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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,
Harrison 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.
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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
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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.
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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.
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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 t
