Exhibit 10.13
UP TO BUT NOT TO EXCEED $60,000,000
MISSISSIPPI BUSINESS FINANCE CORPORATION
INDUSTRIAL DEVELOPMENT REVENUE BONDS, SERIES 2004
(PREMIER ENTERTAINMENT BILOXI LLC PROJECT)
January 23, 2004
BOND PURCHASE CONTRACT
Mississippi Business Finance Corporation
Jackson, Mississippi
Premier Entertainment Biloxi LLC
Biloxi, Mississippi
Premier Finance Biloxi Corp., a Delaware corporation (the "Purchaser"),
offers to enter into this Bond Purchase Contract (this "Contract") with the
Mississippi Business Finance Corporation (the "Issuer"), a public corporation
organized and existing under the laws of the State of Mississippi (the "State")
and Premier Entertainment Biloxi LLC, a limited liability corporation organized,
validly existing and in good standing under the laws of the State of Delaware
(the "Company"), which, upon your acceptance will be binding upon the Issuer,
the Company and the Purchaser.
1. BACKGROUND
a. The Issuer will issue and sell, from time to time, its
Industrial Development Revenue Bonds, Series 2004 (Premier Entertainment Biloxi
LLC Project) in the aggregate principal amount of up to $60,000,000 (the
"Bonds") to provide for the acquisition, construction, equipping and
installation of a hotel and related improvements (as further described herein,
the "Project") in the City of Biloxi, Xxxxxxxx County, Mississippi which is to
be owned by the Company. The Issuer and the Company will enter into a Loan
Agreement (the "Loan Agreement") dated as of January 1, 2004 providing, among
other things, for payments at times and in amounts sufficient to pay when due
the principal of, premium, if any, and interest on the Bonds.
b. The Bonds will be issued pursuant to the provisions of Title
57, Chapter 10, Article 7 of the Mississippi Code of 1972, as amended and
supplemented (the "Act"), resolutions of the Issuer dated November 19, 2003 and
December 17, 2003 (collectively the "Resolution") and a Trust Indenture (the
"Indenture") dated as of January 1, 2004 between the Issuer and Standard
Federal-Corporate and Institutional Trust, a division of LaSalle Bank National
Association, as Trustee (the "Trustee"). The Bonds are limited obligations of
the Issuer, payable solely from payments to be made by the Company pursuant to
the Loan Agreement and a related Promissory Note to the Issuer (the "Series 2004
Note"). Payment of the Bonds is secured by the lien of the Indenture on the
Trust Estate created thereunder which consists generally of money deposited in
the funds and accounts established under the Indenture and income from the
investment of such money as required by the Indenture, the Loan Agreement and
the Series 2004 Note.
1
c. The Bonds will contain the terms and provisions as described
in the Indenture and will bear interest at the rates described in the Indenture.
d. The terms and provisions of the Bonds have been approved by
the Company who enters into this Contract in order to induce the Purchaser to
purchase the Bonds at the price set forth herein.
e. No preliminary official statement, final official statement
or other disclosure document will be distributed in connection with the issuance
and sale of the Bonds.
f. It is intended that interest on the Bonds will not be
excludable from the gross income of the holder thereof for federal income tax
purposes.
g. The Purchaser is purchasing the Bonds for its own account
and agrees that it will not sell or otherwise transfer or dispose of the Bonds
without complying with applicable disclosure and registration requirements of
federal and state securities laws.
2. JOINT REPRESENTATION OF THE ISSUER AND THE COMPANY
The Issuer and the Company represent that the Project will constitute a
"business enterprise" within the meaning of the Act.
3. REPRESENTATIONS OF THE ISSUER
The Issuer makes the following representations, all of which will
survive the purchase and offering of the Bonds.
a. The Issuer is a public corporation organized and existing
under the laws of the State.
b. The Issuer is authorized by the provisions of the Act to
issue the Bonds, to loan the proceeds of the Bonds to the Company pursuant to
the Loan Agreement to be used for the financing, from time to time, of the
Project, to pledge and assign the Loan Agreement, the Series 2004 Note and the
payments to be received by the Issuer pursuant thereto and the funds established
pursuant to the Indenture and investment earnings and amounts therein as
security for the payment of the principal of, premium, if any, and interest on
the Bonds, all pursuant to the Indenture.
c. The Issuer has complied with all provisions of the
Constitution and the laws of the State pertaining to the issuance and sale of
the Bonds, including the Act, and has full power and authority to authorize and
thereafter consummate all transactions contemplated by this Contract, the Bonds,
the Indenture, the Loan Agreement and any and all other agreements relating
thereto.
d. The Issuer has duly adopted the Resolution and has duly
authorized the execution and delivery of this Contract, the Loan Agreement and
the Indenture to the Trustee and
2
the issuance and sale of the Bonds, and has taken all actions and obtained all
approvals necessary and appropriate to carry out same.
e. The Issuer has duly authorized all necessary actions to be
taken by the Issuer for (i) the issuance and sale of the Bonds upon the terms
set forth herein and in the Indenture, (ii) the execution, delivery, receipt and
due performance of this Contract, the Bonds, the Indenture, the Loan Agreement,
and any and all other agreements and documents as may be required to be
executed, delivered and received by the Issuer in order to carry out, give
effect to and consummate the transaction contemplated hereby and by the issuance
and sale of the Bonds and (iii) the carrying out, giving effect to, and
consummation of the transactions contemplated hereby, by the Indenture and by
the issuance and sale of the Bonds. Executed counterparts of the Loan Agreement
and the Indenture will be delivered to the Purchaser by the Issuer on the
Initial Closing Date (as hereinafter defined).
f. To the best of the Issuer's knowledge, there is no action,
suit, proceeding, inquiry, investigation at law or in equity or before or by any
court, public board or body pending or threatened against or affecting the
Issuer (or any basis therefor), wherein an unfavorable decision, ruling or
finding would adversely affect the transactions contemplated hereby or by the
issuance and sale of the Bonds or the validity of the Bonds, the Indenture, the
Loan Agreement, this Contract, or any agreement or instrument to which the
Issuer is or is expected to be a party and which is used or contemplated for use
in the consummation of the transaction contemplated hereby or by the issuance
and sale of the Bonds.
g. The execution and delivery by the Issuer of this Contract,
the Bonds, the Indenture, the Loan Agreement, and other agreements contemplated
hereby or by the issuance and sale of the Bonds and compliance with the
provisions thereof will not conflict with or constitute, on the part of the
Issuer, a breach of or a default under any existing law, court or administrative
regulation, decree or order or any agreement, indenture, mortgage, lease or
other instrument to which the Issuer is subject or by which the Issuer is or may
be bound.
h. Any certificate signed by any of the Issuer's authorized
officers and delivered to the Purchaser shall be deemed a representation and
warranty by the Issuer to the Purchaser as to the statements made therein.
4. REPRESENTATIONS OF THE COMPANY
The Company makes the following representations, all of which will
survive the purchase and offering of the Bonds.
a. The Company is a limited liability corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and is duly qualified and is in good standing to do business in the
State.
b. The Company has full corporate power and authority to
authorize and thereafter consummate all transactions contemplated by this
Contract, the Loan Agreement, the Series 2004 Note, the Indenture and any and
all other agreements relating thereto.
3
c. The Company has duly authorized all necessary actions to be
taken by the Company for (i) the execution, delivery, receipt and due
performance of this Contract, the Loan Agreement, the Series 2004 Note and any
and all other agreements and documents as may be required to be executed,
delivered and received by the Company in order to carry out, give effect to and
consummate the transaction contemplated hereby and by the issuance and sale of
the Bonds, (ii) the carrying out, giving effect to and consummation of the
transactions contemplated hereby and by the Indenture, the issuance of the
Bonds, the Loan Agreement and the Series 2004 Note to constitute valid and
binding obligations of the Company enforceable in accordance with their
respective terms, except to the extent that the enforceability thereof may be
limited (A) by bankruptcy, reorganization, or similar laws limiting the
enforceability of creditors' rights generally or (B) by the availability of any
discretionary equitable remedies.
d. The execution and delivery by the Company of this Contract,
the Loan Agreement and the Series 2004 Note and the other documents contemplated
hereby and by the issuance and sale of the Bonds and compliance with the
provisions thereof will not conflict with or constitute on the Company's part a
breach of or a default under any existing law, court or administrative
regulation, decree or order or any agreement, indenture, mortgage, lease or
other instrument to which the Company is subject or by which the Company is or
may be bound.
e. Any certificate signed by any of the Company's authorized
officers and delivered to the Purchaser shall be deemed a representation and
warranty by the Company to the Purchaser as to the statements made therein.
f. The Company has obtained or will obtain as and when required
by applicable law all approvals required in connection with the execution and
delivery of and performance by the Company of its obligations under this
Contract, the Loan Agreement and the Series 2004 Note and in relation to the
Project.
g. To the best of the Company's knowledge, there is no action,
suit, proceeding, inquiry, investigation at law or in equity or before or by any
court, public board or body pending or threatened against or affecting the
Company (or any basis therefor), wherein an unfavorable decision, ruling or
finding would materially adversely affect the transactions contemplated hereby
or by the issuance and sale of the Bonds or the validity of the Bonds, the
Indenture, the Loan Agreement, the Series 2004 Note, this Contract or any
agreement or instrument to which the Company is or is expected to be a party and
which is used or contemplated for use in the consummation of the transaction
contemplated hereby or by the issuance and sale of the Bonds.
h. Prior to the commercial operation date of the Project, the
Company will have obtained all licenses, permits, franchises or other
governmental authorizations necessary for the acquisition, installation,
equipping and operation, from time to time, of the Project in each case, except
to the extent that any such license, permit, franchise or authorization is not
required to have been obtained prior to commercial operation or in the ordinary
course of business not obtained until after commercial operation and except to
the extent that failure to obtain any such license, permit, franchise or
authorization does not materially and adversely effect the Company or the
Project.
4
5. COVENANTS OF THE COMPANY
The Company covenants and agrees to the following covenants, all of
which will survive the purchase and offering of the Bonds and any investigations
made by or on behalf of the Purchaser.
a. The Company agrees to indemnify and hold harmless the
Issuer, the Purchaser, any officer, agent or employee of the Issuer and each
person, if any, who controls any of the foregoing within the meaning of Section
15 of the Securities Act of 1933, as amended, or Section 20 of the Securities
Exchange Act of 1934, as amended (collectively referred to herein as the
"Indemnified Parties"), against any and all losses, claims, damages, liabilities
or expenses whatsoever arising out of or resulting from or in any way related to
the issuance and sale of the Bonds, any breach by the Company of any of, or the
inaccuracy of any of, its representations, warranties and covenants set forth in
this Contract and the financing, from time to time, of the Project utilizing the
Net Proceeds and the acquisition, installation, equipping, from time to time,
and the use of the Project; provided, however, that the Company shall not
indemnify and hold harmless any Indemnified Party from damages that result from
(i) wanton or gross negligence or intentional or wilful misconduct on the part
of the party seeking such indemnity, or (ii) any misstatement or omission
appearing in any offering circular, official statement or other document solely
in reliance on information furnished by the party seeking such indemnity.
In case any action shall be brought against one or more of the
Indemnified Parties based upon the information described in the preceding
paragraph and in respect of which indemnity may be sought against the Company,
the Indemnified Parties shall promptly notify the Company in writing and the
Company shall promptly assume the defense thereof, including the employment of
counsel reasonably acceptable to the Indemnified Parties, the payment of all
reasonable expenses, and the right to negotiate and consent to settlement. Any
one or more of the Indemnified Parties has the right, at its own expense, to
employ separate counsel in any such action and to participate in the defense
thereof. The Company shall not be liable for any settlement of any such action
effected without its written consent, but if settled with the written consent of
the Company, or if there be a final judgment for the plaintiff in any such
action with or without its consent, the Company agrees to indemnify and hold
harmless the Indemnified Parties from and against any loss or liability by
reason of such settlement of judgment.
b. The Company will not take or omit to take, as may be
applicable, any action which would, in any way, cause the proceeds of the Bonds
to be applied in a manner contrary to the requirements of the Indenture, the
Loan Agreement and the Series 2004 Note.
c. Whether or not the sale of the Bonds by the Issuer to the
Purchaser is consummated, the Company agrees that the Purchaser shall have no
obligation to pay any costs or expenses incident to the performance of the
obligations of the Issuer under this Contract. All reasonable actual out of
pocket costs and expenses to affect the preparation, issuance, sale and delivery
of the Bonds, the Indenture, the Loan Agreement and the Series 2004 Note, and
the reasonable actual out of pocket fees and expenses of the Issuer and of Bond
Counsel shall be paid by the Company.
5
d. Notwithstanding the foregoing provisions of this Section 5,
no past, present or future partner, member, shareholder, manager, director,
officer, employee, agent or any affiliate of the Company or Purchaser (other
than the Company and the Purchaser), nor their respective heirs, personal
representatives, successors or assigns, shall be personally liable for any
judgment or deficiency with regard to amounts owed under this Agreement. No
member of the Company or shareholder of the Purchaser shall have any personal
liability under this Agreement or any other instrument, document or agreement
entered into or delivered in connection with this Agreement and the transactions
contemplated hereby (collectively, the "Related Documents") and no recourse for
the payment of any amount due under this Agreement, or for any claim arising out
of or relating to this Agreement or any other Related Documents, whether for
failure to pay, perform or discharge any monetary or non-monetary obligation,
breaches of representations, warranties or covenants, the occurrence of
defaults, or otherwise, shall be due or owing, or had or recoverable against or
from, any past, present or future partner, member, shareholder, manager,
director, officer, employee, agent, or affiliate of the Company or the Purchaser
(or any successor or assign thereof) (other than the Company and the Purchaser).
6. PURCHASE, SALE AND DELIVERY OF THE BONDS
a. On the basis of the representations, warranties and
covenants contained herein, and in the other agreements referred therein and
subject to the terms and conditions herein set forth, on the Initial Closing
Date and from time to time thereafter, the Purchaser agrees to purchase from the
Issuer and the Issuer agrees to sell to the Purchaser all or any portion of the
Bonds for a purchase price of one hundred percent (100%) of the principal amount
of the Bonds issued and sold, from time to time, as provided for hereunder and
in the Indenture. In accordance with the provisions of Section 2.02 of the
Indenture, the Purchaser agrees that it will pay the purchase price for the
Bonds as follows: (i) $500,000 will be paid on the Initial Closing Date for
deposit into the Company Direct Disbursement Account in the Construction Fund,
(ii) in the Purchaser's discretion, the Purchaser will purchase additional
principal amounts of the Bonds from time to time and the proceeds thereof shall
be deposited into the Company Direct Disbursement Account in the Construction
Fund, provided, that the Purchaser shall never pay the Trustee an amount for
deposit into the Company Direct Disbursement Account in the Construction Fund if
such deposit results in said Account having more than $500,000 on deposit
therein, and (iii) the Purchaser will pay to the Trustee the amount necessary to
satisfy requisitions submitted to the Trustee by the Company from time to time
pursuant to Section 5.03(a) of the Indenture.
b. The Issuer will, on the Initial Closing Date, deliver the
Bonds in the form of one (1) fully registered bond to the Trustee who will hold
the Bonds as agent for the Purchaser. The Bonds will be in the form set forth in
the Indenture and will contain a grid on which the Trustee will evidence each
purchase of the principal amount of the Bonds from time to time. Each purchase
of the principal amount of the Bonds will be made to or for the account of the
Purchaser against payment of the purchase price therefor by check or wire
payable in immediately available funds to the order of the Trustee, at or prior
to 12:00 noon, Mississippi time, at such places, times and dates as shall be
mutually agreed upon by the Issuer and the
6
Purchaser (each, a "Closing Date"). The Bonds will be dated as of the date of
the Initial Closing Date, will be delivered in fully registered form in such
amounts as the Purchaser shall request, and will be registered in the name of
the Purchaser. The Bonds may be in printed, engraved, typewritten or photocopied
form and each such form shall constitute "definitive form."
c. The Bonds shall bear interest at the rates, mature on the
date and have such other terms as described in the Indenture.
d. In connection with the purchase, sale and delivery of the
Bonds and except as hereinafter provided in paragraph (e) of this Section 6, the
Purchaser represents and warrants to the Issuer and the Company as follows:
(i) The Purchaser has sufficient knowledge and experience
in financial and business matters generally, including purchase and ownership of
municipal obligations, to be able to evaluate the risks and merits of the
investment represented by the purchase of the above-stated principal amount of
the Bonds, and the Purchaser is able to bear such risks, including without
limitation, the risk of loss of such investment;
(ii) No offering statement, prospectus or offering circular
containing information with respect to the Issuer, the Bonds, the Project or the
Company has been or will be prepared and that the Purchaser has made its own
inquiry and analysis with respect to the Bonds and the security therefor, the
Project, the Company and its subsidiaries and other material factors affecting
the security and payment of the Bonds;
(iii) The Purchaser has either been supplied with or has had
access to all information, including financial statements and other financial
information of the Company and its subsidiaries, to which a reasonable investor
would attach significance in making investment decisions, and has had the
opportunity to ask questions and receive answers from knowledgeable individuals
concerning the Company and its subsidiaries, the Project, the Bonds and the
security therefor, so that as a reasonable investor the Purchaser has been able
to make its decision to purchase the above-stated principal amount of the Bonds;
(iv) The Bonds (i) are not being registered under the
Securities Act of 1933 and are not being registered or otherwise qualified for
sale under the "Blue Sky" laws and regulations of any state, (ii) will not be
listed on any stock or other securities exchange, (iii) will carry no rating
from any rating service, and (iv) will not be readily marketable; and
(v) The Purchaser is purchasing the Bonds for its own
account for investing and with no present intention of distributing or reselling
the Bonds or any part thereof, but subject, nevertheless, to the disposition of
the Bonds being at all times within the control of the Purchaser. Xxxxxxxxx
agrees that the Bonds will not be sold in contravention of the Securities Act of
1934, as amended, or in contravention of the securities laws of any state.
Notwithstanding the above, the Purchaser will pledge the Bonds to the Senior
Notes Trustee to secure amounts the Senior Notes.
e. To the extent that all of the Bonds are not issued and
purchased by the Purchaser on or before the Term Note Date, any of the Bonds not
so issued and purchased shall not thereafter be issued.
7
7. BOND DOCUMENTS
On or prior to ___________, 2004 or such other date mutually agreeable
to the Issuer, the Company and the Purchaser (the "Initial Closing Date"), the
Purchaser shall have received a copy of each of the following documents duly
executed by all parties thereto as certified to the satisfaction of the
Purchaser:
a. the Indenture;
b. the Loan Agreement; and
c. the Series 2004 Note.
The foregoing documents are hereinafter collectively referred to as the "Bond
Documents." The Issuer and the Company shall immediately upon their execution
provide the Purchaser with any amendments of the Bond Documents.
8. CONDITIONS TO OBLIGATIONS OF THE PURCHASER
(a) Requirements for Initial Closing Date Disbursements. With
respect to the obligation of the Purchaser to purchase and pay for a portion of
the Bonds on the Initial Closing Date and the obligation of the Issuer to sell a
portion of the Bonds to the Purchaser on the Initial Closing Date, the following
conditions precedent shall have been satisfied:
i. The Issuer shall have received the approving opinion
of Bond Counsel dated the Initial Closing Date in form and substance acceptable
to the Purchaser, and the Purchaser shall have received a letter from Bond
Counsel dated the Initial Closing Date and addressed to the Purchaser, to the
effect that the Purchaser may rely upon such firm's opinion as if it were
addressed to the Purchaser.
ii. The Purchaser shall have received the opinion of
counsel to the Issuer, dated the Initial Closing Date and addressed to the
Purchaser in form and substance acceptable to the Purchaser.
iii. On or prior to the Initial Closing Date, all actions
required to be taken as of the Initial Closing Date in connection with the
Bonds, the Resolution and the Bond Documents by the Issuer and the Company shall
have been taken, and the Issuer and the Company shall each have performed or
complied with the terms of this Contract, the Bonds, the Resolution and the Bond
Documents, and each party shall deliver a certificate to such effect insofar as
the foregoing actions, agreements, covenants and conditions apply to each such
party, and each of such agreements shall be in full force and effect and shall
not have been amended, modified or supplemented, except as has been agreed to in
writing by the Purchaser.
iv. Each of the Bond Documents shall have been executed
and delivered by each of the respective parties thereto, all such documents
shall be in forms exhibited
8
to the Purchaser on the date hereof with only such changes as the Purchaser may
approve in writing, and each of the Bond Documents shall be in full force and
effect.
v. The Purchaser shall have received a certificate, dated
the Initial Closing Date and signed on behalf of the Issuer, to the effect that:
(1) the Issuer has not received notice of any
pending, nor to the Issuer's knowledge is there any threatened, action, suit,
proceeding, inquiry or investigation against the Issuer, at law or in equity, by
or before any court, public board or body, nor to the Issuer's knowledge is
there any basis therefor, affecting the existence of the Issuer or the titles of
its officials to their respective offices, or seeking to prohibit, restrain or
enjoin the sale, issuance or delivery of the Bonds or the pledge of revenues or
assets of the Issuer pledged or to be pledged to pay the principal of and
interest on the Bonds, or in any way materially adversely affecting or
questioning (A) the territorial jurisdiction of the Issuer, (B) the use of the
proceeds of the Bonds to finance the Project, (C) the validity or enforceability
of the Bonds, any proceedings of the Issuer taken with respect to the Bonds, or
any of the Bond Documents to which it is a party, (D) the execution and delivery
of this Contract or the Bonds, or (E) the power of the Issuer to carry out the
transactions contemplated by this Contract, the Bonds, the Indenture or any of
the Bond Documents to which the Issuer is a party; and
(2) the Issuer has complied with all the covenants
and satisfied all of the conditions on its part to be performed or satisfied at
or prior to the Initial Closing Date, and the representations and warranties of
the Issuer contained herein and in each of the Bond Documents to which it is a
party are true and correct as of the Initial Closing Date.
vi. The Purchaser shall have received an opinion of
counsel to the Company, dated the Initial Closing Date and addressed to the
Purchaser in form and substance acceptable to the Purchaser.
vii. The Purchaser shall have received certificates dated
the Initial Closing Date from the Company to the effect that the Company has
complied with all of the covenants and satisfied all of the conditions to be
performed or satisfied by it on or prior to the Initial Closing Date, and the
representations and warranties of the Company contained in this Contract and in
each of the Bond Documents to which it is a party are true, correct and complete
as of the Initial Closing Date, and it has full legal right, power and authority
to enter into and carry out the transactions contemplated by the Bond Documents.
viii. The Purchaser shall have received a certificate, dated
the Initial Closing Date and signed by an authorized officer of the Trustee, to
the effect that (i) he or she is an authorized officer of the Trustee, (ii) the
Indenture has been duly executed and delivered by the Trustee, (iii) the Trustee
has all necessary corporate and trust powers required to carry out the trust
created by the Indenture, (iv) to the best of his or her knowledge, the
acceptance by the Trustee of the duties and obligations of the Trustee under the
Indenture and compliance with the provisions thereof will not conflict with or
constitute a breach of or default under any law, administrative regulation,
consent decree or any agreement or other instrument to which the Trustee is
subject or by which the Trustee is bound, and (v) the Trustee has duly
authenticated the Bonds, and the person signing the certificate or
authentication on each Bond has been duly authorized to do so.
9
ix. Evidence, satisfactory in form and substance to the
Purchaser and Bond Counsel, of a satisfactory and favorable conclusion to a bond
validation proceeding under the laws of the State with respect to the Bonds
shall have been received.
x. None of the events referred to in Section 9 of this
Contract shall have occurred.
xi. Such additional certificates, opinions and other
documents as the Purchaser or Bond Counsel may reasonably request prior to the
Initial Closing Date to evidence performance of or compliance with the
provisions of this contract and the transactions contemplated hereby and by the
issuance and sale of the Bonds, all such certificates and other documents to be
satisfactory in form and substance to the Purchaser, shall have been received.
If any conditions to the obligations of the Purchaser
or the Issuer contained in this Contract are not satisfied and the satisfaction
of such conditions shall not be waived by the Purchaser, then, at the option of
the Purchaser (i) the Initial Closing Date shall be postponed for such period as
may be necessary for such conditions to be satisfied or (ii) without limiting
the generality of Section 14 of this Contract, the obligations of the Purchaser
and the Issuer under this Contract shall terminate, and neither the Purchaser
nor the Issuer shall have any further obligations or liabilities hereunder, and
the Company shall have no further obligations or liabilities hereunder other
than its obligations under Section 5 hereof.
(b) Requirements for Disbursements On Each Closing Date. With
respect to the obligation of the Purchaser to purchase and pay for a portion of
the Bonds on each Closing Date, including the Initial Closing Date, and the
obligation of the Issuer to sell a portion of the Bonds to the Purchaser on each
Closing Date, including the Initial Closing Date, the following conditions
precedent shall have been satisfied:
i. The representations and warranties of the Company
herein and the representations and warranties made in each of the Bond Documents
by the respective parties thereto shall be true, correct and complete on the
date hereof, on the Initial Closing Date and on each Closing Date, and each such
party to the Bond Documents, including the Company, shall deliver a certificate
to such effect on the Initial Closing Date and the Company shall deliver such a
certificate on each Closing Date. The Issuer and the Company shall have
performed all of their obligations hereunder and the statements made on behalf
of the Issuer and the Company hereunder shall be true and correct on the date
hereof, on the Initial Closing Date and on each Closing Date, and the Issuer and
the Company shall deliver certificates to such effect on the Initial Closing
Date and the Company shall deliver such a certificate on each Closing Date.
ii. Except as may have been agreed to by the Purchaser,
as of the Initial Closing Date and each Closing Date, each of the Bond
Documents, the Resolution and all other official action of the Issuer relating
thereto shall be in full force and effect and shall not have been amended,
modified or supplemented without the written approval of the Purchaser.
iii. No default or event of default (as defined in any of
the Bond Documents) shall have occurred and be continuing, and no event shall
have occurred and be continuing as of the Initial Closing Date and each Closing
Date which, with the lapse of time or the giving of notice or both, would
constitute such a default or event of default.
10
iv. In the sole judgment of the Purchaser, no material
adverse change shall have occurred, nor shall any development involving a
prospective material and adverse change in, or affecting the affairs, business,
financial condition, results of operations, prospects or properties (including
the Project) of the Issuer or the Company have occurred, between the date hereof
and the Initial Closing Date.
All of the legal opinions, certificates, proceedings, instruments and
other documents mentioned above or elsewhere in this Contract shall be deemed to
be in compliance with the provisions hereof if, but only if, they are in form
and substance satisfactory to the Purchaser and the Issuer.
9. TERMINATION
The Purchaser may terminate its obligations hereunder by written notice
to the Issuer and the Company if, at any time subsequent to the date hereof and
on or prior to the Initial Closing Date:
a. There shall have occurred any material change in the
business or affairs of the Issuer or the Company or any material change in the
Project which, in the sole judgment of the Purchaser, materially adversely
affects the financial condition, business, properties or prospects of the
Company.
b. Any condition of the Purchaser's obligations hereunder is
not satisfied because of any refusal, inability or failure on the part of the
Company or the Issuer to comply with any of the terms or to fulfill any of the
conditions provided for or contemplated by this Contract, or if for any reason
the Company, the Trustee or the Issuer shall be unable to perform all of their
obligations or satisfy conditions, respectively provided for or contemplated in
this Contract.
10. EXPENSES
Except as otherwise provided herein, the Company shall cause to be paid
out of this own funds or the proceeds of the Bonds, the costs of issuing the
Bonds, including, but not limited to, the fees and expenses described in Section
5 of this Contract; whether or not the sale of the Bonds by the Issuer to the
Purchaser is consummated.
11. CONDITION OF THE ISSUER'S OBLIGATIONS
The Issuer's obligations hereunder are subject to the Purchaser's
performance of its obligations hereunder.
11
12. NOTICES
Any notice or other communication to be given to the Issuer under this
Contract may be given by delivering the same in writing as follows:
If to the Issuer - Mississippi Business Finance
Corporation
000 Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000
If to the Company - Premier Entertainment Biloxi LLC
P.O. Box 268
Biloxi, Mississippi 39533-0268
Attention: Chief Financial Officer
If to the Trustee - Standard Federal-Corporate and
Institutional Trust, a division of
LaSalle Bank National Association
0000 Xxxx Xxx Xxxxxx
Xxxx, Xxxxxxxx 00000
Attention: Corporate Trust Department
If to the Purchaser - Premier Finance Biloxi Corp.
P.O. Box 268
Biloxi, Mississippi 39533-0268
Attention: Chief Financial Officer
13. SUCCESSORS
This Contract is made solely for the benefit of the Issuer, the
Purchaser and the Company (including their successors or assigns) and no other
person shall acquire or have any right hereunder or by virtue hereof (other than
pursuant to Section 5 hereof).
14. SURVIVAL OF CERTAIN REPRESENTATIONS AND WARRANTIES
All agreements, covenants, representations and warranties and all other
statements of the Issuer and the Company set forth in or made pursuant to this
Contract shall remain in full force and effect and shall survive the Initial
Closing Date and the delivery of the Bonds, from time to time.
15. GOVERNING LAW
This Contract shall be governed by the laws of the State.
16. MISCELLANEOUS
This Contract constitutes the only agreement among the parties hereto
relating to the subject matter hereof and it supersedes and cancels any and all
previous contracts, agreements or understandings with respect thereto. This
Contract may not be amended or modified except in
12
writing executed by all parties hereto. Capitalized terms not otherwise defined
herein shall have the meaning assigned to them in the Indenture and the Loan
Agreement.
17. COUNTERPARTS
This Contract may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Very truly yours,
PREMIER FINANCE BILOXI CORP.
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Title: President and COO
--------------------------------
[Signature page of Bond Purchase Contract]
13
Accepted on MISSISSIPPI BUSINESS FINANCE
_______,2004 CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Executive Director
[Signature page of Bond Purchase Contract]
14
PREMIER ENTERTAINMENT BILOXI LLC
Accepted on
_________, 2004
By: /s/ Xxxxxx Xxxxxxxxx
-----------------------------------
Title: President and COO
-------------------------------
[Signature page of Bond Purchase Contract]
15
