<PAGE>
Exhibit-1
EXECUTION COPY
MGM MIRAGE
(a Delaware corporation)
7.625% Senior Notes Due 2017
UNDERWRITING AGREEMENT
Dated: December 13, 2006
<PAGE>
TABLE OF CONTENTS
UNDERWRITING AGREEMENT
<TABLE>
<CAPTION>
Page
----
<S>
<C>
SECTION 1.
Representations and Warranties by the Company and Subsidiary
Guarantors................................................
3
SECTION 2. Sale and
Delivery to Underwriters; Closing................... 12
SECTION 3. Covenants
of the Company..................................... 13
SECTION 4. Payment of
Expenses.......................................... 17
SECTION 5. Conditions
of Underwriters' Obligations...................... 17
SECTION 6.
Indemnification..............................................
20
SECTION 7.
Representations, Warranties and Agreements to Survive
Delivery..................................................
24
SECTION 8. Termination
of Agreement..................................... 24
SECTION 9. Default by
One or More of the Underwriters................... 24
SECTION 10.
Notices......................................................
25
SECTION 11.
Parties......................................................
25
SECTION 12. Governing Law and
Time....................................... 25
SECTION 13. Effect of
Headings........................................... 26
SECTION 14. Agreement Regarding
Tracinda................................. 26
SECTION 15. No Fiduciary
Responsibility.................................. 26
SECTION 16. Entire
Agreement............................................. 26
</TABLE>
<PAGE>
MGM MIRAGE
(A DELAWARE CORPORATION)
$750,000,000 7.625% Senior Notes due 2017
UNDERWRITING AGREEMENT
December 13, 2006
Barclays Capital Inc.
as
Representative of the several Underwriters
c/o Barclays Capital Inc.
200 Park Avenue
New York, New York 10166
Ladies and Gentlemen:
MGM
MIRAGE, a Delaware corporation (the "COMPANY"), confirms its
agreement
with Barclays Capital Inc. ("BARCLAYS") and each of the other
Underwriters named
in Schedule A hereto (collectively, the "UNDERWRITERS," which term
shall also
include any underwriter substituted as hereinafter provided in
Section 9
hereof), for whom Barclays is acting as representative (in such
capacity, the
"REPRESENTATIVE"), with respect to the issue and sale by the
Company and the
purchase by the Underwriters, acting severally and not jointly, of
the
respective principal amounts set forth in Schedule A of
$750,000,000 aggregate
principal amount of the Company's 7.625% Senior Notes due 2017 (the
"NOTES").
The
Notes are to be issued pursuant to an indenture dated as of
December
21, 2006, (the "INDENTURE") among the Company, the Subsidiary
Guarantors (as
defined below) and U.S. Bank National Association, as trustee (the
"TRUSTEE") as
supplemented by a supplemental indenture to be dated as of the
Closing Time (as
defined below) among the Company, the Subsidiary Guarantors and the
Trustee (the
"SUPPLEMENTAL INDENTURE"). The Notes will be unconditionally
guaranteed by
certain subsidiaries of the Company (the "SUBSIDIARY GUARANTORS")
who have
guaranteed, pursuant to guarantees included in the Indenture as
supplemented by
the Supplemental Indenture (the "SUBSIDIARY GUARANTEES"), the
interest and other
amounts payable on the Notes. As used herein, the term "SECURITIES"
shall
include the Notes and the Subsidiary Guarantees. Notes issued in
book-entry form
will be issued to Cede & Co. as nominee of The Depository Trust
Company ("DTC")
pursuant to a letter agreement, to be dated on or prior to the
Closing Time (the
"DTC AGREEMENT"), between the Company and DTC.
The
Company and the Subsidiary Guarantors have filed with the
Securities
and Exchange Commission (the "COMMISSION") an automatic shelf
registration
statement on Form S-3 (No. 333-133925), including a related base
prospectus,
relating to the registration of debt and common stock of the
Company (the "SHELF
SECURITIES"), including the Securities, which registration
statement became
effective upon filing under Rule 462(e) of the rules and
regulations of the
Commission (the "1933 ACT REGULATIONS") pursuant to the Securities
Act of
<PAGE>
1933, as amended (the "1933 ACT"). Such registration statement, at
any given
time, including the amendments thereto to such time, the exhibits
and any
schedules thereto at such time, the documents incorporated by
reference therein
pursuant to Item 12 of Form S-3 under the 1933 Act at such time and
the
documents otherwise deemed to be a part thereof or included therein
by 1933 Act
Regulations, including any required information deemed to be a part
thereof
pursuant to Rule 430B ("RULE 430B") of the 1933 Act Regulations is
herein called
the "REGISTRATION STATEMENT" and the related prospectus covering
the Shelf
Securities included in the Registration Statement at any given
time, including
the amendments thereto at such time, is herein called the "BASIC
PROSPECTUS."
The Registration Statement at the time it originally became
effective is herein
called the "ORIGINAL REGISTRATION STATEMENT."
The
Company has prepared, filed and delivered to each Underwriter,
copies
of a preliminary prospectus supplement dated December 11, 2006 in
accordance
with the provisions of Rule 430B and paragraph (b) of Rule 424
("RULE 424(B)")
of the 1933 Act Regulations (together with the Basic Prospectus (to
the extent
not superseded or modified), the "PRELIMINARY PROSPECTUS"), and has
prepared and
delivered to each Underwriter copies of a final term sheet for the
Securities,
identified on Schedule C hereto (the "PRICING SUPPLEMENT"),
describing the terms
of the Securities and including the price at which the Notes are to
be sold to
the public, each for use by the Underwriters in connection with its
solicitation
of offers to purchase the Securities. The Preliminary Prospectus
and the Pricing
Supplement, together with the other Issuer Free Writing
Prospectuses (as defined
below), if any, identified on Schedule C hereto and any other free
writing
prospectus (as defined below) that the parties hereto shall
hereafter expressly
agree in writing to treat as part of the Pricing Disclosure
Package, are herein
referred to as the "PRICING DISCLOSURE PACKAGE". All references
herein to the
terms "Pricing Disclosure Package" shall be deemed to mean and
include all
information filed under the Securities Exchange Act of 1934, as
amended (the
"1934 ACT") or the rules and regulations of the Commission under
the 1934 Act
(the "1934 ACT REGULATIONS"), prior to the Applicable Time and
incorporated by
reference in the Pricing Disclosure Package. "APPLICABLE TIME"
means 6:40 pm
(Eastern time) on the date of this Agreement or such other time as
agreed by the
Company and the Representative.
Promptly after the Applicable Time (as defined below), the Company
will
prepare and deliver to each Underwriter a final prospectus
supplement dated the
date hereof. The Basic Prospectus (to the extent not superseded or
modified)
together with the final prospectus supplement in the form first
furnished to the
Underwriters for use in connection with the offering of the
Securities is herein
referred to as the "PROSPECTUS".
For
purposes of this Agreement, "FREE WRITING PROSPECTUS" has the
meaning
set forth in Rule 405 of the 1933 Act Regulations and "ISSUER FREE
WRITING
PROSPECTUS" means any issuer free writing prospectus, as defined in
Rule 433 of
the 1933 Act Regulations, relating to the Securities in the form
filed or
required to be filed with the Commission or, if not required to be
filed, in the
form retained in the Company's records pursuant to Rule 433(g).
All
references in this Agreement to financial statements and schedules
and
other information which is "contained," "included" or "stated" in
the
Registration Statement, the Pricing Disclosure Package and the
Prospectus (and
all other references of like import) shall be deemed to mean and
include all
such financial statements and schedules and other information
2
<PAGE>
which are incorporated by reference in or otherwise deemed by the
1933 Act
Regulations to be a part of or included in the applicable document;
and all
references herein to the terms "amend," "amendment," or
"supplement" with
respect to the Registration Statement, the Basic Prospectus, the
Preliminary
Prospectus, any free writing prospectus or the Prospectus shall be
deemed to
mean and include all information filed under the 1934 Act or the
1934 Act
Regulations on or before such time and incorporated by reference
therein.
SECTION 1. REPRESENTATIONS AND WARRANTIES BY THE COMPANY AND
SUBSIDIARY
GUARANTORS. The Company and the Subsidiary Guarantors jointly and
severally
represent and warrant to each Underwriter as of the date hereof,
the Applicable
Time and as of the Closing Time as follows (references in this
Section 1 to the
"PROSPECTUS" apply only in the case of representations and
warranties made as of
the Closing Time):
(a) Status as a Well-Known Seasoned Issuer. (A) At the time of
filing
the
Original Registration Statement, (B) at the time of the most
recent
amendment to the Registration Statement for the purposes of
complying with
Section 10(a)(3) of the 1933 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to
Section 13
or
15(d) of the 1934 Act or form of prospectus), (C) at the time
the
Company or any person acting on its behalf (within the meaning, for
this
clause only, of Rule 163(c) of the 1933 Act Regulations) made any
offer
relating to the Securities in reliance on the exemption of Rule 163
of the
1933 Act Regulations
("RULE 163") and (D) at the date hereof, the Company
was
and is a "well-known seasoned issuer" as defined in Rule 405 of
the
1933
Act Regulations ("RULE 405"), including not having been and not
being
an
"ineligible issuer" as defined in Rule 405. The Registration
Statement
is
an "automatic shelf registration statement" as defined in Rule 405,
and
the
Securities, since their registration on the Registration
Statement,
have
been and remain eligible for registration by the Company on a Rule
405
"automatic shelf registration statement." The Company has not
received from
the
Commission any notice, including pursuant to Rule 401(g)(2) of the
1933
Act
Regulations, objecting to the use of the automatic shelf
registration
statement form.
At the time of filing the Original Registration Statement, at
the
earliest time thereafter that the Company or another offering
participant
made
a bona fide offer (within the meaning of Rule 164(h)(2) of the
1933
Act
Regulations) of the Securities and at the date hereof, the Company
was
not
and is not an "ineligible issuer," as defined in Rule 405,
including
the
Company or any other subsidiary in the preceding three years not
having
been
convicted of a felony or misdemeanor or having been made the
subject
of a
judicial or administrative decree or order as described in Rule
405.
(b) Registration Statement, Prospectus and Disclosure at Time of
Sale.
The
Original Registration Statement became effective upon filing under
Rule
462(e) of the 1933 Act Regulations ("RULE 462(E) ") on May 9, 2006,
and any
post-effective amendment thereto also became effective upon filing
under
Rule
462(e). No stop order suspending the effectiveness of the
Registration
Statement has been issued under the 1933 Act and no proceedings for
that
purpose have been instituted or are pending or, to the knowledge of
the
Company, are contemplated by the Commission, and any request on the
part of
the
Commission for additional information has been complied with.
3
<PAGE>
Any offer that is a written communication relating to the
Securities
made
prior to the filing of the Original Registration Statement by
the
Company or any person acting on its behalf (within the meaning, for
this
paragraph only, of Rule 163(c) of the 1933 Act Regulations) has
been filed
with
the Commission in accordance with the exemption provided by Rule
163
and
otherwise complied with the requirements of Rule 163, including
without
limitation the legending requirement, to qualify such offer for
the
exemption from Section 5(c) of the 1933 Act provided by Rule
163.
At the time the Registration Statement became effective
(including
without limitation the effective dates of any amendments thereto
and each
deemed effective date with respect to the Underwriters pursuant to
Rule
430B(f)(2) of the 1933 Act Regulations), as of the Applicable Time
and at
the
Closing Time, the Registration Statement complied or will comply in
all
material respects with the requirements of the 1933 Act and the
1933 Act
Regulations and the Trust Indenture Act of 1939, as amended (the
"1939
ACT") and the rules and regulations of the Commission under the
1939 Act
(the
"1939 ACT REGULATIONS"), and did not and will not, contain an
untrue
statement of a material fact or omit to state a material fact
required to
be
stated therein or necessary to make the statements therein not
misleading; and neither the Pricing Disclosure Package, as of
the
Applicable Time and at the Closing Time, nor the Prospectus nor
any
amendments or supplements thereto, as of its date, and at the
Closing Time,
included or will include an untrue statement of a material fact or
omit to
state a material fact necessary in order to make the statements
therein, in
light of the circumstances under which they were made, not
misleading;
provided, however, that the representations and warranties in this
section
shall not apply to statements in or omissions from the
Registration
Statement, Pricing Disclosure Package or Prospectus made in
reliance upon
and
in conformity with information furnished to the Company in writing
by
any
Underwriter through the Representative expressly for use in the
Registration Statement, Pricing Disclosure Package or Prospectus,
as
applicable (it being understood and agreed that the only such
information
furnished by an Underwriter consists of the information described
as such
in
Section 6 hereof).
The Preliminary Prospectus and the prospectus or prospectuses filed
as
part of the Original
Registration Statement or any amendment thereto and
the
Prospectus when filed complied when so filed in all material
respects
with
the 1933 Act Regulations, the Prospectus when filed will comply
when
so
filed in all material respects with the 1933 Act Regulations and
each
such
prospectus delivered to the Underwriters for use in connection
with
this
offering was, and the Prospectus when so delivered will be,
identical
to
the electronically transmitted copies thereof filed with the
Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T
of the
Commission ("REGULATION S-T").
Each Issuer Free Writing Prospectus (including any electronic
road
show), as of its issue date and at all subsequent times through
the
completion of the public offer and sale of the Securities or until
any
earlier date that the Company notified or notifies the
Representative as
described in Section 3(e) hereof, did not, does not and will not
include
any
information that conflicted, conflicts or will conflict with
the
information contained in the Registration Statement, including any
document
incorporated by reference therein
4
<PAGE>
and
any preliminary or other prospectus deemed to be a part thereof
that
has
not been superseded or modified. The foregoing sentence does not
apply
to
statements in or omissions from any Issuer Free Writing Prospectus
based
upon and in conformity
with written information furnished to the Company by
any
Underwriter through the Representative expressly for use therein
(it
being understood and agreed that the only such information
furnished by an
Underwriter consists of the information described as such in
Section 6
hereof).
(c) Independent Accountants. The accountants who certified the
financial statements and supporting schedules included in the
Registration
Statement are independent public accountants within the meaning of
Rule 101
of
the Code of Professional Conduct of the American Institute of
Certified
Public Accountants and its interpretations and rulings
thereunder.
(d) Financial Statements. The financial statements, together with
the
related notes, included in the Registration Statement and the
Pricing
Disclosure Package, and the financial statements, together with the
related
notes, included in the Prospectus, present fairly the respective
financial
positions of the Company and its consolidated subsidiaries as of
the dates
indicated and the results of their operations for the periods
specified;
except as otherwise stated in the Registration Statement, the
Pricing
Disclosure Package or the Prospectus, as applicable, said
financial
statements have been prepared in conformity with generally
accepted
accounting principles ("GAAP") applied on a consistent basis;
the
supporting schedules present fairly the information required to be
stated
therein; and the Company's ratio of earnings to fixed charges
(actual and,
if
any, pro forma) included in the Prospectus and the Pricing
Disclosure
Package have in each case been calculated in compliance with Item
503(d) of
Regulation S-K of the Commission. The selected historical financial
data
and
summary financial information, if any, included in each of the
Pricing
Disclosure Package and the Prospectus present fairly, in all
material
respects, the information shown therein and have been compiled on a
basis
consistent with that of the audited financial statements included
in the
Registration Statement. Except as set forth in the Pricing
Disclosure
Package and the Prospectus, respectively, the historical
consolidated
financial statements together with the notes thereto forming part
of the
Pricing Disclosure Package and the Prospectus comply as to form in
all
material respects with the requirements applicable to financial
statements
of
the Company required to be included in registration statements on
Form
S-3
under the 1933 Act. The forward-looking statements contained in
the
Pricing Disclosure Package and the Prospectus are based upon good
faith
estimates and assumptions believed by the Company and the
Subsidiary
Guarantors to be reasonable at the time made and the pro forma
financial
information and the related notes thereto included or incorporated
by
reference in the Pricing Disclosure Package and the Prospectus has
been
prepared in accordance with the Commission's rules and guidance
with
respect to pro forma financial information, and the material
assumptions
underlying such pro forma financial information are reasonable and
are set
forth in the Pricing Disclosure Package and the Prospectus. All
disclosures
contained in each of the Registration Statement, the Pricing
Disclosure
Package and the Prospectus regarding "non-GAAP financial measures"
(as such
term is defined by the
rules and regulations of the Commission) comply with
Regulation G under the 1934 Act and Item 10 of Regulation S-K of
the 1933
Act
5
<PAGE>
Regulations, to the extent applicable. As used herein,
"subsidiaries" has
the
meaning ascribed thereto in Regulation S-X under the 1933 Act.
(e) No Material Adverse Change. Since the respective dates as of
which
information is given in the Registration Statement, the Pricing
Disclosure
Package and the Prospectus, except as otherwise stated therein, (i)
there
has
been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business
prospects of
the
Company and its subsidiaries considered as one enterprise, whether
or
not
arising in the ordinary course of business (a "MATERIAL ADVERSE
EFFECT"), (ii) there have been no transactions entered into by the
Company
or
any of its subsidiaries, other than those in the ordinary course
of
business, which are material with respect to the Company and
its
subsidiaries considered as one enterprise and (iii) there has been
no
dividend or distribution of any kind declared, paid or made by the
Company
on
any class of its capital stock.
(f) Good Standing of the Company. The Company has been duly
incorporated and is validly existing as a corporation in good
standing
under the laws of the State of Delaware with corporate power and
authority
to
own, lease and operate its properties and to conduct its business
as
described in the Registration Statement, the Prospectus and the
Pricing
Disclosure Package and to enter into and perform its obligations
under this
Agreement; and the Company is duly qualified as a foreign
corporation to
transact business and is in good standing in each jurisdiction in
which
such
qualification is required, whether by reason of the ownership
or
leasing of property or the conduct of business, except where the
failure so
to
qualify or to be in good standing would not result in a Material
Adverse
Effect.
(g) Good Standing of Designated Subsidiaries. Except as disclosed
in
each
of the Pricing Disclosure Package and the Prospectus, the Company
does
not
own, lease or license any asset or property or conduct any
business
outside the United States of America other than in connection with
foreign
marketing offices that are incidental to the Company's
marketing
activities. Each of the subsidiaries of the Company listed on
Schedule D
hereto (collectively, the "COMPANY SUBSIDIARIES" and, individually,
each a
"COMPANY SUBSIDIARY") has been duly incorporated or formed and is
validly
existing as a corporation, limited liability company, general
partnership
or
limited partnership in good standing under the laws of its state
or
other jurisdiction of incorporation or formation. Each of the
Company
Subsidiaries that is a general partnership has been duly formed and
is
validly existing as a general partnership under the laws of its
state or
other jurisdiction of formation. Each Company Subsidiary is duly
qualified
and
in good standing as a foreign corporation or limited liability
company
in
each jurisdiction in which the character or location of its assets
or
property (owned, leased or licensed) or the nature of its business
makes
such
qualification necessary, except for such jurisdictions where
the
failure to qualify would not have a Material Adverse Effect. The
Company
does
not control, directly or indirectly, any corporation,
partnership,
joint venture, association or other business organization other
than the
Company Subsidiaries. All of the issued and outstanding capital
stock or
other ownership interests, as the case may be, of each Company
Subsidiary
has
been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company (with the exception of
MGM Grand
6
<PAGE>
Detroit, LLC (including its subsidiaries), MGM Grand (Macao)
Limited and
MGM
Grand Olympia Ltd. (in which the Company has approximately a
97%,
89.99% and 82.5% interest, respectively)), directly or through
subsidiaries, free and clear of any security interest, mortgage,
pledge,
lien, encumbrance, claim or equity, except for liens permitted
under the
Indenture as supplemented by the Supplemental Indenture as
described under
"Limitations on Liens" in the Pricing Disclosure Package and
the
Prospectus.
(h) Capitalization. The authorized, issued and outstanding
capital
stock of the Company is as set forth in each of the Pricing
Disclosure
Package and the Prospectus (except for subsequent issuances or
purchases,
if
any, pursuant to this Agreement or pursuant to reservations,
agreements,
employee benefit plans, the exercise of convertible securities or
the
Company's stock repurchase program referred to in each of the
Pricing
Disclosure Package and the Prospectus); and the shares of issued
and
outstanding common stock have been duly authorized and validly
issued and
are
fully paid and non-assessable.
(i) Permits. Except where any such failure to do so would not have
a
Material Adverse Effect, each of the Company and the Company
Subsidiaries
has
all requisite corporate or limited liability company power and
authority, and all necessary authorizations, approvals, consents,
orders,
licenses, certificates and permits of and from all governmental
or
regulatory bodies or any other person or entity, including any and
all
licenses, permits and approvals required under any foreign,
federal, state
or
local law (including the Nevada Gaming Control Act, the New
Jersey
Casino Control Act, the Michigan Gaming Control and Revenue Act,
the
Illinois Riverboat Gambling Act and the Mississippi Gaming Control
Act and
the
rules and regulations thereunder and any similar laws and
regulations
governing any aspect of legalized gaming in any foreign, federal,
state or
local jurisdiction (collectively, the "GAMING LAWS")), to own,
lease and
license its assets and
properties and to conduct its business, but only to
the
extent the same are currently conducted and operated as described
in
each
of the Pricing Disclosure Package and the Prospectus, and, except
to
the
extent disclosed in each of the Pricing Disclosure Package and
the
Prospectus with respect to (i) the placement of restrictions on
the
transfer of and the entering into of agreements not to encumber
the
Company's interests in certain Company Subsidiaries licensed or
registered
under the Nevada Gaming Laws, and (ii) the receipt of the Illinois
Approval
relating to Nevada Landing (as such terms are defined below) to
execute the
Subsidiary Guarantees. Except to the extent disclosed in each of
the
Pricing Disclosure Package and the Prospectus with respect to the
placement
of
restrictions on the transfer of and the entering into agreements
not to
encumber the Company's interests in certain Company Subsidiaries
licensed
or
registered under the Nevada Gaming Laws, the Company and each of
the
Company Subsidiaries have fulfilled and performed in all material
respects
all
of their obligations with respect to such authorizations,
approvals,
consents, orders, licenses, certificates and permits, and neither
the
Company, nor any Company Subsidiary is in violation of any term
or
provision of any such authorizations, approvals, consents,
orders,
licenses, certificates or permits, nor has any event occurred which
allows,
or
after notice or lapse of time would allow, revocation or
termination
thereof or which could result in any material impairment of the
rights of
the
holder thereof. Neither the Company nor any of the Company
Subsidiaries
7
<PAGE>
has
any reason to believe that (i) any governmental or regulatory body
is
considering modifying, limiting, conditioning, suspending, revoking
or not
renewing any such authorizations, approvals, consents, orders,
licenses,
certificates or permits of the Company or any of the Company
Subsidiaries
(other than immaterial modifications, limitations and conditions
arising in
connection with licensing) or that (ii) such governmental or
regulatory
bodies are investigating the Company or any of the Company
Subsidiaries or
related parties (other than, with respect to (ii) above, normal
oversight
reviews by such bodies incident to the licensure, gaming activities
and
casino management activities of the Company and the Company
Subsidiaries).
(j) Non-Contravention. Neither the Company nor any Company
Subsidiary
is
in violation of its charter or in default in the performance or
observance of any material obligation, agreement, covenant or
condition
contained in any contract, indenture, mortgage, loan agreement,
note, lease
or
other instrument to which the Company or any Company Subsidiary is
a
party or by which it or any of them may be bound, or to which any
of the
property or assets of the Company or any Company Subsidiary is
subject
except for any violation or default which, individually or in
the
aggregate, would not have a Material Adverse Effect; and the
execution,
delivery and performance by the Company and each of the
Subsidiary
Guarantors of, as applicable, the Indenture, the Supplemental
Indenture,
the
Notes and the Subsidiary Guarantees, and the consummation of
the
transactions contemplated herein and therein and compliance by the
Company
and
the Subsidiary Guarantors with their obligations hereunder and
thereunder have been duly authorized by all necessary corporate
action and
will
not conflict with or constitute a breach of, or default under,
or
result in the creation or imposition of (other than as
expressly
contemplated thereby) any lien, charge or encumbrance upon any
property or
assets of the Company or any Company Subsidiary pursuant to, any
contract,
indenture, mortgage, loan agreement, note, lease or other
instrument to
which the Company or any Company Subsidiary is a party or by which
it or
any
of them may be bound, or to which any of the property or assets of
the
Company or any Company Subsidiary is subject, nor will such action
result
in
any violation of the provisions of the charter or by-laws of the
Company
or
any Company Subsidiary or any applicable law, administrative
regulation
or
administrative or court decree.
(k) Absence of Labor Dispute. No labor dispute with the employees
of
the
Company or any Company Subsidiary exists or, to the knowledge of
the
Company, is imminent, and the Company is not aware of any existing
or
imminent labor disturbance by the employees of its or any
Company
Subsidiary's principal suppliers, manufacturers or contractors,
which, in
either case, may reasonably be expected to result in a Material
Adverse
Effect. None of the Company and its subsidiaries has violated (i)
any
federal, state or local law or foreign law relating to
discrimination in
hiring, promotion or pay of employees, (ii) any applicable wage or
hour
laws
or (iii) any provision of the Employee Retirement Income Security
Act
of
1974, as amended ("ERISA"), or the rules and regulations
thereunder,
which in any such event could be reasonably expected to have a
Material
Adverse Effect.
(l) Absence of Proceedings. There is no action, suit or
proceeding,
before or by any court or governmental agency or body, domestic or
foreign,
now
pending, or, to
8
<PAGE>
the
knowledge of the Company, threatened, against or affecting the
Company
or
any Company Subsidiary which has not been disclosed in each of
the
Pricing Disclosure Package and the Prospectus and could reasonably
be
expected to result in a Material Adverse Effect, could reasonably
be
expected to materially and adversely affect the properties or
assets of the
Company and the Company Subsidiaries or which could reasonably be
expected
to
materially and adversely affect the consummation of the
transactions
contemplated by this Agreement; the aggregate of all pending legal
or
governmental proceedings to which the Company or any Company
Subsidiary is
a
party or of which any of their respective property or assets is
the
subject which are not described in each of the Pricing Disclosure
Package
and
the Prospectus, including ordinary routine litigation incidental to
the
business, would not, considered in the aggregate, if adversely
determined
reasonably be expected to result in a Material Adverse Effect; and
there
are
no contracts or documents of the Company or any Company
Subsidiary
which are required to be filed as exhibits to the Registration
Statement or
otherwise included by the 1933 Act or the 1933 Act Regulations
which have
not
been filed or included in each of the Pricing Disclosure Package
and
the
Prospectus, which could, through breach, termination or by
execution of
their terms, reasonably be expected to result in a Material Adverse
Effect.
(m) Possession of Intellectual Property. The Company and the
Company
Subsidiaries own, have
incidental rights to or possess the right to use to
the
extent necessary in their businesses, or can acquire on
reasonable
terms, the patents, patent rights, licenses, inventions,
copyrights,
know-how (including trade secrets and other unpatented and/or
unpatentable
proprietary or confidential information, systems or
procedures),
trademarks, service marks and trade names (collectively,
"PROPRIETARY
RIGHTS") presently employed by them in connection with the business
now
operated by them, and neither the Company nor any Company
Subsidiary has
received any notice or is otherwise aware of any infringement of
or
conflict with asserted rights of others with respect to any
proprietary
rights, or of any facts which would render any proprietary rights
invalid
or
inadequate to protect the interest of the Company or any
Company
Subsidiary therein, and which failure, infringement or conflict (if
the
subject of any unfavorable decision, ruling or finding) or
invalidity or
inadequacy, singly or in the aggregate, would result in a Material
Adverse
Effect.
(n) No Authorization. No authorization, approval or consent of
any
court or governmental authority or agency is necessary in
connection with
the
offering, issuance or sale of the Notes, or the execution of
the
Subsidiary Guarantees, other than as required under Gaming Laws and
which
have
been obtained, except to the extent disclosed in each of the
Pricing
Disclosure Package and the Prospectus with respect to (i) the
placement of
restrictions on the transfer of and the entering into agreements
not to
encumber the Company's interests in certain Company Subsidiaries
licensed
or
registered under the Nevada Gaming Laws and (ii) the receipt of
the
Illinois Approval relating to Nevada Landing, and except such as
may be
required under the 1933 Act or the 1933 Act Regulations or state
securities
laws
or the qualification of the Indenture under the 1939 Act.
9
<PAGE>
(o) Authorization of Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and the
Subsidiary
Guarantors, and constitutes a valid and binding agreement of the
Company
and
the Subsidiary Guarantors, enforceable against them in accordance
with
its
terms, except as the enforcement thereof may be limited by (i)
bankruptcy, insolvency (including without limitation, all laws
relating to
fraudulent transfers), reorganization, moratorium or similar laws
affecting
enforcement of creditors' rights generally, (ii) general principles
of
equity (regardless of whether enforcement is considered in a
proceeding in
equity or at law) and (iii) with respect to rights of
indemnification or
contribution, federal or state securities laws or principles of
public
policy.
(p) Authorization of the Indenture. The Indenture and the
Supplemental
Indenture have been duly authorized by the Company and the
Subsidiary
Guarantors and, at the Closing Time, will have been duly executed
and
delivered by the Company and the Subsidiary Guarantors and, at such
time,
will
constitute a valid and binding agreement of the Company and the
Subsidiary Guarantors, enforceable against them in accordance with
its
terms, except as the enforcement thereof may be limited by (i)
bankruptcy,
insolvency (including without limitation, all laws relating to
fraudulent
transfers), reorganization, moratorium or similar laws
affecting
enforcement of creditors' rights generally, (ii) general principles
of
equity (regardless of whether enforcement is considered in a
proceeding in
equity or at law) and (iii) with respect to rights of
indemnification or
contribution, federal or state securities laws or principles of
public
policy.
(q) Authorization of the Securities. The Notes and the
Subsidiary
Guarantees have been duly authorized and, at the Closing Time, will
have
been
duly executed by the Company and the Subsidiary Guarantors,
respectively, and, when authenticated, issued, executed and
delivered in
the
manner provided for in the Indenture as supplemented by the
Supplemental Indenture and delivered against payment of the
purchase price
therefor, will constitute valid and binding obligations of the
Company and
the
Subsidiary Guarantors, respectively, enforceable against them
in
accordance with their terms, except in each case as the enforcement
thereof
may
be limited by (i) bankruptcy, insolvency (including without
limitation,
all
laws relating to fraudulent transfers), reorganization, moratorium
or
similar laws affecting enforcement of creditors' rights generally,
(ii)
general principles of equity (regardless of whether enforcement
is
considered in a proceeding in equity or at law) and (iii) with
respect to
rights of indemnification or contribution, federal or state
securities laws
or
principles of public policy.
(r) Authority of the Company. The Company has all requisite
corporate
power and authority to enter into this Agreement, the Indenture,
the
Supplemental Indenture and the Notes and to carry out the
provisions and
conditions hereof and thereof.
(s) Authority of the Subsidiary Guarantors. Each Subsidiary
Guarantor
has
all requisite corporate or limited liability company power and
authority to enter into this Agreement, the Indenture and the
Supplemental
Indenture and to carry out the provisions and conditions hereof
and
thereof.
10
<PAGE>
(t) Description of Certain Operative Agreements. The Securities
and
the
Indenture as supplemented by the Supplemental Indenture will
conform in
all
material respects to the respective statements relating thereto
contained in each of the Pricing Disclosure Package and the
Prospectus, and
will
be in substantially the respective forms filed or incorporated
by
reference, as the case may be, as exhibits to the Registration
Statement.
(u) Ranking. The Notes are and will be (i) senior in right of
payment
to
all subordinated indebtedness of the Company that is outstanding on
the
date
hereof or that may be incurred hereafter and (ii) equal in right
of
payment with all other indebtedness of the Company that is
outstanding on
the
date hereof or that may be incurred hereafter (except for
future
indebtedness of the Company that may be subordinated to the Notes).
The
Notes constitute "Senior Indebtedness" with respect to the
Company's 9 3/4%
Senior Subordinated Notes due 2007 and 8 3/8% Senior Subordinated
Notes due
2011
(the "SUBORDINATED NOTES") and the 9.375% Senior Subordinated
Notes
due
2010, 10.25% Senior Subordinated Notes due 2007 and 7.625%
Senior
Subordinated Debentures due 2013 (the "SUBORDINATED MANDALAY
NOTES") of
Mandalay Resort Group, a Nevada corporation ("MANDALAY").
(v) Subsidiary Guarantees. The Subsidiary Guarantee of each
Subsidiary
Guarantor is and will be (i) senior in right of payment to all
subordinated
indebtedness of the applicable Subsidiary Guarantor that is
outstanding on
the
date hereof or that may be incurred hereafter and (ii) equal in
right
of
payment with all other indebtedness of such Subsidiary Guarantor
that is
outstanding on the date hereof or that may be incurred hereafter
(except
for
future indebtedness of such Subsidiary Guarantor that may be
subordinated to such Subsidiary Guarantee). The Subsidiary
Guarantees
constitute "Senior Indebtedness" with respect to the Subordinated
Notes and
the
Subordinated Mandalay Notes.
(w) Incorporated Documents. Each of the Pricing Disclosure Package
and
the
Prospectus as delivered from time to time shall incorporate by
reference the most recent Annual Report of the Company on Form 10-K
filed
with
the Commission and each Quarterly Report of the Company on Form
10-Q
and
each Current Report of the Company on Form 8-K filed (and not
otherwise
furnished) with the Commission since the end of the fiscal year to
which
such
Annual Report relates. Additionally, each of the Pricing
Disclosure
Package and the Prospectus as delivered from time to time shall
incorporate
(i)
the Company's Proxy Statement for its 2006 Annual Meeting of
Stockholders, and (ii) the consolidated financial statements and
notes
thereto of Mandalay included in its Annual Report on Form 10-K for
the
fiscal year ended on January 31, 2005. The documents filed or to be
filed
pursuant to the 1934 Act and incorporated or deemed to be
incorporated by
reference in each of the Registration Statement, the Pricing
Disclosure
Package and the Prospectus on or prior to the Closing Date, at the
time
they
were filed, or hereafter are filed with the Commission, complied
and
will
comply in all material respects with the requirements of the 1934
Act,
the
1933 Act Regulations and the 1934 Act Regulations, and, when
read
together with the other information in the Pricing Disclosure
Package or
the
Prospectus, as applicable, at the Applicable Time and at the
Closing
Time, did not and will not contain an untrue
11
<PAGE>
statement of a material fact or omit to state a material fact
required to
be
stated therein or necessary in order to make the statements
therein, in
light of the circumstances under which they were made, not
misleading.
(x) Investment Company Act. The Company is not, and upon the
issuance
and
sale of the Notes as herein contemplated and the application of the
net
proceeds therefrom as described in the Prospectus will not be,
an
"investment company" or an entity "controlled" by an "investment
company"
as
such terms are defined in the Investment Company Act of 1940, as
amended
(the
"1940 ACT").
(y) NASD. To the Company's knowledge, (i) the Company is not
the
parent or an affiliate of any of the Underwriters, (ii) the Company
is not
the
parent of a member (as defined in Rule 0120 of the National
Association
of
Securities Dealers, Inc. ("NASD")) and (iii) none of the
Underwriters or
their respective associated persons, parents or affiliates have a
conflict
of
interest with the Company. For purposes of this representation
and
warranty, "parent", "affiliate" and "conflict of interest" are
defined in
Rule
2720 of the Conduct Rules of the NASD.
(z) Reporting Company. The Company is subject to the reporting
requirements of Section 13 or Section 15(d) of the 1934 Act.
(aa) Appointment of Qualified Independent Underwriter. The
Company
hereby confirms its engagement of JEFFERIES & COMPANY, INC. as
a "qualified
independent underwriter" within the meaning of Rule 2720 of the
Conduct
Rules of the National Association of Securities Dealers, Inc. with
respect
to
the offering and sale of the Securities. JEFFERIES & Company,
Inc.
solely in its capacity as qualified independent underwriter and
not
otherwise, is referred to herein as the "INDEPENDENT
UNDERWRITER".
SECTION 2. SALE AND DELIVERY TO UNDERWRITERS; CLOSING.
(a)
Notes. On the basis of the representations and warranties
herein
contained and subject to the terms and conditions herein set forth,
the Company
agrees to sell to each Underwriter, severally and not jointly, and
each
Underwriter, severally and not jointly, agrees to purchase from the
Company, at
the price set forth in Schedule B, the aggregate principal amount
of Notes set
forth in Schedule A opposite the name of such Underwriter, plus any
additional
principal amount of Notes which such Underwriter may become
obligated to
purchase pursuant to the provisions of Section 9 hereof, and the
Subsidiary
Guarantors agree to execute and deliver the Subsidiary Guarantees
of such Notes.
(b)
Payment. Pursuant to Rule 15c6-1(d) under the 1934 Act, settlement
of
this offering will be six business days following the execution of
this
Agreement. Payment of the purchase price for, and delivery of
certificates for,
the Notes shall be made at the office of Gibson, Dunn &
Crutcher LLP, 2029
Century Park East, Suite 4000, Los Angeles, California 90067, or at
such other
place as shall be agreed upon by the Representative and the
Company, at 6:00
A.M. (Las Vegas time) on December 21, 2006 (unless postponed in
accordance with
the provisions of Section 10) (such time and date of payment and
delivery being
herein called the "CLOSING TIME").
12
<PAGE>
Payment shall be made to the Company by wire transfer to an account
or
sub-account designated by the Company prior to the Closing Time,
against
delivery to the Representative for the respective accounts of the
Underwriters
of certificates for the Securities to be purchased by them. It is
understood
that each Underwriter has authorized the Representative, for its
account, to
accept delivery of, receipt for, and make payment of the purchase
price for, the
Securities which it has agreed to purchase. Barclays, individually
and not as
representative of the Underwriters, may (but shall not be obligated
to) make
payment of the purchase price for the Securities to be purchased by
any
Underwriter whose funds have not been received by the Closing Time,
but such
payment shall not relieve such Underwriter from its obligations
hereunder.
(c)
Denominations; Registration. Global certificates representing the
Notes
shall be delivered to DTC. Interests in the Notes will be
represented by book
entries on the records of DTC as the Representative may request not
less than
two full business days in advance of the Closing Time. The Company
agrees to
have the global certificates, if any, available for inspection by
the
Representative in New York, New York, not later than 1:00 P.M. (Las
Vegas time)
on the business day prior to the Closing Time.
SECTION 3. COVENANTS OF THE COMPANY.
The
Company and each of the Subsidiary Guarantors, jointly and
severally,
covenants with each Underwriter as follows:
(a)
Effectiveness. The Company will comply with the requirements of
Rule
430B, including without limitation filing a prospectus including
the information
omitted from the Preliminary Prospectus in reliance on paragraph
(a) or (b) of
Rule 430B ("RULE 430B INFORMATION"), and will notify the
Representative
immediately, and confirm the notice in writing, (i) of the
effectiveness of any
post-effective amendment to the Registration Statement and any
amendment
thereto, (ii) of the receipt of any comments from the Commission,
(iii) of any
request by the Commission for any amendment to the Registration
Statement or any
amendment or supplement to the Prospectus or any document
incorporated by
reference therein or otherwise deemed to be a part thereof or for
additional
information, (iv) of the issuance by the Commission of any stop
order suspending
the effectiveness of the Registration Statement or the initiation
of any
proceedings for that purpose or of any examination pursuant to
Section 8(e) of
the 1933 Act concerning the Registration Statement and (v) if the
Company
becomes the subject of a proceeding under Section 8A of the 1933
Act in
connection with the offering of the Securities. The Company will
make every
reasonable effort to prevent the issuance of any stop order and, if
any stop
order is issued, to obtain the lifting thereof at the earliest
possible moment.
The Company will effect the filings required under Rule 424(b), in
the manner
and within the time period required by Rule 424(b) (without
reliance on Rule
424(b)(8)), and will take such steps as it deems necessary to
ascertain promptly
whether the form of prospectus transmitted for filing under Rule
424(b) was
received for filing by the Commission and, in the event that it was
not, it will
promptly file such prospectus. The Company will make every
reasonable effort to
prevent the issuance of any stop order and, if any stop order is
issued, to
obtain the lifting thereof at the earliest possible moment. The
Company shall
pay the required Commission filing fees relating to the Securities
within the
time required by Rule 456(b)(1) (i) of the 1933 Act
13
<PAGE>
Regulations without regard to the proviso therein and otherwise in
accordance
with Rules 456(b) and 457(r) of the 1933 Act Regulations.
(b)
Amendments. The Company will give the Representative prompt notice
of
its intention to file or prepare any post-effective amendment to
the
Registration Statement or any amendment or supplement to the
Preliminary
Prospectus or any prospectus included in the Original Registration
Statement or
amendment thereto at the time it became effective or to the
Prospectus, whether
pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish
the
Representative with copies of any such amendment or supplement a
reasonable
amount of time prior to such proposed filing or use, as the case
may be, and
will not file any such amendment or supplement or use any such
Prospectus to
which the Representative or counsel for the Underwriters shall
reasonably
object.
(c)
Delivery of Registration Statement. The Company will deliver to
the
Representative as many signed copies of the Original Registration
Statement and
of each amendment thereto (including exhibits filed therewith or
incorporated by
reference therein and documents incorporated or deemed to be
incorporated by
reference therein or otherwise deemed to be a part thereof) as
the
Representative may reasonably request and will also deliver to
the
Representative a conformed copy of the Original Registration
Statement and of
each amendment thereto (without exhibits) for each of the
Underwriters. The
copies of the Original Registration Statement and each amendment
thereto
furnished to the Underwriters will be identical to the
electronically
transmitted copies thereof filed with the Commission pursuant to
EDGAR, except
to the extent permitted by Regulation S-T.
(d)
Prospectus; Delivery of Prospectus. The Company will prepare
the
Pricing Supplement and file the Pricing Supplement pursuant to Rule
433 under
the 1933 Act within the time required by such rule and file
promptly all other
material required to be filed by the Company with the Commission
pursuant to
Rule 433. As promptly as practicable following the Applicable Time
and in any
event not later than the second business day following the date
hereof, the
Company will prepare and deliver to the Underwriters the
Prospectus, which shall
consist of the Preliminary Prospectus as modified only by the
information
contained in the Pricing Supplement. The Company will not amend or
supplement
the Preliminary Prospectus or the Pricing Supplement. The Company
will, during
the period prior to the completion of the resale of the Securities
by the
Underwriters, furnish to each Underwriter, without charge, such
number of copies
of the Pricing Disclosure Package and the Prospectus and any
amendments and
supplements thereto and documents incorporated by reference therein
as such
Underwriter may reasonably request. In addition, the Company will
furnish to
each Underwriter, from time to time during the period when the
Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such
number of
copies of the Prospectus (as amended or supplemented) as such
Underwriter may
reasonably request for the purposes contemplated by the 1933 Act or
the 1934 Act
or the respective applicable rules and regulations of the
Commission thereunder.
The Prospectus and any amendments or supplements thereto furnished
to the
Underwriters will be identical to the electronically transmitted
copies thereof
filed with the Commission pursuant to EDGAR, except to the extent
permitted by
Regulation S-T.
(e)
Notice and Effect of Material Events; Continued Compliance with
Securities Laws. The Company will immediately notify each
Underwriter and
confirm each such notice in
14
<PAGE>
writing, of any material changes in or affecting the condition,
financial or
otherwise, or the results of operations, business affairs or
business prospects
of the Company and its subsidiaries considered as one enterprise
which (i) make
any statement in the Pricing Disclosure Package or the Prospectus
false or
misleading in any material respect or (ii) if not disclosed in
either the
Pricing Disclosure Package or the Prospectus would constitute a
material
omission therefrom. The Company will comply with the 1933 Act and
the 1933 Act
Regulations, the 1934 Act and the 1934 Act Regulations and the 1939
Act and the
1939 Act Regulations so as to permit the completion of the
distribution of the
Securities as contemplated in this Agreement and in the Prospectus.
If at any
time when a prospectus is required by the 1933 Act to be delivered
in connection
with sales of the Securities, any event shall occur or condition
shall exist as
a result of which it is necessary, in the opinion of the Company,
its counsel,
the Underwriters or counsel for the Underwriters, to amend the
Registration
Statement or amend or supplement the Prospectus in order that the
Prospectus
will not include any untrue statements of a material fact or omit
to state a
material fact necessary in order to make the statements therein not
misleading
in the light of the circumstances existing at the time it is
delivered to a
purchaser, or if it shall be necessary, in the opinion of such
counsel, at any
such time to amend the Registration Statement or to file a new
registration
statement or amend or supplement the Prospectus in order to comply
with the
requirements of the 1933 Act or the 1933 Act Regulations, the
Company will
promptly prepare and file with the Commission, subject to Section
3(b), such
amendment or supplement as may be necessary to correct such
statement or
omission or to make the Registration Statement, such new
registration statement
or the Prospectus comply with such requirements, and the Company
will furnish to
the Underwriters such number of copies of such amendment or
supplement as the
Underwriters may reasonably request. If at any time following
issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or
development
as a result of which such Issuer Free Writing Prospectus conflicted
or would
conflict with the information contained in the Registration
Statement, any
prospectus supplement relating to the Securities or the Prospectus
or included
or would include an untrue statement of a material fact or omitted
or would omit
to state a material fact necessary in order to make the statements
therein, in
the light of the circumstances prevailing at that subsequent time,
not
misleading, the Company will promptly notify the Representative
and, subject to
Section 3(m), will promptly amend or supplement, at its own
expense, such Issuer
Free Writing Prospectus to eliminate or correct such conflict,
untrue statement
or omission.
(f)
Qualification of Securities for Offer and Sale. The Company
will
endeavor, in cooperation with the Underwriters, to qualify the
Securities for
offering and sale under the applicable securities laws of such
states and other
jurisdictions as the Representative may designate; provided,
however, that the
Company shall not be obligated to qualify as a foreign corporation
in any
jurisdiction in which it is not so qualified. In each jurisdiction
in which the
Notes have been so qualified, the Company will file such statements
and reports
as may be required by the laws of such jurisdiction to continue
such
qualification in effect for a period of not less than one year from
the
Applicable Time.
(g)
Use of Proceeds. The Company will use the net proceeds received by
it
from the sale of the Notes in conformity with the uses set forth in
each of the
Pricing Disclosure Package and the Prospectus.
15
<PAGE>
(h)
Reporting Requirements. The Company, until the completion of
the
distribution of the Securities as contemplated by this Agreement
and the
Prospectus, will file all documents required to be filed with the
Commission
pursuant to the 1934 Act within the time periods required by the
1934 Act and
the 1934 Act Regulations. The Company will timely file such reports
pursuant to
the 1934 Act as are necessary in order to make generally available
to its
securityholders as soon as practicable an earnings statement as
defined in Rule
158 for the purposes of, and to provide the benefits contemplated
by, the last
paragraph of Section 11(a) of the 1933 Act.
(i)
Restriction on Sale of Securities. During the period from the
date
hereof to and including the Closing Time, the Company will not,
without the
Representative's prior written consent, directly or indirectly,
issue, sell,
offer to sell, grant any option for the sale of, or otherwise
dispose of, any
Notes or securities similar to the Notes, or any securities
convertible into or
exchangeable or exercisable for any Notes or any such similar
securities, except
for Notes sold to the Underwriters pursuant to this Agreement.
(j)
Consents. The Company will, from the date hereof until the Closing
Time
and after the Closing Time, use its commercially reasonable efforts
to obtain
the requisite governmental consents with respect to the placement
of
restrictions on the transfer of and the entering into agreements
not to encumber
the Company's interests in the Company Subsidiaries.
(k)
Rating of Securities. The Company shall take all reasonable
action
necessary to enable Standard & Poor's Ratings Group
("S&P"), and Moody's
Investors Service Inc. ("MOODY'S") to provide their respective
credit ratings of
the Notes.
(l)
DTC. The Company will cooperate with the Representative and use
its
best efforts to permit the Notes to be eligible for clearance and
settlement
through the facilities of DTC.
(m)
Issuer Free Writing Prospectuses. The Company represents and
agrees
that, unless it obtains the prior consent of the Representative, it
has not made
and will not make any offer relating to the Securities that would
constitute an
Issuer Free Writing Prospectus or that would otherwise constitute a
free writing
prospectus required to be filed with the Commission. Any such free
writing
prospectus consented to by the Company and the Representative is
hereinafter
referred to as a "Permitted Free Writing Prospectus." The Company
represents
that it has treated or agrees that it will treat each Permitted
Free Writing
Prospectus as an Issuer Free Writing Prospectus and has complied
and will comply
with the requirements of Rule 433 applicable to any Permitted Free
Writing
Prospectus, including timely filing with the Commission where
required,
legending and record keeping. If at any time following issuance of
an Issuer
Free Writing Prospectus there occurred or occurs an event or
development as a
result of which such Issuer Free Writing Prospectus conflicted or
would conflict
with the information contained in the Registration Statement, the
Pricing
Disclosure Package or the Prospectus, the Company has promptly
notified or will
promptly notify the Underwriters and has promptly amended or
supplemented or
will promptly amend or supplement, at its own expense, such Issuer
Free Writing
Prospectus to eliminate or correct such conflict.
16
<PAGE>
(n)
Illinois Approval. From and after the date of this Agreement,
the
Company and Nevada Landing Partnership, an Illinois general
partnership ("NEVADA
LANDING"), shall use their commercially reasonable best efforts to
obtain the
approval of the Illinois Gaming Board for Nevada Landing to become
a Subsidiary
Guarantor and guarantee the Notes (the "ILLINOIS APPROVAL").
(o)
Stabilization. The Company and the Company Subsidiaries agree not
to
take, directly or indirectly, any action which constitutes or is
designed to
cause or result in any action prohibited by Regulation M under the
1934 Act, in
connection with the distribution of the Notes.
SECTION 4. PAYMENT OF EXPENSES.
(a)
Expenses. The Company will pay all expenses incident to the
performance
of its obligations under this Agreement, including (i) the
preparation, printing
and filing of the Registration Statement as originally filed, the
Pricing
Disclosure Package and Prospectus (including financial statements
and any
schedules or exhibits and any document incorporated therein by
reference) and of
each amendment or supplement thereto, (ii) the preparation,
printing and
delivery of this Agreement, the Indenture and the Supplemental
Indenture, (iii)
the preparation, issuance and delivery of the certificates for the
Securities to
the Underwriters, (iv) the fees and disbursements of the Company's
counsel and
accountants, (v) the qualification of the Securities under
securities laws in
accordance with the provisions of Section 3(f) hereof, including
filing fees and
the fees and disbursements of counsel for the Underwriters in
connection
therewith and in connection with the preparation of a Blue Sky
Survey, if any,
(vi) the printing and delivery to the Underwriters of copies of the
Original
Registration Statement and of each amendment thereto, and of the
Pricing
Disclosure Package and Prospectus and any amendments or supplements
thereto,
(vii) the printing and delivery to the Underwriters of copies of a
Blue Sky
Survey, (viii) the fees and expenses of the Trustee, including the
fees and
disbursements of counsel for the Trustee in connection with the
Indenture as
supplemented by the Supplemental Indenture and the Notes, (ix) any
fees payable
in connection with the rating of the Notes and (x) the fees and
expenses of the
Independent Underwriter.
(b)
Termination of Agreement. If this Agreement is terminated by
the
Representative in accordance with the provisions of Section 5 or
Section 9(a)
hereof, the Company shall reimburse the Underwriters for all of
their
out-of-pocket expenses, including the reasonable fees and
disbursements of
counsel for the Underwriters.
SECTION 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations
of the
Underwriters hereunder are subject to the accuracy of the
representations and
warranties of the Company and the Subsidiary Guarantors herein
contained, to the
performance by the Company and the Subsidiary Guarantors of their
obligations
hereunder, and to the following further conditions:
(a)
Effectiveness of Registration Statement. The Registration Statement
has
become effective and no stop order suspending the effectiveness of
the
Registration Statement shall have been issued under the 1933 Act or
proceedings
therefor initiated or threatened by the Commission, and any request
on the part
of the Commission for additional information shall have been
complied with to
the reasonable satisfaction of counsel to the Underwriters. A
17
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prospectus containing the Rule 430B Information shall have been
filed with the
Commission in the manner and within the time period required by
Rule 424(b)
without reliance on Rule 424(b)(8) (or a post-effective amendment
providing such
information shall have been filed and become effective in
accordance with the
requirements of Rule 430B).
(b)
Opinions of Counsel. At the Closing Time, the Underwriters shall
have
received:
(1) The favorable opinion, dated as of the Closing Time, of
Christensen, Glaser, Fink, Jacobs, Weil & Shapiro, LLP, counsel
for the
Company, in form and substance satisfactory to counsel for the
Underwriters, and covering the matters described in Exhibit A
hereto.
(2) The favorable
opinion, dated as of the Closing Time, of Lionel
Sawyer & Collins, Nevada counsel for the Company, in form and
substance
satisfactory to counsel for the Underwriters, and covering the
matters
described in Exhibit B hereto.
(3) The favorable opinion, dated as of the Closing Time, of Fox
Rothschild LLP, New Jersey counsel for the Company, in form and
substance
satisfactory to counsel for the Underwriters, and covering the
matters
described in Exhibit C hereto.
(4) The favorable opinion of Dickinson Wright PLLC, Michigan
counsel
to
the Company, in form and substance satisfactory to counsel for
the
Underwriters, and covering the matters described in Exhibit D
hereto.
(5) The favorable opinion of Butler, Snow, O'Mara, Stevens &
Cannada,
PLLC, Mississippi counsel to the Company, in form and substance
satisfactory to counsel for the Underwriters, and covering the
matters
described in Exhibit E hereto.
(6) The
favorable opinion, dated as of the Closing Time, of Gibson,
Dunn
& Crutcher LLP, counsel for the Underwriters, and covering the
matters
described in Exhibit F hereto.
(7) The favorable opinion, dated as of the Closing Time, of Bryan
L.
Wright, Assistant General Counsel of the Company, and covering the
matters
described in Exhibit G hereto.
(8) The favorable opinion, dated as of the Closing Time, of
Shefsky
and
Froelich Ltd., Illinois counsel
