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Exhibit 2.1
$100,000,000
The Resort at Xxxxxxxxx, Limited Partnership
The Resort at Xxxxxxxxx, Inc.
RAS Warrant Co.
100,000 Units Representing
$100,000,000 Principal Amount of 13%
Senior Subordinated PIK Notes due 2007
with Warrants to Purchase Limited Partnership Interests
or Warrants to Purchase Common Stock in RAS Warrant Co.
PURCHASE AGREEMENT
December 22, 1997
NatWest Capital Markets Limited
000 Xxxxxxxxxxx
Xxxxxx, XX0X 0XX
Xxxxxxx
Ladies and Gentlemen:
The Resort at Xxxxxxxxx, Limited Partnership, a Nevada limited
partnership ("RAS"), The Resort at Xxxxxxxxx, Inc., a Nevada corporation ("RAS,
Inc." and, together with RAS, the "Note Issuers"), and RAS Warrant Co. ("Warrant
Co." and, with the Note Issuers, each an "Issuer" and, collectively, the
"Issuers"), hereby confirm their agreement with you (the "Initial Purchaser"),
as set forth below.
1. The Securities. Subject to the terms and conditions herein
contained, the Issuers propose to issue and sell to the Initial Purchaser
100,000 Units (the "Units") representing $100,000,000 principal amount of 13%
Senior Subordinated PIK Notes due 2007 (the "Notes") with, at the Initial
Purchaser's election, one Warrant (the "Partnership Warrants") each to purchase
one partnership interest in RAS representing a 0.08% partnership interest in the
Partnership (an "LP Partnership Interest") or one Warrant (the "Corporate
Warrants"), each to purchase one share of common stock of Warrant Co., no par
value per share (the "Common Stock"), to be issued upon exercise of the Warrants
(the "Warrant Co. Shares"). The only assets of Warrant Co. will be warrants in
RAS with the same terms as the Partnership Warrants (the "Warrant Co. LP
Warrants" and, together with the Partnership Warrants, the "LP Warrants"). The
LP Warrants are exercisable for 8% of RAS's total partnership interests on a
fully diluted basis. The Units, the Notes, the Partnership Warrants and the
Corporate Warrants are referred to herein collectively as the "Securities". The
Units are to be issued under a Unit Agreement (as defined below), the Notes are
to be issued under an indenture (the "Indenture") to be dated as of
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December 30, 1997 by and among the Note Issuers and United States Trust Company
of New York, as trustee (the "Trustee"), the Partnership Warrants are to be
issued under the LP Warrant Agreement (as defined below) and the Corporate
Warrants are to be issued under the Warrant Co. Warrant Agreement (as defined
below).
The Units will be offered and sold to the Initial Purchaser
without being registered under the Securities Act of 1933, as amended (the
"Act"), in reliance on exemptions therefrom.
In connection with the sale of the Securities, the Issuers
have prepared a preliminary offering memorandum dated December 9, 1997 (the
"Preliminary Memorandum") and will prepare a final offering memorandum dated
December 22, 1997 (the "Final Memorandum"; the Preliminary Memorandum and the
Final Memorandum each herein being referred to as a "Memorandum") setting forth
or including a description of the terms of the Securities, the LP Partnership
Interests and the Warrant Co. Shares, the terms of the offering of the Units, a
description of the Issuers and any material developments relating to the Issuers
occurring after the date of the most recent historical financial statements
included therein.
The Note Issuers and the Initial Purchaser will enter into a
Registration Rights Agreement (the "Registration Rights Agreement") prior to or
concurrently with the issuance of the Notes. Pursuant to the Registration Rights
Agreement, under the circumstances and the terms set forth therein and subject
to all applicable gaming laws, the Note Issuers will agree to file with the
Securities and Exchange Commission (the "Commission"): (i) a registration
statement on Form S-4 (the "Exchange Offer Registration Statement") relating to
a registered Exchange Offer (as defined in the Registration Rights Agreement)
for the Notes under the Act to offer to the holders of the Notes the opportunity
to exchange their Notes for an issue of Notes substantially identical to the
Notes (except that (a) interest thereon will accrue from the last date on which
interest was paid on the Notes, or if no such interest has been paid, from
December 30, 1997, (b) such Notes will not contain restrictions on transfer, and
(c) such Notes will not contain provisions relating to an increase in their
interest rate under certain circumstances) that would be registered under the
Act (the "Exchange Notes"); or (ii) alternatively, in the event that applicable
interpretations of the Commission do not permit the Note Issuers to effect the
Exchange Offer or do not permit any holder of the Notes to participate in the
Exchange Offer, a shelf registration statement (the "Shelf Registration
Statement") to cover resales of Notes by such holders who satisfy certain
conditions relating thereto, including the provision of information in
connection with the Shelf Registration Statement.
2. Representations and Warranties. Each of the Issuers
represents and warrants to, and agrees with the Initial Purchaser that:
(a) Neither the Preliminary Memorandum as of the date thereof
nor the Final Memorandum nor any amendment or supplement thereto as of the date
thereof and at all times subsequent thereto up to the Closing Date (as defined
in Section 3 below) contained or contains any untrue statement of a material
fact or omitted or 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, except that the representations and warranties set forth
in this Section 2(a) do not apply to statements or omissions made in reliance
upon and in conformity with information
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relating to the Initial Purchaser furnished to the Issuers in writing by the
Initial Purchaser expressly for use in the Preliminary Memorandum, the Final
Memorandum or any amendment or supplement thereto. The Final Memorandum conforms
in all material respects to the requirements of the Act and the rules and
regulations promulgated thereunder, as if it was a prospectus filed as part of a
registration statement on Form S-1 relating to the Securities.
(b) As of the Closing Date, each of the Issuers will have the
capitalization set forth in the Final Memorandum; all of the outstanding limited
partnership interests of RAS, all of the outstanding shares of capital stock of
RAS, Inc. and all of the outstanding shares of capital stock of Warrant Co. have
been, and as of the Closing Date will be, duly authorized and validly issued,
fully paid and nonassessable and not issued in violation of any preemptive or
similar rights; except as disclosed in the Final Memorandum, there will be no
(i) options, warrants or other rights to purchase from any of the Issuers, (ii)
agreements or other obligations of any of the Issuers to issue or (iii) other
rights to convert any obligation into, or exchange any securities for, shares of
capital stock of or ownership interests in any of the Issuers, as the case may
be, outstanding. None of the Issuers own, directly or indirectly, any capital
stock or any other equity or long-term debt securities or have any equity
interest in any firm, partnership, joint venture, limited liability company or
other entity, except in the case of RAS, Inc., the general partnership interest
in RAS.
(c) Each of the Issuers has been duly incorporated or
organized, is validly existing and is in good standing, as the case may be,
under the laws of its jurisdiction of incorporation or formation, as the case
may be, with all requisite power and authority to own its properties and conduct
its business as now conducted, and as described in the Final Memorandum; each of
the Issuers is duly qualified to do business as a foreign corporation or limited
partnership, as the case may be, in good standing in all other jurisdictions
where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified would
not, individually or in the aggregate, have a material adverse effect on the
general affairs, management, business, condition (financial or otherwise),
prospects or results of operations of the Issuers or be inconsistent with the
financial forecast and assumptions to the financial forecast included in each
Memorandum (any such event, a "Material Adverse Effect").
(d) Each of the Note Issuers has all requisite power and
authority to execute, deliver and perform its obligations under the Notes. The
Notes have been duly and validly authorized by each of the Note Issuers and,
when executed by each of the Note Issuers and authenticated by the Trustee in
accordance with the provisions of the Indenture and, when delivered to the
Initial Purchaser in accordance with the terms of this Agreement, will have been
duly executed, issued and delivered and will constitute valid and legally
binding obligations of each of the Note Issuers, entitled to the benefits of the
Indenture and enforceable against each of the Note Issuers in accordance with
their terms, except that the enforcement thereof may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, and to
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
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(e) Each of the Note Issuers has all requisite power and
authority to execute, deliver and perform its obligations under the Exchange
Notes and the Private Exchange Notes (as defined in the Registration Rights
Agreement). The Exchange Notes and the Private Exchange Notes have been duly and
validly authorized by each of the Note Issuers and, when the Exchange Notes or
the Private Exchange Notes have been duly executed and delivered by each of the
Note Issuers and authenticated by the Trustee in accordance with the terms of
the Registration Rights Agreement and the Indenture, will constitute valid and
legally binding obligations of each of the Note Issuers, entitled to the
benefits of the Indenture, and will be enforceable against each of the Note
Issuers in accordance with their terms, except that the enforcement thereof may
be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and to general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(f) Each of the Note Issuers has all requisite power and
authority to execute, deliver and perform their obligations under the Indenture.
The Indenture meets the requirements for qualification under the Trust Indenture
Act of 1939, as amended (the "TIA"). The Indenture has been duly and validly
authorized by each of the Note Issuers and, when executed and delivered by each
of the Note Issuers (assuming the due authorization, execution and delivery of
the Indenture by the Trustee), will constitute a valid and legally binding
obligation of each of the Note Issuers, enforceable against each of the Note
Issuers in accordance with its terms, except (i) that the enforcement thereof
may be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and to general principles of equity and the
discretion of the court before which any proceeding therefor may be brought and
(ii) as any rights to indemnity or contribution thereunder may be limited by
federal and state securities laws and public policy considerations.
(g) Each of the Note Issuers has all requisite power and
authority to execute, deliver and perform its obligations under the Registration
Rights Agreement. The Registration Rights Agreement has been duly and validly
authorized by each of the Note Issuers and, when executed and delivered by each
of the Note Issuers, will constitute a valid and binding obligation of each of
the Note Issuers, enforceable against each of the Note Issuers in accordance
with its terms, except (i) that the enforcement thereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and to general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(h) RAS has all requisite corporate power and authority to
execute, deliver and perform its obligations under the warrant agreement (the
"LP Warrant Agreement"), dated as of December 30, 1997, among RAS, SCGC and
United States Trust Company of New York, as warrant agent (the "LP Warrant
Agent"). The LP Warrant Agreement has been duly and validly authorized by RAS
and, when executed and delivered by RAS, will constitute a valid and legally
binding obligation of RAS, enforceable against RAS in accordance with its terms,
except (i) that the enforcement thereof may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors'
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rights generally, and to general principles of equity and the discretion of the
court before which any proceeding therefor may be brought and (ii) as any rights
to indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(i) Each of RAS and Seven Circle Gaming Corporation ("SCGC")
has all requisite corporate power and authority to execute, deliver and perform
its obligations under the Registration Rights and Limited Partners' Agreement
(the "LP Registration Rights Agreement"), dated as of December 30, 1997, among
RAS, SCGC and United States Trust Company of New York. The LP Registration
Rights Agreement has been duly and validly authorized by RAS and SCGC and, when
executed and delivered by RAS and SCGC, will constitute a valid and legally
binding obligation of RAS and SCGC, enforceable against RAS in accordance with
its terms, except (i) that the enforcement thereof may be subject to bankruptcy,
insolvency, reorganization, fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally, and to
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought and (ii) as any rights to indemnity or
contribution thereunder may be limited by federal and state securities laws and
public policy considerations.
(j) Warrant Co. has all requisite corporate power and
authority to execute, deliver and perform its obligations under the warrant
agreement (the "Warrant Co. Warrant Agreement"), dated as of December 30, 0000,
xxxxxxx Xxxxxxx Xx. xxx Xxxxxx Xxxxxx Trust Company of New York, as warrant
agent (the "Warrant Co. Warrant Agent"). The Warrant Co. Warrant Agreement has
been duly and validly authorized by Warrant Co. and, when the Warrant Co.
Warrant Agreement has been duly executed and delivered by Warrant Co., will
constitute a valid and legally binding obligation of Warrant Co., enforceable
against Warrant Co. in accordance with its terms, except (i) that the
enforcement thereof may be subject to bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally, and to general principles of
equity and the discretion of the court before which any proceeding therefor may
be brought and (ii) as any rights to indemnity or contribution thereunder may be
limited by federal and state securities laws and public policy considerations.
(k) Each of the Issuers has all requisite corporate power and
authority to execute, deliver and perform its obligations under the unit
agreement (the "Unit Agreement"), dated as of December 30, 1997, among each of
the Issuers and United States Trust Company of New York, as unit agent (the
"Unit Agent"). The Unit Agreement has been duly and validly authorized by each
of the Issuers and, when the Unit Agreement has been duly executed and delivered
by each of the Issuers, will constitute a valid and legally binding obligation
of each of the Issuers, enforceable against each of the Issuers in accordance
with its terms, except (i) that the enforcement thereof may be subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally, and to general principles of equity and the discretion of the court
before which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
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(l) The Units have been duly authorized by each of the Issuers
and, when issued and delivered by each of the Issuers against payment therefor
by the Initial Purchaser in accordance with the terms of this Agreement and the
Unit Agreement, will constitute valid and legally binding obligations of each of
the Issuers, enforceable against each of the Issuers in accordance with their
terms, except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization fraudulent conveyance, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before which any
proceeding therefor may be brought.
(m) The LP Warrants have been duly authorized by RAS and, when
issued and delivered by RAS in accordance with the terms of this Agreement and
the LP Warrant Agreement, will constitute valid and legally binding obligations
of RAS, enforceable in accordance with their terms, except that the enforcement
thereof may be subject to (i) bankruptcy, insolvency, reorganization or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(n) The LP Partnership Interests have been duly and validly
authorized and validly reserved for issuance and when issued and paid for upon
exercise of the LP Warrants in accordance with the terms thereof, will be
validly issued and free of preemptive rights.
(o) The Corporate Warrants have been duly authorized by
Warrant Co. and, when issued and delivered by Warrant Co. in accordance with the
terms of this Agreement and the Warrant Co. Warrant Agreement, will constitute
valid and legally binding obligations of Warrant Co., enforceable in accordance
with their terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws now or hereafter in
effect relating to creditors' rights generally and (ii) general principles of
equity and the discretion of the court before which any proceeding therefor may
be brought.
(p) The Warrant Shares have been duly and validly authorized
and validly reserved for issuance and when issued and paid for upon exercise of
the Corporate Warrants in accordance with the terms thereof, will be validly
issued, fully paid, nonassessable and free of preemptive rights.
(q) Each of the Issuers has all requisite corporate or
partnership power and authority, as the case may be, to execute, deliver and
perform its obligations under this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly authorized and has
been duly executed and delivered by each of the Issuers.
(r) No consent, approval, authorization or order of any
governmental agency or body (including the Nevada Gaming Commission (the "Nevada
Commission") and the Nevada State Gaming Control Board (the "Nevada Board")), or
third party, is required for the due execution, delivery and performance of this
Agreement, the Indenture, the Registration Rights Agreement, the LP Warrant
Agreement, the Warrant Co. Agreement, the LP Registration Rights Agreement and
the Unit Agreement or the issuance and sale by the Issuers of the Units to the
Initial Purchaser or the consummation of the transactions contemplated hereby or
thereby, except,
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as may be required under state securities or "Blue Sky" laws in connection with
the purchase and resale of the Units by the Initial Purchaser, and except those
set forth in Exhibit A hereto and hereinafter referred to collectively as the
"Nevada Gaming Approvals".
(s) None of the Issuers is (i) in violation of its certificate
of incorporation, bylaws, or partnership agreement, as applicable (or similar
organizational document), (ii) in breach or violation of any statute, judgment,
decree, order, rule or regulation applicable to any of them or any of their
respective properties or assets, or (iii) in breach of or in default under (nor
has any event occurred which, with notice or passage of time or both, would
constitute a default under) or in violation of any of the terms or provisions of
any indenture, mortgage, deed of trust, loan agreement, note, lease, license,
franchise agreement, permit, certificate, contract or other agreement or
instrument to which any of them is a party or to which any of them or their
respective properties or assets is subject (collectively, "Contracts") except
such violations, breaches or defaults that would not, individually or in the
aggregate, have a Material Adverse Effect.
(t) The execution, delivery and performance by the Issuers, to
the extent they are a party, of this Agreement, the Indenture, the Registration
Rights Agreement, the LP Warrant Agreement, the Warrant Co. Warrant Agreement,
the Unit Agreement and the consummation by the Issuers of the transactions
contemplated hereby and thereby, and the fulfillment of the terms hereof and
thereof, and the retention by the Issuers of NatWest Capital Markets Limited
("NatWest") pursuant to those certain letter agreements (including the
engagement and indemnity letter agreements) dated as of December 5, 1997
(collectively, the "NatWest Engagement Letter") and NatWest's acting as
contemplated hereby and thereby, will not conflict with or constitute or result
in a breach of or a default under (or an event which with notice or passage of
time or both would constitute a default under) or violation of any of (i) the
terms or provisions of any Contract except such conflicts, breaches, defaults or
violations, that would not, individually or in the aggregate, have a Material
Adverse Effect, (ii) the certificates of incorporation, by-laws or partnership
agreement, as applicable (or similar organizational document) of any of the
Issuers, or (iii) any statute, judgment, decree, order, rule or regulation
applicable to any of the Issuers or any of its properties or assets, except to
the extent certain indemnification provisions may be unenforceable as contrary
to public policy and except such conflicts, breaches, defaults or violations
that would not, individually or in the aggregate, have a Material Adverse
Effect.
(u) The audited financial statements of the Note Issuers
included in the Preliminary Memorandum and the Final Memorandum present fairly
in all material respects the financial position, results of operations and cash
flows of such entities 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, except as otherwise stated therein. The summary
financial and statistical data in the Preliminary Memorandum and the Final
Memorandum present fairly in all material respects the information shown therein
and have been prepared and compiled on a basis consistent with the audited
financial statements included therein, except as otherwise stated therein. Ernst
& Young LLP is an independent public accounting firm within the meaning of the
Act and the rules and regulations promulgated thereunder.
(v) The financial forecasted information included in the
Preliminary
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Memorandum and the Final Memorandum is based on good faith estimates and
assumptions believed by the Note Issuers to be reasonable as of the date hereof.
(w) There is not pending or, to the knowledge of any of the
Issuers, threatened any action, suit, proceeding, inquiry or investigation to
which any of the Issuers is a party, or to which the property or assets of any
of the Issuers are subject, before or brought by any court, arbitrator or
governmental agency or body which, if determined adversely to such Issuer would,
individually or in the aggregate, have a Material Adverse Effect or which seeks
to restrain, enjoin, prevent the consummation of or otherwise challenge the
issuance or sale of the Units to be sold hereunder or the consummation of the
other transactions described in the Preliminary Memorandum and the Final
Memorandum.
(x) Except as described in paragraph (x) below, each of the
Issuers owns or possesses adequate licenses or other rights to use all material
patents, trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the businesses now or proposed to be operated by it as
described in the Preliminary Memorandum and the Final Memorandum, and none of
the Issuers has received any notice of infringement of or conflict with (or
knows of any such infringement of or conflict with) asserted rights of others
with respect to any patents, trademarks, service marks, trade names, copyrights
or know-how which, if such assertion of infringement or conflict were sustained,
would, individually or in the aggregate, have a Material Adverse Effect.
(y) Each of the Issuers possesses, or will use its best
efforts to obtain, all licenses, permits, certificates, consents, orders,
approvals and other authorizations from, and has made all declarations and
filings with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals listed on
Schedule 3 (collectively, the "Permits"), which schedule sets forth all Permits
presently required or necessary (i) to own or lease, as the case may be, or to
operate its respective properties, (ii) to commence construction and development
of The Resort at Xxxxxxxxx (the "Resort Casino"), and (iii) to carry on its
respective businesses as now or proposed to be conducted as set forth in the
Preliminary Memorandum and the Final Memorandum; provided, that, prior to the
opening of the Resort Casino, RAS will be required under the Indenture to apply
for a nonrestricted Nevada gaming license, and a City of Las Vegas gaming
license and RAS, Inc. will be required to be registered and found suitable as an
intermediary company and be licensed as the general partner of RAS; each of the
Issuers has fulfilled and performed all of its obligations with respect to such
Permits and no event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit except where such
revocation, termination or impairment would not, individually or in the
aggregate, have a Material Adverse Effect; and none of the Issuers has received
any notice of any proceeding relating to revocation or modification of any such
Permit, except as described in the Final Memorandum and except where such
revocation or modification would not, individually or in the aggregate, have a
Material Adverse Effect.
(z) Since the date of the most recent financial statements
appearing in the Final Memorandum, except as described in the Final Memorandum,
(i) none of the Issuers has incurred any liabilities or obligations, direct or
contingent, or entered into or agreed to enter into any
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transactions or Contracts (written or oral) not in the ordinary course of
business which liabilities, obligations, transactions or Contracts could,
individually or in the aggregate, be material to the general affairs,
management, business, condition (financial or otherwise), prospects or results
of operations of such Issuer (a "Material Change"), (ii) none of the Issuers has
purchased any of its outstanding equity securities, nor declared, paid or
otherwise made any dividend or distribution of any kind on its equity securities
and (iii) other than as described in the Final Memorandum, there shall not have
been any change in the equity securities or long-term indebtedness of any of the
Issuers which could, individually or in the aggregate, constitute a Material
Change.
(aa) There has not occurred any Material Adverse Change, or,
to the knowledge of any Issuer, any development involving a prospective Material
Adverse Change, in the condition, financial or otherwise, or in the earnings,
business or operations of any of the Issuers, either individually or taken as a
whole, from that set forth in the Final Memorandum.
(bb) Each of the Issuers has filed all necessary federal,
state, local and foreign income and franchise tax returns, and has paid all
taxes shown as due thereon; and, other than tax deficiencies which an Issuer is
contesting in good faith, and for which such Issuer has provided adequate
reserves, there is no tax deficiency that has been asserted against any of the
Issuers.
(cc) The statistical and market-related data included in the
Final Memorandum are based on or derived from sources which are reliable and
believed to be accurate.
(dd) None of the Issuers or any agent acting on their behalf
has taken or will take any action that might cause this Agreement or the sale of
the Securities to violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System, in each case as in effect, or as the same may
hereafter be in effect, on the Closing Date.
(ee) Except as described in the Preliminary Memorandum and the
Final Memorandum, each of the Issuers has good and marketable title to all real
property and good title to all personal property described in the Preliminary
Memorandum and the Final Memorandum as being owned by it and good and marketable
title to any leasehold estate in the real and personal property described in the
Preliminary Memorandum and the Final Memorandum as being leased by it free and
clear of all liens, charges, encumbrances or restrictions, including the 54.5
acre site on which the Resort Casino will be constructed. All Contracts to which
any of the Issuers is a party or by which any of them is bound are valid and
enforceable against such Issuer.
(ff) There are no legal or governmental proceedings involving
or affecting any Issuer or any of their respective properties or assets which
would be required to be described in a prospectus pursuant to the Act that are
not described in the Preliminary Memorandum and the Final Memorandum, nor are
there any material Contracts or other documents which would be required to be
described in a prospectus pursuant to the Act that are not described in the
Preliminary Memorandum and the Final Memorandum.
(gg) Except as would not, individually or in the aggregate, be
reasonably expected to have a Material Adverse Effect (A) each of the Issuers is
in compliance with and not subject to liability under applicable Environmental
Laws (as defined below), (B) each of the
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Issuers has made all filings and provided all notices required under any
applicable Environmental Law, and has and is in compliance with all Permits
required under any applicable Environmental Laws and each of them is in full
force and effect, (C) there is no civil, criminal or administrative action,
suit, demand, claim, hearing, notice of violation, investigation, proceeding,
notice or demand letter or request for information pending or, to the knowledge
of any of the Issuers, threatened against any of the Issuers under any
Environmental Law, (D) no lien, charge, encumbrance or restriction has been
recorded under any Environmental Law with respect to any assets, facility or
property owned, operated, leased or controlled by any of the Issuers, (E) none
of the Issuers has received notice that it has been identified as a potentially
responsible party under the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended ("CERCLA") or any comparable state law,
(F) no property or facility of any of the Issuers is (i) listed or proposed for
listing on the National Priorities List under CERCLA or is (ii) listed in the
Comprehensive Environmental Response, Compensation, Liability Information System
List promulgated pursuant to CERCLA, or on any comparable list maintained by any
state or local governmental authority.
For purposes of this Agreement, "Environmental Laws" means the
common law and all applicable federal, state and local laws or regulations,
codes, orders, decrees, judgments or injunctions issued, promulgated, approved
or entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, law
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials, into the environment (including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata),
(ii) the manufacture, processing, distribution, use, generation, treatment,
storage, disposal, transport or handling of hazardous materials, and (iii)
underground and above ground storage tanks, and related piping, and emissions,
discharges, releases or threatened releases therefrom.
(hh) There is no strike, labor dispute, slowdown or work
stoppage with the employees of any of the Issuers which is pending or, to the
knowledge of any of the Issuers, threatened.
(ii) Each of the Issuers carries insurance in such amounts and
covering such risks as is adequate for the conduct of its business and the value
of its properties. None of the Issuers has received notice from any insurer or
agent of such insurer that capital improvements or other expenditures are
required or necessary to be made in order to continue such insurance.
(jj) None of the Issuers has any material liability for any
prohibited transaction (within the meaning of Section 4975(c) of the Code or
Part 4 of Title I of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")) (or an accumulated funding deficiency within the meaning of
Section 412 of the Code or Section 302 of ERISA) or any complete or partial
withdrawal liability (within the meaning of Section 4201 of ERISA) with respect
to any pension, profit sharing or other plan which is subject to ERISA, to which
any of the Issuers makes or ever has made a contribution and in which any
employee of the Issuers is or has ever been a participant. With respect to such
plans, each Issuer is in compliance in all material respects with all applicable
provisions of ERISA.
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(kk) Each of the Issuers (i) makes and keeps accurate books
and records and (ii) maintains internal accounting controls which provide
reasonable assurance that (A) transactions are executed in accordance with
management's authorization, (B) transactions are recorded as necessary to permit
preparation of its financial statements and to maintain accountability for its
assets, and (C) access to its assets is permitted only in accordance with
management's authorization.
(ll) None of the Issuers will be an "investment company" or
"promoter" or "principal underwriter" for an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(mm) The Notes, the Exchange Notes, the Indenture, the Units,
the Unit Agreement, the LP Warrant Agreement, the Partnership Warrants, the LP
Partnership Interests, the Warrant Co. Warrant Agreement, the Corporate Warrants
and the Warrant Co. Shares will conform in all material respects to the
descriptions thereof in the Final Memorandum.
(nn) No holder of securities of the any of the Issuers will be
entitled to have such securities registered under the registration statements
required to be filed by the Issuers pursuant to the Registration Rights
Agreement other than as expressly permitted thereby.
(oo) Immediately after the consummation of the transactions
contemplated by this Agreement, the fair value and present fair saleable value
of the assets of each of the Issuers will exceed the sum of its stated
liabilities and identified contingent liabilities; none of the Issuers is, nor
will any of the Issuers be, after giving effect to the execution, delivery and
performance of this Agreement, and the consummation of the transactions
contemplated hereby, (a) left with unreasonably small capital with which to
carry on its business as it is currently or proposed to be conducted, (b) unable
to pay its debts (contingent or otherwise) as they mature or otherwise become
due or (c) otherwise insolvent.
(pp) None of the Issuers or any of their respective Affiliates
(as defined in Rule 501(b) of Regulation D under the Act) has directly, or
through any agent, (i) sold, offered for sale, solicited offers to buy or
otherwise negotiated in respect of, any "security" (as defined in the Act) which
is or could be integrated with the sale of the Securities in a manner that would
require the registration under the Act of the Securities or (ii) engaged in any
form of general solicitation or general advertising (as those terms are used in
Regulation D under the Act) in connection with the offering of the Securities or
in any manner involving a public offering within the meaning of Section 4(2) of
the Act. None of the Issuers has distributed and none of the Issuers will
distribute any offering material in connection with the offering of the
Securities other than the Final Memorandum and any Preliminary Memorandum. No
securities of the same class as the Securities have been issued and sold by any
of the Issuers within the six-month period immediately prior to the date hereof.
(qq) Assuming the accuracy of the representations and
warranties of the Initial Purchaser in Section 8 hereof, it is not necessary in
connection with the offer, sale and delivery of the Securities to the Initial
Purchaser in the manner contemplated by this Agreement to register any of the
Securities under the Act or to qualify the Indenture under the TIA.
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(rr) No securities of any of the Issuers are of the same class
(within the meaning of Rule 144A as promulgated under the Act ("Rule 144A")) as
any of the Securities and listed on a national securities exchange registered
under Section 6 of the Exchange Act, or quoted in a U.S. automated inter-dealer
quotation system.
(ss) None of the Issuers has taken, nor will any of them take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price of
the any of the Securities.
(tt) None of the Issuers, or any person acting on any of their
behalf (other than the Initial Purchaser) has engaged in any directed selling
efforts (as that term is defined in Regulation S under the Act ("Regulation S"))
with respect to the Securities; the Issuers and their respective Affiliates and
any person acting on any of their behalf (other than the Initial Purchaser or
any Affiliate of the Initial Purchaser) have complied with the offering
restrictions requirement of Regulation S.
(uu) Each of the Preliminary Memorandum and the Final
Memorandum, as of its respective date, contains all of the information that, if
requested by a prospective purchaser of the Notes, would be required to be
provided to such prospective purchaser to Rule 144A(d)(4) under the Act.
(vv) The Units, the Notes, the Partnership Warrants and the
Corporate Warrants satisfy the eligibility requirements of Rule 144A(d)(3) under
the Act.
(ww) None of the Issuers or, to the Issuers' knowledge, any
officer or director purporting to act on behalf of any of the Issuers has at any
time: (i) made any contributions to any candidate for political office, or
failed to disclose fully any such contributions, in violation of law, (ii) made
any payment of funds to, or received or retained any funds from, any state,
federal or foreign governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
allowed by applicable law, (iii) violated or is in violation of the Foreign
Corrupt Practices Act of 1977, (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment or (v) engaged in any transactions,
maintained any bank account or used any corporate funds except for transactions,
bank accounts and funds which have been and are reflected in the normally
maintained books and records of the Issuers.
(xx) Except as disclosed in any Memorandum, there are no
material outstanding loans or advances or material guarantees of indebtedness by
any of the Issuers to or for the benefit of any of the officers or directors of
any of the Issuers or any of the members of the families of any of them.
(yy) Neither any of the Issuers nor any affiliate of any of
the Issuers does business with the government of Cuba or with any person or
affiliate located in Cuba within the meaning of Florida Statutes Section
517.075.
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(zz) None of the Issuers has engaged or retained any person,
other than NatWest, as the Initial Purchaser, or Hunter Capital Group, LLC, to
act as a financial advisor, underwriter or placement agent in connection with
the issuance of the Units and, except for the fees and expenses payable in
connection with the issuance of the Units as described in the Final Memorandum,
no person has the right to receive a financial advisory, underwriting,
placement, finder's or similar fees in connection with, or as a result of, the
issuance of the Units and the purchase of the Units by the Initial Purchaser or
the consummation of the other transactions contemplated hereby.
(aaa) On or prior to the date hereof, RAS has executed the
agreements listed in Section A of Schedule 2 hereto and, on or prior to the
Closing Date, RAS will have executed the agreements listed in Section B of
Schedule 2 hereto (collectively, the "Material Agreements"). RAS has all
requisite power and authority to execute, deliver and perform its obligations
under each of the Material Agreements. The Material Agreements have been, or in
the case of those listed in Section B of Schedule 2, will be by the Closing
Date, duly and validly authorized by RAS, constitute valid and legally binding
obligations of RAS, enforceable against RAS in accordance with their terms,
except that the enforcement hereof may be subject to (i) bankruptcy, insolvency,
reorganization or other similar laws now or hereafter in effect relating the
creditors' rights generally and (ii) general principles of equity and the
discretion of the court before which any proceeding therefor may be brought.
(bbb) Each of the Note Issuers has all requisite power and
authority to execute, deliver and perform its obligations under the Disbursement
Agreement, dated December 30, 1997, among the Note Issuers, National Westminster
Bank PLC, as the administrative agent for the holders of the First Mortgage
Notes due 2004 (the "First Mortgage Notes"), the Trustee and First Security
Trust Company of Nevada, as the disbursement agent (the "Disbursement
Agreement"). The Disbursement Agreement has been duly and validly authorized by
the Note Issuers, and, when executed and delivered by the Note Issuers, will
constitute a valid and legally binding obligation of the Note Issuers,
enforceable against the Note Issuers in accordance with its terms, except (i)
that the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally, and to general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought and (ii) as any rights to indemnity or contribution
thereunder may be limited by federal and state securities laws and public policy
considerations.
(ccc) Each of the Note Issuers has all requisite power and
authority to execute and deliver and perform its obligations under the Credit
Agreement relating to the First Mortgage Notes, dated as of December 30, 1997,
among the Note Issuers, the financial institutions listed therein and National
Westminster Bank PLC, as the administrative agent (the "Credit Agreement"). The
Credit Agreement has been duly and validly authorized by the Note Issuers, and,
when executed and delivered by the Note Issuers, will constitute a valid and
legally binding obligation of the Note Issuers, enforceable against the Note
Issuers in accordance with its terms, except (i) that the enforcement hereof may
be subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium or other similar laws now or hereafter in effect relating to
creditors' rights generally, and to general principles of equity and the
discretion of the court
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before which any proceeding therefor may be brought and (ii) as any rights to
indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(ddd) The statements contained in the Final Memorandum under
the headings "Description of Disbursement Agreement" and "Certain Material
Agreements", insofar as such statements constitute summaries of the Disbursement
Agreement and the Material Agreements, respectively, constitute fair summaries
of such agreements.
(eee) The Note Issuers will prior to the Closing Date
establish an account at First Security Trust Company of Nevada in the name of
"FIRST SECURITY TRUST COMPANY OF NEVADA AS COLLATERAL AGENT FOR THE BENEFIT OF
THE HOLDERS OF THE 13% SENIOR SUBORDINATED PIK NOTES DUE 2007" in which the net
proceeds of the Notes will be deposited (the "Subordinated Notes Proceeds
Account") pursuant to the Subordinated Notes Proceeds Account Agreement, dated
December 30, 1997, among the Note Issuers and First Security Trust Company (the
"Subordinated Notes Proceeds Account Agreement"). Each of the Note Issuers has
all requisite power and authority to execute, deliver and perform its
obligations under the Subordinated Notes Proceeds Account Agreement. The
Subordinated Notes Proceeds Account Agreement has been duly and validly
authorized by the Note Issuers and, when duly executed and delivered by the Note
Issuers, will constitute the valid and legally binding obligation of the Note
Issuers, enforceable against the Note Issuers in accordance with its terms,
except that the enforcement thereof may be subject to bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and to general
principles of equity and the discretion of the court before which any proceeding
therefor may be brought.
(fff) The Subordinated Notes Proceeds Account Agreement
creates a legal and valid first priority, fully perfected security interest in
the Subordinated Notes Proceeds Account upon the deposit in such account and the
amounts and securities deposited therein for the benefit of the holders of the
Notes.
Any certificate signed by any officer of any Issuer and
delivered to the Initial Purchaser or to counsel for the Initial Purchaser shall
be deemed a joint and several representation and warranty by each of the Issuers
to the Initial Purchaser as to the matters covered thereby.
3. Purchase, Sale and Delivery of the Securities. On the basis
of the representations, warranties, agreements and covenants herein contained
and subject to the terms and conditions herein set forth, the Issuers agree to
issue and sell to the Initial Purchaser, and the Initial Purchaser agrees to
purchase from the Issuers the number of Units set forth opposite its name on
Schedule 1 hereto at a price of $970 per Unit. One or more certificates in
definitive form for the Units that the Initial Purchaser has agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Initial Purchaser requests upon notice to the Issuers at least
36 hours prior to the Closing Date, shall be delivered by or on behalf of the
Issuers to the Initial Purchaser, against payment by or on behalf of the Initial
Purchaser of the purchase price therefor by wire transfer to such account or
accounts as the Company shall specify prior to the Closing Date, or by such
means as the parties hereto shall
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agree prior to the Closing Date. Such delivery of and payment for the Units
shall be made at the offices of White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx at 10:00 A.M., New York time, on December 30, 1997, or at such
other place, time or date as the Initial Purchaser, on the one hand, and the
Issuers, on the other hand, may agree upon, such time and date of delivery
against payment being herein referred to as the "Closing Date." The Issuers will
make such certificate or certificates for the Units available for inspection and
packaging by the Initial Purchaser at such place as designated by the Initial
Purchaser at least 24 hours prior to the Closing Date.
4. Offering by the Initial Purchaser. The Initial Purchaser
proposes to make an offering of the Units at the price and upon the terms set
forth in the Final Memorandum, as soon as practicable after this Agreement is
entered into and as in the judgment of the Initial Purchaser is advisable.
5. Covenants of the Company. Each of the Issuers covenants and
agrees with the Initial Purchaser that:
(a) Each of the Issuers will not amend or supplement the Final
Memorandum or any amendment or supplement thereto unless the Initial Purchaser
shall previously have been advised and furnished a copy of such amendment or
supplement for a reasonable period of time prior to the proposed amendment or
supplement and as to which the Initial Purchaser shall have consented (which
consent shall not be unreasonably withheld). Each of the Issuers will promptly,
upon the reasonable request of the Initial Purchaser or counsel for the Initial
Purchaser, make any amendments or supplements to the Preliminary Memorandum or
the Final Memorandum that may be necessary or advisable in connection with the
resale of the Securities by the Initial Purchaser.
(b) Each of the Issuers will cooperate with the Initial
Purchaser in arranging for the qualification of the Securities for offering and
sale under the securities or "Blue Sky" laws of which jurisdictions as the
Initial Purchaser may designate and will continue such qualifications in effect
for as long as may be necessary to complete the resale of the Securities;
provided, however, that in connection therewith, none of the Issuers or any
Subsidiary shall be required to qualify as a foreign corporation, partnership or
limited liability company, or to execute a general consent to service of process
in any jurisdiction or subject itself to taxation in excess of a nominal dollar
amount in any such jurisdiction where it is not then so subject.
(c) If, at any time prior to the completion of the
distribution by the Initial Purchaser of the Securities, any event occurs or
information becomes known as a result of which the Final Memorandum as then
amended or supplemented would, in the judgment of the Issuers or in the
reasonable opinion of their counsel include any untrue statement of a material
fact, or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or
if for any other reason it is necessary at any time to amend or supplement the
Final Memorandum to comply with applicable law, the Issuers will promptly notify
the Initial Purchaser thereof and will prepare, at the expense of the Issuers,
an amendment or supplement to the Final Memorandum that corrects such statement
or omission or effects such compliance; provided, however, that the Issuers'
respective obligations hereunder shall not be applicable to the extent resale by
the Initial Purchaser may be
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accomplished pursuant to a Registration Statement or Registration Statements (as
defined in the Registration Rights Agreement).
(d) The Issuers will, without charge, provide to the Initial
Purchaser and to counsel for the Initial Purchaser as many copies of the
Preliminary Memorandum and the Final Memorandum or any amendment or supplement
thereto as the Initial Purchaser may reasonably request.
(e) Each of the Issuers will apply the net proceeds from the
sale of the Securities substantially as set forth under "Use of Proceeds" in the
Final Memorandum.
(f) So long as any of the Notes, Exchange Notes, Units, LP
Warrants or Corporate Warrants are outstanding, each of the Issuers will furnish
to the Initial Purchaser copies of all reports and other communications
(financial or otherwise) furnished by such Issuer to the Trustee, the holders of
the Notes, the Unit Agent, holders of the Units, the LP Warrant Agent, the
holders of the Partnership Warrants, the holders of LP Partnership Interests,
the Warrant Co. Warrant Agent, the holders of the Corporate Warrants and holders
of Warrant Co. Shares and copies of any reports or financial statements
furnished to or filed by any of the Issuers with the Commission or any national
securities exchange on which any class of securities of any of the Issuers may
be listed as soon as so filed or furnished.
(g) Prior to the Closing Date, each of the Issuers will
furnish to the Initial Purchaser, as soon as they have been prepared, a copy of
any unaudited interim financial statements of each of the Issuers for any period
subsequent to the period covered by the most recent financial statements
appearing in the Final Memorandum.
(h) None of the Issuers or any of their Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in respect of any
"security" (as defined in the Act) which could be integrated with the sale of
any of the Securities in a manner which would require the registration under the
Act of any of the Securities.
(i) None of the Issuers will engage in any form of "general
solicitation" or "general advertising" (as those terms are used in Regulation D
under the Act) in connection with the offering of the Units or in any manner
involving a public offering of the Units within the meaning of Section 4(2) of
the Act.
(j) None of the Issuers or their Affiliates nor any person
acting on its or their behalf will engage, in any directed selling efforts (as
that term is defined in Regulation S) with respect to the Units, and will
comply, and will have its Affiliates and each person acting on its or their
behalf comply, with the offering restrictions requirements of Regulation S.
(k) For so long as any of the Securities remain outstanding,
each of the Issuers will make available, upon request, to any seller of such
Securities the information specified in Rule 144A(d)(4) under the Act, unless
such Issuer is then subject to Section 13 or 15(d) of the Exchange Act.
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(l) For a period of 180 days from the date of the Final
Memorandum, the Issuers will not offer for sale, sell, contract to sell or
otherwise dispose of, directly or indirectly, or file a registration statement
for, or announce any offer, sale, contract for sale of or other disposition of
any debt securities issued or guaranteed by any of the Issuers (other than the
Notes, the Exchange Notes or the Private Exchange Notes) without the prior
written consent of the Initial Purchaser.
(m) During the period from the Closing Date until two years
after the Closing Date, without the prior written consent of the Initial
Purchaser, each of the Issuers will not, and will not permit any of their
affiliates (as defined in Rule 144 under the Securities Act) to, resell any of
the Securities that have been reacquired by them, except for Securities
purchased by any of the Issuers or any of their affiliates and resold in a
transaction registered under the Securities Act.
(n) In connection with the offering of the Securities, until
the Initial Purchaser shall have notified the Issuers of the completion of the
resale of the Securities, each of the Issuers will not, and will cause their
affiliated purchasers (as defined under the Exchange Act) not to, either alone
or with one or more other persons, bid for or purchase, for any account in which
it or any of its affiliated purchasers has a beneficial interest, any
Securities, or attempt to induce any person to purchase any Securities, and not
to, and to cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising the
price of the Securities.
(o) None of the Issuers will take any action prior to the
execution and delivery of the Indenture, the Registration Rights Agreement, the
LP Warrant Agreement, the LP Registration Rights Agreement, the Warrant Co.
Warrant Agreement or the Unit Agreement which, if taken after such execution and
delivery, would have violated any of the covenants contained in the Indenture,
the Registration Rights Agreement, the LP Warrant Agreement, the Warrant Co.
Warrant Agreement or the Unit Agreement.
(p) None of the Issuers will take any action prior to Closing
Date which would require the Final Memorandum to be amended or supplemented
pursuant to Section 5(c) unless the Initial Purchaser shall previously have been
advised of such action and as to which the Initial Purchaser shall have
consented (which consent shall not be unreasonably withheld).
(q) Prior to the Closing Date, None of the Issuers or the
Subsidiaries will issue any press release or other communication directly or
indirectly or hold any press conference with respect to any of the Issuers,
their condition, financial or otherwise, or earnings, business affairs or
business prospects (except for routine oral marketing communications in the
ordinary course of business and consistent with the past practices of the
Issuers and of which the Initial Purchaser is notified), without the prior
written consent of the Initial Purchaser, unless in the judgment of the Issuers
and their counsel, after notification to the Initial Purchasers, such press
release or communication is required by law.
(r) The Issuers will use its best efforts to (i) permit the
Units, Notes, the Partnership Warrants and the Corporate Warrants to be
designated PORTAL securities in accordance with the rules and regulations
adopted by the National Association of Securities Dealers, Inc. relating to
trading in the Private Offerings, Resales and Trading through Automated
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Linkages market (the "Portal Market") and (ii) permit the Units, Notes, the
Partnership Warrants and the Corporate Warrants to be eligible for clearance and
settlement through The Depository Trust Company ("DTC").
(s) On the Closing Date, the Note Issuers shall deposit the
net proceeds of the Notes in the Subordinated Notes Proceeds Account.
(t) RAS will submit an application for a non-restricted
license to the Nevada Board within six months after the Closing Date and will
obtain such license prior to the opening of the Resort Casino.
6. Expenses. Each of the Issuers agrees, jointly and
severally, to pay all costs and expenses incident to the performance of their
obligations under this Agreement, whether or not the transactions contemplated
herein are consummated or this Agreement is terminated pursuant to Section 11
hereof, including all costs and expenses incident to (i) the printing, word
processing or other production of documents with respect to the transactions
contemplated hereby, including any costs of printing the Preliminary Memorandum
and the Final Memorandum and any amendment or supplement thereto, and any "Blue
Sky" memoranda, (ii) all arrangements relating to the delivery to the Initial
Purchaser of copies of the foregoing documents, (iii) the fees and disbursements
of counsel, accountants and any other experts or advisors retained by any of the
Issuers, (iv) preparation (including printing), issuance and delivery to the
Initial Purchaser of the Units, (v) the qualification of the Securities under
state securities and "Blue Sky" laws, including filing fees and fees and
disbursements of counsel for the Initial Purchaser relating thereto, (vi) the
Issuers' expenses in connection with any meetings with prospective investors in
the Securities, (vii) fees and expenses of the Trustee, the Unit Agent, the LP
Warrant Agent and the Warrant Co. Warrant Agent (including fees and expenses of
counsel), (viii) all expenses and listing fees incurred in connection with the
application for quotation of any of the Securities on the PORTAL Market, (ix)
any fees charged by investment rating agencies for the rating of the Notes, and
(x) all expenses incurred in connection with the application for quotation of
the Securities for book-entry transfer by DTC. If the transactions contemplated
herein are consummated, the Note Issuers agree to reimburse the Initial
Purchaser, on a joint and several basis, for the Initial Purchaser's travel and
out-of-pocket expenses (including fees, disbursements and charges of White &
Case and Xxxxxxx Xxxxxx, each counsel for the Initial Purchaser, such fees not
to exceed $450,000 less the amount paid to such counsel under the Credit
Agreement). If the sale of the Units provided for herein is not consummated
because any condition to the obligations of the Initial Purchaser set forth in
Section 7 hereof is not satisfied, because this Agreement is terminated or
because of any failure, refusal or inability on the part of any of the Issuers
to perform all obligations and satisfy all conditions on their part to be
performed or satisfied hereunder (other than solely by reason of a default by
the Initial Purchaser of their obligations hereunder after all conditions
hereunder have been satisfied in accordance herewith), each of the Note Issuers,
jointly and severally, agree to promptly reimburse the Initial Purchaser upon
demand for all out-of-pocket expenses (including all reasonable fees,
disbursements and charges of White & Case and Xxxxxxx Xxxxxx, each counsel for
the Initial Purchaser) that shall have been incurred by the Initial Purchaser in
connection with the proposed purchase and sale of the Units.
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7. Conditions of the Initial Purchaser's Obligations. The
obligation of the Initial Purchaser to purchase and pay for the Units shall, in
its sole discretion, be subject to the satisfaction or waiver of the following
conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchaser shall have
received the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Xxxxx & Xxxxxxxxx LLP, counsel for the Issuers in form and
substance satisfactory to counsel for the Initial Purchaser, substantially to
the effect that:
(i) Except as set forth in the Final Memorandum to the
knowledge of such counsel, (A) no options, warrants or other rights to
purchase from any of the Issuers shares of capital stock or ownership
interests in any of the Issuers are outstanding, (B) no agreements or
other obligations of any of the Issuers to issue, or other rights to
cause any of the Issuers to convert any obligation into, or exchange
any securities for, shares of capital stock or ownership interests in
the any of the Issuers are outstanding and (C) no holder of securities
of any of the Issuers is entitled to have such securities registered
under a registration statement filed by the Issuers pursuant to the
Registration Rights Agreement.
(ii) Each of the Note Issuers has all requisite corporate or
partnership power and authority, as the case may be, to execute,
deliver and perform its respective obligations under the Indenture, the
Notes, the Exchange Notes and the Private Exchange Notes; the Indenture
is in form sufficient for qualification under the TIA; the Indenture
has been duly and validly authorized by each of the Note Issuers and,
when duly executed and delivered by each of the Note Issuers (assuming
the due authorization, execution and delivery thereof by the Trustee),
will constitute the valid and legally binding obligation of each of the
Note Issuers, enforceable against each of the Note Issuers in
accordance with its terms.
(iii) The Global Note (as such term is defined in the
Indenture) is, and each other Note (if issued in the form attached as
Exhibit A to the Indenture), when issued, will be, in the form
contemplated by the Indenture. The Global Note and each other Note has
been duly and validly authorized by each of the Note Issuers and when
duly executed and delivered by each of the Note Issuers and, in the
case of the Global Note, when paid for by the Initial Purchaser in
accordance with the terms of this Agreement (assuming the due
authorization, execution and delivery of the Indenture by the Trustee
and due authentication and delivery of the Notes by the Trustee in
accordance with the Indenture), will constitute the valid and legally
binding obligations of each of the Note Issuers, entitled to the
benefits of the Indenture, and enforceable against each of the Note
Issuers in accordance with their terms.
(iv) The Exchange Notes and the Private Exchange Notes have
been duly and validly authorized by each of the Note Issuers, and when
the Exchange Notes and the Private Exchange Notes have been duly
executed and delivered by each of the Note Issuers in accordance with
the terms of the Registration Rights Agreement and the Indenture
(assuming the due authorization, execution and delivery of the
Indenture by the
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Trustee and due authentication and delivery of the Exchange Notes and
the Private Exchange Notes by the Trustee in accordance with the
Indenture), will constitute the valid and legally binding obligations
of each of the Note Issuers, entitled to the benefits of the Indenture,
and enforceable against each of the Note Issuers in accordance with
their terms.
(v) Each of the Note Issuers has all requisite corporate
or partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the Registration Rights
Agreement. The Registration Rights Agreement has been duly and validly
authorized by the Note Issuers and, when duly executed and delivered by
the Note Issuers (assuming due authorization, execution and delivery
thereof by the Initial Purchaser), will constitute the valid and
legally binding obligation of the Note Issuers, enforceable against the
Note Issuers in accordance with its terms. No holder of securities of
any Note Issuer is entitled to have such securities registered under
the registration statement required to be filed pursuant to the
Registration Rights Agreement.
(vi) RAS has the requisite corporate power and authority
to execute, deliver and perform its obligations under the LP Warrant
Agreement and the LP Registration Rights Agreement. Each of the LP
Warrant Agreement and the LP Registration Rights Agreement has been
duly and validly authorized, executed and delivered by RAS and will
constitute a valid and legally binding obligation of RAS, enforceable
against RAS in accordance with its terms.
(vii) Warrant Co. has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Warrant Co. Warrant Agreement. The Warrant Co. Warrant Agreement has
been duly and validly authorized, executed and delivered by Warrant Co.
and will constitute a valid and legally binding obligation of Warrant
Co., enforceable against it in accordance with its terms.
(viii) Each of the Issuers has all requisite corporate or
partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the Unit Agreement. The Unit
Agreement has been duly and validly authorized, executed and delivered
by each of the Issuers and will constitute a valid and legally binding
obligation of each of the Issuers, enforceable against each of the
Issuers in accordance with its terms.
(ix) The Units have been duly authorized by each of the
Issuers and, when issued and delivered by each of the Issuers against
payment therefor by the Initial Purchaser in accordance with the terms
of this Agreement will constitute valid and binding obligations of each
of the Issuers, enforceable against each of the Issuers in accordance
with their terms, except that the enforcement hereof may be subject to
(i) bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(x) The LP Warrants have been duly authorized by RAS and
SCGC and, when issued and delivered by RAS and SCGC in accordance with
the terms of this Agreement, will constitute valid and legally binding
obligations of RAS and SCGC, enforceable in
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accordance with their terms, except that the enforcement hereof may be
subject to (i) bankruptcy, insolvency, reorganization or other similar
laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity and the discretion of the court
before which any proceeding therefor may be brought.
(xi) The LP Partnership Interests have been duly and
validly authorized and validly reserved for issuance, and when issued
and paid for upon exercise of the Partnership Warrants in accordance
with the terms thereof, will be validly issued, fully paid,
nonassessable and free of preemptive rights.
(xii) The Corporate Warrants have been duly authorized by
Warrant Co. and, when issued and delivered by Warrant Co. in accordance
with the terms of this Agreement, will constitute valid and legally
binding obligations of Warrant Co., enforceable in accordance with
their terms, except that the enforcement hereof may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought.
(xiii) The Warrant Co. Shares have been duly and validly
authorized and validly reserved for issuance, and when issued and paid
for upon exercise of the Corporate Warrants in accordance with the
terms thereof, will be validly issued, fully paid, nonassessable and
free of preemptive rights.
(xiv) Each of the Issuers has all requisite corporate or
partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; this Agreement and the
consummation by each of the Issuers of the transactions contemplated
hereby have been duly and validly authorized by each of the Issuers.
(xv) The Indenture, the Notes (when issued, authorized and
delivered), the Exchange Notes (when issued, authorized and delivered),
the Private Exchange Notes (if and when issued, authorized and
delivered), the Units, the Partnership Warrants, the LP Partnership
Interests, the Corporate Warrants, the Warrant Co. Shares, the Unit
Agreement, the LP Warrant Agreement, the Warrant Co. Warrant Agreement
and the Registration Rights Agreement, will conform in all material
respects to the descriptions thereof contained in the Final Memorandum.
The statements in the Final Memorandum under "Description of Senior
Subordinated Notes", "Exchange Offer; Registration Rights",
"Description of the Units", "Description of LP Warrants", "Description
of Partnership Interests" and "Description of Warrant Co. Common Stock
and the Corporate Warrants" insofar as they describe the provisions of
the documents and instruments therein described, constitute fair
summaries thereof in all material respects.
(xvi) No legal or governmental proceedings are pending or,
to such counsel's knowledge, threatened in Xxxxx County, Nevada, in the
district courts of Nevada or, to such counsel's knowledge which will be
based on a certificate executed by an officer of each of the Issuers,
in any other jurisdiction to which any of the Issuers is a party or to
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which the property or assets of any of the Issuers is subject before or
brought by any court, arbitrator or governmental agency or body which,
if determined adversely to such Issuer, would result, individually or
in the aggregate, in a Material Adverse Effect, or which seeks to
restrain, enjoin, prevent the consummation of or otherwise challenge
the issuance or sale of the Securities to be sold hereunder or the
consummation of the other transactions described in the Final
Memorandum.
(xvii) None of the Issuers is (i) to the knowledge of such
counsel, in violation of its certificate of incorporation, bylaws or
partnership agreement, as applicable (or similar organizational
document) or (ii) to the knowledge of such counsel (without any duty to
investigate and in reliance on a certificate executed by an officer of
each of the Issuers, in breach or violation of any judgment, decree or
order of any court, arbitrator or governmental body, agency or
authority applicable to any of them or any of their respective
properties or assets.
(xviii) The execution and delivery of this Agreement, the
Indenture, the Registration Rights Agreement, the Unit Agreement, the
LP Warrant Agreement, the Warrant Co. Warrant Agreement and the
consummation of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Units to
the Initial Purchaser) will not conflict with or constitute or result
in a breach or a default under (or an event which with notice or
passage of time or both would constitute a default under) or violation
of any of (i) the terms or provisions of any Contract actually known to
such counsel, (ii) the certificate of incorporation, bylaws or
partnership agreement, as applicable (or similar organizational
document) of each of the Issuers, or (iii) (assuming compliance with
all applicable state securities or "Blue Sky" laws and assuming the
accuracy of the representations and warranties of the Initial Purchaser
in Section 8 hereof) any statute, or to the actual knowledge of such
counsel, any judgment, decree, order, rule or regulation which, to such
counsel's knowledge, is normally applicable both to general business
corporations which are not engaged in regulated business activities and
to transactions of the type contemplated by the Final Memorandum. Such
counsel need not express an opinion on any Nevada statutes, rules,
regulations, orders, decrees or judgments.
(xix) To such counsel's actual knowledge, no consent,
approval, authorization or order of any governmental agency or body,
or, to such counsel's actual knowledge, any third party is required for
the due execution, delivery and performance of this Agreement, the
Indenture, the Registration Rights Agreement, the LP Warrant Agreement,
the Warrant Co. Agreement, the LP Registration Rights Agreement and the
Unit Agreement or the issuance and sale by the Issuers of the Units to
the Initial Purchaser or the consummation of the transactions
contemplated hereby or thereby, except as may be required under Blue
Sky laws, as to which such counsel need express no opinion.
(xx) There are no legal or governmental proceedings
involving any of the Issuers as parties or any of their respective
properties or assets which in Xxxxx County, Nevada, in the district
courts of Nevada or, to such counsel's knowledge which will be based on
a certificate executed by an officer of each of the Issuers, in any
other
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jurisdiction would be required to be described in a prospectus pursuant
to the Act that are not described in the Final Memorandum nor are there
any material contracts known to us or other documents known to us which
would be required to be described in a prospectus pursuant to the Act
that are not described in the Final Memorandum.
(xxi) None of the Issuers is, or immediately after the sale
of the Units to be sold hereunder and the application of the proceeds
from such sale (as described in the Final Memorandum under the caption
"Use of Proceeds") will be, an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(xxii) The Units, the Notes, the Partnership Warrants and
the Corporate Warrants satisfy the eligibility requirements of Rule
144A(d)(3) under the Act.
(xxiii) No registration under the Act of the Securities is
required in connection with the sale of the Securities to the Initial
Purchaser as contemplated by this Agreement and the Final Memorandum or
in connection with the initial resale of the Securities by the Initial
Purchaser in accordance with Section 8 of this Agreement, and prior to
the commencement of the Exchange Offer or the effectiveness of the
Shelf Registration Statement (as defined in the Registration Rights
Agreement), the Indenture is not required to be qualified under the
TIA, in each case assuming (i) that the purchasers who buy such
Securities in the initial resale thereof are qualified institutional
buyers as defined in Rule 144A promulgated under the Act ("QIBs")
and/or accredited investors as defined in Rule 501(a) (1), (2), (3) or
(7) promulgated under the Act ("Accredited Investors"), (ii) the
accuracy of the Initial Purchaser's representations in Section 8 hereof
and those of each of the Issuers contained in this Agreement regarding
the absence of a general solicitation in connection with the sale of
such Securities to the Initial Purchaser and the initial resale thereof
and (iii) the due performance by the Initial Purchaser of the
agreements set forth in Section 8 hereof.
(xxiv) Neither the consummation of the transactions
contemplated by this Agreement nor the sale, issuance, execution or
delivery of the Securities will violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
(xxv) Each of the Note Issuers has all requisite corporate
or partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the Subordinated Notes
Proceeds Account Agreement. The Subordinated Notes Proceeds Account
Agreement has been duly and validly authorized by the Note Issuers and,
when duly executed and delivered by the Note Issuers, will constitute
the valid and legally binding agreements of the Note Issuers,
enforceable against the Note Issuers in accordance with its terms.
(xxvi) The Subordinated Notes Proceeds Account Agreement
creates a perfected security interest in the Subordinated Notes
Proceeds Account upon the deposit in such account and the amounts and
securities deposited therein for the benefit of the holders of the
Notes.
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(xxvii) Each of the Note Issuers has all requisite corporate
or partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the Disbursement Agreement.
The Disbursement Agreement has been duly and validly authorized by the
Note Issuers, and, when executed and delivered by the Note Issuers,
will constitute a valid and legally binding obligation of the Note
Issuers, enforceable against the Note Issuers in accordance with its
terms.
(xxviii) RAS has all requisite corporate or partnership power
and authority, as the case may be, to execute, deliver and perform its
obligations under the Material Agreements. The Material Agreements have
been duly and validly authorized by RAS, and constitute valid and
legally binding obligations of RAS, enforceable against RAS in
accordance with their terms.
(xxix) The statements in the Final Memorandum under the
headings "Risk Factors -- Taxation Issuers -- Original Issue Discount
and Double Taxation" and "Certain United States Federal Income Tax
Consequences," to the extent they constitute matters of U.S. Federal
income tax law or legal conclusions with respect thereto, have been
reviewed by such counsel and are correct in all material respects.
(xxx) The statements contained in the Final Memorandum under
the headings "Description of Disbursement Agreement" and "Certain
Material Agreements", insofar as such statements constitute summaries
of the Disbursement Agreement and the Material Agreements,
respectively, constitute fair summaries of such agreements.
At the time the foregoing opinion is delivered, Xxxxx &
Xxxxxxxxx LLP shall additionally state that it has participated in conferences
with officers and other representatives of each of the Issuers, representatives
of the independent public accountants for the Issuers, representatives of the
Initial Purchaser and counsel for the Initial Purchaser, at which conferences
the contents of the Final Memorandum and related matters were discussed, and,
although it has not independently verified and is not passing upon and assumes
no responsibility for the accuracy, completeness or fairness of the statements
contained in the Final Memorandum, no facts have come to its attention which
lead it to believe that the Final Memorandum, on the date thereof or at the
Closing Date, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements contained therein, in the light of the circumstances under which they
were made, not misleading (it being understood that such firm need express no
opinion with respect to the financial statements and related notes thereto and
the other financial data including, but not limited to, the historical financial
data and the forecasted financial data and underlying assumptions and the
statements included in "Risk Factors--Gaming Regulation" or "Regulation and
Licensing" and other statements relating to the permitting or licensing
requirements for the construction, development or operation of the Resort
Casino, included in the Final Memorandum). In rendering such opinions, Xxxxx &
Xxxxxxxxx LLP shall have received and may rely upon such certificates and other
documents and information as it may reasonably request to pass on such matters.
Such opinion may also be subject to reasonable customary assumptions and
qualifications which are reasonably acceptable to the Initial Purchaser and its
counsel. The opinion of Xxxxx & Xxxxxxxxx LLP described in this Section shall be
rendered to the Initial Purchaser at the request of Issuers and shall so state
therein. If requested by the
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Trustee, the Unit Agent, the LP Warrant Agent or the Warrant Co. Warrant Agent,
Xxxxx & Xxxxxxxxx LLP shall allow any or all of such Persons to rely on the
opinion or opinions relevant to each such Person.
(b) On the Closing Date, the Initial Purchaser shall have
received the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Xxxxxx Xxxxxx & Xxxxxxx, Nevada counsel for the Issuers, in form
and substance satisfactory to counsel for the Initial Purchaser, substantially
to the effect that:
(i) Each of the Issuers is duly incorporated or formed,
validly existing and in good standing under the laws of the State of
Nevada and has all requisite corporate or partnership power and
authority, as the case may be, to own, lease and operate its properties
and to conduct its business as described in the Final Memorandum.
(ii) Each of the Issuers has the authorized and issued
capitalization set forth in the Final Memorandum. To the actual
knowledge of such counsel, there are no subsidiaries of the Issuers
other than the Subsidiaries set forth on Schedule 2 hereto. All of the
outstanding equity securities of the Issuers have been duly authorized
and validly issued, and, if applicable, fully paid and nonassessable
and not issued in violation of any preemptive or similar rights, and,
to the actual knowledge of such counsel, are not subject to any
security interests, perfected or otherwise, or any other liens,
encumbrances, equities and claims or restrictions on transferability or
voting.
(iii) Except as set forth in the Final Memorandum, to the
actual knowledge of such counsel (A) no options, warrants or other
rights to purchase from any of the Issuers shares of capital stock or
ownership interests in any of the Issuers are outstanding, (B) no
agreements or other obligations of any of the Issuers to issue, no
other rights to cause any of the Issuers to convert any obligation
into, or exchange any securities for, shares of capital stock or
ownership interests in any of the Issuers are outstanding and (C) no
holder of securities of any of the Issuers is entitled to have such
securities registered under a registration statement filed by the
Company pursuant to the Registration Rights Agreement.
(iv) Each of the Note Issuers has all requisite corporate
or partnership power and authority, as the case may be, to execute,
deliver and perform its respective obligations under the Indenture, the
Notes, the Exchange Notes and the Private Exchange Notes; the Indenture
has been duly and validly authorized by each of the Note Issuers.
(v) The Global Note (as such term is defined in the
Indenture) and each other Note has been duly and validly authorized by
each of the Note Issuers.
(vi) The Exchange Notes and the Private Exchange Notes
have been duly and validly authorized by each of the Note Issuers.
(vii) Each of the Note Issuers has all requisite corporate
or partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the
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Registration Rights Agreement and the LP Registration Rights Agreement.
Each of the Registration Rights Agreement and the LP Registration
Rights Agreement has been duly and validly authorized by the Note
Issuers.
(viii) RAS has all requisite partnership power and authority
to execute, deliver and perform its obligations under the LP Warrant
Agreement. The LP Warrant Agreement has been duly and validly
authorized, executed and delivered by RAS.
(ix) Warrant Co. has all requisite corporate power and
authority to execute, deliver and perform its obligations under the
Warrant Co. Warrant Agreement. The Warrant Co. Warrant Agreement has
been duly and validly authorized, executed and delivered by Warrant Co.
(x) Each of the Issuers has all requisite corporate or
partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the Unit Agreement. The Unit
Agreement has been duly and validly authorized, executed and delivered
by each of the Issuers.
(xi) The Units have been duly authorized by each of the
Issuers.
(xii) The LP Warrants have been duly authorized by RAS.
(xiii) The LP Partnership Interests have been duly and
validly authorized and validly reserved for issuance, and when issued
and paid for upon exercise of the Partnership Warrants in accordance
with the terms thereof, will be validly issued and, if applicable,
fully paid, nonassessable and free of preemptive rights.
(xiv) The Corporate Warrants have been duly authorized by
Warrant Co.
(xv) The Warrant Co. Shares have been duly and validly
authorized and validly reserved for issuance and when issued and paid
for upon exercise of the Corporate Warrants in accordance with the
terms thereof, will be validly issued, fully paid, nonassessable and
free of preemptive rights.
(xvi) Each of the Issuers has all requisite corporate or
partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under this Agreement and to
consummate the transactions contemplated hereby; this Agreement and the
consummation by each of the Issuers of the transactions contemplated
hereby have been duly and validly authorized by each of the Issuers.
(xvii) The statements in the Final Memorandum under the
headings "Risk Factors -- Gaming Regulation" and "Regulation and
Licensing -- Nevada," to the extent they constitute matters of gaming
laws of the State of Nevada or legal conclusions with respect thereto,
have been reviewed by such counsel and are correct in all material
respects.
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(xviii) To the actual knowledge of such counsel, no legal or
governmental proceedings are pending or threatened to which any of the
Issuers is a party or to which the property or assets of any of the
Issuers is subject before or brought by any court, arbitrator or
governmental agency or body which, if determined adversely to such
Issuer, would result, individually or in the aggregate, in a Material
Adverse Effect, or which seeks to restrain, enjoin, prevent the
consummation of or otherwise challenge the issuance or sale of the
Securities to be sold hereunder or the consummation of the other
transactions described in the Final Memorandum.
(xix) None of the Issuers is (i) in violation of its
articles of incorporation, bylaws or partnership agreement, as
applicable (or similar organizational document) or (ii) to the actual
knowledge of such counsel, in breach or violation of any judgment,
decree or order of any court, arbitrator or governmental body, agency
or authority applicable to any of them or any of their respective
properties or assets.
(xx) The execution and delivery of this Agreement, the
Indenture, the Registration Rights Agreement, the Unit Agreement, the
LP Warrant Agreement, the Warrant Co. Warrant Agreement and the
consummation of the transactions contemplated hereby and thereby
(including, without limitation, the issuance and sale of the Units to
the Initial Purchaser) will not conflict with or constitute or result
in a breach or a default under (or an event which with notice or
passage of time or both would constitute a default under) or violation
of any of (i) to the actual knowledge of such counsel, the terms or
provisions of any Contract, (ii) the articles of incorporation, bylaws
or partnership agreement, as applicable (or similar organizational
document) of each of the Issuers, or (iii) (assuming compliance with
all applicable state securities or "Blue Sky" laws and assuming the
accuracy of the representations and warranties of the Initial Purchaser
in Section 3 hereof) any statute, rule or regulation, or to the actual
knowledge of such counsel, any judgment, decree or order, which, in
such counsel's experience is normally applicable both to general
business corporations which are not engaged in regulated business
activities and to transactions of the type contemplated by the Final
Memorandum.
(xxi) No consent, approval, authorization or order of any
Nevada governmental agency or body (including the Nevada Commission and
the Nevada Board), or, to the actual knowledge of such counsel, any
third party, is required for the due execution, delivery and
performance of this Agreement, the Indenture, the Registration Rights
Agreement, the LP Warrant Agreement, the Warrant Co. Agreement, the
Unit Agreement or the issuance and sale by the Issuers of the Units to
the Initial Purchaser or the consummation of the transactions
contemplated hereby or thereby, except as may be required under Blue
Sky laws, as to which such counsel expresses no opinion, and except for
the Nevada Gaming Approvals. No consent, approval, authorization or
order of the Nevada Commission or the Nevada Board is required to
construct the Resort Casino. Other than as stated in this opinion
(xxi), such counsel expresses no opinion regarding any consents,
approvals authorizations or orders which may be required to own or
lease, or operate the Issuers' respective properties and businesses.
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(xxii) Each of the Note Issuers has all requisite corporate
or partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the Disbursement Agreement.
The Disbursement Agreement has been duly and validly authorized by the
Note Issuers.
(xxiii) Each of the Note Issuers has all requisite corporate
or partnership power and authority, as the case may be, to execute,
deliver and perform its obligations under the Material Agreements. The
Material Agreements governed by Nevada law (the "Nevada Material
Agreements") have been duly and validly authorized by RAS. The Nevada
Material Agreements constitute valid and legally binding obligations of
RAS, enforceable against RAS in accordance with their terms, subject to
(i) bankruptcy, insolvency, moratorium, reorganization or other similar
laws now or hereinafter in effect relating the creditors' rights
generally and (ii) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law)
and the discretion of the court before which any proceeding therefor
may be brought, except that certain provisions of the above-referenced
documents may not be enforceable in whole or in part under the laws of
the State of Nevada, but the inclusion of such provisions does not
affect the validity of such documents and such documents contain
adequate provisions for enforcing payment of the monetary obligations
thereunder and for the practical realization of the rights and benefits
afforded thereby, provided such enforcement is conducted in accordance
with the procedures established by the laws of the State of Nevada.
In rendering such opinion, Xxxxxx Xxxxxx & Xxxxxxx shall have received
and may rely upon such certificates and other documents and information as it
may reasonably request to pass on such matters. Such opinion may also be subject
to reasonable customary assumptions and qualifications which are acceptable to
the Initial Purchaser and its counsel. The opinion of Xxxxxx Xxxxxx & Xxxxxxx
described in this Section shall be rendered to the Initial Purchaser at the
request of Issuers and shall so state therein. If requested by the Trustee, the
Unit Agent, the LP Warrant Agent or the Warrant Co. Warrant Agent, Xxxxxx Xxxxxx
& Xxxxxxx shall allow any or all of such Persons to rely on its opinion and
shall expressly so state.
(c) On the Closing Date, the Initial Purchaser shall have
received the opinion, in form and substance satisfactory to the Initial
Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser,
of White & Case, counsel for the Initial Purchaser, with respect to certain
legal matters relating to this Agreement and such other related matters as the
Initial Purchaser may reasonably require. In rendering such opinion, White &
Case shall have received and may rely upon such certificates and other documents
and information as it may reasonably request to pass upon such matters.
(d) On the Closing Date, the Initial Purchaser shall have
received the opinion, in form and substance satisfactory to the Initial
Purchaser, dated as of the Closing Date and addressed to the Initial Purchaser,
of Xxxxxxx Xxxxxx, Nevada counsel for the Initial Purchaser, with respect to
certain legal matters relating to this Agreement and such other related matters
as the Initial Purchaser may reasonably require. In rendering such opinion,
Xxxxxxx Xxxxxx shall
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have received and may rely upon such certificates and other documents and
information as it may reasonably request to pass upon such matters.
(e) On the Closing Date, the Initial Purchaser shall have
received the opinion, dated as of the Closing Date and addressed to the Initial
Purchaser, of Xxxxx Xxxxxxx Xxxxxxx & Xxxxx, counsel to the Trustee, in form and
substance satisfactory for counsel to the Initial Purchaser, dated the Closing
Date, substantially to the effect that:
(i) United States Trust Company of New York is a trust
company validly existing and in good standing under the laws of the
State of New York.
(ii) United States Trust Company of New York has all
requisite corporate power and authority to execute, deliver and perform
its obligations under the Indenture. The Indenture has been duly and
validly authorized by United States Trust Company of New York and will
constitute a valid and legally binding agreement of United States Trust
Company of New York, enforceable against it in accordance with its
terms, except that the enforcement thereof may be subject to (i)
bankruptcy, insolvency, reorganization or other similar laws applicable
to trust companies established in the State of New York now or
hereafter in effect relating to creditors' rights generally and (ii)
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought (regardless of whether
such enforcement is considered in a proceeding in equity or at law).
(iii) The Units, the Notes, Partnership Warrants and the
Corporate Warrants delivered to the Initial Purchaser on the Closing
Date have been duly authenticated by the Trustee in accordance with the
terms of the Indenture, the LP Warrant Agent in accordance with the
terms of the LP Warrant Agreement and the Warrant Co. Warrant Agent in
accordance with the terms of the Warrant Co. Warrant Agreement,
respectively.
(iv) The execution, delivery and performance by the
Trustee of the Indenture does not and will not require the
authorization, consent or approval of, the giving of notice to, the
filing or registration with, or the taking of any other action in
respect of, any governmental authority or agency regulating the banking
and trust activities of the Trustee.
(f) The Initial Purchaser shall have received from Ernst &
Young LLP comfort letters dated the date hereof and the Closing Date, in form
and substance satisfactory to counsel for the Initial Purchaser.
(g) The Initial Purchaser shall have received a copy of the
research report prepared by Xxxxx Gaming Research for RAS, together with a
written consent from Xxxxx Gaming Research of the inclusion of its name in each
Memorandum.
(h) On the Closing Date, the Initial Purchaser shall have
received the Indenture, the Unit Agreement, the LP Warrant Agreement, the
Warrant Co. Warrant Agreement and the Registration Rights Agreement, duly
authorized, executed and delivered by each of the parties
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thereto, in form and substance satisfactory to counsel for the Initial
Purchaser, and containing such terms and conditions that are usual and customary
in transactions similar to those contemplated hereby and thereby, dated the
Closing Date and each such agreement shall be in full force and effect according
to its terms.
(i) The Initial Purchaser shall have received good standing
certificates for each of the Issuers from the Secretary of State of the State of
Nevada and from each of the respective jurisdictions where each of them is
qualified to do business as a foreign entity, in each case in form and substance
satisfactory to counsel for the Initial Purchaser.
(j) The representations and warranties of each of the Issuers
contained in this Agreement shall be true and correct 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; the statements of each of the Issuers' officers made pursuant to any
certificate delivered in accordance with the provisions hereof shall be true and
correct on and as of the date made and on and as of the Closing Date; each of
the Issuers shall have performed all covenants and agreements and satisfied all
conditions on their part to be performed or satisfied hereunder at or prior to
the Closing Date; and, except as described in the Final Memorandum (exclusive of
any amendment or supplement thereto after the date hereof), subsequent to the
date of the most recent financial statements in such Final Memorandum, there
shall have been no event or development that, individually or in the aggregate,
has or would be reasonably likely to have a Material Adverse Effect.
(k) The sale of the Units, the Notes, the Partnership Warrants
and the Corporate Warrants hereunder shall not be enjoined (temporarily or
permanently) on the Closing Date.
(l) The Notes shall have been approved by the NASD for trading
in the PORTAL Market.
(m) There shall not have occurred any invalidation of Rule
144A under the Securities Act by any court or any withdrawal or proposed
withdrawal of any rule or regulation under the Securities Act or the Exchange
Act by the Commission or any amendment or proposed amendment thereof by the
Commission which in the judgment of the Initial Purchaser would materially
impair the ability of the Initial Purchaser to purchase, hold or effect resales
of the Securities as contemplated hereby.
(n) There shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of any of the Issuers or
any of the Subsidiaries, taken as a whole, from that set forth in the Final
Memorandum that constitutes a Material Adverse Effect and that makes it, in the
Initial Purchaser's judgment, impracticable to market Units on the terms and in
the manner contemplated in the Final Memorandum.
(o) Subsequent to the date of the most recent financial
statements in the Final Memorandum (exclusive of any amendment or supplement
thereto after the date hereof), the conduct of the business and operations of
any of the Issuers shall not have been interfered with by strike, fire, flood,
hurricane, accident or other calamity (whether or not insured) or by any court
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or governmental action, order or decree, and, except as otherwise stated
therein, the properties of any of the Issuers shall not have sustained any loss
or damage (whether or not insured) as a result of any such occurrence, except
any such interference, loss or damage which would not, individually or in the
aggregate, have a Material Adverse Effect.
(p) No securities of any of the Issuers shall have been
downgraded or placed on any "watch list" for possible downgrading by any
nationally recognized statistical rating organization.
(q) The Initial Purchaser shall have received certificates of
each of the Issuers, dated the Closing Date, signed by, in the case of RAS, Inc.
and Warrant Co., their respective Chairman of the Board, President or any Senior
Vice President and the Chief Financial Officer, and , in the case of RAS, the
Chairman of the Board, President or any Senior Vice President and the Chief
Financial Officer of its general partner, to the effect that:
(i) the representations and warranties of such Issuer
contained in this Agreement are true and correct as of the date hereof
and as of the Closing Date, and such Issuer has performed all covenants
and agreements and satisfied all conditions on their part to be
performed or satisfied hereunder at or prior to the Closing Date;
(ii) at the Closing Date, since the date hereof or since
the date of the most recent financial statements in the Final
Memorandum (exclusive of any amendment or supplement thereto after the
date hereof), no event or events have occurred, no information has
become known nor does any condition exist that, individually or in the
aggregate, would have a Material Adverse Effect;
(iii) the sale of the Units hereunder has not been enjoined
(temporarily or permanently); and
(iv) such other information as the Initial Purchaser may
reasonably request.
(r) The Initial Purchaser shall have received a certificate
from, in the case of RAS, the General Partner, and in the case of each of RAS,
Inc. and Warrant Co., its corporate secretary, dated the Closing Date, attaching
certified copies of (i) all resolutions of the Board of Directors of the General
Partner, RAS, Inc. or Warrant Co., as the case may be, authorizing (a) the
transactions contemplated by this Agreement and (b) the Material Agreements, the
offering of the Securities, the entering into this Agreement, the Indenture, the
Registration Rights Agreements, the Warrant Co. Warrant Agreement, the LP
Warrant Agreement, the Unit Agreement, the Disbursement Agreement and the
Subordinated Notes Proceeds Accounts Agreement and (ii) the certificate of
incorporation, by-laws or partnership agreement of the Issuers, as applicable,
and certifying the names and true signatures of those officers of the Issuers
executing any documents contemplated by this Agreement.
(s) On or prior to the Closing Date, RAS shall have furnished
fully executed copies of the Material Agreements (which, in the case of the
Construction Contract, shall be reasonably acceptable to the Initial Purchaser),
the Disbursement Agreement, the Completion
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Guaranty (as defined herein), the Credit Agreement and the Subordinated Notes
Account Proceeds Agreement to White & Case, as counsel to the Initial Purchaser.
(t) On or prior to the Closing Date, the Note Issuers shall
have established the Subordinated Notes Proceeds Account and have delivered
evidence to the Initial Purchaser of such account opening.
(u) On or prior to the Closing Date, the Note Issuers shall
have established the Mortgage Notes Proceeds Account (as defined in the Final
Memorandum) and shall have delivered evidence to the Initial Purchaser of such
account opening and of the funding of $60 million into such account by financial
institutions party to the Credit Agreement.
(v) On or prior to the Closing Date, the Note Issuers shall
have established the Fund's Account (as defined in the Final Memorandum) and
shall have delivered evidence to the Initial Purchaser of such account opening
and of the funding of $67.5 million as the equity contribution in such account.
(w) The Initial Purchaser shall have received a Letter or
Letters of Representations signed by DTC, covering the Notes.
(x) The Initial Purchaser shall receive copies of each legal
opinion delivered under the Credit Agreement to the financial institutions party
to the Credit Agreement addressed to the Initial Purchaser (or separate reliance
letters stating the Initial Purchaser may rely on such opinions as if they were
addressed to it).
(y) On or prior to the Closing Date, RAS shall have furnished
to the Initial Purchaser a fully executed amendment no. 1 to the Limited
Partnership Agreement, which shall be in form and substance satisfactory to the
Initial Purchaser and shall contemplate the transactions contemplated by this
Agreement and the Final Memorandum.
(z) On or prior to the Closing Date, RAS shall have furnished
to the Initial Purchaser a copy of the officers' certificate delivered to RAS by
X.X. Xxxxx, Inc., as the guarantor under the Completion Guaranty, to be dated on
or prior to the date hereof (the "Completion Guaranty"), which certificate will
include a copy of the resolutions of the guarantor authorizing the execution,
delivery and performance by the guarantor of the Completion Guaranty.
On or before the Closing Date, the Initial Purchaser and
counsel for the Initial Purchaser shall have received such further documents,
opinions, certificates, letters and schedules or instruments relating to the
business, corporate, legal and financial affairs of each of the Issuers as they
shall have heretofore reasonably requested from each of the Issuers.
All such documents, opinions, certificates, letters, schedules
or instruments delivered pursuant to this Agreement will comply with the
provisions hereof only if they are reasonably satisfactory in all material
respects to the Initial Purchaser and counsel for the Initial Purchaser. The
Company and the Subsidiaries shall furnish to the Initial Purchaser such
conformed copies of such documents, opinions, certificates, letters, schedules
and instruments in such quantities as the Initial Purchaser shall reasonably
request.
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8. Offering of Units; Restrictions on Transfer. The Initial
Purchaser (i) has not and will not solicit offers for, or offer or sell, the
Securities by any form of general solicitation or general advertising (as those
terms are used in Regulation D under the Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Act and (ii) has and
will solicit offers for the Securities only from, and will offer the Securities
only to (A) in the case of offers inside the United States, (x) persons whom the
Initial Purchaser reasonably believes to be QIBs 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 the Initial
Purchaser that each such account is a QIB, to whom notice has been given that
such sale or delivery is being made in reliance on Rule 144A, and, in each case,
in transactions under Rule 144A or (y) a limited number of other institutional
investors reasonably believed by the Initial Purchaser to be Accredited
Investors that, prior to their purchase of the Securities, deliver to the
Initial Purchaser a letter containing the representations and agreements set
forth in Exhibit A to the Final Memorandum and (B) in the case of offers outside
the United States, to persons other than U.S. persons ("foreign purchasers,"
which term shall include dealers or other professional fiduciaries in the United
States acting on a discretionary basis for foreign beneficial owners (other than
an estate or trust)); provided, however, that, in the case of this clause (B),
in purchasing such Securities such persons are deemed to have represented and
agreed as provided under the caption "Transfer Restrictions on Units, Senior
Subordinated Notes, Warrants and LP Partnership Interests" contained in the
Final Memorandum.
The Initial Purchaser represents and warrants that it is a
QIB, with such knowledge and experience in financial and business matters as are
necessary in order to evaluate the merits and risks of an investment in the
Units. The Initial Purchaser agrees to comply with the applicable provisions of
Rule 144A and Regulation S under the Act. The Initial Purchaser hereby
acknowledges that each of the Issuers and, for purposes of the opinions to be
delivered to the Initial Purchaser pursuant to Section 7(a) hereof, counsel to
the Issuers will rely upon the accuracy and truth of the representations
contained in this Section 8 and the Initial Purchaser hereby consents to such
reliance.
9. Indemnification and Contribution. (a) Each of the Issuers
jointly and severally agree to indemnify and hold harmless the Initial Purchaser
and its respective affiliates, directors, officers, agents, representatives,
general partners and employees of such Initial Purchaser or its affiliates, and
each other person, if any, who controls the Initial Purchaser or its affiliates
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
to the full extent lawful against any losses, claims, damages, expenses or
liabilities (or action in respect thereof, including, without, limitation,
shareholder derivative actions and arbitration proceedings) to which the Initial
Purchaser or such other person may become subject under the Act, the Exchange
Act or otherwise, insofar as any such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of
any material fact contained in any Memorandum or any amendment or
supplement thereto or any application or other document, or any
amendment or supplement thereto, executed by any of the Issuers or
based upon written information furnished by or on behalf of any of the
Issuers filed in any jurisdiction in order to qualify the Securities
under the securities or
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"Blue Sky" laws thereof or filed with any securities association or
securities exchange (each an "Application");
(ii) the omission or alleged omission to state, in any
Memorandum or any amendment or supplement thereto or any Application, a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or
(iii) any material breach of any of the representations and
warranties of any of the Issuers set forth in this Agreement or the
Registration Rights Agreement, and will reimburse, as incurred, the
Initial Purchaser and each such other person for any legal or other
expenses incurred by the Initial Purchaser or such other person in
connection with investigating, defending against or appearing as a
third-party witness in connection with any such loss, claim, damage,
liability or action; provided, however, the Issuers will not be liable
in any such case to the extent that any such loss, claim, damage, or
liability arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in any
Memorandum or any amendment or supplement thereto or any Application in
reliance upon and in conformity with written information concerning the
Initial Purchaser furnished to the Issuers by the Initial Purchaser
specifically for use therein. This indemnity agreement will be in
addition to any liabilities or obligations that any of the Issuers may
otherwise have to the indemnified parties, including without limitation
the indemnification obligations of each of the Issuers pursuant to the
NatWest Engagement. The Issuers shall not be liable under this Section
9 for any settlement of any claim or action effected without its prior
consent, which shall not be unreasonably withheld.
(b) The Initial Purchaser agrees to indemnify and hold
harmless each of the Issuers, their respective directors and officers, and each
person, if any, who controls an Issuer within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which any Issuer or any such director, officer or controlling
person may become subject under the Act, the Exchange Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained in any Memorandum or any amendment or
supplement thereto or any Application, or (ii) the omission or the alleged
omission to state therein a material fact required to be stated in any
Memorandum or any amendment or supplement thereto or any Application, or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information concerning the Initial Purchaser, furnished
to any Issuer by the Initial Purchaser specifically for use therein; and subject
to the limitation set forth immediately preceding this clause, will reimburse,
as incurred, any legal or other expenses incurred by any Issuer, or any such
director, officer or controlling person in connection with investigating or
defending against or appearing as a third party witness in connection with any
such loss, claim, damage, liability or action in respect thereof. This indemnity
agreement will be in addition to any liability that the Initial Purchaser may
otherwise have to the indemnified parties. The Initial Purchaser shall not be
liable under this Section 9 for any settlement of any claim or action effected
without their written consent, which shall not be unreasonably withheld. None of
the Issuers
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shall, without the prior written consent of the Initial Purchaser, effect any
settlement or compromise of any pending or threatened proceeding in respect of
which the Initial Purchaser is or could have been a party, or indemnity could
have been sought hereunder by any Initial Purchaser, unless such settlement (A)
includes an unconditional written release of the Initial Purchaser, in form and
substance reasonably satisfactory to the Initial Purchaser, from all liability
on claims that are the subject matter of such proceeding and (B) does not
include any statement as to an admission of fault, culpability or failure to act
by or on behalf of the Initial Purchaser.
(c) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action for which such indemnified
party is entitled to indemnification under this Section 9, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 9, notify the indemnifying party of the commencement
thereof in writing; but the omission to so notify the indemnifying party (i)
will not relieve it from any liability under paragraph (a) or (b) above unless
and to the extent such failure results in the forfeiture by the indemnifying
party of substantial rights and defenses and (ii) will not, in any event,
relieve the indemnifying party from any obligations to any indemnified party
other than the indemnification obligation provided in paragraphs (a) and (b)
above. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party; provided, however, that if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such counsel
with a conflict of interest, (ii) the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have been advised by counsel that there may be one or more legal defenses
available to it and/or other indemnified parties that are different from or
additional to those available to the indemnifying party, or (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after receipt by the indemnifying party of notice of the institution of
such action, then, in each such case, the indemnifying party shall not have the
right to direct the defense of such action on behalf of such indemnified party
or parties and such indemnified party or parties shall have the right to select
separate counsel to defend such action on behalf of such indemnified party or
parties. After notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof and approval by such indemnified
party of counsel appointed to defend such action, the indemnifying party will
not be liable to such indemnified party under this Section 9 for any legal or
other expenses, other than reasonable costs of investigation, subsequently
incurred by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the immediately preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate counsel (in
addition to local counsel) in any one action or separate but substantially
similar actions in the same jurisdiction arising out of the same general
allegations or circumstances, designated by the Initial Purchaser in the case of
paragraph (a) of this Section 9 or either the Issuers in the case of paragraph
(b) of this Section 9, representing the indemnified parties under such paragraph
(a) or paragraph (b), as the case may be, who are parties to such action or
actions) or (ii) the
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indemnifying party has authorized in writing the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the prior written consent of the
indemnifying party (which consent shall not be unreasonably withheld), unless
such indemnified party waived in writing its rights under this Section 9, in
which case the indemnified party may effect such a settlement without such
consent.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 9 is unavailable to an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions in respect thereof), each indemnifying party, in order to provide for
just and equitable contribution, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect (i) the relative benefits received by the indemnifying party or
parties on the one hand and the indemnified party on the other from the offering
of the Units or (ii) if the allocation provided by the foregoing clause (i) is
not permitted by applicable law, not only such relative benefits but also the
relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof). The relative benefits received by
the Issuers on the one hand and the Initial Purchaser on the other shall be
deemed to be in the same proportion as the total proceeds from the offering (net
of commissions and before deducting expenses) received by the Issuers and the
Subsidiaries bear to the total discounts and commissions received by the Initial
Purchaser. The relative fault of the parties 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 one of the Issuers on the one hand, or the
Initial Purchaser on the other, the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission
or alleged statement or omission, and any other equitable considerations
appropriate in the circumstances. Each of the Issuers and the Initial Purchaser
agree that it would not be equitable if the amount of such contribution were
determined by pro rata or per capita allocation or by any other method of
allocation that does not take into account the equitable considerations referred
to in the first sentence of this paragraph (d). Notwithstanding any other
provision of this paragraph (d), the Initial Purchaser shall not be obligated to
make contributions hereunder that in the aggregate exceed the total discounts,
commissions and other compensation received by the Initial Purchaser under this
Agreement, less the aggregate amount of any damages that the Initial Purchaser
has otherwise been required to pay by reason of the untrue or alleged untrue
statements or the omissions or alleged omissions to state a material fact, and
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. For purposes of this paragraph (d),
each person, if any, who controls the Initial Purchaser within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Initial Purchaser, and each director of an Issuer,
each officer of an Issuer and each person, if any, who controls an Issuer or its
Subsidiaries within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as an Issuer.
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10. Survival Clause. The respective representations,
warranties, agreements, covenants, indemnities and other statements of each of
the Issuers, their respective officers and the Initial Purchaser set forth in
this Agreement or made by or on behalf of them pursuant to this Agreement shall
remain in full force and effect, regardless of (i) any investigation made by or
on behalf of any of the Issuers, any of their respective officers or directors,
the Initial Purchaser or any other person referred to in Section 9 hereof and
(ii) delivery of and payment for the Units. The respective agreements,
covenants, indemnities and other statements set forth in Sections 6, 9 and 15
hereof shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated in the
sole discretion of the Initial Purchaser by notice to the Issuers given prior to
the Closing Date in the event that any of the Issuers shall have failed, refused
or been unable to perform all of their obligations and satisfy all conditions on
their respective part to be performed or satisfied hereunder at or prior thereto
or, if at or prior to the Closing any of the following shall have occurred:
(i) any of the Issuers shall have sustained any loss or
interference with respect to its businesses or properties from fire,
flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any strike, labor dispute, slow down or work
stoppage or any legal or governmental proceeding, which loss or
interference has had, has or could be reasonably likely to have a
Material Adverse Effect, or there shall have been, in the sole judgment
of the Initial Purchaser, any event or development that, individually
or in the aggregate, has or could be reasonably likely to have a
Material Adverse Effect (including without limitation a change in
control of an Issuer or their Subsidiaries), except in each case as
described in the Final Memorandum (exclusive of any amendment or
supplement thereto);
(ii) there shall have occurred any change, or any
development involving a prospective change, in the condition, financial
or otherwise, or in the earnings, business or operations, of any of the
Issuers, from that set forth in the Final Memorandum that is material
and adverse and that makes it, in the Initial Purchaser's judgment,
impracticable to market the Units on the terms and in the manner
contemplated in the Final Memorandum.
(iii) trading generally shall have been suspended or
materially limited on or by, as the case may be, any of the New York
Stock Exchange, the American Stock Exchange or the National Association
of Securities Dealers, Inc. or the setting of minimum prices for
trading on such exchange or market shall have occurred or trading of
any securities of any of the Issuers shall have been suspended on any
exchange or in any over-the-counter market if traded on such exchange
or market;
(iv) a banking moratorium shall have been declared by the
State of Nevada, the State of New York or United States authorities;
(v) there shall have been (A) an outbreak or escalation
of hostilities between the United States and any foreign power, or (B)
an outbreak or escalation of any other insurrection or armed conflict
involving the United States, (C) any material change in the
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financial markets of the United States or (D) any other national or
international calamity or emergency which, in the case of (A), (B), (C)
or (D) above and in the sole judgment of the Initial Purchaser, makes
it impracticable or inadvisable to proceed with the public offering or
the delivery of the Units as contemplated by the Final Memorandum;
(vi) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs
that in has a material adverse effect on the financial markets in the
United States, and would, in the sole judgment of the Initial
Purchaser, make it impracticable or inadvisable to market the Units;
(vii) the proposal, enactment, publication, decree, or
other promulgation of any federal or state statute, regulation, rule or
order of any court or other governmental authority which, in the sole
judgment of the Initial Purchaser, would have a Material Adverse
Effect;
(viii) any securities of any of the Issuers shall have been
downgraded or placed on any "watch list" for possible downgrading by
any nationally recognized statistical rating organization.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Sections 6 and 10 hereof.
12. Information Supplied by the Initial Purchaser. The
statements set forth in the last paragraph on the cover page of the Final
Memorandum, the sixth through eighth paragraphs under the heading "Plan of
Distribution" in the Final Memorandum (to the extent any such statements relate
to the Initial Purchaser) constitute the only information furnished by the
Initial Purchaser to the Issuers for the purposes of Sections 2(a) and 9 hereof.
13. Notices. All communications hereunder shall be in writing
and, if sent to the Initial Purchaser, shall be mailed or delivered to (i)
NatWest Capital Markets Limited, 000 Xxxxxxxxxx, Xxxxxx, Xxxxxxx, Attention:
Xxxxx Xxxxx; with a copy to White & Case, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
XX 00000, Attention: Xxxxxxx X. Xxxxxxx, Esq.; if sent to an Issuer, shall be
mailed or delivered to 0000 Xxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx
00000 with a copy to Xxxxx & Xxxxxxxxx LLP, 000 Xxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx,
XX 00000, Attention: Xxxxxxxx Xxxxx.
All such notices and communications shall be deemed to have
been duly given: when delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; and one
business day after being timely delivered to a next-day air courier.
14. Successors. This Agreement shall inure to the benefit of
and be binding upon the Initial Purchaser, each of the Issuers and their
respective successors and legal representatives, and nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of this
Agreement, or any provisions herein contained; this Agreement and all conditions
and provisions
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hereof being intended to be and being for the sole and exclusive benefit of such
persons and for the benefit of no other person except that (i) the indemnities
of each of the Issuers contained in Section 9 of this Agreement shall also be
for the benefit of any person or persons who control the Initial Purchaser
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Initial Purchaser contained in Section 9 of this
Agreement shall also be for the benefit of the directors, partners, managers or
officers of any Issuer and any person or persons who controls an Issuer within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act. No
purchaser of Units, Notes, Partnership Warrants or Corporate Warrants from the
Initial Purchaser will be deemed a successor because of such purchase.
15. APPLICABLE LAW. THE VALIDITY AND INTERPRETATION OF THIS
AGREEMENT, AND THE TERMS AND CONDITIONS SET FORTH HEREIN, SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED WHOLLY THEREIN, WITHOUT GIVING EFFECT TO ANY
PROVISIONS THEREOF RELATING TO CONFLICTS OF LAW.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement between each
of the Issuers and the Initial Purchaser.
Very truly yours,
THE RESORT AT XXXXXXXXX,
LIMITED PARTNERSHIP
By: RESORT AT XXXXXXXXX, INC.,
AS THE GENERAL PARTNER
By /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer & Secretary
THE RESORT AT XXXXXXXXX, INC.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer & Secretary
RAS WARRANT CO.
By /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer & Secretary
41
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
NATWEST CAPITAL MARKETS LIMITED
By: /s/ N. S. Coulbeck
-------------------------------
Name: N. S. Coulbeck
Title: Director
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SCHEDULE 1
Initial Purchaser Number of Units
----------------- ---------------
NatWest Capital Markets Limited 100,000 Units, evidencing $100,000,000 of
Notes and such number of Corporate Warrants
and Partnership Warrants as may be
designated by NatWest Capital Markets
Limited not exceeding 8% of the total
Partnership interests.
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SCHEDULE 2
LIST OF MATERIAL AGREEMENTS
A. Material Agreements to be signed on or prior to the date hereof
1. Construction Contract, dated as of December 22, 1997, between RAS and
X.X. Xxxxx Construction, a North Carolina corporation, as the
contractor (the "Construction Contract").
2. License Agreement, dated December 16, 1997, between RAS and Regent
Hotels Worldwide, Inc., an affiliate of Xxxxxxx Hospitality Group (the
"License Agreement").
3. Development Agreement, dated as of August 15, 1996, between RAS and
Xxxxxx Xxxxxx Properties, Limited Partnership.
4. Royalty Agreement, dated as of August 15, 1996, between RAS and Xxxxxx
Xxxxxx Properties, Limited Partnership.
5. Guaranty of Completion dated as of December 22, 1997, by X.X. Xxxxx,
Inc.
B. Material Agreements to be signed on or prior to the Closing Date
1. Construction Management Agreement between RAS and ___________________,
as the construction manager (the "Construction Management Contract").
2. Architect Agreement between RAS and Xxxx Xxxxxxxx Ltd., as the
architect (the "Architect's Contract").
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SCHEDULE 3
[XXXX XXXXXXXX LTD. LETTERHEAD]
December 23, 1997
Xx. Xxxx XxXxxxxxxx
Seven Circle Resorts
0000 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
Re: THE RESORT AT XXXXXXXXX (PERMIT STATUS) LAS VEGAS, NV - PROJECT #95255
File #01021 - Architect Correspondence
Dear Xxxx:
The following information is a summary of the purpose of the required
permits mentioned in our correspondence of 12/23/97 regarding The Resort at
Xxxxxxxxx:
- Special use permit approved by the City Council
- Amended use permit approved by the City Council
These permits allow Seven Circle Resorts to utilize the property in the
manner submitted and approved. The following is a list of permits that will be
pulled during construction and after plan check approvals and their meanings:
- Dust permit: This permit allows the contractor to move earth and makes
the contractor responsible for the amount of dust generated by this
movement.
- Grading Permit: This permit allows the contractor to move earth and
prepare a site to receive footings and foundations.
- On site sewer, water, and fire (Undergrounds): These permits allow the
contractor to place utilities and "hookup" to existing city and/or county
utilities.
- Swimming pool: This permit verifies that Health Department has approved
of the pool design and allows the building department to issue a building
permit to construct the pool.
- Building: This permit allows the contractor to place foundations, erect
steel, and construct the building in a general sense.
45
- Mechanical, Electrical, Plumbing: Since each of these disciplines are
individually inspected a separate permit for each discipline is required.
- Fire: This permit verifies that the fire suppression and alarm systems
are approved and may be installed within the building.
- On site improvement (curbs, roads, etc.): These permits allow the
contractor to proceed with the indicated work.
Xx. Xxxx XxXxxxxxxx
Seven Circle Resorts
December 23, 1997
Page 2
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If you have any questions or comments kindly call. Thank you.
Sincerely,
XXXX XXXXXXXX LTD.
/s/ Xxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx, X.X.
President
PCS/rb
cc: PSL Project File
Xxxxx Xxxxxx
46
EXHIBIT A
NEVADA GAMING APPROVALS
(i) In order to operate the Resort Casino, RAS will be required to
be licensed by the Nevada Gaming Authorities. In connection therewith, RAS, Inc.
will be required to be registered and found suitable as an intermediary company
and licensed as a general partner of RAS by the Nevada Gaming Authorities. Also,
each direct and indirect owner of RAS, Inc. will be required to obtain
applicable licenses and approvals from the Nevada Gaming Authorities. Each of
the Note Issuers, Tivoline Holding AG (the "Swiss Parent") and SCGC, as well as
each of their respective owners, intend to apply for such registrations,
licenses and approvals with the Nevada Gaming Authorities.
(ii) After the effectiveness of the Exchange Offer and at the time
of licensing of RAS, the Issuers will each be required to register with the
Nevada Commission as a publicly traded corporation ("Registered Company"). In
order for RAS to receive a gaming license to operate the Resort Casino as a
Registered Company, it must receive an exemption from the Nevada Commission from
a regulatory provision of the Nevada Act which makes publicly traded
corporations ineligible to apply for or hold a gaming license. RAS intends to
apply for such an exemption in connection with its application for a gaming
license with the Nevada Board and the Nevada Commission.
(iii) After RAS has been issued a gaming license by the Nevada
Gaming Authorities, RAS may not issue an LP Partnership Interest to Warrant Co.
or any holder of a Partnership Warrant without the prior approval, licensing and
registration of Warrant Co. or such holder as a limited partner of RAS by the
Nevada Gaming Authorities.
(iv) With respect to Partnership Warrants, after RAS has been
issued a gaming license by the Nevada Gaming Authorities and unless RAS has been
registered as a Registered Company and been granted certain exemptions by the
Nevada Commission, no holder of a Partnership Warrant may sell, assign,
transfer, pledge or make any other disposition thereof, including, without
limitation, exercise such warrant, without the prior approval of the Nevada
Gaming Authorities. In addition, prior to exercising such Partnership Warrant,
the holder thereof will be required to file applications to be licensed as a
limited partner of RAS.
(v) With respect to the Corporate Warrants, after RAS has been
issued a gaming license by the Nevada Gaming Authorities and unless Warrant Co.
has been registered as a Registered Company and been granted certain exemptions
by the Nevada Commission, no holder of a Corporate Warrant may sell, assign,
transfer, pledge or make any other disposition thereof, including, without
limitation, exercise such warrant, without the prior approval of the Nevada
Gaming Authorities. In addition, prior to exercising such Corporate Warrant, the
holder thereof will be required to file applications to be found suitable as a
stockholder of Warrant Co. Once Warrant Co. is registered as a Registered
Corporation, only persons having beneficial ownership of more than 10% of
Warrant Co.'s voting securities will be required to file such applications.
47
Exhibit A
Page 2
(vi) Subsequent to the licensing of RAS, if RAS and Warrant Co.
have each been registered as a Registered Company with the Nevada Commission and
each been granted certain exemptions by the Nevada Commission, no prior approval
of the Nevada Commission will be required for a holder to exercise either an LP
Warrant or a Corporate Warrant and become a limited partner or a stockholder of
RAS or Warrant Co., respectively.
(vii) The disposition of collateral consisting of gaming devices,
including slot machines, cashless wagering systems and associated equipment (as
those terms are defined in Nevada Revised Statutes ("NRS") Sections 463.014,
463.0136, 463.0155 and 463.0191) is subject to the requirements of the Nevada
Gaming Laws, including the approval of the Nevada Board, prior to any sale,
removal, disposition or distribution of such devices.
(viii) Any (a) guarantees of the Notes issued by the Note Issuers,
(b) hypothecation of certain assets of the Note Issuers as security for the
Mortgage Notes, and (c) restrictions on the transfer of and agreements not to
encumber, the equity securities of the Note Issuers in respect of the Mortgage
Notes, will require the approval of the Nevada Commission upon the
recommendation of the Nevada Board, at the time RAS is licensed and RAS, Inc. is
registered as an intermediary company and licensed as a general partner of RAS
by the Nevada Commission, for which approvals the Note Issuers will apply, if
applicable. Any restrictions on transfer or agreements not to encumber such
equity securities of the Note Issuers will require the approval of the Nevada
Commission in order to remain effective.
(ix) The Initial Purchaser and any beneficial owner of the Units,
Notes, Exchange Notes, Mortgage Notes or any Warrants are subject to being
called forward at any time by the Nevada Gaming Authorities, in their
discretion, for licensing or a finding of suitability as lenders and/or holders
of equity securities.
(x) The preparation and filing by the Note Issuers of, the
effectiveness, and the sale (as defined in NRS Section 463.1598(2)) of the
Exchange Notes registered pursuant to, the Exchange Offer Registration Statement
covering the exchange of the Notes for Exchange Notes, will require either the
prior approval of the Nevada Commission upon the recommendation of the Nevada
Board, as a public offering, before the Exchange Offer can occur, or an
administrative ruling from the Nevada Board Chairman that is not necessary to
submit the Exchange Offer for such approval.
(xi) The preparation and filing by RAS of, the effectiveness, and
the sale (as defined in NRS Section 463.1598(2)) of the Registrable Securities
(as such term is defined in the LP Registration Rights Agreement) registered
pursuant to a piggy-back registration covering the resale of all of the
Registrable Securities, will require the prior approval of the Nevada Commission
upon the recommendation of the Nevada Board, as a public offering, before any
such sale of such LP Partnership Interests can occur.
