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Riviera Holdings Corporation
And
The Guarantors Named Herein
$175,000,000
10% First Mortgage Notes due 2004
PURCHASE AGREEMENT
August 8, 1997
XXXXXXXXX & COMPANY, INC.
LADENBURG XXXXXXXX & CO. INC.
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$175,000,000
10% First Mortgage Notes Due 2004
of Riviera Holdings Corporation
PURCHASE AGREEMENT
August 8, 1997
Jefferies & Company, Inc.
Ladenburg Xxxxxxxx & Co. Inc.
c/o Jefferies & Company, Inc.
00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Dear Sirs:
Riviera Holdings Corporation, a Nevada corporation (the
"Company"), proposes to issue and sell to Jefferies & Company, Inc. and
Ladenburg Xxxxxxxx & Co. Inc. (the "Initial Purchasers") an aggregate of
$175,000,000 in principal amount of its 10% First Mortgage Notes due 2004 (the
"Series A Notes"), subject to the terms and conditions set forth herein. The
Series A Notes are to be issued pursuant to the provisions of an indenture (the
"Indenture"), to be dated as of the Closing Date (as defined below), among the
Company, the Guarantors (as defined below) and Norwest Bank Minnesota, N.A., as
trustee (the "Trustee"). The Series A Notes and the Series B Notes (as defined
below) issuable in exchange therefor are collectively referred to herein as the
"Notes." The Series A Notes will be guaranteed (the "Subsidiary Guarantees") by
each of the Company's subsidiaries (as defined in the Indenture) listed on
Schedule A hereto (each, a "Guarantor" and collectively, the "Guarantors") and
the Series B Notes will be guaranteed (also, the "Subsidiary Guarantees"),
subject to the receipt of required gaming regulatory approvals, by each of the
Guarantors. The obligations under the Notes and the Subsidiary Guarantees will
be secured by security interests in or pledges of (the "Security Interests")
certain assets (the "Collateral") as set forth in the Offering Circular (as
defined below). Capitalized terms used but not defined herein shall have the
meanings given to such terms in the Indenture. As used herein, the term "Notes"
shall include the Subsidiary Guarantees whenever the context permits.
1. Offering Circular. The Series A Notes will be offered and
sold to the Initial Purchasers pursuant to one or more exemptions from the
registration requirements under the Securities Act of 1933, as amended (the
"Act"). The Company and the Guarantors have prepared a preliminary offering
circular, dated July 28, 1997 (the "Preliminary Offering Circular") and a final
offering circular, dated August 8, 1997 (the "Offering Circular"), relating to
the Series A Notes and the Subsidiary Guarantees.
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Upon original issuance thereof, and until such time as the
same is no longer required pursuant to the Indenture, the Series A Notes (and
all securities issued in exchange therefor, in substitution thereof or upon
conversion thereof) shall bear the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES
LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE RE-OFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS
SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, REGISTRATION. THE
HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL
OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE THAT IS TWO
YEARS (OR SUCH SHORTER PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE
144(K) AS PERMITTING RESALES BY NON-AFFILIATES OF RESTRICTED SECURITIES
WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL CLOSING DATE
HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH
SECURITY) ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT,
(C) FOR SO LONG AS THE NOTES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE
144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUY TO WHO NOTICE IS GIVEN THAT THE TRANSFER IS BEING
MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE
MEANING OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN
INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE
501(A)(1), (2), (3), OR (7) UNDER THE SECURITIES ACT THAT IS PURCHASING
THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT
WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR
TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D), (E) OR (F)
TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR
OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE."
2. Agreements to Sell and Purchase. On the basis of the
representations, warranties and covenants contained in this Agreement, and
subject to the terms and conditions contained herein, the Company agrees to
issue and sell to the Initial Purchasers, and the Initial Purchasers agree,
severally and not jointly, to purchase from the Company, the principal amounts
of Series A Notes set
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forth opposite the name of such Initial Purchaser on Schedule B hereto at a
purchase price equal to 95.313% of the principal amount thereof (the "Purchase
Price").
3. Terms of Offering. The Initial Purchasers have advised the
Company that the Initial Purchasers will make offers (the "Exempt Resales") of
the Series A Notes purchased hereunder on the terms set forth in the Offering
Circular, as amended or supplemented, solely to (i) persons whom the Initial
Purchasers reasonably believe to be "qualified institutional buyers" as defined
in Rule 144A under the Act ("QIBs"), and (ii) not more than ten other
institutional "accredited investors," as defined in Rule 501(a) (1), (2), (3) or
(7) under the Act, who execute a letter containing certain representations and
agreements in the form set forth as Annex A to the Offering Circular (each, an
"Accredited Institution") (such persons specified in clauses (i) and (ii) being
referred to herein as the "Eligible Purchasers"). The Initial Purchasers will
offer the Series A Notes to Eligible Purchasers initially at a price equal to
98.770% of the principal amount thereof. Such price may be changed at any time
without notice.
Holders (as defined in the Indenture, including subsequent
transferees) of the Series A Notes will have the registration rights set forth
in the registration rights agreement (the "Registration Rights Agreement"), to
be dated the Closing Date, in substantially the form of Exhibit A hereto, for so
long as such Series A Notes constitute "Transfer Restricted Securities" (as
defined in the Registration Rights Agreement). Pursuant to the Registration
Rights Agreement, the Company and the Guarantors will agree to file with the
Securities and Exchange Commission (the "Commission") under the circumstances
set forth therein, (i) a registration statement under the Act (the "Exchange
Offer Registration Statement") relating to the Company's 10% First Mortgage
Notes due 2004 to be offered in exchange for the Series A Notes (the "Series B
Notes") (such offer to exchange being referred to as the "Exchange Offer") and
the Subsidiary Guarantees thereof and (ii) a shelf registration statement
pursuant to Rule 415 under the Act (the "Shelf Registration Statement" and,
together with the Exchange Offer Registration Statement, the "Registration
Statements") 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 and
remain effective and usable for the periods specified in the Registration Rights
Agreement and to consummate the Exchange Offer. The Notes are or will be secured
obligations and the Company and the Guarantors (to the extent they are a party
thereto) will enter into a security agreement, a deed of trust, stock pledge and
security agreements, and certain other agreements (collectively, the "Security
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 Guarantors under the Indenture, the Notes and the Security
Documents. This Agreement, the Indenture, the Notes, the Subsidiary Guarantees,
the Registration Rights Agreement and the Security Documents are hereinafter
sometimes referred to collectively as the "Operative Documents."
4. Delivery and Payment.
(a) Delivery of, and payment of the Purchase Price
for, the Series A Notes shall be made at the offices of Dechert Price & Xxxxxx,
00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 1:00 p.m. New
York City time, on August 13, 1997 or at such other time as shall be agreed upon
by the Initial Purchasers and the Company. The time and date of such delivery
and the payment are herein called the "Closing Date."
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(b) One or more of the Series A Notes in definitive
global form, registered in the name of Cede & Co., as nominee of the Depository
Trust Company ("DTC"), having an aggregate principal amount corresponding to the
aggregate principal amount of the Series A Notes (collectively, the "Global
Note"), shall be delivered by the Company to the Initial Purchasers (or as the
Initial Purchasers direct) in each case with any transfer taxes thereon duly
paid by the Company against payment by the Initial Purchasers of the Purchase
Price thereof by wire transfer in same day funds to the order of the Company.
The Global Note shall be made available to the Initial Purchasers for inspection
not later than 9:30 a.m., New York City time, on the business day immediately
preceding the Closing Date.
5. Agreements of the Company and the Guarantors. Each of the
Company and the Guarantors hereby 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) of the
issuance by any state securities commission of any stop order suspending the
qualification or exemption from qualification of any Series A Notes for offering
or sale in any jurisdiction designated by the Initial Purchasers pursuant to
Section 5(e) hereof, or the initiation of any proceeding by any state securities
commission or any other federal or state regulatory authority for such purpose
and (ii) of the happening of any event during the period referred to in Section
5(c) below that makes any statement of a material fact made in the Preliminary
Offering Circular or the Offering Circular untrue or that requires any additions
to or changes in the Preliminary Offering Circular or the Offering Circular in
order to make the statements therein not misleading. The Company shall use its
best efforts to prevent the issuance of any stop order or order suspending the
qualification or exemption of any Series A Notes under any state securities or
Blue Sky laws and, if at any time any state securities commission or other
federal or state regulatory authority shall issue an order suspending the
qualification or exemption of any Series A Notes under any state securities or
Blue Sky laws, the Company shall use its best efforts to obtain the withdrawal
or lifting of such order at the earliest possible time.
(b) To furnish the Initial Purchasers and those
persons identified by the Initial Purchasers to the Company as many copies of
the Preliminary Offering Circular and the Offering Circular, and any amendments
or supplements thereto, as the Initial Purchasers may reasonably request.
Subject to the Initial Purchasers' compliance with its representations and
warranties and agreements set forth in Section 7 hereof, the Company consents to
the use of the Preliminary Offering Circular and the Offering Circular, and any
amendments and supplements thereto required pursuant hereto, by the Initial
Purchasers in connection with Exempt Resales.
(c) Not to make any amendment or supplement to the
Offering Circular prior to the Closing Date or during the period referred to in
Section 5(d) below unless the Initial Purchasers shall previously have been
advised of, and shall not have reasonably objected to, such amendment or
supplement within a reasonable time, but in any event not longer than five days
after being furnished a copy of such amendment or supplement. The Company shall
prepare promptly upon the Initial Purchasers' reasonable request, any amendment
or supplement to the Offering Circular which may be necessary or advisable in
connection with such Exempt Resales or any market-making activities of the
Initial Purchasers with respect to the Series A Notes.
(d) If, in connection with any Exempt Resales or
market making transactions after the date of this Agreement and prior to the
consummation of the Exchange Offer, any event shall occur or condition shall
exist as a result of which, in the opinion of counsel to the Initial Purchasers,
it becomes necessary to amend or supplement the Offering Circular in order to
make the statements therein,
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in the light of the circumstances when such Offering Circular is delivered to an
Eligible Purchaser, not misleading, or if, in the opinion of counsel to the
Initial Purchasers, it is necessary to amend or supplement the Offering Circular
to comply with any applicable law, forthwith to prepare an appropriate amendment
or supplement to such Offering Circular 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 Offering Circular will comply with
applicable law, and to furnish to the Initial Purchasers and such other persons
as the Initial Purchasers may designate such number of copies thereof as the
Initial Purchasers may reasonably request.
(e) Prior to the sale of all Series A Notes pursuant
to Exempt Resales as contemplated hereby, to cooperate with the Initial
Purchasers and counsel to the Initial Purchasers in connection with the
registration or qualification of the Series A Notes for offer and sale to the
Initial Purchasers and pursuant to Exempt Resales under the securities or Blue
Sky laws of such jurisdictions as the Initial Purchasers may request and to
continue such qualification in effect so long as required for Exempt Resales and
to file such consents to service of process or other documents as may be
necessary in order to effect such registration or qualification; provided,
however, that neither the Company nor any Guarantor shall be required in
connection therewith to register or qualify as a foreign corporation in any
jurisdiction in which it is not now so qualified or to take any action that
would subject it to general consent to service of process or taxation other than
as to matters and transactions relating to the Preliminary Offering Circular,
the Offering Circular or Exempt Resales, in any jurisdiction in which it is not
now so subject.
(f) Whether or not required by the rules and
regulations of the Commission, so long as any Notes are outstanding, the Company
will furnish to the Trustee and the holders of Notes (i) all quarterly and
annual financial information that would be required to be contained in a filing
with the Commission on Forms 10-Q and 10-K if the Company were required to file
such Forms that describe the financial condition and results of the Company and
its consolidated subsidiaries (showing in reasonable detail, either on the face
of the financial statements or in the footnotes thereto and in "Management's
Discussion and Analysis of Financial Condition and Results of Operations," the
financial condition and results of operations of the Company and its Restricted
Subsidiaries (as defined in the Indenture) separate from the financial condition
and results of operations of the Unrestricted Subsidiaries (as defined in the
Indenture) of the Company) and, with respect to the annual information only, a
report thereon by the Company's certified independent accountants and (ii) all
current reports that would be required to be filed with the Commission on Form
8-K if the Company were required to file such reports. In addition, whether or
not required by the rules and regulations of the Commission, the Company will
file a copy of all such information and reports with the Commission for public
availability (unless the Commission will not accept such a filing) and make such
information available to securities analysts and prospective investors upon
request.
(g) So long as the Notes are outstanding, to furnish
to the Initial Purchasers as soon as available copies of all reports or other
communications furnished by the Company or any of the Guarantors to its security
holders or furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company or any of the
Guarantors is listed and such other publicly available information concerning
the Company and/or its subsidiaries as the Initial Purchasers may reasonably
request.
(h) So long as any of the Series A Notes remain
outstanding and during any period in which the Company and the Guarantors are
not subject to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), to furnish to any holder of Series A Notes,
5
and prospective investors designated by the holders of the Series A Notes, upon
their request, the information ("Rule 144A Information") required by Rule
144A(d)(4) under the Act.
(i) Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, to pay or cause
to be paid all expenses incident to the performance of the obligations of the
Company and the Guarantors under this Agreement, including: (i) the fees,
disbursements and expenses of counsel to the Company and the Guarantors, counsel
to the Initial Purchasers and accountants of the Company and the Guarantors in
connection with the sale and delivery of the Series A Notes to the Initial
Purchasers and pursuant to Exempt Resales, and all other fees or expenses in
connection with the preparation, printing, filing and distribution of the
Preliminary Offering Circular, the Offering Circular and all amendments and
supplements to any of the foregoing (including financial statements) specified
in Section 5(b) and 5(c) prior to or during the period specified in Section
5(d), including the mailing and delivering of copies thereof to the Initial
Purchasers and persons designated by it in the quantities specified herein, (ii)
other out-of-pocket expenses incurred by the Initial Purchasers in connection
with their performance hereunder (including, without limitation, travel and
lodging expenses, word processing charges, messenger and duplicating services,
facsimile expenses and other customary expenditures, subject in each case to
receipt of appropriate supporting documentation), (iii) all costs and expenses
related to the transfer and delivery of the Series A Notes to the Initial
Purchasers and pursuant to Exempt Resales, including any transfer or other taxes
payable thereon, (iv) all costs of printing or producing this Agreement, the
other Operative Documents and any other agreements or documents in connection
with the offering, purchase, sale or delivery of the Series A Notes, (v) all
expenses in connection with the registration or qualification of the Series A
Notes and the Subsidiary Guarantees for offer and sale under the securities or
Blue Sky laws of the several states and all costs of printing or producing any
preliminary and supplemental Blue Sky memoranda in connection therewith
(including the filing fees and fees and disbursements of counsel for the Initial
Purchasers in connection with such registration or qualification and memoranda
relating thereto), (vi) the cost of printing certificates representing the
Series A Notes and the Subsidiary Guarantees, (vii) all expenses and listing
fees in connection with the application for quotation of the Series A Notes in
the National Association of Securities Dealers, Inc. ("NASD") Automated
Quotation System - PORTAL ("PORTAL"), (viii) the fees and expenses of the
Trustee and the Trustee's counsel in connection with the Indenture, the Notes,
the Subsidiary Guarantees and the Security Agreements, (ix) the costs and
charges of any transfer agent, registrar and/or depositary (including DTC), (x)
any fees charged by rating agencies for the rating of the Notes, (xi) all costs
and expenses of the Exchange Offer and any Registration Statement, as set forth
in the Registration Rights Agreement, and (xii) all other costs and expenses
incident to the performance of the obligations of the Company and the Guarantors
under this Agreement and the other Operative Documents for which provision is
not otherwise made in this Section.
(j) To use its reasonable best efforts to effect the
inclusion of the Series A Notes in PORTAL and to maintain the listing of the
Series A Notes on PORTAL for so long as the Series A Notes are outstanding.
(k) To obtain the approval of DTC for "book-entry"
transfer of the Notes, and to comply with all of its agreements set forth in the
representation letters of the Company to DTC relating to the approval of the
Notes by DTC for "book-entry" transfer.
(l) Except as contemplated in the Preliminary
Offering Circular and the Offering Circular, during the period beginning on the
date hereof and continuing to and including the Closing Date, not to offer,
sell, contract to sell or otherwise transfer or dispose of any debt securities
of the Company or any Guarantor or any warrants, rights or options to purchase
or otherwise acquire debt
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securities of the Company or any Guarantor substantially similar to the Notes
and the Subsidiary Guarantees (other than the Notes and the Subsidiary
Guarantees), without the prior written consent of the Initial Purchasers.
(m) Not to sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in the Act)
that would be integrated with the sale of the Series A Notes to the Initial
Purchasers or pursuant to Exempt Resales in a manner that would require the
registration of any such sale of the Series A Notes under the Act.
(n) To the extent it may lawfully do so, not to
voluntarily claim, and to actively resist any attempts to claim, the benefit of
any usury laws against the holders of any Notes.
(o) To cause the Exchange Offer to be made in the
appropriate form to permit Series B Notes and guarantees thereof by the
Guarantors registered pursuant to the Act to be offered in exchange for the
Series A Notes and the Subsidiary Guarantees and to comply with all applicable
federal and state securities, gaming and other laws in connection with the
Exchange Offer.
(p) To comply with all of its agreements set forth in
the Registration Rights Agreement.
(q) To use its best efforts to do and perform all
things required or necessary to be done and performed under this Agreement by it
prior to the Closing Date and to satisfy all conditions precedent to the
delivery of the Series A Notes and the Subsidiary Guarantees.
(r) To use the net proceeds from the sale of the
Series A Notes in the manner described in the Offering Circular under the
caption "Use of Proceeds."
(s) To timely file reports with the Nevada State
Gaming Control Board (the "Nevada Board") pursuant to Nevada Board and Nevada
Gaming Commission Regulation 8.130 in respect to the sale of the Notes and
receipt of the proceeds therefrom.
6. Representations, Warranties and Agreements of the Company
and the Guarantors. As of the date hereof, each of the Company and the
Guarantors represents and warrants to, and agrees with, the Initial Purchasers
that:
(a) The Preliminary Offering Circular and the
Offering Circular do not, and any supplement or amendment to them will not,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading,
except that the representations and warranties contained in this paragraph (a)
shall not apply to statements in or omissions from the Preliminary Offering
Circular or the Offering Circular (or any supplement or amendment thereto) based
upon information relating to the Initial Purchasers furnished to the Company in
writing by the Initial Purchasers expressly for use therein. No stop order
preventing the use of the Preliminary Offering Circular or the Offering
Circular, 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 Act, has been issued.
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(b) Each of the Company and its subsidiaries has been
duly incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power and
authority to carry on its business as described in the Preliminary Offering
Circular and the Offering Circular and to own, lease and operate its properties,
and each is duly qualified and is in good standing as a foreign corporation
authorized to do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such qualification,
except where the failure to be so qualified would not have a material adverse
effect on the business, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole (a "Material Adverse Effect").
(c) All outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid,
non-assessable and not subject to any preemptive or similar rights.
(d) Except for the subsidiaries referred to in
Section 4.23 of the Indenture which subsidiaries, taken together, are immaterial
to the Company and its other subsidiaries, taken as a whole, the entities listed
on Schedule A hereto are the only subsidiaries, direct or indirect, of the
Company. All of the outstanding shares of capital stock of each of the Company's
subsidiaries have been duly authorized and validly issued and are fully paid and
non-assessable, and are owned by the Company, directly or indirectly through one
or more subsidiaries, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature held by a third party (each, a
"Lien"), except for any Lien established on voting rights or otherwise imposed
pursuant to applicable gaming laws.
(e) This Agreement has been duly authorized, executed
and delivered by the Company and each of the Guarantors.
(f) The Indenture has been duly authorized by the
Company and each of the Guarantors and, on the Closing Date, will have been
validly executed and delivered by the Company and each of the Guarantors. When
the Indenture has been duly executed and delivered by the Company and each of
the Guarantors, and assuming due authorization, execution and delivery by the
Trustee, the Indenture will be a valid and binding agreement of the Company and
each Guarantor, enforceable against the Company and each Guarantor in accordance
with its terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and an
implied covenant of good faith and fair dealing and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability and, in the case of the Guarantors, subject
to the receipt of all necessary gaming approvals.
(g) The Series A Notes have been duly authorized and,
on the Closing Date, will have been validly executed and delivered by the
Company. When the Series A Notes have been issued, executed and authenticated in
accordance with the provisions of the Indenture and delivered to and paid for by
the Initial Purchasers in accordance with the terms of this Agreement, the
Series A Notes will be entitled to the benefits of the Indenture and will be
valid and binding obligations of the Company, enforceable in accordance with
their terms except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
similar laws affecting the enforcement of creditors' rights generally and an
implied covenant of good faith and fair dealing and (ii) rights of acceleration
and the availability of equitable remedies may be limited by equitable
principles of general applicability. On the Closing Date, the Series A Notes
will conform as to legal matters to the description thereof contained in the
Offering Circular.
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(h) On the Closing Date, the Series B Notes will have
been duly authorized by the Company. When the Series B Notes are issued,
executed and authenticated in accordance with the terms of the Exchange Offer
and the Indenture, the Series B Notes will be entitled to the benefits of the
Indenture and will be the valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and an implied covenant of good faith and fair
dealing and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability.
(i) The Subsidiary Guarantee to be endorsed on the
Series A Notes by each Guarantor has been duly authorized by such Guarantor and,
on the Closing Date, will have been duly executed and delivered by each such
Guarantor. When the Series A Notes have been issued, executed and authenticated
in accordance with the Indenture and delivered to and paid for by the Initial
Purchasers in accordance with the terms of this Agreement, the Subsidiary
Guarantee of each Guarantor endorsed thereon will be entitled to the benefits of
the Indenture and will be the valid and binding obligation of such Guarantor,
enforceable against such Guarantor in accordance with its terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and an implied covenant of good faith and fair
dealing and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability and
subject to the receipt of all necessary gaming approvals. On the Closing Date,
the Subsidiary Guarantees to be endorsed on the Series A Notes will conform as
to legal matters to the description thereof contained in the Offering Circular.
(j) The Subsidiary Guarantee to be endorsed on the
Series B Notes by each Guarantor has been duly authorized by such Guarantor and,
when issued, will have been duly executed and delivered by each such Guarantor.
When the Series B Notes have been issued, executed and authenticated in
accordance with the terms of the Exchange Offer and the Indenture, the
Subsidiary Guarantee of each Guarantor endorsed thereon will be entitled to the
benefits of the Indenture and will be the valid and binding obligation of such
Guarantor, enforceable against such Guarantor in accordance with its terms,
except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium or similar laws
affecting the enforcement of creditors' rights generally and an implied covenant
of good faith and fair dealing and (ii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles of
general applicability and subject to the receipt of all necessary gaming
approvals. When the Series B Notes are issued, authenticated and delivered, the
Subsidiary Guarantees to be endorsed on the Series B Notes will conform as to
legal matters to the description thereof in the Offering Circular.
(k) The Registration Rights Agreement has been duly
authorized by the Company and each of the Guarantors and, on the Closing Date,
will have been duly executed and delivered by the Company and each of the
Guarantors. When the Registration Rights Agreement has been duly executed and
delivered, and assuming due authorization, execution and delivery by the Initial
Purchasers, the Registration Rights Agreement will be a valid and binding
agreement of the Company and each of the Guarantors, enforceable against the
Company and each Guarantor in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and an implied covenant of good faith and fair
dealing and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability and, in
9
the case of the Guarantors, subject to the receipt of all necessary gaming
approvals. On the Closing Date, the Registration Rights Agreement will conform
as to legal matters to the description thereof in the Offering Circular.
(l) Each of the Security Documents to which the
Company or any Guarantor is a party has been duly and validly authorized by each
of the Company and such Guarantor, as the case may be, and when duly executed
and delivered by each of them, and assuming due authorization, execution and
delivery by any other parties thereto, will create valid and perfected first
priority security interests in the Collateral, subject to Permitted Liens (as
defined in the Indenture) and certain exclusions (as set forth in the Indenture)
and will be the legally valid and binding obligation of each of them enforceable
against each of them in accordance with their respective terms, except as (i)
the enforceability thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and an implied covenant of good faith and fair
dealing and (ii) rights of acceleration and the availability of equitable
remedies may be limited by equitable principles of general applicability and
subject to, in the case of the Guarantors, the receipt of all necessary gaming
approvals.
(m) Neither the Company nor any of the Guarantors is
in violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement, covenant or condition contained in any
indenture, loan agreement, mortgage, lease or other agreement or instrument that
is material to the Company and the Guarantors, taken as a whole, to which the
Company or any of the Guarantors is a party or by which the Company or any of
the Guarantors or their respective property is bound.
(n) After giving effect to all consents that will be
obtained on or prior to the Closing Date, the execution, delivery and
performance of this Agreement and the other Operative Documents by the Company
and each of the Guarantors party thereto, compliance by the Company and each of
the Guarantors party hereto and thereto with all provisions hereof and thereof
and the consummation of the transactions contemplated hereby and thereby will
not (i) require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except such as may
be required under the securities or Blue Sky laws of the various states or,
insofar as performance of the Registration Rights Agreement is concerned, except
such as may be required by the rules of the Nevada Gaming Control Board), (ii)
conflict with or constitute a breach of any of the terms or provisions of, or a
default under, the charter or by-laws of the Company or any of its subsidiaries
or any indenture, loan agreement, mortgage, lease or other agreement or
instrument that is material to the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or their respective property is bound
except to the extent such conflict, breach or default will not have a Material
Adverse Effect, (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Company, any of its subsidiaries or their
respective property, except to the extent such violation or conflict will not
have a Material Adverse Effect, (iv) result in the imposition or creation of (or
the obligation to create or impose) a Lien under, any agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or their respective property is bound (except as
provided in the Security Documents and except to the extent such imposition or
creation will not have a Material Adverse Effect), or (v) result in the
termination or revocation of any Authorization (as defined below) of the Company
or any of its subsidiaries or result in any other impairment of the rights of
the holder of any such Authorization, except to the extent such termination,
revocation or impairment will not have a Material Adverse Effect.
10
(o) There are no legal or governmental proceedings
pending, or to the knowledge of the Company, or threatened to which the Company
or any of its subsidiaries is or could be a party or to which any of their
respective property is or could be subject, which might result, singly or in the
aggregate, in a Material Adverse Effect.
(p) Neither the Company nor any of its subsidiaries
has violated any federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("Environmental Laws") or any
provisions of the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or the rules and regulations promulgated thereunder, except for such
violations which, singly or in the aggregate, would not have a Material Adverse
Effect.
(q) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance with
Environmental Laws or any Authorization, any related constraints on operating
activities and any potential liabilities to third parties) which would, singly
or in the aggregate, have a Material Adverse Effect.
(r) Each of the Company and its subsidiaries has such
permits, licenses, consents, exemptions, franchises, authorizations and other
approvals (each, an "Authorization") of, and has made all filings with and
notices to, all governmental or regulatory authorities and self-regulatory
organizations and all courts and other tribunals, including without limitation,
under any applicable Environmental Laws, as are necessary to own, lease, license
and operate its respective properties and to conduct its business in the manner
described in the Offering Circular, except where the failure to have any such
Authorization or to make any such filing or notice would not, singly or in the
aggregate, have a Material Adverse Effect. Each such Authorization is valid and
in full force and effect and each of the Company and its subsidiaries is in
material compliance with all the terms and conditions thereof and with the rules
and regulations of the authorities and governing bodies having jurisdiction with
respect thereto; and no event has occurred (including, without limitation, the
receipt of any notice from any authority or governing body) which allows or,
after notice or lapse of time or both, would allow, revocation, suspension or
termination of any such Authorization or results or, after notice or lapse of
time or both, would result in any other material impairment of the rights of the
holder of any such Authorization, subject in each case to such qualification as
may be set forth in the Offering Circular and except to the extent that any such
revocation, suspension, termination or other impairment would not have a
Material Adverse Effect; and such Authorizations contain no restrictions that
are materially burdensome to the Company or any of its subsidiaries; except
where such failure to be valid and in full force and effect or to be in
compliance, the occurrence of any such event or the presence of any such
restriction would not, singly or in the aggregate, have a Material Adverse
Effect.
(s) The accountants, Deloitte & Touche, that have
certified the financial statements and supporting schedules included in the
Preliminary Offering Circular and the Offering Circular are independent public
accountants with respect to the Company and the Guarantors, as required by the
Act and the Exchange Act. The historical financial statements, together with
related schedules and notes, set forth in the Preliminary Offering Circular and
the Offering Circular comply as to form in all material respects with the
requirements applicable to registration statements on Form S-1 under the Act.
(t) The historical financial statements, together
with related schedules and notes forming part of the Preliminary Offering
Circular and the Offering Circular (and any amendment or supplement thereto),
present fairly the consolidated financial position, results of operations and
changes
11
in financial position of the Company and its subsidiaries on the basis stated in
the Preliminary Offering Circular and the Offering Circular at the respective
dates or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial and statistical
information and data set forth in the Preliminary Offering Circular and the
Offering Circular (and any amendment or supplement thereto) are, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company.
(u) The Company is not and, after giving effect to
the offering and sale of the Series A Notes and the application of the net
proceeds thereof as described in the Preliminary Offering Circular and the
Offering Circular, will not be, an "investment company," as such term is defined
in the Investment Company Act of 1940, as amended.
(v) After giving effect to the consummation of the
Offering and related transactions on the Closing Date, there will be no
contracts, agreements or understandings between the Company or any Guarantor and
any person granting such person (i) the right to require the Company or such
Guarantor to file a registration statement under the Act with respect to any
securities of the Company or such Guarantor except for the Equity Registration
Rights Agreement dated June 30, 1993, among the Company and the holders of
registrable shares referred to therein or (ii) the right to require the Company
or such Guarantor to include such securities with the Notes and Subsidiary
Guarantees registered pursuant to any Registration Statement.
(w) Neither the Company nor any of its subsidiaries
nor any agent thereof acting on the behalf of them has taken, and none of them
will take, any action that might cause this Agreement or the issuance or sale of
the Series A Notes to violate Regulation G (12 C.F.R. Part 207), Regulation T
(12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) or Regulation X (12
C.F.R. Part 224) of the Board of Governors of the Federal Reserve System or
Regulation M (17 C.F.R. Part 242.100) of the Commission.
(x) Since the respective dates as of which
information is given in the Preliminary Offering Circular and the Offering
Circular, other than as set forth in the Preliminary Offering Circular and the
Offering Circular (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement), (i) there has not occurred any material adverse
change in the financial condition, or the earnings, business, management or
operations of the Company and its subsidiaries, taken as a whole, (ii) there has
not been any material adverse change in the capital stock or in the long-term
debt of the Company or any of its subsidiaries and (iii) neither the Company nor
any of its subsidiaries has incurred any material liability or obligation,
direct or contingent, except in the ordinary course of business.
(y) Each of the Preliminary Offering Circular and the
Offering Circular, as of its date, contains all the information specified in,
and meeting the requirements of, Rule 144A(d)(4) under the Act.
(z) When the Series A Notes and the Subsidiary
Guarantees are issued and delivered pursuant to this Agreement, neither the
Series A Notes nor the Subsidiary Guarantees will be of the same class (within
the meaning of Rule 144A under the Act) as any security of the Company or the
Guarantors that is listed on a national securities exchange registered under
Section 6 of the Exchange Act or that is quoted in a United States automated
inter-dealer quotation system.
12
(aa) No form of general solicitation or general
advertising (as defined in Regulation D under the Act) was used by the Company,
the Guarantors or any of their respective representatives (other than the
Initial Purchasers, as to whom the Company and the Guarantors make no
representation) in connection with the offer and sale of the Series A Notes
contemplated hereby, 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 within the six-month period immediately prior to the date hereof.
(ab) Prior to the effectiveness of any Registration
Statement, the Indenture is not required to be qualified under the Trust
Indenture Act of 1939, as amended.
(ac) Assuming (i) that the Series A Notes are issued,
sold and delivered under the circumstances contemplated by the Offering Circular
and this Agreement, (ii) that the Initial Purchasers' representations and
warranties in Section 7 hereof are true, (iii) that the representations of the
Accredited Institutions in the form set forth in Annex A to the Offering
Circular are true, (iv) compliance by the Initial Purchasers with their
covenants set forth in Section 7 hereof and (v) that each of the Eligible
Purchasers is a QIB or an Accredited Institution, the purchase of the Series A
Notes by the Initial Purchasers pursuant hereto and the initial resale of the
Series A Notes pursuant hereto pursuant to the Exempt Resales is exempt from the
registration requirements of the Act.
(ad) No "nationally recognized statistical rating
organization" as such term is defined for purposes of Rule 436(g)(2) under the
Act (i) has imposed (or has informed the Company or any Guarantor that it is
considering imposing) any condition (financial or otherwise) on the Company's or
any Guarantor's retaining any rating assigned as of the date hereof to the
Company, any Guarantor or any securities of the Company or any Guarantor or (ii)
has indicated to the Company or any Guarantor that it is considering (a) the
downgrading, suspension or withdrawal of, or any review for a possible change
that does not indicate the direction of the possible change in, any rating so
assigned or (b) any change in the outlook for any rating of the Company or any
Guarantor.
(ae) Each certificate signed by any authorized
officer of the Company or any Guarantor and delivered to the Initial Purchasers
or counsel for the Initial Purchasers shall be deemed to be a representation and
warranty by the Company or such Guarantor to the Initial Purchasers as to the
matters covered thereby.
(af) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them which is material to the business
of the Company and its subsidiaries, in each case free and clear of all Liens
and defects, except such as are described in the Preliminary Offering Circular
and the Offering Circular or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries.
(ag) The Company and its subsidiaries own or possess,
or can acquire on reasonable terms, all patents, patent rights, licenses,
inventions, copyrights, know-h w (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names ("intellectual property")
currently employed by them in connection with the business now operated by them
except where the failure to own or possess or otherwise be able to acquire such
intellectual property would not, singly or in the aggregate, have a
13
Material Adverse Effect; and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of such intellectual property which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
have a Material Adverse Effect.
(ah) The Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against such losses
and risks and n such amounts as are reasonably prudent and customary in the
businesses in which they are engaged; and neither the Company nor any of its
subsidiaries (i) has received notice from any insurer or agent of such insurer
that substantial capital improvements or other material expenditures will have
to be made in order to continue such insurance or (ii) has any reason to believe
that it will not be able to renew its existing insurance coverage as and when
such coverage expires or to obtain similar coverage from similar insurers at a
cost that would not have a Material Adverse Effect.
(ai) Except as disclosed in the Preliminary Offering
Circular and the Offering Circular, no material relationship, direct or
indirect, exists between or among the Company or any of its subsidiaries on the
one hand, and the directors, officers, stockholders, customers or suppliers of
the Company or any of its subsidiaries on the other hand, which would be requi
ed by the Act to be described in the Preliminary Offering Circular and the
Offering Circular if the Preliminary Offering Circular and the Offering Circular
were a prospectus included in a registration statement on Form S-1 filed with
the Commission.
(aj) There is no (i) significant unfair labor
practice complaint, grievance or arbitration proceeding pending or, to the
Company's knowledge, threatened against the Company or any of its ubsidiaries
before the National Labor Relations Board or any state or local labor relations
board, (ii) strike, labor dispute, slowdown or stoppage pending or, to the
Company's knowledge, threatened against the Company or any of its subsidiaries
or (iii) union representation question existing with respect to the employees of
the Company or any of its subsidiaries, except in the case of clauses (i), (ii)
and (iii) for such actions which, singly or in the aggregate, would not have a
Material Adverse Effect.
(ak) The Company and each of its subsidiaries
maintain 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 asset accountability;
(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.
(al) All material tax returns required to be filed by
the Company and each of its subsidiaries in any jurisdiction have been filed,
other than those filings eing contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and other
charges due pursuant to such returns or pursuant to any assessment received by
the Company or any of its subsidiaries have been paid, other than those being
contested in good faith and for which adequate reserves have been provided.
(am) All indebtedness of the Company and its
subsidiaries that will be repaid with the proceeds of the issuance and sale of
the Series A Notes was incurred, and the indebtedness represented by the Series
A Notes is being incurred, for proper purposes and in good faith and each of
14
the Company and its subsidiaries will be on the Closing Date (after giving
effect to the application of the proceeds from the issuance of the Series A
Notes) solvent, and will have on the Closing Date (after giving effect to the
application of the proceeds from the issuance of the Series A Notes) sufficient
capital for carrying on their respective business and will be on the Closing
Date (after giving effect to the application of the proceeds from the issuance
of the Series A Notes) able to pay their respective debts as they mature.
(an) 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 execution, delivery and
performance of any of the Operative Documents, the issuance of the Series A
Notes or the Subsidiary Guarantees, or suspends the sale of the Series A Notes
or the Subsidiary Guarantees in any jurisdiction referred to in Section 5(e);
and 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 or any of its subsidiaries which would
prevent or suspend the issuance or sale of the Series A Notes or the Subsidiary
Guarantees in any jurisdiction referred to in Section 5(e).
The Company acknowledges that the Initial Purchasers and, for
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 9 hereof, counsel to the Company and the Guarantors and counsel to the
Initial Purchasers will rely upon the accuracy and truth of the foregoing
representations and hereby consents to such reliance.
7. Initial Purchasers' Representations and Warranties. Each of
the Initial Purchasers, severally and not jointly, represent and warrant to, and
agrees with, the Company and the Guarantors that:
(a) Such Initial Purchaser is either a QIB or an
Accredited Institution, in either case, with such knowledge and experience in
financial and business matters as is necessary in order to evaluate the merits
and risks of an investment in the Series A Notes.
(b) Such Initial Purchaser (A) is not acquiring the
Series A Notes with a view to any distribution thereof or with any present
intention of offering or selling any of the Series A Notes in a transaction that
would violate the 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 (x) QIBs in reliance on the exemption from the
registration requirements of the Act provided by Rule 144A, and (y) not more
than ten Accredited Institutions that execute and deliver a letter containing
certain representations and agreements in the form attached as Annex A to the
Offering Circular.
(c) Such Initial Purchaser agrees that no form of
general solicitation or general advertising (within the meaning of Regulation D
under the Act) has been or will be used by such Initial Purchaser or any of its
representatives in connection with the offer and sale of the Series A Notes
pursuant hereto, 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.
(d) Such Initial Purchaser agrees that, in connection
with Exempt Resales, such Initial Purchaser will solicit offers to buy the
Series A Notes only from, and will offer to sell the Series A Notes only to,
Eligible Purchasers. Each Initial Purchaser further agrees that it will offer to
sell the Series A Notes only to, and will solicit offers to buy the Series A
Notes only from (A) Eligible Purchasers that the Initial Purchaser reasonably
believes are QIBs, and (B) Accredited Institutions who
15
make the representations contained in, and execute and return to the Initial
Purchaser, a certificate in the form of Annex A attached to the Offering
Circular, in each case, that agree that (x) the Series A Notes purchased by them
may be resold, pledged or otherwise transferred within the time period referred
to under Rule 144(k) (taking into account the provisions of Rule 144(d) under
the Act, if applicable) under the Act, as in effect on the date of the transfer
of such Series A Notes, only (I) to the Company or any of its subsidiaries, (II)
to a person whom the seller reasonably believes is a QIB purchasing for its own
account or for the account of a QIB in a transaction meeting the requirements of
Rule 144A under the Act, (III) in an offshore transaction (as defined in Rule
902 under the Act) meeting the requirements of Rule 904 of the Act, (IV) in a
transaction meeting the requirements of Rule 144 under the Act, (V) to an
Accredited Institution that, prior to such transfer, furnishes the Trustee a
signed letter containing certain representations and agreements relating to the
registration of transfer of such Series A Note (the form of which is
substantially the same as Annex A to the Offering Circular) and, if such
transfer is in respect of an aggregate principal amount of Series A Notes less
than $250,000, an opinion of counsel acceptable to the Company that such
transfer is in compliance with the Act, (VI) in accordance with another
exemption from the registration requirements of the Act (and based upon an
opinion of counsel acceptable to the Company) or (VII) pursuant to an effective
registration statement and, in each case, in accordance with the applicable
securities laws of any state of the United States or any other applicable
jurisdiction and (y) they will deliver to each person to whom such Series A
Notes or an interest therein is transferred a notice substantially to the effect
of the foregoing.
(e) Such Initial Purchaser agrees that it will not
offer, sell or deliver any of the Series A Notes in any jurisdiction outside the
United States except under circumstances that will result in compliance with the
applicable laws thereof, and that it will take at its own expense whatever
action is required to permit its purchase and resale of the Series A Notes in
such jurisdictions. Such Initial Purchaser understands that no action has been
taken to permit a public offering in any jurisdiction outside the United States
where action would be required for such purpose.
Each of the Initial Purchaser acknowledges that the
Company and the Guarantors and, for purposes of the opinions to be delivered to
each Initial Purchaser pursuant to Section 9 hereof, counsel to the Company and
the Guarantors and counsel to the Initial Purchaser will rely upon the accuracy
and truth of the foregoing representations and the Initial Purchaser hereby
consents to such reliance.
8. Indemnification.
(a) The Company and each Guarantor agree, jointly and
severally, to indemnify and hold harmless the Initial Purchasers, their
directors, their officers and each person, if any, who controls such Initial
Purchasers within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages, liabilities
and judgments (including, without limitation, any legal or other expenses
incurred in connection with investigating or defending any matter, including any
action, that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Offering Circular (or any amendment or supplement
thereto), the Preliminary Offering Circular or any Rule 144A Information
provided by the Company or any Guarantor to any holder or prospective purchaser
of Series A Notes pursuant to Section 5(h) or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to the Initial Purchasers furnished in writing to the
Company by such Initial Purchasers.
16
(b) Each of the Initial Purchasers, severally and not
jointly, agrees to indemnify and hold harmless the Company and the Guarantors,
and their respective directors and officers and each person, if any, who
controls (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act) the Company or the Guarantors, to the same extent as the foregoing
indemnity from the Company and the Guarantors to such Initial Purchasers but
only with reference to information relating to such Initial Purchasers furnished
in writing to the Company by such Initial Purchasers expressly for use in the
Preliminary Offering Circular or the Offering Circular.
(c) In case any action shall be commenced involving
any person in respect of which indemnity may be sought pursuant to Section 8(a)
or 8(b) (the "indemnified party"), the indemnified party shall promptly notify
the person against whom such indemnity may be sought (the "indemnifying party")
in writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Initial Purchasers shall not
be required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of the Initial Purchasers). Any indemnified party shall have the right
to employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party or (iii) the
named parties to any such action (including any impleaded parties) include both
the indemnified party and the indemnifying party, and the indemnified party
shall have been advised by such counsel that there may be one or more legal
defenses available to it which are different from or additional to those
available to the indemnifying party (in which case the indemnifying party shall
not have the right to assume the defense of such action on behalf of the
indemnified party). In any such case, the indemnifying party shall not, in
connection with any one action or separate but substantially similar or related
actions in the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) for all indemnified parties
and all such fees and expenses shall be reimbursed as they are incurred. Such
firm shall be designated in writing by Xxxxxxxxx & Company, Inc. in the case of
the parties indemnified pursuant to Section 8(a), and by the Company, in the
case of parties indemnified pursuant to Section 8(b). The indemnifying party
shall indemnify and hold harmless the indemnified party from and against any and
all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii) effected
without its written consent if the settlement is entered into more than twenty
business days after the indemnifying party shall have received a request from
the indemnified party for reimbursement for the fees and expenses of counsel (in
any case where such fees and expenses are at the expense of the indemnifying
party) and, prior to the date of such settlement, the indemnifying party shall
have failed to comply with such reimbursement request. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
17
(d) To the extent the indemnification provided for in
this Section 8 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages, liabilities or judgments referred to therein,
then each indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Guarantors, on the one hand, and the Initial Purchasers on the
other hand from the offering of the Series A Notes or (ii) if the allocation
provided by clause 8(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 8(d)(i) above but also the relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand, in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or judgments, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Guarantors, on the one hand and the Initial Purchasers, on the other hand, shall
be deemed to be in the same proportion as the total net proceeds from the
offering of the Series A Notes (before deducting expenses) received by the
Company, and the total discounts and commissions received by the Initial
Purchasers bear to the total price to investors of the Series A Notes, in each
case as set forth in the table on the cover page of the Offering Circular. The
relative fault of the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, 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 relates to
information supplied by the Company or the Guarantors, on the one hand, or the
Initial Purchasers, 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 and the Guarantors, and the Initial
Purchasers agree that it would not be just and equitable if contribution
pursuant to this Section 8(d) were determined by pro rata allocation (even if
the Initial Purchaser were treated as entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or judgments referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses incurred by such indemnified party in connection with investigating or
defending any matter, including any action, that could have given rise to such
losses, claims, damages, liabilities or judgments. Notwithstanding the
provisions of this Section 8, the Initial Purchasers shall not be required to
contribute any amount in excess of the amount by which the total price of the
Series A Notes purchased by it were sold to investors in Exempt Resales exceeds
the amount of any damages which the Initial Purchasers has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent representation. The Initial
Purchasers' obligation to contribute pursuant to this Section 8(d) are several
in proportion to the respective principal amount of Series A Notes purchased by
each of the Initial Purchasers hereunder and not joint.
(e) The remedies provided for in this Section 8 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
9. Conditions of Initial Purchasers' Obligations. The
obligations of the Initial Purchasers to purchase the Series A Notes under this
Agreement are subject to the satisfaction of each of the following conditions:
18
(a) All the representations and warranties of the
Company and the Guarantors contained in this Agreement shall be true and correct
on the date hereof and on the Closing Date with the same force and effect as if
made on and as of the date hereof and on the Closing Date, respectively.
(b) On or after the date hereof, (i) there shall not
have occurred any downgrading, suspension or withdrawal of, nor shall any notice
have been given of any potential or intended downgrading, suspension or
withdrawal of, or of any review (or of any potential or intended review) for a
possible change that does not indicate the direction of the possible change in,
any rating of the Company or any Guarantor or any securities of the Company or
any Guarantor (including, without limitation, the placing of any of the
foregoing ratings on credit watch with negative or developing implications or
under review with an uncertain direction) by any "nationally recognized
statistical rating organization" as such term is defined for purposes of Rule
436(g)(2) under the Act, (ii) there shall not have occurred any change, nor
shall notice have been given of any potential or intended change, in the outlook
for any rating of the Company or any Guarantor by any such rating organization
and (iii) no such rating organization shall have given notice that it has
assigned (or is considering assigning) a lower rating to the Notes than that on
which the Notes were marketed.
(c) Since the respective dates as of which
information is given in the Offering Circular other than as set forth in the
Offering Circular (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement), (i) there shall not have occurred any change in
the financial condition, or the earnings, business, management or operations of
the Company and its subsidiaries, taken as a whole, and (ii) there shall not
have been any change in the capital stock or in the long-term debt of the
Company or any of its subsidiaries and (iii) neither the Company nor any of its
subsidiaries shall have incurred any liability or obligation, direct or
contingent, the effect of which, in any such case described in clause 9(c)(i),
9(c)(ii) or 9(c)(iii), in the Initial Purchasers' reasonable judgment, is
material and adverse and, in the Initial Purchasers' reasonable judgment, makes
it impracticable to market the Series A Notes on the terms and in the manner
contemplated in the Offering Circular.
(d) The Initial Purchasers shall have received on the
Closing Date a certificate dated the Closing Date, signed by the Chief Executive
Officer and the Treasurer of the Company and the Guarantors, confirming the
matters set forth in Sections 9(a) and 9(c).
(e) The Initial Purchasers shall have received on the
Closing Date an opinion (in form and substance satisfactory to the Initial
Purchasers and counsel for the Initial Purchasers), dated the Closing Date, of
Dechert Price & Xxxxxx, counsel for the Company and the Guarantors, in the form
attached hereto as Exhibit B. 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.
(f) The Initial Purchasers shall have received on the
Closing Date an opinion (in form and substance satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of
Xxxxxxx Xxxxxx, Nevada counsel to the Company and each of the Guarantors,
substantially to the effect set forth in Exhibit C hereto. In providing such
opinion, such counsel shall opine as to the laws of the State of Nevada.
(g) The Initial Purchasers shall have received on the
Closing Date an opinion (in form and substance satisfactory to the Initial
Purchasers and counsel to the Initial Purchasers), dated the Closing Date, of
Holme, Xxxxxxx & Xxxx LLP, Colorado counsel to the Company and each of the
19
Guarantors, substantially to the effect set forth in Exhibit D hereto. In
providing such opinion, such counsel shall opine as to the laws of the State of
Colorado.
(h) The Initial Purchasers shall have received on the
Closing Date an opinion, dated the Closing Date, of Xxxxxx & Xxxxxxx, counsel
for the Initial Purchasers, in form and substance reasonably satisfactory to the
Initial Purchasers.
(i) The Initial Purchasers shall have received, at
the time this Agreement is executed and at the Closing Date, letters dated the
date hereof or the Closing Date, as the case may be, in form and substance
satisfactory to the Initial Purchasers from Deloitte & Touche, independent
public accountants, containing the information and statements of the type
ordinarily included in accountants' "comfort letters" to the Initial Purchasers
with respect to the financial statements and certain financial information
contained in the Offering Circular.
(j) The Series A Notes shall have been approved by
the NASD for trading and duly listed in PORTAL.
(k) The Initial Purchasers shall have received a
counterpart, conformed as executed, of the Indenture which shall have been
entered into by the Company, the Guarantors and the Trustee.
(l) The Company and the Guarantors shall have
executed the Registration Rights Agreement and the Initial Purchasers shall have
received an original copy thereof, duly executed by the Company and the
Guarantors.
(m) The Company shall not have failed at or prior to
the Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company at or
prior to the Closing Date.
(n) Counsel to the Initial Purchasers shall have been
furnished with such documents, in addition to those set forth above, as they may
reasonably require for the purpose of enabling them to review or pass upon the
matters referred to in this Section 9 and in order to evidence the accuracy,
completeness or satisfaction in all material respects of any of the
representations, warranties or conditions herein contained.
(o) All proceedings taken in connection with the sale
of the Notes as herein contemplated shall be reasonably satisfactory in form and
substance to the Initial Purchasers, and, prior to the Closing Date, the Company
and the Guarantors shall have furnished to the Initial Purchasers such further
information, certificates and documents as the Initial Purchasers may reasonably
request.
(p) 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 treasurer of each of the
Company and the Guarantors substantially in the form previously approved by the
Initial Purchasers.
(q) 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 Operative Documents,
(ii) executed copies of each UCC-1 financing statement signed by the Company and
each Guarantor, naming the Trustee as secured party and filed in such
jurisdictions as the Initial
20
Purchasers may reasonably require, and (iii) to the extent required by the
Operative Documents, the original stock certificates, promissory notes and other
instruments pledged to the Trustee pursuant to the Operative Documents, together
with undated stock powers or endorsements duly executed in blank in connection
therewith.
(r) 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
Guarantors, and to accord the Trustee the priorities over other creditors of
either of the Company or the Guarantors as contemplated by the Offering Circular
and the Operative Documents.
(s) The Trustee shall have received irrevocable
commitments for title insurance from Chicago Title Insurance Company, in a form
and substance reasonably satisfactory to the Initial Purchasers, subject only to
Liens permitted under the Indenture, for the title insurance for the Company's
Riviera Hotel & Casino property in Las Vegas, Nevada.
(t) 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
Guarantors unless such liens are permitted under the Indenture or have otherwise
been approved by the Initial Purchasers.
(u) The Trustee shall have received such appraisals,
surveys and estoppel certificates as the Initial Purchasers reasonably require.
(v) The trustee for the Company's 11% First Mortgage
Notes Due 2002 (the "Existing First Mortgage Notes"), shall have notified the
Company and the Initial Purchasers that upon the defeasance of the Existing
First Mortgage Notes using approximately $109.0 million of the offering proceeds
of the Notes, it shall release all liens and security interests in the
collateral under the Existing First Mortgage Notes and terminate the security
documents related thereto effective as of the Closing Date.
(w) The Company and Riviera Operating Corporation
shall have entered into the First Amendment to Revolving Line of Credit Loan
Agreement with U.S. Bank of Nevada (the "Bank of Nevada"), which amendment shall
provide for, among other things, the release of all liens and security interests
in favor of the Bank of Nevada under the Revolving Line of Credit Agreement
dated February 28, 1997 and the termination of the security agreement related
thereto effective as of the Closing Date.
10. Effectiveness of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time prior to the
Closing Date by the Initial Purchasers by written notice to the Company if any
of the following has occurred: (i) any outbreak or escalation of hostilities or
other national or international calamity or crisis or change in economic
conditions or in the financial markets of the United States or elsewhere that,
in the Initial Purchasers' reasonable judgment, is material and adverse and, in
the Initial Purchasers' reasonable judgment, makes it impracticable to market
the Series A Notes on the terms and in the manner contemplated in the Offering
Circular, (ii) the suspension or material limitation of trading in securities or
other instruments on the New York Stock Exchange, the American Stock Exchange,
the Chicago Board of Options Exchange, the
21
Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq National
Market or limitation on prices for securities or other instruments on any such
exchange or the Nasdaq National Market, (iii) the suspension of trading of any
securities of the Company or any Guarantor on any exchange or in the
over-the-counter market, (iv) the 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 the Initial Purchasers'
reasonable opinion materially and adversely affects, or will materially and
adversely affect, the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in the
Initial Purchasers' reasonable opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date any one or more of the Initial
Purchasers shall fail or refuse to purchase the Series A Notes which it or they
have agreed to purchase hereunder on such date and the aggregate principal
amount of the Series A Notes which such defaulting Initial Purchaser or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase is not
more than one-tenth of the aggregate principal amount of the Series A Notes to
be purchased on such date by all Initial Purchasers, each non-defaulting Initial
Purchaser shall be obligated severally, in the proportion which the principal
amount of the Series A Notes set forth opposite its name in Schedule B bears to
the aggregate principal amount of the Series A Notes which all the
non-defaulting Initial Purchasers, as the case may be, have agreed to purchase,
or in such other proportion as the Initial Purchasers may specify, to purchase
the Series A Notes which such defaulting Initial Purchaser or Initial
Purchasers, as the case may be, agreed but failed or refused to purchase on such
date; provided that in no event shall the aggregate principal amount of the
Series A Notes which any Initial Purchaser has agreed to purchase pursuant to
Section 2 hereof be increased pursuant to this Section 10 by an amount in excess
of one-ninth of such principal amount of the Series A Notes without the written
consent of such Initial Purchaser. If on the Closing Date any Initial Purchaser
or Initial Purchasers shall fail or refuse to purchase the Series A Notes and
the aggregate principal amount of the Series A Notes with respect to which such
default occurs is more than one-tenth of the aggregate principal amount of the
Series A Notes to be purchased by all Initial Purchasers and arrangements
satisfactory to the Initial Purchasers and the Company for purchase of such the
Series A Notes are not made within 48 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Initial
Purchaser, the Company or the Guarantors. In any such case which does not result
in termination of this Agreement, either the Initial Purchasers or the Company
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Offering
Circular or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Initial Purchaser
from liability in respect of any default of any such Initial Purchaser under
this Agreement.
11. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company or any
Guarantor, to 0000 Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000; (702)
734-5110; Attention: Xxxxxxx X. Xxxxxxxxx and (ii) if to the Initial Purchasers,
Xxxxxxxxx & Company, Inc., 00000 Xxxxx Xxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx 00000 ((000) 000-0000) Attention: Syndicate Department, or
in any case to such other address as the person to be notified may have
requested in writing.
The respective indemnities, contribution agreements,
representations, warranties and other statements of the Company, the Guarantors
and the Initial Purchasers set forth in or made pursuant to this Agreement shall
remain operative and in full force and effect, and will survive delivery of and
payment for the Series A Notes, regardless of (i) any investigation, or
statement as to the results thereof,
22
made by or on behalf of the Initial Purchasers, the officers or directors of the
Initial Purchasers, any person controlling the Initial Purchasers, the Company,
any Guarantor, the officers or directors of the Company or any Guarantor, or any
person controlling the Company or any Guarantor, (ii) acceptance of the Series A
Notes and payment for them hereunder and (iii) termination of this Agreement.
If for any reason the Series A Notes are not delivered by or
on behalf of the Company as provided herein (other than as a result of any
termination of this Agreement pursuant to Section 10), the Company and each
Guarantor, jointly and severally, agree to reimburse the Initial Purchasers for
all out-of-pocket expenses (including the fees and disbursements of counsel)
incurred by them. Notwithstanding any termination of this Agreement, the Company
shall be liable for all expenses which it has agreed to pay pursuant to Section
5(i) hereof. The Company and each Guarantor also agree, jointly and severally,
to reimburse the Initial Purchasers and its officers, directors and each person,
if any, who controls such Initial Purchasers within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act for any and all fees and expenses
(including without limitation the fees and expenses of counsel) incurred by them
in connection with enforcing their rights under this Agreement (including
without limitation its rights under this Section 11).
Except as otherwise provided, this Agreement has been and is
made solely for the benefit of and shall be binding upon the Company, the
Guarantors, the Initial Purchasers, the Initial Purchasers' directors and
officers, any controlling persons referred to herein, the directors of the
Company and the Guarantors and their respective successors and assigns, all as
and to the extent provided in this Agreement, and no other person shall acquire
or have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include a purchaser of any of the Series A Notes from the
Initial Purchasers merely because of such purchase.
This Agreement shall be governed and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
23
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Guarantors and the Initial Purchasers.
Very truly yours,
RIVIERA HOLDINGS CORPORATION
By: Name: Title:
RIVIERA OPERATING CORPORATION
RIVIERA GAMING MANAGEMENT, INC.
RIVIERA GAMING MANAGEMENT OF COLORADO, INC.
RIVIERA GAMING MANAGEMENT-ELSINORE, INC.
By:________________________________
Name:_________________________
Title:________________________
JEFFERIES & COMPANY, INC.
By:_____________________________
Name:________________________
Title:_______________________
LADENBURG XXXXXXXX & CO. INC.
By:_____________________________
Name:________________________
Title:_______________________
24
SCHEDULE A
GUARANTORS
Riviera Operating Corporation
Riviera Gaming Management, Inc.
Riviera Gaming Management of Colorado, Inc.
Riviera Gaming Management-Elsinore, Inc.
S-1
SCHEDULE B
Initial Purchasers Principal Amount of Notes
Jefferies & Company, Inc.
Ladenburg Xxxxxxxx & Co. Inc.
Total $175,000,000
S-2
EXHIBIT A
Form of Registration Rights Agreement
A-1
