Exhibit 10.60
PENINSULA GAMING,
LLC
DIAMOND JO, LLC
PENINSULA GAMING
CORP.
$12,000,000 8
3 / 4 %
Senior Secured Notes due 2012
$10,000,000 8
3 / 4 %
Senior Secured Notes due 2012
PURCHASE
AGREEMENT
December 22, 2006
JEFFERIES & COMPANY, INC.
11100 Santa Monica Boulevard
10th Floor
Los Angeles, California
90025
Ladies and Gentlemen:
Each of Peninsula Gaming, LLC, a
Delaware limited liability company (" PGL "), Diamond Jo,
LLC, a Delaware limited liability company (" DJL "), and
Peninsula Gaming Corp., a Delaware corporation (" PGC " and,
collectively with PGL and DJL, the " Issuers "), and each of
the entities listed on the signature pages hereto under the heading
"Subsidiary Guarantors" (the " Subsidiary Guarantors ")
hereby agrees with you as follows:
I. Issuance of
Securities. The
Issuers propose to issue and sell to Jefferies & Company, Inc.
(the " Purchaser "), and the Purchaser proposes to purchase,
$12,000,000 aggregate principal amount of the Issuers' 8
3 / 4
% Senior Secured Notes due 2012,
Series A (together with the Guarantees (as defined below) endorsed
thereon, the " Tranche 1 Notes "). The Issuers also propose
to issue and sell to the Purchaser, and the Purchaser proposes to
purchase $10,000,000 aggregate principal amount of the Issuers'
8 3 / 4
% Senior Secured Notes due 2012,
Series A (together with the Guarantees endorsed thereon, the "
Tranche 2 Notes " and, together with the Tranche 1 Notes,
the " New Notes ").
The New Notes will be issued
pursuant to an indenture, dated as of April 16, 2004, by and among
the Issuers, the "Subsidiary Guarantors" (as defined in the
indenture) and U.S. Bank National Association, as trustee (the "
Trustee "), as supplemented and amended (the "
Indenture "). Pursuant to the Indenture and a Purchase
Agreement, dated as of March 25, 2004, by and among the Issuers,
the Subsidiary Guarantors and the Purchaser (the " Note Purchase
Agreement "), the Issuers issued on April 16, 2004,
$233,000,000 aggregate principal amount at maturity of 8
3 / 4
% Senior Secured Notes due 2012,
Series A (the " Original Notes ", and together with the New
Notes, the " Notes ").
Pursuant to the Indenture, each of
the Subsidiary Guarantors and any future subsidiary guarantor which
becomes a party to the Indenture will, jointly and severally, fully
and unconditionally guarantee, on a senior secured basis, to each
holder of New Notes and the Trustee, the payment and performance of
the Issuers' obligations under the Indenture, the New Notes and the
Security Documents (as defined below), including the payment of
principal, interest and premium, if any, and, if applicable,
Liquidated Damages (as defined in the Indenture) on the New Notes
(the " Guarantees ").
Pursuant to the terns of the
Security Documents, all of the respective obligations of the
Issuers and the Subsidiary Guarantors under the Indenture, the New
Notes and the Guarantees will be secured by security interests in,
or pledges of (the " Security Interests "), the same
collateral securing the Original Notes (the " Collateral
").
In connection with the issuance of
the New Notes, DJL and The Old Evangeline Downs, L.L.C. ("
OED ") have entered into a Fourth Amendment, dated as of
December 22, 2006 (the " Credit Agreement Amendment "), to
that certain Loan and Security Agreement, dated as of June 16,
2004, by and among DJL, OED, the lenders that are signatories
thereto and Wells Fargo Foothill, Inc., as the Arranger and Agent,
as amended by a First Amendment, dated November 10, 2004, a Second
Amendment dated as of July 12, 2005, and a Third Amendment, dated
as of December 6, 2006.
The New Notes will be offered and
sold to the Purchaser pursuant to an exemption from the
registration requirements under the Securities Act of 1933, as
amended (the " Act ").
Upon original issuance thereof, and
until such time as the same is no longer required under the
Indenture or the applicable requirements of the Act, the New Notes
shall bear the following legend:
"THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE
DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH
TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO,
REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER THIS
SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS (OR SUCH OTHER
PERIOD THAT MAY HEREAFTER BE PROVIDED UNDER RULE 144(k) UNDER THE
SECURITIES ACT AS PERMITTING RESALES OF RESTRICTED SECURITIES BY
NON-AFFILIATES WITHOUT RESTRICTION) AFTER THE LATER OF THE ORIGINAL
ISSUE DATE THEREOF AND THE LAST DATE ON WHICH THE ISSUERS OR ANY
AFFILIATE OF THE ISSUERS WAS THE OWNER OF THIS SECURITY (OR ANY
PREDECESSOR OF THIS SECURITY) (THE "RESALE RESTRICTION TERMINATION
DATE") ONLY (A) TO THE ISSUERS, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, (C) FOR SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED) INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A UNDER THE SECURITIES ACT, (D) PURSUANT TO
OFFERS AND SALES TO NON-U.S. PURCHASERS THAT OCCUR OUTSIDE THE
UNITED STATES IN ACCORDANCE WITH REGULATIONS UNDER THE SECURITIES
ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE
MEANING OF
2
SUBPARAGRAPH (a) (1), (2), (3) OR
(7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS
SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND
NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT OR (F) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE ISSUERS' AND THE TRUSTEE'S RIGHT
PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D),
(E) OR (F) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER
IN THE FORM APPEARING ON THIS SECURITY IS COMPLETED AND DELIVERED
BY THE TRANSFEROR TO THE TRUSTEE AND IN EACH CASE IN ACCORDANCE
WITH APPLICABLE SECURITIES LAWS OF ANY U.S. STATE OR ANY OTHER
APPLICABLE JURISDICTION."
2. Agreements to Sell
and Purchase; Delivery and Payment . On the basis of the representations,
warranties and agreements contained herein, and subject to the
terms and conditions hereof, the Issuers shall issue and sell to
the Purchaser, and the Purchaser agrees to purchase from the
Issuers, $12,000,000 aggregate principal amount at maturity of
Tranche I Notes and, following the issuance, sale and purchase of
the Tranche 1 Notes, $10,000,000 aggregate principal amount at
maturity of Tranche 2 Notes. The purchase price for the Tranche 1
Notes and the Tranche 2 Notes shall be 99.0% of the principal
amount at maturity thereof (the " Purchase Price
").
In connection with the issuance of
the Original Notes, the Issuers and the Subsidiary Guarantors
entered into certain security and pledge agreements, mortgages and
certain other collateral documents (collectively, the " Original
Security Documents "), that provided for the grant of the
Security Interests in the Collateral to U.S, Bank National
Association, as collateral agent for the Trustee and the holders of
the Notes (in such capacity, the " Secured Party "). On the
Closing Date, in connection with the issuance of the New Notes, the
Issuers and the Subsidiary Guarantors will enter into certain
amendments to the mortgages and certain other documents (each as
may be amended from time to time, collectively, the " New
Security Documents ") to reflect the issuance of the New Notes.
The Original Security Documents, as amended and supplemented by the
New Security Documents, are collectively referred to herein as the
" Security Documents ." The Security Interests secure the
payment and performance when due of all of the respective
obligations of the Issuers and the Guarantors under the Indenture,
the Notes and the Guarantees.
The following documents are referred
to herein as the " New Note Documents ": (i) this Agreement,
(ii) the New Notes (including the Guarantees), (iii) the New
Security Documents and (iv) the Credit Agreement Amendment. The
following documents are referred to herein as the " Original
Note Documents ": (i) the Original Notes (including the
Guarantees), (ii) the Indenture and (iii) the Original Security
Documents. The New Note Documents, together with the Original Note
Documents and the Security Documents, are referred to herein as the
" Note Documents. " The Company is party to a senior secured
credit facility (the " Senior Credit Facility "), and in
connection with the Senior Credit Facility, the Trustee, as Secured
Party, and the lenders thereunder or their agent entered into (and
the Issuers acknowledged) an intercreditor agreement substantially
in the form attached as an exhibit to the Indenture
3
(the " Intercreditor
Agreement "). The transactions contemplated by the Note
Documents, including, without limitation, the issuance and sale of
the New Notes in accordance with this Agreement, collectively are
referred to herein as the " Transactions ."
Delivery to the Purchaser of and
payment for the Tranche 1 Notes shall be made at 9:00 a.m., New
York City time, on December 22, 2006 (the " Closing Date "),
and, following the issuance, sale and purchase of the Tranche I
Notes, delivery to the Purchaser of and payment for the Tranche 2
Notes shall be made at 10:00 a.m., New York City time, on the
Closing Date, in each case at the offices of Mayer, Brown, Rowe
& Maw, LLP, 1675 Broadway, New York, New York 10019. The
Closing Date and the location of delivery of and the form of
payment for the New Notes may be varied by agreement between the
Purchaser and the Issuers.
On the Closing Date, the Issuers
shall deliver to the Purchaser a certificate representing the
Tranche 1 Notes and a certificate representing the Tranche 2 Notes,
each registered in the name of the Purchaser, in an amount
corresponding to the aggregate principal amount of each of the
Tranche 1 Notes and the Tranche 2 Notes, against payment by the
Purchaser of the Purchase Price therefor by immediately available
Federal funds bank wire transfer to such bank account as the
Issuers shall designate to the Purchaser.
On the Closing Date, in connection
with the Tranche 1 Notes, the Purchaser will pay to the Issuers, by
immediately available Federal funds bank wire transfer to such bank
account as the Issuers shall designate to the Purchaser,
$192,500.00, representing the amount of the interest payment to be
made with respect to the Tranche 1 Notes by the Issuers on April
15, 2007 (the first interest payment date on the New Notes pursuant
to the Indenture) less the amount of interest accruing from the
date hereof to April 15, 2007 (the " Tranche 1 Interest Set-off
Amount "). On the Closing Date, in connection with the Tranche
2 Notes, the Purchaser will pay to the Issuers, by immediately
available Federal funds bank wire transfer to such bank account as
the Issuers shall designate to the Purchaser, $160,416.67,
representing the amount of the interest payment to be made with
respect to the Tranche 2 Notes by the Issuers on April 15, 2007
(the first interest payment date on the New Notes pursuant to the
Indenture) less the amount of interest accruing from the date
hereof to April 15, 2007 (the " Tranche 2 Interest Set-off
Amount "). As used in this Agreement, the term "Purchase Price"
shall not include the Tranche 1 Interest Set-off Amount of the
Tranche 2 Interest Set-off Amount.
3. Agreements of the
Issuer and the Subsidiary Guarantors . Each of the Issuers and the Subsidiary
Guarantors, jointly and severally, hereby agrees:
(a) Certain Events . To
(i) advise the Purchaser promptly after obtaining knowledge (and,
if requested by the Purchaser, confirm such advice in writing) of
the issuance by any state securities commission of any stop order
suspending the qualification or exemption from qualification of any
of the New Notes for offer or sale in any jurisdiction, or the
initiation of any proceeding for such purpose by any state
securities commission or other regulatory authority, (ii) use its
reasonable best efforts to prevent the issuance of any stop order
or order suspending the qualification or exemption from
qualification of any of the New Notes under any state securities or
Blue Sky laws, and (iii) if at any time any state securities
commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of
any
4
of the New Notes under any such
laws, use its reasonable best efforts to obtain the withdrawal or
lifting of such order at the earliest practicable time.
(b) Costs and Expenses
. Whether or not the offer and sale of New Notes contemplated
hereby is consummated or this Agreement is terminated, to pay (i)
all costs, expenses, fees and taxes incident to and in connection
with the performance of the obligations of the Issuers and the
Subsidiary Guarantors under this Agreement, including the
preparation, issuance and delivery of the New Notes, including the
fees and expenses of the Trustee and the Secured Party (including
fees and expenses of their respective counsel) and the cost of
their respective personnel, and all costs and expenses related to
the delivery of the New Notes to the Purchaser, including any
transfer or other taxes payable thereon; (ii) all fees and expenses
of the counsel and accountants of the Issuers and their respective
direct and indirect parents and subsidiaries; (iii) the costs and
charges of any transfer agent, registrar and or depositary
(including DTC), (iv) all costs and expenses in connection with the
continuation of the perfection, priority, effectiveness and
enforceability of the Security Interests; and (v) all fees and
expenses (including reasonable fees and expenses of counsel)
incurred by the Purchaser in connection with the preparation,
negotiation and execution, as applicable, of the New Note Documents
and any other agreements or documents in connection with the
Transactions and the consummation of the Transactions.
(c) Waiver of Certain
Laws . To the extent it may lawfully do so, not to insist upon,
plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, extension usury or other law, wherever
enacted, now or at any time hereafter in force, that would prohibit
or forgive the payment of all or any portion of the principal of or
interest on the New Notes, or that may affect the covenants or the
performance of the Indenture or any of the Security Documents (and,
to the extent it may lawfully do so, each Issuer and each
Subsidiary Guarantor hereby expressly waives all benefit or
advantage of any such law, and covenants that it shall not, by
resort to any such law, hinder, delay or impede the execution of
any power granted to the Trustee in the Indenture or to the Secured
Party in the Security Documents but shall suffer and permit the
execution of every such power as though no such law had been
enacted),
(d) Security Interests
. To do and perform all things required to be done and performed
under the Security Documents prior to, on and after the Closing
Date, including, without limitation, all things that are required
to be done and performed under the Security Documents that are
necessary or reasonably advisable to continue the perfection,
priority, effectiveness and enforceability of the Security
Interests.
(e) Integration . Not
to, and to ensure that no affiliate (as defined in Rule 501(b)
under the Act) of any of the Issuers or the Subsidiary Guarantors
will, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any "security" (as defined in the Act) that
would be integrated with the sale of the New Notes in a manner that
would require the registration under the Act of the sale to the
Purchaser.
(f) Rule 144A
Information . For so long as any of the Notes remain
outstanding, during any period in which any of the Issuers is not
subject to Section 13 or 15(d) of the Securities Exchange Act of
1934, as amended (the " Exchange Act "), to make available,
upon
5
request, to any holder of the New
Notes in connection with any sale thereof and any prospective
Eligible Purchaser (as defined below) of such New Notes from such
holder, the information required by Rule 144A(d)(4) under the Act.
" Eligible Purchaser " for purposes of this Agreement shall
mean any of the following: (i) persons whom the Purchaser
reasonably believes to be "qualified institutional buyers," as
defined in Rule 144A under the Act (" QIBs "), (ii) non-U.S.
persons to which New Notes are sold in reliance upon Regulation S
under the Act (" Regulation S Purchasers "), and (iii) a
limited number of institutional "accredited investors," as defined
in Rule 501(a)(1), (2), (3) or (7) under the Act that make certain
representations and warranties to the Purchaser.
(g) DTC. To comply with
the representation letter of the Issuers to DTC relating to the
approval of the Notes by DTC for "book entry" transfer,
(h) No Selling Efforts or
General Solicitation . Not to, and not to authorize or permit
any person acting on its behalf to, (i) distribute any offering
material in connection with the offer and sale of the New Notes in
violation of the Act or (ii) solicit any offer to buy or offer to
sell the New Notes by means of any form of general solicitation or
general advertising (including, without limitation, as such terms
are used in Regulation D under the Act) or in any manner involving
a public offering within the meaning of Section 4(2) of the
Act.
(i) Performance of this
Agreement . To do and perform in all material respects all
things required or necessary to be done and performed on its part
under this Agreement on or prior to the Closing Date and to satisfy
in all material respects all conditions precedent to the delivery
of the New Notes.
(j) Further Assurances
. Following the Closing Date, the Issuers and the Subsidiary
Guarantors shall cooperate with the Purchaser and shall take such
actions as are reasonably requested by the Purchaser to permit the
Purchaser to offer, market and sell the New Notes to Eligible
Purchasers (the " Resale "), including, without limitation,
(i) providing the Purchaser and its advisors with such documents,
information and access to properties and employees as is reasonably
necessary to conduct a due diligence investigation customary in a
registered offering, (ii) delivering such documents and
certificates as may be reasonably requested by the Purchaser,
including customary opinions of counsel, "cold comfort" letters, a
registration rights agreement and other documents and agreements
(including indemnification for disclosure in the offering document)
comparable to those provided pursuant to the Note Purchase
Agreement (taking into account changes in securities laws), (iii)
preparing with the Purchaser's assistance an offering document for
use in connection with the Resale and such other documents as the
Purchaser reasonably determines are appropriate for the Resale,
(iv) obtaining any governmental, gaming, racing, Iiquor or other
regulatory approvals necessary or advisable in connection with the
Resale (including quotation of the New Notes in The Portal Market
and qualification of the Resale under applicable state securities
laws), (v) participating in customary efforts to offer, market and
sell the New Notes, including, without limitation, "road shows" or
other investor meetings, and securing the reasonable participation
of its senior management for such purposes, (vi) cooperating with
the Purchaser, the Trustee and DTC to prepare certificates
evidencing the New Notes so resold and making the New Notes so
resold eligible for book-entry at DTC and taking such actions as
are necessary so that the New Notes will have the same
CUSIP
6
number as, and will be fungible
with, the 8 3
/ 4 % Senior
Secured Notes due 2012, Series B, once the Notes issued in exchange
for the New Notes have been registered under the Act, and (vii)
using commercially reasonable efforts to take all other steps
necessary to effect the Resale.
The provisions of this Section
3 shall survive delivery of and payment for the New
Notes.
4. Representations and
Warranties of the Issuers and the Subsidiary
Guarantors . Each of
the Issuers and the Subsidiary Guarantors, jointly and severally,
represents and warrants to the Purchaser that:
(a) 144A Eligibility .
There are no securities of the same class (within the meaning of
Rule 144A) as the New Notes of any of the Issuers or any of the
Subsidiary Guarantors registered under the Exchange Act or listed
on a national securities exchange registered under Section 6 of the
Exchange Act or quoted in a United States automated inter-dealer
quotation system. The New Notes are eligible for resale pursuant to
Rule 144A under the Act.
(b) Due Organization; Good
Standing . Each of the Issuers and the Subsidiary Guarantors
(i) has been duly organized, is validly existing and is in good
standing under the laws of its jurisdiction of organization, (ii)
has all requisite power and authority to conduct and carry on its
business and to own, lease, use and operate its properties and
assets, and (iii) is duly qualified or licensed to do business and
is in good standing as a foreign limited liability company or
corporation, as the case may be, authorized to do business in each
jurisdiction in which the nature of its business or the ownership,
leasing, use or operation of its properties and assets requires
such qualification or licensing, except where the failure to be so
qualified or licensed would not, singly or in the aggregate, have a
material adverse effect on (A) the properties, business, prospects,
operations, earnings, assets, liabilities or condition (financial
or otherwise) of the issuers and the Subsidiary Guarantors, taken
as a whole, (B) the ability of any Issuer or Subsidiary Guarantor
to perform its obligations in all material respects under any of
the Note Documents to which it is a party or to consummate in all
material respects the offer and sale of the New Notes, (C) the
enforceability of any of the Security Documents to which it is a
party or the attachment, perfection or priority of any of the
Security Interests intended to be created thereby in any portion of
the Collateral in which it has an interest or (D) the validity of
any of the Note Documents to which it is a party or the
consummation of the offer and sale of the New Notes (each, a "
Material Adverse Effect ").
(c) Subsidiaries . The
corporate structure of the Issuers and the Subsidiary Guarantors
(including all of their subsidiaries) is as set forth on
Schedule 4(c) hereto. PGL directly owns 100% of the
outstanding shares of capital stock or membership interests of DJL,
PGC and each Subsidiary Guarantor, free and clear of all Liens (as
defined in the Indenture), except for Liens created by the
Indenture, Liens created by the Security Documents and Permitted
Liens (as defined in the Indenture), and Peninsula Gaming Partners,
LLP, a Delaware limited liability partnership, directly owns 100%
of the outstanding membership interests in PGL (except for the
Seller Preferred (as defined in the Indenture)), free and clear of
all Liens, except for Liens created by the Indenture and the
Security Documents. Except as disclosed in the Issuers' Form 10-K
for the year ended December 31, 2005, the Issuer's Form 10-Qs for
the quarters ended
7
March 31, 2006, June 30, 2006 and
September 30, 2006 and in any Current Reports on Form 8-K filed by
the Issuers since January 1, 2006 and prior to the date of this
Agreement (collectively, the " SEC Filings "), there are no
outstanding (i) securities convertible into or exchangeable for any
capital stock of or any membership interests in, as the case may
be, any of the Issuers or the Subsidiary Guarantors, (ii) options,
warrants or other rights to purchase or subscribe for any capital
stock of or any membership interests in, or any securities
convertible into or exchangeable for any capital stock of or any
membership interests in, as the case may be, any of the Issuers or
the Subsidiary Guarantors or (iii) contracts, commitments,
agreements, understandings, arrangements, undertakings, rights,
calls or claims of any kind relating to the issuance of any capital
stock of or any membership interests in, as the case may be, any of
the Issuers or the Subsidiary Guarantors, any such convertible or
exchangeable securities or any such options, warrants or rights.
Except as set forth on Schedule 4(c) hereto, none of the
Issuers or the Subsidiary Guarantors directly or indirectly owns
any capital stock of or other equity interest in any
person.
(d) Power and Authority
. Each of the Issuers and the Subsidiary Guarantors has (or had, at
the time of execution and delivery, if executed and delivered prior
to the date hereof) all requisite power and authority to execute
and deliver the Note Documents to which it is a party, and has all
requisite power and authority to perform its obligations under the
Note Documents to which it is a party and to consummate the offer
and sale of the New Notes.
(e) Authorization of this
Agreement . This Agreement and the Transactions contemplated
hereby (including, without limitation, the offer and sale of the
New Notes in accordance with this Agreement) have been duly
authorized by each of the Issuers and the Subsidiary Guarantors,
and this Agreement has been validly executed and delivered by each
of the Issuers and the Subsidiary Guarantors. This Agreement is the
legal, valid and binding obligation of each of the Issuers and the
Subsidiary Guarantors , enforceable against each of the Issuers and
the Subsidiary Guarantors in accordance with its terms, except to
the extent that (i) such enforceability may be limited by
applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally and (ii) any rights of acceleration and
the availability of equitable remedies may be subject to general
principles of equity (whether considered in a proceeding in equity
or at law).
(t) Authorization of
Notes. The New Notes have been duly authorized by each of the
Issuers for issuance and sale to the Purchaser pursuant to this
Agreement and, on the Closing Date, will have been validly
executed, authenticated, issued and delivered by the Issuers in
accordance with the terms of this Agreement and the Indenture. The
issuance of each of the Tranche 1 Notes and the Tranche 2 Notes is
authorized under and in compliance with the Indenture. When the New
Notes have been issued and executed by the Issuers and
authenticated by the Trustee in accordance with the terms of the
Indenture and delivered to and paid for by the Purchaser in
accordance with the terms of this Agreement, the New Notes will be
the legal, valid and binding obligations of each of the Issuers,
entitled to the benefits of the Indenture and enforceable against
each of the Issuers in accordance with their terns, except to the
extent that (i) such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) any rights of acceleration and the availability
of equitable remedies may be subject to general principles of
equity (whether considered in a proceeding in
8
equity or at law). Upon and
following delivery to the Purchaser, the New Notes will rank on a
parity with all senior Indebtedness (as defined in the Indenture)
of each of the Issuers that is outstanding on the date hereof or
that may be incurred hereafter and senior to all other Indebtedness
of each of the Issuers that is outstanding on the date hereof or
that may be incurred hereafter; provided, that pursuant to the
Intercreditor Agreement, the Lien on the Collateral securing the
Credit Facility is senior to the Lien on the Collateral securing
the Notes and the Guarantees to the extent provided in the
Intercreditor Agreement.
(g) Authorization of
Guarantees of New Notes . The Guarantee to be endorsed on the
New Notes by each Subsidiary Guarantor has been duly authorized by
each such Subsidiary Guarantor and, on the Closing Date, will have
been validly executed and delivered by each such Subsidiary
Guarantor in accordance with the terms of the Indenture. When the
New Notes have been issued, executed and authenticated in
accordance with the terms of the Indenture and delivered to and
paid for by the Purchaser in accordance with the terms of this
Agreement, the Guarantee of each Subsidiary Guarantor endorsed on
the New Notes will be the legal, valid and binding obligation of
each such Subsidiary Guarantor, enforceable against each such
Subsidiary Guarantor in accordance with its terms, except to the
extent that (i) such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) any rights of acceleration and the availability
of equitable remedies may be subject to general principles of
equity (whether considered in a proceeding in equity or at law).
The Guarantees to be endorsed on the New Notes rank and will rank
on a parity with all senior Indebtedness of the Subsidiary
Guarantors that is outstanding on the date hereof or that may be
incurred hereafter and senior to all subordinated Indebtedness of
the Subsidiary Guarantors that is outstanding on the date hereof or
that may be incurred hereafter; provided , that pursuant to
the Intercreditor Agreement, the Lien on the Collateral securing
the Credit Facility will be senior to the Lien on the Collateral
securing the Notes and the Guarantees to the extent provided in the
Intercreditor Agreement.
(h) Authorization of
Indenture . The Indenture and the Transactions contemplated
thereby have been duly authorized by each of the Issuers and the
Subsidiary Guarantors, and the Indenture and has been validly
executed and delivered by each of the Issuers and the Subsidiary
Guarantors. The Indenture is the legal, valid and binding
obligation of each of the Issuers and the Subsidiary Guarantors
enforceable against each of the Issuers and the Subsidiary
Guarantors in accordance with its terms, except to the extent that
(i) such enforceability may be limited by applicable bankruptcy,
insolvency or similar laws affecting creditors' rights generally
and (ii) any rights of acceleration and the availability of
equitable remedies may be subject to general principles of equity
(whether considered in a proceeding in equity or at
law).
(i) Authorization of
Security Documents . Each of the Original Security Documents,
the New Security Documents and the Transactions contemplated
thereby (including, without limitation, the creation, grant,
recording and perfection of the Security Interests, the execution
and filing of financing statements and the payment of any fees and
taxes in connection therewith) have been duly authorized by each of
the Issuers and the Subsidiary Guarantors, to the extent party
thereto. Each of the Original Security Documents has been, and on
the Closing Date, each of the New Security Documents will have
been, validly executed and delivered by the
9
Issuers and the Subsidiary
Guarantors, to the extent party thereto. Each of the Original
Security Documents has been amended in compliance with Article 9 of
the Indenture and each of the New Security Documents is authorized
under and in compliance with Article 9 of the indenture. On the
Closing Date, each of the Security Documents will be, the legal,
valid and binding obligation of each of the Issuers and the
Subsidiary Guarantors, to the extent party thereto, enforceable
against each of the Issuers and the Subsidiary Guarantors, to the
extent party thereto, in accordance with its terms, except to the
extent that (i) such enforceability may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (ii) any rights of acceleration and the availability
of equitable remedies may be subject to general principles of
equity (whether considered in a proceeding in equity or at
law).
(j) Security Interests
. Each of the Original Security Documents to which any of the
Issuers or the Subsidiary Guarantors is a party creates (and, on
the Closing Date, each of the New Security Documents will
create),
