Exhibit 10.20
CONSENT AND AGREEMENT
(ARCHITECTURAL SERVICES AGREEMENT)
Dated as of January 23, 2004
by
PREMIER ENTERTAINMENT BILOXI LLC,
a Delaware limited liability company,
PREMIER FINANCE BILOXI CORP,
a Delaware corporation,
and
▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.,
a Nevada corporation
EXECUTION VERSION
CONSENT AND AGREEMENT
(ARCHITECTURAL SERVICES AGREEMENT)
This CONSENT AND AGREEMENT (ARCHITECTURAL SERVICES AGREEMENT) (the
"CONSENT"), dated as of January 23, 2004, is executed by ▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD., a
Nevada corporation (the "UNDERSIGNED"), PREMIER ENTERTAINMENT BILOXI LLC (d/b/a
Hard Rock Hotel & Casino Biloxi), a Delaware limited liability company
("PREMIER"), and PREMIER FINANCE BILOXI CORP, a Delaware corporation ("PFC,"
jointly and severally with Premier, the "ISSUER"), for the benefit of U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as trustee under the
Indenture (as defined below) (together with its successors and assigns from time
to time under the Indenture, the "TRUSTEE").
RECITALS
A. THE FACILITY. Premier proposes to develop, construct and operate
the Hard Rock Hotel & Casino Biloxi, a full service gaming, hotel and
entertainment resort and certain related amenities to be developed upon
approximately 8.5 acres along the Mississippi Gulf Coast in Biloxi, Mississippi
(the "FACILITY").
B. FIRST MORTGAGE NOTES. Concurrently herewith, the Issuer is
issuing $160,000,000 in aggregate principal amount of its 10 3/4% First Mortgage
Notes due 2012 (together with all other notes issued under the Indenture,
including all notes issued in exchange or replacement thereof, the "FIRST
MORTGAGE NOTES"), pursuant to that certain Indenture dated as of January 23,
2004, among the Issuer and the Trustee (as amended, modified or supplemented
from time to time, the "INDENTURE"), to finance Project Costs.
C. SUBORDINATED NOTE. Concurrently herewith, Premier is issuing a
subordinated note (the "SUBORDINATED NOTE") to Rank America, Inc. in an amount
equal to $10,000,000 to finance Project Costs.
D. ARCHITECT AGREEMENT. The Undersigned and Premier have entered
into that certain Standard From of Agreement Between Owner and Architect dated
as of November 21, 2003 pursuant to which the Undersigned has agreed to design
and prepare documents, specifications and drawings in connection with the
Facility (as amended and supplemented or modified from time to time in
accordance with its terms and the terms hereof, the "CONTRACT").
E. INTERCREDITOR AGREEMENT. Concurrently herewith, the Trustee and
Rank America, Inc. will enter into an Intercreditor Agreement pursuant to which
the parties thereto will agree to certain provisions, including the
subordination of the Subordinated Note, the first priority liens in favor of the
Trustee on behalf of the holders from time to time of the First Mortgage Notes
(collectively, the "SECURED PARTIES") and the limitations on rights of
enforcement upon default and the application of proceeds upon enforcement.
F. SECURITY AGREEMENT. Pursuant to that certain Pledge and Security
Agreement dated as of January 23, 2004 (the "SECURITY AGREEMENT"), by and
between Premier, PFC, the Trustee and the other parties named therein, Premier
has collaterally assigned its interest under the contracts between Premier and
any person pertaining to the construction of the Facility, including the
Contract (the "CONSTRUCTION CONTRACTS") to the Trustee on behalf of the Secured
Parties.
G. DEFINITIONS. Unless otherwise defined herein, all capitalized
terms used herein which are defined in the Agreement, shall have the meaning
assigned to such terms in the Security Agreement.
AGREEMENT
NOW THEREFORE, the Undersigned hereby agree as follows:
1. The Undersigned consents to Premier's transfer, assignment, grant
of a security interest and all other provisions described in the Security
Agreement, and agrees with the Trustee as follows:
(a) The Trustee shall be entitled (but not obligated) to
exercise all rights and to cure any defaults of Premier under the Contract.
Upon receipt of notice from the Trustee, the Undersigned agrees to accept
such exercise and cure by the Trustee and to render all performance due by
it under the Contract and this Consent to the Secured Parties. The
Undersigned agrees to make all payments to be made by it under the
Contract, if any, directly to the Trustee for the benefit of the Secured
Parties upon receipt of the Trustee's written instructions.
(b) The Undersigned will not, without the prior written consent
of the Trustee, (i) cancel or terminate the Contract or suspend performance
of its services thereunder except as provided in the Contract and in
accordance with paragraph 1(c) hereof, or consent to or accept any
cancellation, termination or suspension thereof by Premier, or (ii) sell,
assign or otherwise dispose (by operation of law or otherwise) of any part
of its interest in the Contract. The Undersigned will not amend or modify
the Contract in any respect, unless the disbursement agent has acknowledged
in writing its receipt of the Construction Contract Amendment Certificate
pursuant to Section 5.2 of the Cash Collateral and Disbursement Agreement
entered into among the Issuer, the Trustee, such construction consultant
and a disbursement agent thereunder (the "DISBURSEMENT AGREEMENT"). The
Undersigned agrees to deliver duplicates or copies of all notices of
default received or delivered under or pursuant to the Contract to the
Trustee promptly upon receipt or delivery, as the case may be, thereof.
(c) The Undersigned will not terminate the Contract on account
of any default or breach of Premier thereunder without written notice to
the Trustee and first providing to the Trustee (i) ninety (90) days from
the date notice of default or breach is delivered to the Trustee to cure
such default if such default is the failure to pay amounts to the
Undersigned which are due and payable under the Contract or (ii) a
reasonable opportunity, but not fewer than one hundred twenty (120) days,
to cure such breach or default if the breach or default cannot be cured by
the payment of money to the Undersigned so long as the Trustee or its
designee shall have commenced to cure the breach or default within such one
hundred twenty-day period and thereafter diligently pursues such cure to
completion and continues to perform any monetary obligations under the
Contract and all other obligations under the Contract are performed by
Premier or the Trustee. If possession of the Facility is necessary to cure
such breach or default, and the Trustee or its designee(s) or assignee(s)
declare Premier in default and commence foreclosure proceedings, the
Trustee or its designee(s) or assignee(s), will be allowed a reasonable
period to complete such proceedings. If the Trustee or its designee(s) or
assignee(s) are prohibited by any court order or bankruptcy or insolvency
proceedings from curing the default or from commencing or prosecuting
foreclosure proceedings, the foregoing time periods shall be extended by
the period of such prohibition. The Undersigned consents to the transfer of
Premier's interest under the Contract to the Secured Parties or any of them
or a purchaser or
EXECUTION VERSION
3
grantee at a foreclosure sale by judicial or nonjudicial foreclosure and
sale or by a conveyance by Premier in lieu of foreclosure and agrees that
upon such foreclosure, sale or conveyance, the Undersigned shall recognize
the Secured Parties or any of them or other purchaser or grantee as the
applicable party under the Contract (provided that such Secured Parties or
purchaser or grantee assumes the obligations of Premier under the
Contract).
(d) In the event that the Contract is rejected by a trustee or
debtor-in possession in any bankruptcy or insolvency proceeding, or if the
Contract is terminated for any reason other than a default which could have
been but was not cured by the Trustee as provided in subparagraph (c)
above, and if, within sixty (60) days after such rejection or termination,
the Secured Parties or their successors or assigns shall so request, the
Undersigned will execute and deliver to the Secured Parties a new
Construction Contract, which Construction Contract shall be on the same
terms and conditions as the original Contract.
(e) In the event the Secured Parties or their designee(s) or
assignee(s) elect to perform Premier's obligations under the Contract or to
enter into a new Construction Contract as provided in subparagraph (c) or
(d) respectively above, the Secured Parties, their designee(s) and
assignee(s), shall have no personal liability to the Undersigned for the
performance of such obligations, and the sole recourse of the Undersigned
in seeking the enforcement of such obligations shall be to such parties'
interest in the Facility.
(f) In the event the Secured Parties or their designee(s) or
assignee(s) succeed to Premier's interest under the Contract, the Secured
Parties shall have the right to assign all or a pro rata interest in the
Contract or a new Construction Contract entered into pursuant to
subparagraph (d) to a person or entity to whom the Facility is transferred,
provided such transferee assumes the obligations of Premier (or the Secured
Parties) under the Contract. Upon such assignment, the Trustee and, if
applicable, the Secured Parties (including their agents and employees)
shall be released from any further liability thereunder to the extent of
the interest assigned.
(g) The warranties provided by the Undersigned under the
Contract shall continue in full force and effect (until the expiration of
the warranty periods set forth in the Contract) in the event that the
Secured Parties or their designee(s) or assignee(s) succeed to Premier's
interest in the Contract (whether by foreclosure, sale or other assignment)
and upon the further assignment or sale of the Contract by the Secured
Parties or their designee(s) or assignee(s).
(h) The Undersigned hereby assigns to Premier (and Premier's
assigns) all its interest in any subcontracts and purchase orders now
existing or hereinafter entered into by the Undersigned for performance of
any part of the Undersigned's obligations under the Contract (the
"SUBCONTRACTS"). Such assignment shall be effective only upon the
occurrence of a breach or default (after the expiration of any applicable
cure preiod) by the Undersigned under the Contract or upon the termination
of the Contract, and then only as to those Subcontracts which Premier (or
its assigns) at such time accepts in writing. The Undersigned also grants a
security interest to Premier (and Premier's assigns) in all of its interest
in all Subcontracts as security for the Undersigned's obligations under the
Contract. The Undersigned hereby further assigns to Premier (and Premier's
assigns) all of its rights with respect to any warranties under all
Subcontracts. Each Subcontract hereinafter entered into by the Undersigned
shall contain a consent by the subcontractor thereunder to the foregoing
assignments set forth in this subparagraph (h).
EXECUTION VERSION
4
(j) The Undersigned hereby agrees (i) to cooperate with
Professional Associates Construction Services, Inc. or any other person
designated from time to time by the Trustee to serve as construction
consultant under the Disbursement Agreement (the "INDEPENDENT CONSTRUCTION
CONSULTANT") to facilitate performance of its duties to monitor the
progress of the construction of the Facility, (ii) to deliver to the
Independent Construction Consultant copies of all notices and progress
reports delivered to Premier pursuant to the Contract, (iii) to meet with
the Independent Construction Consultant to discuss the status and progress
of construction of the Facility whenever reasonably requested by the
Independent Construction Consultant and (iv) to include the Independent
Construction Consultant in all material meetings with the Premier related
to the development and construction of the Facility.
(k) The Undersigned agrees and acknowledges that as a condition
to receiving payment in respect of each Applications for Payment (as
defined in the Contract) it will, in addition to the requirements of the
Contract, be required to deliver to the Disbursement Agent a certificate in
the form of EXHIBIT 3 to EXHIBIT C-1 to the Disbursement Agreement.
2. The Undersigned hereby represents, warrants and certifies that:
(a) The execution, delivery and performance by the Undersigned
of the Contract and this Consent has been duly authorized by all necessary
corporate action, and does not and will not require any further consents or
approvals which have not been obtained, or violate any provision of any
law, regulation, order, judgment, injunction or similar matters or breach
any agreement presently in effect with respect to or binding on the
Undersigned.
(b) This Consent and the Contract are legal, valid and binding
obligations of the Undersigned, enforceable against the Undersigned in
accordance with their respective terms.
(c) All government approvals necessary for the execution,
delivery and performance by the Undersigned of its obligations under the
Contract have been obtained and are in full force and effect.
(d) The Undersigned has delivered to the Trustee a true and
correct copy of the Contract including all amendments and modifications
thereto, up to the date hereof. As of the date hereof, the Contract is in
full force and effect and constitutes the only agreement between the
Undersigned and Premier with respect to the matters and interest described
therein.
(e) The Undersigned has fulfilled all of its obligations under
the Contract to the date hereof. To the Undersigned's knowledge, Premier
has fulfilled all of its obligations under the Contract to the date hereof
and there are no breaches or unsatisfied conditions presently existing (or
which would exist after the passage of time and/or giving of notice) that
would allow the Undersigned to terminate the Contract.
3. All Notices required or permitted hereunder shall be in writing
and shall be effective (a) upon receipt if hand delivered, (b) upon receipt if
sent by facsimile and (c) if otherwise delivered, upon the earlier of receipt or
two (2) Banking Days after being sent registered or certified mail, return
receipt requested, with proper postage affixed thereto, or by private courier or
delivery service with charges prepaid, and addressed as specified below:
EXECUTION VERSION
5
If to the Undersigned:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Trustee:
U.S. Bank National Association,
as Trustee,
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Premier:
Premier Entertainment Biloxi LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to PFC
Premier Finance Biloxi Corp
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
4. This Consent shall be binding upon and inure to the benefit of
the Undersigned, the Trustee, Premier, PFC, the Secured Parties and their
respective successors, transferees and assigns (including without limitation,
any entity that refinances all or any portion of the Obligations). The
Undersigned agrees to confirm such continuing obligation in writing
EXECUTION VERSION
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upon the reasonable request of Premier, PFC, the Trustee, the Secured Parties or
any of their respective successors, transferees or assigns. No termination,
amendment, variation or waiver of any provisions of this Consent shall be
effective unless in writing and signed by the Undersigned, the Trustee, Premier
and PFC. This Consent shall be governed by the internal laws of the State of New
York, without reference to principles of conflict of laws (other than Section
5-1401 of the New York General Obligations Law). Any dispute arising under the
Consent or with respect to the Secured Parties shall be litigated in the state
or federal courts of the State of New York, and the Undersigned consents to
personal jurisdiction in New York with respect to any claims or disputes in
connection with the foregoing.
5. This Consent may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below,
shall constitute a single binding agreement.
6. All references in this Consent to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued or
executed in replacement thereof, and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
EXECUTION VERSION
7
IN WITNESS WHEREOF, the Undersigned by its officer thereunto duly
authorized, has duly executed this Consent as of the date first set forth above.
▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.
a Nevada corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: President
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PREMIER ENTERTAINMENT BILOXI LLC,
(d/b/a Hard Rock Hotel & Casino Biloxi),
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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PREMIER FINANCE BILOXI CORP,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: President
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EXECUTION VERSION
