EXHIBIT 10.36
$ 125,000,000 PRINCIPAL AMOUNT OF
9 1/2% SENIOR SUBORDINATED NOTES DUE 2007
OF
HOLLYWOOD PARK, INC.
AND
HOLLYWOOD PARK OPERATING COMPANY
PURCHASE AGREEMENT
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August 1, 1997
XXXXXXXXXXX & CO., INC.
BT SECURITIES CORPORATION
BANCAMERICA SECURITIES, INC.
c/x Xxxxxxxxxxx & Co., Inc.
One World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Hollywood Park Inc., a Delaware corporation (the "Company" or "Hollywood
Park") and Hollywood Park Operating Company, a Delaware corporation ("HPOC", and
collectively, together with Hollywood Park, the "Issuers"), propose, upon the
terms and conditions set forth in this agreement ("Agreement"), to issue and
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sell to Xxxxxxxxxxx & Co., Inc., BT Securities Corporation and BancAmerica
Securities, Inc. (each, an "Initial Purchaser" and, collectively, the "Initial
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Purchasers") $125,000,000 in aggregate principal amount of the Issuers' 9 1/2%
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Senior Subordinated Notes due 2007 (the "Notes"). The Notes will be issued in
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minimum denominations of $1,000 principal amount pursuant to an Indenture (the
"Indenture"), to be dated as of August 1, 1997, among the Issuers, all of the
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Issuers' existing direct and indirect material restricted subsidiaries
(collectively, the "Guarantors") subject to receipt of any required gaming
approvals for each applicable subsidiary and The Bank of New York, a New York
banking corporation, as trustee (the "Trustee"). This Agreement, the Indenture
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and the Registration Rights Agreement are herein collectively referred to as the
"Transaction Documents."
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The Issuers and the Guarantors (collectively, the "Obligors") wish to
confirm as follows their agreement with the Initial Purchasers in connection
with the purchase and resale of the Notes:
1. Preliminary Offering Memorandum and Offering Memorandum. The Notes
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will be offered and sold to each of the Initial Purchasers without registration
under the Securities Act of 1933, as amended (the "Act"), in reliance on
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exemptions therefrom. The Issuer has prepared a preliminary offering
memorandum, dated July 18, 1997 (the "Preliminary Offering Memorandum"), and an
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offering memorandum, dated August 1, 1997 (the "Offering Memorandum"), setting
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forth information regarding the Issuers and the Notes. Unless stated
herein to the contrary, all references herein to the Offering Memorandum are to
the Offering Memorandum at the date hereof and do not include any supplement or
amendment subsequent thereto. The Issuers hereby confirm that they have
authorized the use of the Preliminary Offering Memorandum and the Offering
Memorandum in connection with the offering and resale of the Notes by the
Initial Purchasers.
The Issuers understand that the Initial Purchasers propose to make offers
and sales (the "Exempt Resales") of the Notes purchased by the Initial
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Purchasers hereunder only on the terms and in the manner set forth in the
Offering Memorandum and Section 2 hereof, as soon as the Initial Purchasers deem
advisable after this Agreement has been executed and delivered, (i) to persons
in the United States whom the Initial Purchasers reasonably believe to be
qualified institutional buyers ("Qualified Institutional Buyers") as defined in
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Rule 144A under the Act as such rule may be amended from time to time ("Rule
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144A"), in transactions under Rule 144A, (ii) to a limited number of other
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institutional "accredited investors" (as defined in Rule 501(a)(1), (2), (3) and
(7) under Regulation D of the Act) ("Accredited Investors") in private sales
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exempt from registration under the Act and (iii) outside the United States to
non-U.S. persons ("foreign purchasers") in reliance on Regulation S (such
persons specified in clauses (i), (ii) and (iii) being referred to herein as the
"Eligible Purchasers").
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It is also understood and acknowledged that holders (including subsequent
transferees) of the Notes will have the registration rights set forth in the
registration rights agreement (the "Registration Rights Agreement")
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substantially in the form attached hereto as Exhibit A-1, to be dated as of
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August 1, 1997, by and among the Issuers, the Guarantors and the Initial
Purchasers.
Each of the Initial Purchasers represents, covenants and agrees with the
Issuers that it will deliver an Offering Memorandum, as amended or supplemented
through the date of each Exempt Resale, contemporaneously with or prior to each
such Exempt Resale (to the extent made available by the Issuers) if the Issuers
have not already done so, and have not delivered, and will not after the date of
this Agreement deliver any other offering materials other than the Offering
Memorandum or any amendment or supplement thereto in connection with any Exempt
Resale without the prior consent of the Issuers. In addition, the Initial
Purchasers shall advise the Issuers (which advice may be by telephone) when
their initial distribution of the Notes has been completed.
2. Agreements to Sell, Purchase and Resell.
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(a) The Issuers hereby agree, subject to all of the terms and
conditions set forth herein, and upon the basis of the representations,
warranties and agreements of each of the Initial Purchasers, to issue and sell
to the Initial Purchasers and, upon the basis of the representations, warranties
and agreements of the Issuers herein contained and subject to all of the terms
and conditions set forth herein, each of the Initial Purchasers severally agrees
to purchase from the Issuers the amount of Notes set forth on Schedule I
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attached hereto at a purchase price equal to $972.50 per Note. The Issuers
shall not be obligated to deliver any of the Notes except upon payment for all
of the Notes to be purchased as provided herein.
(b) The Initial Purchasers have advised the Issuers that they will
offer the Notes for sale upon the terms and conditions set forth in this
Agreement and in the Offering Memorandum. Each of the Initial Purchasers hereby
represents and warrants to, and agrees with, the Issuers that (i) such Initial
Purchaser is a Qualified Institutional Buyer; (ii) it has not solicited and will
not solicit offers for, or offer to sell, the Notes by means of any form of
general solicitation or general advertising or in any manner involving a public
offering within the meaning of Section 4(2) of the Act, and (iii) it will
solicit offers for the Notes only from, and will offer, sell or deliver the
Notes as part of its initial offering, only to (A) persons in the United States
whom such Initial Purchaser reasonably believes to be Qualified Institutional
Buyers, or if any such person is buying for one or more institutional accounts
for which such person is acting as fiduciary or agent, only when such person has
represented to such Initial Purchaser that each such account is a Qualified
Institutional Buyer, to whom notice
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has been given that such sale or delivery is being made in reliance on Rule
144A, in each case, in transactions under Rule 144A, (B) to a limited number of
Accredited Investors that make the representations to and agreements with the
Initial Purchasers specified in Annex A to the Offering Memorandum in private
sales exempt from registration under the Act and (C) to foreign purchasers (1)
that make the representations and agreements described in the Offering
Memorandum under the heading "Notice to Investors" and (2) agree only to resell
the Notes in the United States in accordance with the provisions of Rule 903 or
Rule 904; pursuant to registration of such Notes under the Act; or pursuant to
an available exemption from the registration requirements of the Act.
The Initial Purchasers have advised the Issuers that they will offer
the Notes to Eligible Purchasers at a price initially equal to $1,000.00 per
Note. Such price may be changed by the Initial Purchasers at any time
thereafter without notice.
The Initial Purchasers understand that the Issuers and, for the
purposes of the opinions to be delivered to the Initial Purchasers pursuant to
Section 7(c)(xii) and (xiii), 7(d) and 7(e) hereof, counsel to the Issuers and
counsel to the Initial Purchasers, will rely upon the accuracy and truth of the
foregoing representations and agreements and the Initial Purchasers hereby
consent to such reliance.
3. Delivery of the Notes and Payment Therefor. Delivery to the Initial
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Purchasers of and payment for the Notes shall be made at the offices of Irell &
Xxxxxxx LLP, 0000 Xxxxxx xx xxx Xxxxx, Xxxxx 000, Xxx Xxxxxxx, Xxxxxxxxxx 00000-
0000, at 10:45 a.m., Pacific Time, on August 6, 1997 (the "Closing Date"). The
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place of closing for the Notes and the Closing Date may be varied by agreement
among the Initial Purchasers and the Issuers.
The Notes shall be delivered to the Initial Purchasers against payment of
the purchase price therefor by one or more federal funds wire transfers in
immediately available funds no later than August 7, 1997 in accordance with
written instructions from the Issuers. The Notes will be represented by a
global security (the "Global Note") and will be registered in the name of Cede &
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Co. as nominee of The Depository Trust Company ("DTC"). The Notes to be
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delivered to the Initial Purchasers have already been or shall be made available
to the Initial Purchasers or the Trustee for inspection not later than 9:30
a.m., Pacific Time, on the business day preceding the Closing Date.
4. Agreements of the Obligors. The Issuers and, as applicable, the
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Guarantors, agree with the Initial Purchasers as follows:
(a) During the period of time specified in clause (e) below of this
Section 4, the Issuers shall advise the Initial Purchasers promptly and, if
requested by them, shall promptly confirm such advice in writing, of any
material change, or of any event or condition which is reasonably likely to
result in a material change, in the condition (financial or other), business,
prospects, liabilities (contingent or otherwise), properties, net worth,
solvency or results of operations of the Issuers or the Issuers and Guarantors
(as defined herein) taken as a whole (whether or not arising in the ordinary
course of business), or of the happening of any event, any information becoming
known or the existence of any condition that would require any amendment or
supplement to the Offering Memorandum (as then amended or supplemented) so that
the Offering Memorandum (as so amended or supplemented) would not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(b) The Issuers will furnish to the Initial Purchasers, without
charge, such number of copies of the Preliminary Offering Memorandum and the
Offering Memorandum and any amendments or supplements thereto, as they may
reasonably request.
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(c) The Issuers will not make any amendment or supplement to the
Preliminary Offering Memorandum or to the Offering Memorandum of which the
Initial Purchasers shall not previously have been furnished a copy a reasonable
time prior to the making thereof or, at any time prior to the payment for the
Notes on the Closing Date, to which they shall reasonably object after being so
advised.
(d) The Issuers consent to the use of the Offering Memorandum (and of
any amendment or supplement thereto prepared in accordance with Section 4(c)
hereof) in accordance with the securities or Blue Sky laws of the jurisdictions
in which the Notes are offered by the Initial Purchasers and by all dealers to
whom Notes may be sold, in connection with the offering and sale of the Notes.
(e) If, at any time prior to completion of the distribution of the
Notes by the Initial Purchasers to Eligible Purchasers, any event shall occur,
any information shall become known or any condition shall exist that in the
judgment of the Issuers or in the opinion of counsel for the Initial Purchasers
would require any amendment or supplement to the Offering Memorandum (as then
amended or supplemented) so that the Offering Memorandum (as so amended or
supplemented) would not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, the Issuers will, in each such case subject to Section
4(c) hereof, forthwith prepare, at the sole expense of the Issuers, an
appropriate supplement or amendment thereto, and will expeditiously furnish to
the Initial Purchasers and dealers that number of copies thereof as they shall
request.
(f) The Issuers will cooperate with the Initial Purchasers and with
their counsel in connection with the qualification of the Notes for offering and
sale by the Initial Purchasers and by dealers under the securities or Blue Sky
laws of such jurisdictions as the Initial Purchasers may designate and will file
such consents to service of process or other documents necessary or appropriate
in order to effect such qualification; provided, however, that neither Issuer
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shall be required (A) to qualify generally to do business in any jurisdiction
wherein it is not then so qualified, (B) to take any action that would subject
it to general service of process in any such jurisdiction wherein it is not then
so subject or (C) to subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction wherein it is not then so subject.
(g) For a period of five (5) years after the Closing Date, the Issuers
will furnish to the Initial Purchasers (i) as soon as available, a copy of each
quarterly or annual report of the Issuers mailed to stockholders or filed with
the Securities and Exchange Commission (the "Commission"), and (ii) from time to
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time such other information concerning the Issuers as the Initial Purchasers may
reasonably request; provided that, without limiting the foregoing, no such
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records, information or documents shall be used by any person or entity
obtaining access thereto in connection with any market transactions in
securities of the Issuers or the Guarantors in violation of law, and provided
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further that the Issuers and the Guarantors shall not be required to provide any
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information to the Initial Purchasers that the Issuers and the Guarantors are
prohibited by law from disclosing. The Initial Purchasers shall treat any such
information which has been identified to them as confidential, non-public
information in accordance with their usual standards for handling such
information; provided, that nothing contained in this sentence shall restrain
the disclosure by the Initial Purchasers of any such information (1) to their
accountants, attorneys or similar professionals, (ii) as required by law or by
compulsion of legal process, (iii) in connection with any lawsuit to which an
Initial Purchaser is a party, (iv) to their respective successors and assigns,
including any assignees of their respective rights and interests under this
Agreement or (v) to any regulating authority.
(h) The Obligors will apply the net proceeds from the sale of the
Notes in accordance with the description set forth under "Use of Proceeds" in
the Offering Memorandum.
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(i) Except as stated in this Agreement and in the Offering Memorandum,
none of the Obligors has taken, nor will any Obligor take, directly or
indirectly, any action designed to or that might reasonably be expected to cause
or result in stabilization or manipulation of the price of the Notes to
facilitate the sale or resale of the Notes. Except as permitted by the Act, the
Obligors will not distribute any offering material in connection with the Exempt
Resales. The Obligors will not, and will not permit any person acting on their
behalf to, solicit any offers to buy and will not offer to sell the Notes by
means of any form of general solicitation or general advertising or by means of
any directed selling efforts (as defined under Regulation S and the Commission's
releases related thereto).
(j) The Issuers will use their best efforts to cause the Notes to be
eligible for trading on PORTAL.
(k) From and after the Closing Date, so long as any of the Notes are
outstanding and are "restricted securities" within the meaning of Rule 144(a)(3)
under the Act or, if earlier, until three years after the Closing Date, and
during any period in which the Issuers are not subject to Section 13 or 15(d) of
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
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Issuers will furnish to holders and beneficial owners of the Notes and
prospective purchasers of Notes designated by such holders, upon request of such
holders or beneficial owners or such prospective purchasers, the information
required to be delivered pursuant to Rule 144A(d)(4) under the Act to permit
compliance with Rule 144A in connection with resales of the Notes.
(l) The Obligors represent that they have not, and agree that they
will not, sell, offer for sale or solicit offers to buy or otherwise negotiate
in respect of any security (as defined in the Act) that could be integrated with
the sale of the Notes in a manner that would require the registration under the
Act of the sale by the Issuers to the Initial Purchasers or by the Initial
Purchasers to the Eligible Purchasers of the Notes.
(m) Each of the Obligors agrees to comply in all material respects
with the terms and conditions of the Registration Rights Agreement applicable to
such Obligor and all agreements set forth in the representation letters of the
Issuers to DTC relating to the approval of the Notes by DTC for "book entry"
transfer.
(n) The Obligors agree that prior to any registration of the Notes
pursuant to the Registration Rights Agreement, or at such earlier time as may be
so required, the Indenture shall be qualified under the Trust Indenture Act of
1939 (the "1939 Act") and the Obligors will enter into any necessary
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supplemental indentures and take any other necessary action in connection
therewith.
(o) As soon as they have been prepared by the Issuers, the Issuers
will furnish to the Initial Purchasers, copies of any unaudited interim
consolidated quarterly financial statements of the Company for any period
subsequent to the period covered by the most recent consolidated financial
statements of the Company appearing in the Offering Memorandum.
(p) The Obligors shall not, until 90 days following the Closing Date,
without the prior written consent of the Initial Purchasers, offer, sell or
contract to sell, or otherwise dispose of, directly or indirectly, or announce
the offering of, any debt securities issued by any of the Obligors (other than
the Notes, or any debt securities of the Issuers issued pursuant to the
Registration Rights Agreement in exchange for the Notes).
(q) No Obligor will claim voluntarily, and each Obligor will, subject
to the fiduciary duties of the Board of Directors of such Obligor and applicable
law, resist actively any attempts to claim, the benefit of any usury laws
against the holders of any Notes.
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(r) Each Obligor will do and perform in all material respects all
things required to be done and performed under this Agreement and the other
Transaction Documents by it on, prior to, and after the Closing Date.
5. Representations and Warranties of the Obligors. The Issuers, and the
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Guarantors as applicable, represent and warrant to the Initial Purchasers on the
date hereof and as of the Closing Date that:
(a) No order or decree preventing the use of the Preliminary Offering
Memorandum or the Offering Memorandum or any amendment or supplement thereto, or
any order asserting that the transactions contemplated by this Agreement are
subject to the registration requirements of the Act has been issued, and no
proceeding for that purpose has commenced or is pending or, to the knowledge of
either Issuer, is contemplated.
(b) The Preliminary Offering Memorandum and the Offering Memorandum as
of their respective dates and the Offering Memorandum as of the Closing Date and
any amendment or supplement thereto as of its date and as of the Closing Date
(in each case taken together with the documents expressly incorporated by
reference therein (the "Incorporated Documents")), did not and will not (as of
the Closing Date) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that this representation and warranty does not
apply (i) to statements in or omissions from the Preliminary Offering Memorandum
and Offering Memorandum made in reliance upon and in conformity with information
relating to the Initial Purchasers furnished to the Issuers in writing by or on
behalf of the Initial Purchasers expressly for use therein and (ii) statements
in or omissions from the Preliminary Offering Memorandum that are supplemented,
revised or added in the Offering Memorandum. The Issuers make no representation
or warranty with respect to any projected financial information or other
forecasts except as provided in Section 5(q) of this Agreement.
(c) The Indenture has been duly and validly authorized by each Issuer
and each Guarantor and, upon its execution, delivery and performance by each
Issuer and each Guarantor and assuming due authorization, execution, delivery
and performance by the Trustee, will be a valid and binding agreement of each
Issuer and each Guarantor, enforceable in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or other similar laws affecting the enforcement of creditors' rights
generally and subject to the applicability of general principles of equity; the
Indenture conforms in all material respects to the description thereof in the
Offering Memorandum; and no qualification of the Indenture under the 1939 Act is
required in connection with the offer and sale of the Notes contemplated hereby
(except for sales of Notes pursuant to the Exchange Offer, as defined in the
Indenture) or in connection with the Exempt Resales.
(d) Each Obligor has all the requisite power and authority to execute,
deliver and perform each of its obligations under each of the Transaction
Documents; the execution and delivery of, and the performance by each Obligor of
each of its obligations under, each of the Transaction Documents have been duly
and validly authorized by such Obligor, and as of the Closing Date, each of the
Transaction Documents will have been duly executed and delivered by each Obligor
and will constitute the valid and legally binding agreement of each Obligor,
enforceable against each Obligor in accordance with its terms, except as such
enforcement may be limited by bankruptcy, insolvency, fraudulent conveyance or
other similar laws affecting the enforcement of creditors' rights generally and
subject to the applicability of general principles of equity, and except as
rights to indemnity and contribution under such Transaction Document may be
limited by Federal or state securities laws or principles of public policy.
(e) The Notes have been duly authorized by each Issuer, and, when
executed by the Obligors, authenticated by the Trustee in accordance with the
Indenture and delivered to the Initial Purchasers
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against payment therefor in accordance with the terms hereof, will have been
validly issued and delivered, and will constitute valid and binding obligations
of the Issuers, entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or other similar laws affecting
the enforcement of creditors' rights generally and subject to the applicability
of general principles of equity, and the Notes conform in all material respects
to the description thereof in the Offering Memorandum.
(f) Each Issuer is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as described in the Offering Memorandum, and is duly registered and
qualified to conduct its business and is in good standing in each jurisdiction
where the nature of its properties or the conduct of its business requires such
registration or qualification, except where the failure so to register or
qualify could not, singly or in the aggregate with all other such failures,
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), business, prospects, liabilities (contingent or
otherwise), properties, net worth, solvency or results of operations of either
the Issuers or of the Issuers and the Guarantors, taken as a whole (any such
event, a "Material Adverse Effect").
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(g) Each Guarantor is a corporation, limited partnership or limited
liability corporation duly organized, validly existing and in good standing
under the laws of the state in which it is incorporated or organized with full
corporate power and authority to own, lease, and operate its properties and to
conduct its business as described in the Offering Memorandum, and is duly
registered and qualified to conduct its business and is in good standing in each
jurisdiction where the nature of its properties or the conduct of its business
requires such registration or qualification, except where the failure so to
register or qualify could not, singly or in the aggregate with all other such
failures, reasonably be expected to have a Material Adverse Effect.
(h) The Guarantors are, on the date of this Agreement, those
corporations, limited partnerships and limited liability companies set forth on
Schedule II attached hereto. Each Material Restricted Subsidiary of Hollywood
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Park on the date hereof is a Guarantor.
(i) There are no legal or governmental proceedings pending or, to the
knowledge of either Issuer or any Guarantor, threatened, against either of the
Issuers or any of the Guarantors or to which either of the Issuers or any of the
Guarantors or any of their respective properties or assets is subject, that are
not disclosed in the Offering Memorandum or the Incorporated Documents and that,
if adversely decided, could, singly or in the aggregate with all other such
proceedings, reasonably be expected to have a Material Adverse Effect or
materially affect the issuance of the Notes or the consummation of any of the
transactions contemplated by the Transaction Documents. Except as could not
reasonably be expected to have a Material Adverse Effect, neither the Issuers
nor any Guarantor is involved in any strike, job action or labor dispute with
any group of employees, and, to the knowledge of the Issuers and the Guarantors,
no such action or dispute is threatened.
(j) No statute, rule, regulation or order that has been enacted,
adopted or issued by any governmental agency and no injunction, restraining
order or order of any nature by a Federal or state court of competent
jurisdiction to which either of the Issuers or any of the Guarantors is subject
has been issued or is pending that (i) could interfere with or adversely affect
the issuance of the Notes or (ii) could in any manner draw into question the
validity of this Agreement or any other Transaction Document.
(k) To the knowledge of the Issuers, no Obligor has violated any
Federal, state or local law relating to discrimination in hiring, promotion or
pay of employees except where such violation could not reasonably be expected to
have a Material Adverse Effect. No Issuer will cause or permit any goods to be
manufactured, sold or distributed by any of its employees in violation of the
minimum wage or overtime laws of Sections 6 and 7 of the Federal Fair Labor
Standards Act.
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(l) To the knowledge of the Guarantors, no Obligor has violated any
Federal, state or local law relating to discrimination in hiring, promotion or
pay of employees except where such violation could not reasonably be expected to
have a Material Adverse Effect. No Guarantor will cause or permit any goods to
be manufactured, sold or distributed by any of its employees in violation of the
minimum wage or overtime laws of Sections 6 and 7 of the Federal Fair Labor
Standards Act.
(m) Neither Issuer nor any of the Guarantors is (i) in violation of
(A) its certificate or articles of incorporation or partnership or membership
agreement or bylaws or other organizational documents or (B) of any statute,
ordinance, law, administrative or governmental rule or regulation or filing or
judgment, injunction, order or decree of any court or governmental agency or
body applicable to either of the Issuers or any of the Guarantors or any of
their respective properties or assets (collectively, "Law and Legal
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Requirements"), except where any such violation could not, singly or in the
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aggregate with all other such violations, reasonably be expected to have a
Material Adverse Effect or (ii) in breach of or in default in the performance of
(including any event which, with notice or lapse of time or both, would
constitute a breach of or a default in the performance of) any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness, material agreement, indenture, lease or other
instrument to which either of the Issuers or any of the Guarantors is a party or
by which either of the Issuers or any of the Guarantors or any of their
respective properties may be bound (collectively, "Agreements and Instruments"),
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except (A) as may be disclosed in the Offering Memorandum or the Incorporated
Documents or (B) where any such breach or default could not, singly or in the
aggregate with all other such breaches and defaults, reasonably be expected to
have a Material Adverse Effect.
(n) The issuance, offer, sale and delivery of the Notes by the
Issuers, the execution, delivery and performance of the Transaction Documents by
the Issuers and the Guarantors and the consummation by the Issuers and the
Guarantors of the transactions contemplated hereby and thereby do not and will
not (it being understood that no representation or warranty is made with respect
to any Consents or Filings (as defined below), provisions of the certificate or
articles of incorporation or bylaws or other organizational documents,
Agreements or Instruments or Law or Legal Requirements not in existence on the
date hereof or on the Closing Date): (i) require any consent, approval,
authorization or other order of, or registration or filing with, any court,
regulatory body, administrative agency or other governmental body, agency or
official (collectively, "Consents and Filings"), except (A) as have been
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obtained and are in full force and effect, (B) such as may be required under the
Act, and other than as may be required under the Mississippi Gaming Control Act
and the rules and regulations promulgated thereunder for the approval of the
guaranty of the Exchange Notes by Mississippi-I Gaming, L.P., in connection with
the performance of the Issuers' and the Guarantors' obligations under the
Registration Rights Agreement and the qualification of the Indenture under the
1939 Act in connection with the consummation of the transactions contemplated by
the Registration Rights Agreement and (C) compliance with the securities or Blue
Sky laws of various jurisdictions, and (D) as may be required by applicable
Gaming Laws and Gaming Authorities (each as defined in the Indenture) in
connection with the registration, sale and issuance of the Exchange Notes and
any Guaranties thereof (as defined in the Indenture); (ii) conflict with or
constitute a breach of or a default under (including any event which, with
notice or lapse of time or both, would constitute a breach of or a default
under), the certificate or articles of incorporation or bylaws or other
organizational documents of either Issuer or any of the Guarantors; (iii)
conflict with or constitute a breach of or a default under (including any event
which, with notice or lapse of time or both, would constitute a breach of or a
default under) any Agreement or Instrument, except any such conflict, breach or
default that could not, singly or in the aggregate with all other such
conflicts, breaches and defaults, reasonably be expected to have a Material
Adverse Effect; (iv) violate any Law or Legal Requirement, except any such
violation that could not, singly or in the aggregate with all other such
violations, reasonably be expected to have a Material Adverse Effect; and (v)
result in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of either Issuer or any of the Guarantors pursuant to the
terms of any Agreement or Instrument.
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(o) No consents or waivers from any other person are required for the
execution, delivery and performance of this Agreement and the other Transaction
Documents by either Issuer or, as applicable, any of the Guarantors and the
consummation of the transactions contemplated hereby and thereby, other than
such consents and waivers as have been obtained and are in full force and effect
and other than certain consents (i) required under the Mississippi Gaming
Control Act and the rules and regulations promulgated thereunder for the
approval of the guaranty of the Exchange Notes by Mississippi-I Gaming, L.P. or
(ii) as may be required by any other applicable Gaming Laws and Gaming
Authorities (each as defined in the Indenture) in connection with the
registration, sale and issuance of the Exchange Notes and any Guaranties thereof
(as defined in the Indenture).
(p) The consolidated financial statements of the Company included in
the Offering Memorandum, present fairly the consolidated financial position,
results of operations and cash flows of the Company, at the dates and for the
periods to which they relate, and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis ("GAAP").
----
The pro forma financial information included in the Offering Memorandum (A)
--- -----
present fairly in all material respects the information shown therein and (B)
have been properly computed on the basis described therein.
(q) The projections and forecasts, if any, contained in the Offering
Memorandum have been prepared by the Company and are based on the reasonable and
good faith estimates and assumptions of the Company and the Company has no
reason to believe that such estimates and assumptions are not fair and
reasonable, it being recognized that projections as to future events are not to
be viewed as fact and that actual results during the period or periods covered
by any such projections will differ from the projected results and that the
differences may be material. All important factors that could result in a
material variance between projected and actual results have been described in
the assumptions underlying the projections.
(r) Except as disclosed in the Offering Memorandum, subsequent to the
date as of which such information is given in the Offering Memorandum, neither
Issuer nor any of the Guarantors has incurred any liability or obligation,
direct or contingent, or entered into or agreed to enter into any transaction,
whether or not in the ordinary course of business, that is material to such
Issuer or to the Issuers and the Guarantors taken as a whole, and there has not
been any material increase in the short-term or long-term debt of either of the
Issuers or any of the Guarantors, or any material adverse change, or any
development involving or which could reasonably be expected to involve a
prospective material adverse change in or affect the condition (financial or
otherwise), business, prospects, liabilities (contingent or otherwise),
properties, net worth, solvency or results of operations of the Issuers or the
Issuers and the Guarantors, taken as a whole (whether or not arising in the
ordinary course of business), and there have not been dividends or distributions
of any kind declared, paid or made by either of the Issuers or any of the
Guarantors on any class of its capital stock.
(s) Each Issuer and each Guarantor has good and marketable title to
all property (real and personal) described in the Offering Memorandum (or
reflected in the financial statements included in the Offering Memorandum) as
being owned by it, free and clear of all liens, claims, security interests or
other encumbrances, except as specifically described in the Offering Memorandum
or the Incorporated Documents and except for any such lien, claim, security
interest or other encumbrance which is permitted by the Indenture, and all the
property described in the Offering Memorandum as being held under lease by any
Issuer or Guarantor is, to such Issuer's knowledge or, as the case may be, such
Guarantor's knowledge, held by it under valid, subsisting and enforceable
leases, with only such exceptions as in the aggregate are not materially
burdensome and do not interfere in any material respect with the conduct of the
business of either Issuer or the Issuers and the Guarantors, taken as a whole,
and no default by either of the Issuers or any of the Guarantors has occurred
and is continuing thereunder, except, with respect to the foregoing, such as are
described in the Offering Memorandum or the Incorporated Documents or as could
not, singly or in the aggregate with all such other
-9-
defaults, reasonably be expected to have a Material Adverse Effect, and to the
knowledge of each Issuer and each Guarantor no material defaults by the landlord
are existing under any such lease.
(t) Except as permitted by the Act, neither Issuer nor any of the
Guarantors has distributed and, prior to the later to occur of the Closing Date
and completion of the initial distribution of the Notes (which includes the sale
by the Initial Purchasers), no such Obligor will distribute, any offering
material in connection with the offering and sale of the Notes other than the
Preliminary Offering Memorandum and Offering Memorandum (and any amendment or
supplement thereto in accordance with Section 4(c) hereof).
(u) Except as set forth in the Offering Memorandum or the Incorporated
Documents, each Issuer and each of the Guarantors has all such permits,
licenses, franchises, certificates of need and other approvals or authorizations
of governmental or regulatory authorities as are necessary under applicable law
to own its properties and to conduct their respective businesses in the manner
conducted as of the Closing Date as described in the Offering Memorandum,
including all governmental licenses, permits, approvals and authorizations
necessary for the operation of their respective gaming and racing facilities and
for the operation of their respective hotel, restaurant, entertainment,
truckstop and related facilities (the "Permits") except to the extent that the
-------
failure to have any such Permit could not, singly or in the aggregate with all
other such failures, reasonably be expected to have a Material Adverse Effect;
each Issuer and each of the Guarantors has fulfilled and performed, in all
material respects, all their respective material obligations with respect to the
Permits and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or has resulted or after notice
or lapse of time would result in any other material impairment of the rights of
the holder of any such Permit subject in each case to such qualification as may
be set forth in the Offering Memorandum or the Incorporated Documents and except
to the extent that any such revocation or termination could not, singly or in
the aggregate with all other such revocations and terminations, reasonably be
expected to have a Material Adverse Effect; and, except as described in the
Offering Memorandum or the Incorporated Documents, none of the Permits contains
any restriction more burdensome than the restrictions typically applicable to
operators of gaming businesses or enterprises, the compliance with which could
reasonably be expected to have a Material Adverse Effect.
(v) To the knowledge of each Issuer and each Guarantor, neither Issuer
nor any of the Guarantors, nor any employee or agent of the Issuer or any
Guarantor has made any payment of funds of any Issuer or any Guarantor or
received or retained any funds in violation of any law, rule or regulation,
which violation could, singly or in the aggregate with all other such
violations, reasonably be expected to have a Material Adverse Effect.
(w) Except as disclosed in the Offering Memorandum or the Incorporated
Documents, each Issuer and each of the Guarantors have filed all tax returns
required to be filed, and such returns are true and correct in all material
respects, and neither Issuer nor any Guarantor is in default in the payment of
any taxes which were payable pursuant to said returns or any assessments with
respect thereto, except insofar as the failure to file any such return or make
any such payment could not, singly or in the aggregate with all other such
failures, reasonably be expected to have a Material Adverse Effect. The Issuers
and the Guarantors do not know of any material proposed additional tax
assessments against either Issuer or any Guarantor.
(x) Except as provided in this Agreement, no holder of any security of
either Issuer (other than holders of the Notes) has any right to request or
demand registration of any security of either Issuer because of the consummation
of the transactions contemplated by the Transaction Documents.
(y) Except as set forth in the Offering Memorandum or the Incorporated
Documents, each Issuer and each of the Guarantors owns or possesses or has the
right to use, without known infringement of the rights of any person, all
patents, trademarks, trademark registrations,service marks, service mark
registrations,
-10-
trade names, copyrights, licenses, inventions, trade secrets and rights
necessary for the conduct of their respective businesses (collectively, the
"Intellectual Property"), except to the extent that the failure to own or
---------------------
possess such Intellectual Property could not, singly or in the aggregate with
all such other failures, reasonably be expected to result in any Material
Adverse Effect.
(z) No Obligor is and, upon sale of the Notes to be issued and sold
hereby in accordance herewith and the application of the net proceeds to the
Issuers of such sale as described in the Offering Memorandum under the caption
"Use of Proceeds," no Obligor will be an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(aa) When the Notes are issued and delivered pursuant to this
Agreement, such Notes will not be of the same class (within the meaning of Rule
144A(d)(3) under the Act) as any security of either of the Issuers or any
Guarantor 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
interdealer quotation system.
(bb) Neither Issuer nor any of the Guarantors has directly, or
through any agent (provided that no representation is made as to the Initial
Purchasers or any person acting on their behalf): (i) sold, offered for sale,
solicited offers to buy or otherwise negotiated in respect of, any security (as
defined in the Act) that is or will be integrated with the offering and sale of
the Notes in a manner that would require the registration of the Notes under the
Act; (ii) engaged in any form of general solicitation or general advertising
(within the meaning of Regulation D under the Act) in connection with the
offering of the 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; or (iii)
engaged in any directed selling efforts within the meaning of Rule 903 under the
Act and the Commission's Release No. 33-6883. No securities of the same class as
the Notes have been issued and sold by either Issuer within the six-month period
immediately prior to the date hereof.
(cc) Assuming (i) that the representations and warranties in Sections
1 and 2 hereof are true and correct in all material respects, (ii) that the
Initial Purchasers comply in all material respects with the covenants set forth
in Section 2 hereof and (iii) that each person to whom the Initial Purchasers
offer, sell or deliver the Notes is an Eligible Purchaser, the purchase and sale
of the Notes pursuant hereto (including the Initial Purchasers' proposed
offering of the Notes on the terms and in the manner set forth in the Offering
Memorandum and Sections 1 and 2 hereof) is exempt from the registration
requirements of the Act.
(dd) Each Issuer and each Guarantor is in compliance with, and not
subject to any liability under, the common law and all applicable Federal,
state, local and foreign laws, regulations, rules, codes, ordinances,
directives, and orders relating to pollution or to protection of public or
employee health or safety or to the environment, including, without limitation,
those that relate to any Hazardous Material (as defined herein) ("Environmental
-------------
Laws"), except, in each case, where noncompliance or liability, singly or in the
----
aggregate with all other such noncompliance and liabilities, could not
reasonably be expected to have a Material Adverse Effect. The term "Hazardous
---------
Material" means any pollutant, contaminant or waste, or any hazardous,
--------
dangerous, or toxic chemical, material, waste, substance or constituent subject
to regulation under any Environmental Law.
(ee) Neither Issuer is, nor will it be, as a result of or after
giving effect to the issuance of the Notes and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, (i) insolvent, (ii) left with an unreasonably small capital
with which to engage in its existing and anticipated businesses or (iii)
incurring debts beyond its ability to pay such debts as they mature. Neither
Issuer is issuing the Notes in anticipation of insolvency.
-11-
(ff) The Guarantors taken as a whole, are not, nor will they be as a
result of or after giving effect to the issuance of the Notes, or the incurrence
of liabilities thereunder, the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, (i)
insolvent, (ii) left with an unreasonably small capital with which to engage in
their existing and anticipated businesses or (iii) incurring debts beyond their
ability to pay such debts as they mature. None of the Guarantors is issuing its
guaranty of the Notes in anticipation of insolvency.
(gg) The Offering Memorandum, as of its date, and each amendment or
supplement thereto, as of its date, in each case taken together with the
Incorporated Documents, contains all the information specified in, and meets the
requirements of, Rule 144A(d)(4) under the Act.
6. Indemnification and Contribution. (a) The Issuers and the Guarantors
--------------------------------
jointly and severally agree to indemnify and hold harmless each of the Initial
Purchasers, and their respective directors and officers and each person, if any,
who controls any Initial Purchaser 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 expenses (including reasonable costs of investigation)
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in the Preliminary Offering Memorandum or Offering
Memorandum (including the Exhibits thereto and the Incorporated Documents) or in
any amendment or supplement thereto, or arising out of or based upon any
omission or alleged omission to state therein a 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, insofar as
such losses, claims, damages, liabilities or expenses arise out of or are based
upon any untrue statement or omission or alleged untrue statement or omission
which has been made therein or omitted therefrom in reliance upon and in
conformity with the information relating to any Initial Purchaser furnished in
writing to the Issuers by or on behalf of any Initial Purchaser expressly for
use therein. The foregoing indemnity agreement shall be in addition to any
liability which the Issuers or the Guarantors may otherwise have; provided,
--------
however, that the indemnification contained in this paragraph (a) with respect
-------
to the Preliminary Offering Memorandum shall not inure to the benefit of any
Initial Purchaser (or to the benefit of any person controlling any Initial
Purchaser) on account of any such loss, claim, damage, liability or expense
arising from the sale of the Notes by such Initial Purchaser to any person if it
is established in the related proceeding that each untrue statement or alleged
untrue statement contained in, or omission or alleged omission of a material
fact from, the Preliminary Offering Memorandum or the Offering Memorandum, or
any supplement thereto, upon which such loss, claim, damage, liability or
expense is based was completely corrected in the Offering Memorandum, or any
supplement thereto, and that such Initial Purchaser sold Notes to that person
without sending or giving at or prior to the written confirmation of such sale,
a copy of the Offering Memorandum (as then amended or supplemented), which the
Issuers have previously furnished sufficient copies thereof to such Initial
Purchaser as required hereby.
(b) If any action, suit or proceeding shall be brought against any
Initial Purchaser or any person who controls any Initial Purchaser in respect of
which indemnity may be sought against any of the Issuers or the Guarantors, such
Initial Purchaser or any such person who controls such Initial Purchaser shall
promptly notify the parties against whom indemnification is being sought (the
"indemnifying parties"), and such indemnifying parties shall assume the defense
---------------------
thereof, including the employment of counsel reasonably satisfactory to the
indemnified parties and payment of all reasonable fees and expenses. Each of
the Initial Purchasers or any person who controls any Initial Purchaser shall
have the right to employ separate counsel in any such action, suit or proceeding
and to participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Initial Purchaser or any such person who
controls such Initial Purchaser unless (i) the indemnifying parties have agreed
to pay such fees and expenses, (ii) the indemnifying parties have failed to
assume the defense and employ counsel reasonably satisfactory to the indemnified
parties on a timely basis, or (iii) the named parties to any such action, suit
or proceeding (including any impleaded parties) include both (a) such Initial
Purchaser or any such person who controls such Initial Purchaser and (b) any of
the
-12-
indemnifying parties, and such Initial Purchaser or any such person who controls
such Initial Purchaser shall have reasonably concluded, upon advice of its
counsel, that representation of such indemnified party and any such indemnifying
party by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the indemnifying party shall not have the right to assume the defense
of such action, suit or proceeding on behalf of such Initial Purchaser or any
such person who controls the Initial Purchaser). It is understood, however, that
the indemnifying parties shall, in connection with any one such action, suit or
proceeding or separate but substantially similar or related actions, suits or
proceedings in the same jurisdiction arising out of the same general allegations
or circumstances, be liable for the reasonable fees and expenses of only one
separate firm of attorneys (in addition to any local counsel) at any time for
each Initial Purchaser and any such person who controls each Initial Purchaser,
which firm shall be designated in writing by each Initial Purchaser and be
reasonably acceptable to the Issuers, and that all such reasonable fees and
expenses shall be reimbursed on a monthly basis. The indemnifying parties shall
not be liable for any settlement of any such action, suit or proceeding effected
without their written consent (which shall not be unreasonably withheld or
delayed), but if settled with such written consent, or if there be a final
judgment for the plaintiff in any such action, suit or proceeding, the
indemnifying parties agree to indemnify and hold harmless each of the Initial
Purchasers, to the extent provided in paragraph (a), and any person who controls
such Initial Purchaser from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each of the Initial Purchasers agrees to indemnify and hold
harmless the Issuers, the Guarantors, and their respective directors and
officers, and any person who controls the Issuers or any of the Guarantors
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act to
the same extent as the indemnity from the Issuer and the Guarantors to each of
the Initial Purchasers set forth in paragraph (a) hereof, but only with respect
to information relating to such Initial Purchasers furnished in writing by or on
behalf of such Initial Purchasers expressly for use in the Preliminary Offering
Memorandum or Offering Memorandum or any amendment or supplement thereto. If
any action, suit or proceeding shall be brought against either of the Issuers,
or any of the Guarantors, any of their respective directors or officers, or any
such controlling person based on the Preliminary Offering Memorandum or Offering
Memorandum, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against each of the Initial Purchasers pursuant to this
paragraph (c), each of the Initial Purchasers shall have the rights and duties
given to the Issuer and the Guarantors by paragraph (b) above (except that if
either of the Issuers or any of the Guarantors shall have assumed the defense
thereof each of the Initial Purchasers shall not be required to, but may, employ
separate counsel therein and participate in the defense thereof, but the fees
and expenses of such counsel shall be at each of the Initial Purchasers'
expense), and either of the Issuers or any of the Guarantors, their respective
directors and officers, and any such controlling person shall have the rights
and duties given to each of the Initial Purchasers by paragraph (b) above. The
foregoing indemnity agreement shall be in addition to any liability which each
of the Initial Purchasers may otherwise have.
(d) If the indemnification provided for in this Section 6 is
unavailable for any reason to an indemnified party under paragraphs (a) or (c)
hereof or is insufficient to hold any such indemnified party completely harmless
in respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an 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 or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Issuers and the Guarantors, collectively, on the one hand and each of the
Initial Purchasers on the other hand from the offering of the Notes, or (ii) if
the allocation provided by clause (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 (i) above but also the relative fault of the Issuers and
the Guarantors, collectively, on the one hand and each of the Initial Purchasers
on the other in connection with the statements or omissions that resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Issuers and the
-13-
Guarantors, collectively, on the one hand and each of the Initial Purchasers on
the other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Issuers and the
Guarantors, collectively, bear to the total discounts and commissions received
by each of the Initial Purchasers, in each case as set forth in the table on the
cover page of the Offering Memorandum. The relative fault of the Issuers and the
Guarantors, collectively, on the one hand and each of 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
Issuers and the Guarantors, collectively, on the one hand or by each of 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.
(e) The Issuers, the Guarantors and each of the Initial Purchasers
agree that it would not be just and equitable if contribution pursuant to this
Section 6 were determined by a pro rata allocation or by any other method of
allocation that does not take account of the equitable considerations referred
to in paragraph (d) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (d) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or depending on any such
action, suit or proceeding. Notwithstanding the provisions of this Section 6,
none of the Initial Purchasers shall be required to contribute any amount in
excess of the amount by which the total price of the Notes purchased by it
exceeds the amount of any damages which any such Initial Purchaser has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 6 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. Each
successor to any Initial Purchaser or any person who controls such Initial
Purchaser, or to the Issuers, the Guarantors, their respective directors or
officers or any person controlling the Issuers or the Guarantors, shall be
entitled to the benefits of the indemnity, contribution and reimbursement
agreements contained in this Section 6.
(g) No indemnifying party shall, without the prior written consent of
the indemnified parties (which consent shall not be unreasonably withheld),
effect any settlement or compromise of any pending or threatened proceeding in
respect of which any indemnified party is or could have been a party, or
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional written release of such indemnified
party, in form and substance reasonably satisfactory to such indemnified party,
from all liability on claims that are the subject matter of such proceeding.
7. Conditions of the Initial Purchaser's Obligations. The obligation of
-------------------------------------------------
each of the Initial Purchasers to purchase the Notes hereunder is subject to the
fulfillment, in the Initial Purchaser's sole discretion, of the following
conditions:
(a) At the time of execution of this Agreement and on the Closing
Date, no order or decree preventing the use of the Offering Memorandum or any
amendment or supplement thereto, nor any order asserting that the transactions
contemplated by this Agreement are subject to the registration requirements of
the Act shall have been issued, and no proceedings for that purpose shall have
been commenced or shall be pending or, to the knowledge of either of the Issuers
or any Guarantor, be contemplated. No order suspending the sale of the Notes in
any jurisdiction shall have been issued, and no proceedings for that purpose
shall have been
-14-
commenced or shall be pending or, to the knowledge of either of the Issuers or
any Guarantor, shall be contemplated.
(b) Subsequent to the date hereof (i) there shall not have occurred
any material adverse change, or any development involving a prospective material
adverse change, in or affecting the condition (financial or otherwise),
business, prospects, liabilities (contingent or otherwise), properties, assets,
net worth, solvency or results of operations of either of the Issuers or any of
the Guarantors, and (ii) the conduct of the business and operations of the
Issuers and the Guarantors has not been interfered with by strike, fire, flood,
hurricane, accident or other calamity (whether or not insured) and, except as
otherwise stated in the Offering Memorandum, the properties of each of the
Issuers and the Guarantors have not sustained any loss or damage (whether or not
insured) as a result of any such occurrence, except any such interference, loss
or damage which could not, singly or in the aggregate, reasonably be expected to
have a Material Adverse Effect.
(c) The Initial Purchasers shall have received on the Closing Date an
opinion of Xxxxx & Xxxxxxx LLP, counsel for the Issuers and the Guarantors,
dated the Closing Date and addressed to the Initial Purchasers, in form and
substance reasonably satisfactory to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.,
counsel for the Initial Purchasers, to the effect that:
(i) Each Issuer is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Offering Memorandum and is duly
registered and qualified to conduct its business and is in good standing as
a foreign corporation in each jurisdiction where the nature of its
properties or the conduct of its business requires such registration or
qualification, except where the failure so to register or qualify or to be
in good standing could not, singly or in the aggregate with all other such
failures, reasonably be expected to have a Material Adverse Effect;
(ii) Each Guarantor is an entity duly incorporated and validly
existing in good standing under the laws of its jurisdiction of
incorporation or organization with full corporate, partnership or other
applicable power and authority to own, lease and operate its properties and
to conduct its business as described in the Offering Memorandum and is duly
registered and qualified to conduct its business and is in good standing as
a foreign corporation, partnership or other entity in each jurisdiction
where the nature of its properties or the conduct of its business requires
such registration or qualification, except where the failure so to register
or qualify or to be in good standing could not, singly or in the aggregate
with all other such failures, reasonably be expected to have a Material
Adverse Effect;
(iii) Each Issuer has corporate power and authority to enter into
this Agreement and the other Transaction Documents and to issue, sell and
deliver the Notes to be sold by it to the Initial Purchasers as provided
herein, and this Agreement and each of the other Transaction Documents
(other than the Notes) have been duly authorized, executed and delivered by
each Issuer and each of the Transaction Documents (other than this
Agreement) are valid, legal and binding agreements of each Issuer,
enforceable against each Issuer in accordance with their respective terms;
(iv) Each Guarantor has corporate, partnership or other power and
authority to enter into this Agreement and the other Transaction Documents,
and this Agreement and each of the other applicable Transaction Documents
have been duly authorized, executed and delivered by each Guarantor and
each of the Transaction Documents (other than this Agreement) are valid,
legal and binding agreements of each Guarantor, enforceable against each
Guarantor in accordance with their respective terms;
-15-
(v) The Notes have been duly and validly authorized by each
Obligor, and, when executed by the Obligors, authenticated by the Trustee
in accordance with the Indenture delivered to the Initial Purchasers
against payment therefor in accordance with the terms hereof, will have
been validly issued and delivered, and will constitute valid and binding
obligations of each Obligor, entitled to the benefits of the Indenture;
(vi) (x) The offer, sale or delivery of the Notes as of the
Closing Date, and (y) the execution, delivery or performance by the Issuers
of this Agreement and the other Transaction Documents, and (z) compliance
by the Issuers with the provisions hereof or thereof and consummation by
the Issuers of the transactions contemplated hereby or thereby, do not and
will not conflict with and do not and will not constitute a breach of, or a
default under (including any event which, with notice or lapse of time or
both, would be a breach of or a default under), (a) the certificate or
articles of incorporation or partnership or membership agreement or bylaws
or other organizational documents of the Issuers or any of the Guarantors
as in effect on the Closing Date or (b) any Agreement or Instrument known
to such counsel as in effect on the Closing Date, except, with respect to
this clause (b) any such conflict, breach or default that could not, singly
or in the aggregate, with all such other conflicts, breaches and defaults,
reasonably be expected to have a Material Adverse Effect, and other than as
described in the Offering Memorandum or the Incorporated Documents, and,
based solely on facts known to such counsel, no such action will result in
any violation of any Law or Legal Requirement in effect as of the Closing
Date which in such counsel's experience is customarily applicable to
transactions of the type contemplated by the Transaction Documents
(assuming for the purposes of this paragraph compliance with all applicable
state securities and Blue Sky laws and, in the case of the Registration
Rights Agreements, the Act, the Exchange Act and the 1939 Act);
(vii) No Consent or Filing based on Law or Legal Requirements as
in effect on the Closing Date which in such counsel's experience is
customarily applicable to transactions of the type contemplated by the
Transaction Documents or as a result of the Issuers' business is required
on the part of either of the Issuers or any Guarantor for the valid
issuance and sale of the Notes to the Initial Purchasers as contemplated by
this Agreement or the execution, delivery or performance by the Issuers and
the Guarantors of each of the Transaction Documents, to which each is a
party, except (A) as have been obtained and are in full force and effect,
(B) as may be required under state securities or Blue Sky laws governing
the purchase and distribution of the Notes or such as may be required under
the Act, the Exchange Act or the 1939 Act in connection with the
performance by the Issuers of their obligations under the Registration
Rights Agreement and (C) as may be required by applicable Gaming Laws and
Gaming Authorities in connection with the registration, sale and issuance
of the Exchange Notes and any Guaranties thereof, as to which such counsel
need not express an opinion;
(viii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened against either of the
Issuers or any of the Guarantors, or to which either of the Issuers or any
of the Guarantors or any of their respective property or assets is subject,
which are not disclosed in the Offering Memorandum or the Incorporated
Documents and which, if adversely decided, could, singly or in the
aggregate with all other such proceedings, reasonably be expected to have a
Material Adverse Effect or materially adversely affect the consummation of
the transactions contemplated by the Transaction Documents;
(ix) The statements in the Offering Memorandum, insofar as they
are descriptions of contracts, agreements or other legal documents, or
refer to statements of law or legal conclusions (other than the discussion
in the last paragraph of the Offering Memorandum under the caption
"Business - Possible Restoration of REIT/Paired-Share Structure," which
shall be subject to the standard described
-16-
in Section 7(c)(xv) hereof, are true and accurate in all material respects
and summarize fairly the information required to be shown in all material
respects;
(x) Except as described in the Offering Memorandum or the
Incorporated Documents, to the knowledge of such counsel, no holder of any
securities of either Issuer (except for the holders of the Notes) or any
other person has the right to have any securities of either Issuer included
in any registration statement contemplated by the Registration Rights
Agreement;
(xi) No registration of any of the Notes under the Act is
required for the sale of the Notes to the Initial Purchasers as
contemplated in this Agreement or for the Exempt Resales (assuming (A) that
each Initial Purchaser is a Qualified Institutional Buyer, (B) that any
person who buys the Notes in the Exempt Resales is an Eligible Purchaser,
(C) the accuracy of the Initial Purchasers' representations in this
Agreement, (D) the accuracy of the representations of the Issuers and the
Guarantors in this Agreement regarding the absence of general solicitation
in connection with the Exempt Resales and (E) the accuracy of the
representations made by each Accredited Investor who purchases Notes
pursuant to an Exempt Resale as set forth in the letter of representation
executed by such Accredited Investor in the form of Annex A to the Offering
Memorandum) and (F) the accuracy of the representations made by, and
compliance with the agreements made by, all purchasers under the terms set
forth in the Offering Memorandum under the caption "Notice to Investors";
(xii) Except for sales of Notes pursuant to the Exchange Offer,
as defined in the Indenture, no qualification of the Indenture under the
1939 Act is required in connection with the offer and sale of the Notes
contemplated hereby or in connection with the Exempt Resales;
(xiii) Assuming that the proceeds of issuance of the Notes are
used as set forth in the Offering Memorandum, neither the consummation of
the transactions contemplated hereby nor the sale, issuance, execution or
delivery of the Notes, nor the application of the proceeds therefrom (if
applied as described in the Offering Memorandum under the caption "Use of
Proceeds"), will violate Regulation G (12 C.F.R. Part 207), T (12 C.F.R.
Part 220), U (12 C.F.R. Part 221) or X (12 C.F.R. Part 224) of the Board of
Governors of the Federal Reserve System;
(xiv) Such counsel will have considered, reviewed and discussed
with certain officers and employees of the Issuers, and with you, the
information furnished with respect to the Offering Memorandum. On the
basis of such consideration, review and discussion, but without any
independent investigation, examination or verification, no facts will have
come to such counsel's attention that will have caused such counsel to
believe that the Offering Memorandum as of its date and as of the date
hereof, contains an untrue statement of a material fact or (taken together
with the Incorporated Documents) omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, it being understood that such counsel
need express no belief with respect to the financial statements, schedules
and other financial and statistical data (including forecasts) included in
the Offering Memorandum.
(xv) The discussion in the last paragraph of the Offering
Memorandum under the caption "Business - Possible Restoration of
REIT/Paired-Share Structure," insofar as such discussion refers to
statements of federal income tax law or legal conclusions thereunder (the
"Tax Discussion"), is true and accurate in all material respects.
The opinion of such counsel shall be limited to the laws of the United
States, the State of California and the internal corporation law of the State of
Delaware.
-17-
In giving such opinion, such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the Issuers and the Guarantors and
certificates of public officials; provided, however, that such certificates have
-------- -------
been delivered to the Initial Purchasers prior to the Closing Date. In
addition, with respect to any opinion interpreting the laws of the State of New
York, such counsel may state that, for the purposes of rendering such opinion,
they have assumed all such laws to be identical to the corresponding laws of the
State of California in all pertinent respects. The foregoing opinion shall be
limited in scope to the laws of the States of California and Delaware, the laws
of the State of New York subject to the assumption described in the preceding
sentence, and the federal laws of the United States. To the extent that any of
the opinions required above address matters governed by the respective laws of
Nevada, Louisiana, Mississippi and Arizona, the applicable opinions described in
sections 7(d)(i), (ii), (iii) and (iv), respectively, shall address such
matters. Such opinion shall be subject to customary exceptions and
qualifications.
(d) The Initial Purchasers shall have received on the Closing Date
the following opinions, dated the Closing Date, addressed to the Initial
Purchasers and in form and substance reasonably satisfactory to the Initial
Purchasers with respect to certain gaming matters and matters of local law:
(i) Opinion of Xxxxxxx Xxxxxx, gaming counsel for the Issuers
and the Guarantors in the State of Nevada;
(ii) Opinion of Xxxxx Xxxxxx, gaming counsel for the Issuers
and the Guarantors in the State of Louisiana;
(iii) Opinion of Xxxxxxx, Xxxxxx & Xxxxxxx, P.A., gaming counsel
for the Issuers and the Guarantors in the State of Mississippi; and
(iv) Opinion of Xxxxxxxx, Xxxxxxx & Xxxxxxx, P.L.C., counsel
for the Issuers and the Guarantors in the State of Arizona.
(e) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. shall have received on the
Closing Date a reliance letter from Xxxxx & Xxxxxxx LLP, dated the Closing Date,
addressed to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C. and in form and substance
reasonably satisfactory to Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., acknowledging
the reliance of Xxxxxx, Xxxxxxx, Xxxxxxxx & Xxxxxx, P.C. on the opinion of Xxxxx
& Xxxxxxx XXX described in Section 7(c) herein in rendering the opinion of
Xxxxxx, Xxxxxxx, Xxxxxxxx & Xxxxxx, P.C. set forth in Section 7(f) herein.
(f) The Initial Purchasers shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C., counsel for the Initial
Purchasers, dated the Closing Date, addressed to the Initial Purchasers and in
form and substance reasonably satisfactory to the Initial Purchasers with
respect to the Notes, the Transaction Documents and including, inter alia, the
----- ----
enforceability of the Notes and Transaction Documents under the internal
substantive laws of the State of New York and such other matters as may be
requested by the Initial Purchasers and satisfactory in form and substance to
the Initial Purchasers, and the Issuers and the Guarantors shall have furnished
to such counsel such documents and other instruments and information as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(g) (i) There shall not have been any material increase in the
consolidated short-term or consolidated long-term debt of either of the Issuers
or any Guarantor (other than in the ordinary course of business) from that set
forth in or contemplated by the Offering Memorandum; (ii) there shall not have
been, since the respective dates as of which information is given in the
Offering Memorandum, except as otherwise expressly stated in the Offering
Memorandum, any material adverse change in the condition (financial or other),
-18-
business, prospects, liabilities (contingent or otherwise), properties, net
worth, solvency or results of operations of the Issuers or the Issuers and the
Guarantors taken as a whole; (iii) the Issuers and the Guarantors shall not have
any liabilities or obligations, direct or contingent (whether or not in the
ordinary course of business), that are material to the Issuers or the Issuers
and the Guarantors taken as a whole, other than those reflected in the Offering
Memorandum; (iv) each of the representations and warranties of each Issuer and
each of the Guarantors contained in this Agreement shall be true and correct in
all material respects on and as of the date hereof and on and as of the Closing
Date as if made on and as of the Closing Date; (v) each Issuer and each
Guarantor shall have executed and delivered each other Transaction Document to
which such Issuer or such Guarantor is or is required to be a party; (vi) the
Initial Purchasers shall have received a certificate, dated the Closing Date and
signed on behalf of each Issuer by the chief executive officer and the chief
financial officer of each Issuer (or such other officers as are acceptable to
the Initial Purchasers), certifying the matters set forth in this Section 7(g)
and in Section 7(h) hereof, to the effect that such Issuer is not, nor will it
be, as a result of or after giving effect to the issuance of the Notes and the
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby and thereby, (x) insolvent, (y) left with
an unreasonably small capital with which to engage in its existing and
anticipated businesses or (z) incurring debts beyond its ability to pay such
debts as they mature and to the effect that, to the knowledge of such
individuals, the Offering Memorandum, and any amendment or supplement thereto,
does not contain any untrue statement of material fact or omit to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; (vii) the Initial
Purchasers shall have received a certificate from the Guarantors and signed by
each Guarantor, dated the Closing Date and signed on behalf of each Guarantor by
the chief executive officer and chief financial officer of the Guarantor (or
such other officers as are acceptable to the Initial Purchasers), certifying the
matters set forth in this Section 7(g) and in Section 7(h) hereof, to the effect
that, collectively, the Guarantors are not, nor will be, after giving effect to
the issuance of the Notes and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated hereby, (x)
insolvent, (y) left with an unreasonably small capital with which to engage in
their respective existing and anticipated businesses or (z) incurring debts
beyond their ability to pay such debts as such debts mature and to the effect
that, to the knowledge of such individuals, the Offering Memorandum, and any
amendment or supplement thereto, does not contain any untrue statement of
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(h) None of the Issuers nor the Guarantors shall have failed at or
prior to the Closing Date to have performed or complied in any material respect
with any of its agreements herein contained and required to be performed or
complied with by it hereunder at or prior to the Closing Date.
(i) The Notes shall have been approved for trading on PORTAL.
(j) At the time of the execution of this Agreement, the Initial
Purchasers shall have received from Xxxxxx Xxxxxxxx LLP, independent public
accountants, and Ernst & Young LLP, independent auditors, respectively, letters
dated as of the Closing Date, each substantially in the form contemplated for
"comfort letters addressed to underwriters" by Statement of Auditing Standards
No. 72 ("SAS 72"), and addressing such matters as, and in form and substance
previously provided to for review and agreed to as, satisfactory to the Initial
Purchasers in their sole discretion.
(k) The Issuers and the Guarantors shall have furnished or caused to
be furnished to the Initial Purchasers such further certificates, documents and
opinions as the Initial Purchasers shall have reasonably requested.
-19-
(l) There shall not have been made any amendment or supplement to the
Offering Memorandum to which any of the Initial Purchasers has objected.
All such opinions, certificates, letters and other documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to the Initial Purchasers and Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, P.C., counsel for the Initial Purchasers.
Any certificate or document signed by any officer of either of the
Issuers or any Guarantor and delivered to the Initial Purchasers, or to counsel
for the Initial Purchasers, at the Closing, shall be deemed a representation and
warranty by such Issuer or such Guarantor to the Initial Purchasers as to the
statements made therein.
Acceptance of the proceeds of the issuance and sale of the Notes shall
be a representation and warranty by the Issuers to the Initial Purchasers that
each of the conditions set forth in clauses (a), (b), (g) and (h) of this
Section 7 have been satisfied or, to the knowledge of the Issuer, waived.
8. Expenses. (a) Whether or not the purchase and sale of the Notes
--------
hereunder is consummated or this Agreement is terminated pursuant to Section 9
hereof, the Issuers agree to pay the following costs and expenses and all other
costs and expenses incident to the performance by it of its obligations
hereunder: (i) the preparation, word processing, printing, delivery and
reproduction of the Preliminary Offering Memorandum and the Offering Memorandum
(including financial statements thereto), and each amendment or supplement to
any of them; (ii) the delivery (including postage, air freight charges and
charges for counting and packaging) of such copies of the Offering Memorandum,
the Preliminary Offering Memorandum and all amendments or supplements as may be
reasonably requested for use in connection with the offering and sale of the
Notes as part of the initial distribution thereof pursuant to Exempt Resales;
(iii) the preparation, printing, authentication, issuance and delivery of
certificates for the Notes, including any stamp taxes in connection with the
original issuance and sale of the Notes; (iv) the printing (or reproduction) and
delivery of all other agreements and documents printed (or reproduced) and
delivered in connection with the offering of the Notes; (v) the application for
quotation of the Notes on PORTAL; (vi) the performance by the Issuers of their
obligations under the Registration Rights Agreement (including fees and expenses
of the Trustee, including fees and expenses of their counsel); and (vii) the
fees and expenses of the Issuers' accountants and the fees and expenses of
counsel (including local and special counsel) for the Issuers and the
Guarantors; provided, however, that the Initial Purchasers agree to reimburse
-------- -------
the Issuers for $100,000 of the foregoing costs and expenses to be applied as
designated by the Issuers. The Initial Purchasers shall pay their own costs and
expenses (including the costs and expenses of their counsel).
(b) If the purchase and sale of the Notes hereunder is not
consummated because any condition to the obligations of the Initial Purchasers
set forth in Section 7 hereof is not satisfied, because this Agreement is
terminated pursuant to Section 9 hereof or because of any failure, refusal or
inability on the part of the Issuers or the Guarantors to perform all
obligations and satisfy all conditions on their part to be performed or
satisfied hereunder other than by reason of a default by the Initial Purchasers
in payment for the Notes on the Closing Date after all conditions set forth
herein have been satisfied, the Issuers shall reimburse the Initial Purchasers
promptly upon demand for all out-of-pocket expenses (including reasonable fees
and expenses of counsel) that shall have been incurred by the Initial Purchasers
in connection with the proposed purchase and sale of the Notes and the other
transactions contemplated hereby.
9. Termination of Agreement. This Agreement shall be subject to
------------------------
termination in the absolute discretion of the Initial Purchasers, without
liability on the part of the Initial Purchasers to the Issuers, by notice to the
Issuers, if at or prior to the delivery and payment for Notes, (i) trading in
securities generally on the New York Stock Exchange, American Stock Exchange or
the Nasdaq National Market shall have been suspended or materially limited, (ii)
a general moratorium on commercial banking activities in New York shall have
been
-20-
declared by either Federal or state authorities, or (iii) there shall have
occurred any outbreak or escalation of hostilities or other international or
domestic calamity, crisis or change in political, financial or economic
conditions, the effect of which on the financial markets of the United States or
the market for the Notes is such as to make it, in the reasonable judgment of
the Initial Purchasers, impracticable or inadvisable to commence or continue the
offering of the Notes on the terms set forth in the Offering Memorandum or to
enforce contracts for the resale of the Notes by the Initial Purchasers. Notice
of such termination may be given to the Issuers by telegram, telecopy or
telephone and shall be subsequently confirmed by letter.
10. Information Furnished by the Initial Purchasers. The statements set
-----------------------------------------------
forth in the last paragraph on the cover page and in the second, fifth and
eighth paragraphs under the caption "Plan of Distribution" in the Offering
Memorandum, constitute the only information furnished by or on behalf of the
Initial Purchasers as such information is referred to in Sections 5(b) and 6
hereof.
11. Miscellaneous. Except as otherwise provided in Sections 4 and 9
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Issuers, at the office of the
Company at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
President, Sports and Entertainment, Executive Vice President, Treasurer and
Chief Financial Officer, or (ii) if to the Initial Purchasers, to Xxxxxxxxxxx &
Co., Inc., One World Financial Center, New York, New York, 10281, Attention:
Managing Director, Investment Banking Division.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
This Agreement has been and is made solely for the benefit of the Initial
Purchasers, the Issuers and the Guarantors, and their respective directors,
officers and the controlling persons referred to in Section 6 hereof and their
respective successors and assigns, to the extent provided herein, and no other
person shall acquire or have any right under or by virtue of this Agreement.
Neither the term "successor" nor the terms "successors and assigns" as used in
this Agreement shall include a purchaser from the Initial Purchasers of any of
the Notes in such purchaser's status as such purchaser.
12. Survival. The respective representations, warranties, agreements,
--------
covenants, indemnities and other statements of the Issuers set forth in this
Agreement or made by or on behalf of the Issuers (including, pursuant to any
officer's certificate) pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Initial
Purchasers, any director, officer, employee or agent of the Initial Purchasers
or any controlling person referred to in Section 6 hereof, and (ii) delivery of
and payment for the Notes. The respective agreements, covenants, indemnities and
other statements set forth in Sections 6, 8 and 13 hereof shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
13. APPLICABLE LAW; COUNTERPARTS. THIS AGREEMENT SHALL BE GOVERNED BY AND
----------------------------
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-21-
Please confirm that the foregoing correctly sets forth the agreement
between the Issuer and the Initial Purchasers.
Very truly yours,
HOLLYWOOD PARK, INC.
By:
-----------------------------------
Name:
Title:
Confirmed as of the date first HOLLYWOOD PARK OPERATING COMPANY
above mentioned.
XXXXXXXXXXX & CO., INC.
By:
-----------------------------------
Name:
Title:
By:
--------------------------
Name:
Title: HOLLYWOOD PARK FOOD SERVICES, INC.
BT SECURITIES CORPORATION By:
-----------------------------------
Name:
Title:
By: HOLLYWOOD PARK FALL OPERATING COMPANY
--------------------------
Name:
Title:
By:
-----------------------------------
Name:
BANCAMERICA SECURITIES, INC. Title:
TURF PARADISE, INC.
By:
--------------------------
Name:
Title: By:
-----------------------------------
Name:
Title:
-22-
HP/XXXXXXX, INC.
By:
-----------------------------------
Name:
Title:
CRYSTAL PARK HOTEL AND CASINO DEVELOPMENT
COMPANY, LLC
By its Manager
HP/XXXXXXX, INC.
By:
-----------------------------------
Name:
Title:
BOOMTOWN, INC.
By:
-----------------------------------
Name:
Title:
BOOMTOWN HOTEL & CASINO, INC.
By:
-----------------------------------
Name:
Title:
LOUISIANA GAMING ENTERPRISES, INC.
By:
-----------------------------------
Name:
Title:
-23-
LOUISIANA-I GAMING, A LOUISIANA PARTNERSHIP IN
COMMENDAM
By its General Partner
LOUISIANA GAMING ENTERPRISES, INC.
By:
-------------------------------------------
Name:
Title:
BAYVIEW YACHT CLUB, INC.
By:
-------------------------------------------
Name:
Title:
MISSISSIPPI-I GAMING, L.P.
By its General Partner
BAYVIEW YACHT CLUB, INC.
By:
-------------------------------------------
Name:
Title:
HP YAKAMA, INC.
By:
-------------------------------------------
Name:
Title:
-24-
SCHEDULE I
LIST OF INITIAL PURCHASERS
INITIAL PURCHASER PRINCIPAL AMOUNT
------------------------------ --------------------------
Xxxxxxxxxxx & Co., Inc. $68,750,000
BT Securities Corporation $37,500,000
BancAmerica Securities, Inc. $18,750,000
SCHEDULE II
GUARANTORS
Hollywood Park Food Services,
Inc.
Hollywood Park Fall Operating
Company
Turf Paradise, Inc.
HP/Xxxxxxx, Inc.
Crystal Park Hotel and Casino
Development Company, LLC
HP Yakama, Inc.
Boomtown, Inc.
Boomtown Hotel & Casino, Inc.
Louisiana Gaming Enterprises, Inc.
Louisiana-I Gaming, a Louisiana
partnership in commendam
Bayview Yacht Club, Inc.
Mississippi-I Gaming, L.P.
