Exhibit 1.2
XXXXXXX XX, LLC
THE OLD XXXXXXXXXX XXXXX CAPITAL CORP.
$233,000,000 8 3/4% SENIOR SECURED NOTES DUE 2012
JOINDER TO THE PURCHASE AGREEMENT
June 16, 2004
XXXXXXXXX & COMPANY, INC.
00000 Xxxxx Xxxxxx Xxxxxxxxx
00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to (a) the Purchase Agreement, dated March 25,
2004 (the "PURCHASE AGREEMENT"), by and among Xxxxxxx Xx, LLC, a Delaware
limited liability company (the "COMPANY"), The Old Xxxxxxxxxx Xxxxx Capital
Corp., a Delaware corporation ("CAPITAL" and, together with the Company, the
"ISSUERS"), the Guarantors listed on the signature pages thereto under the
heading "Guarantors," and, with respect to Section 12 thereto only, Peninsula
Gaming, LLC, a Delaware limited liability company (the "PARENT ISSUER") on the
one hand, and Xxxxxxxxx & Company, Inc. (the "INITIAL PURCHASER"), on the other
hand, and (b) the Indenture, dated as of the Closing Date (the "INDENTURE"), by
and among the Issuers and U.S. Bank National Association, as Trustee.
Capitalized terms used herein but not defined herein shall have the respective
meanings assigned to such terms in the Purchase Agreement.
The Issuers have received the Requisite Regulatory Approvals for the
Reorganization Transactions. The Purchase Agreement and the Indenture require
that this Joinder to the Purchase Agreement (this "JOINDER") be executed and
delivered as part of, and concurrently with the consummation of, the
Reorganization Transactions.
1. Joinder. The Parent Issuer hereby agrees to become bound by the
terms, conditions and other provisions of the Purchase Agreement with all
attendant rights, duties and obligations stated therein, with the same force and
effect as if originally named as an "Issuer" therein and as if the Parent Issuer
had executed the Purchase Agreement on the date thereof.
2. GOVERNING LAW. THIS JOINDER SHALL BE CONSTRUED AND INTERPRETED,
AND THE RIGHTS OF THE PARTIES SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, INCLUDING WITHOUT LIMITATION, SECTIONS 5 1401 AND 5 1402
OF THE NEW YORK GENERAL OBLIGATIONS LAW AND RULE 327(b) OF NEW YORK CIVIL
PRACTICE LAWS AND RULES. EACH ISSUER AND EACH GUARANTOR HEREBY IRREVOCABLY
SUBMITS TO THE JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH
OF MANHATTAN IN THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS JOINDER, AND IRREVOCABLY ACCEPTS
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY,
JURISDICTION OF THE
AFORESAID COURTS. EACH ISSUER AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND
ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT
ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. EACH ISSUER AND EACH GUARANTOR IRREVOCABLY CONSENTS, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF
PROCESS OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY
THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID,
TO SUCH ISSUER OR SUCH GUARANTOR, AS THE CASE MAY BE, AT ITS ADDRESS SET FORTH
HEREIN, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER SUCH MAILING. NOTHING
HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY TO THIS JOINDER TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE
PROCEED AGAINST ANY OTHER PARTY TO THIS JOINDER IN ANY OTHER JURISDICTION.
3. Counterparts. This Joinder may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
4. Amendments. No amendment or waiver of any provision of this
Joinder, nor any consent or approval to any departure therefrom, shall in any
event be effective unless the same shall be in writing and signed by the parties
hereto.
5. Headings. The headings in this Joinder are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
[signature pages follow]
If the foregoing is in accordance with your understanding of this
Joinder, kindly sign and return to us a counterpart thereof, whereupon this
instrument will become a binding agreement between the Parent Issuer and the
Initial Purchaser in accordance with its terms.
Very truly yours,
PENINSULA GAMING, LLC
By:/s/X. XXXXX XXXXXXX
---------------------------------------
Name: X. Xxxxx Xxxxxxx
Title: Chief Executive Officer
Accepted and Agreed to:
XXXXXXXXX & COMPANY, INC.
By:/s/XXXXX XXXXXXX
---------------------
Name: Xxxxx Xxxxxxx
Title: Managing Director
