or because of any refusal, inability or failure on the part of the Company or
the Guarantor to perform any agreement herein or comply with any provision
hereof, the Company or the Guarantor will, subject to demand by you, reimburse
the Initial Purchasers for all out-of-pocket expenses (including the fees and
expenses of their counsel), incurred by the Initial Purchasers in connection
herewith.
13. NOTICE
All communications hereunder, except as may be otherwise specifically
provided herein, shall be in writing and, if sent to the Initial Purchasers,
shall be mailed, delivered, or telexed or telegraphed and confirmed in
writing, to ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc., ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; if sent to the Company,
shall be mailed, delivered, or telegraphed and confirmed in writing to the
Company, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Chief Financial Officer.
14. Parties
This Agreement shall inure solely to the benefit of, and shall be binding
upon, the Initial Purchasers, the Company and the Guarantor and the
controlling persons, directors, managers, officers, employees and agents
referred to in Section 8 and 9, and their respective successors and assigns,
and no other person shall have or be construed to have any legal or equitable
right, remedy or claim under or in respect of or by virtue of this Agreement
or any provision herein contained. The term "successors and assigns" shall
not include a purchaser, in its capacity as such, of Notes from any of the
Initial Purchasers.
15. COUNTERPARTS
This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.
16. SEVERABILITY
Any determination that any provision of this Agreement may be, or is,
unenforceable shall not affect the enforceability of the remainder of this
Agreement.
17. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, but without regard to principles of conflicts
of law.
[SIGNATURES ON FOLLOWING PAGE]
25
If the foregoing correctly sets forth the understanding between you and
the Company and the Guarantor, please so indicate in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among us.
Very truly yours,
CASINO MAGIC OF LOUISIANA, CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Casino Magic Corp.
JEFFERSON CASINO CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President, Casino Magic Corp.
Accepted as of the date first above written
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DEUTSCHE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇. ▇. ▇▇▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SCHEDULE 1
Initial Purchasers Principal Amount
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc. $
72,450,000
▇▇▇▇▇▇▇▇▇ & Company, Inc. 34,500,000
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇. ▇. ▇▇▇▇▇▇▇▇ Inc.
8,050,000
$ 115,000,000