Exhibit 10.10
PLEDGE AND SECURITY AGREEMENT
Dated as of January 23, 2004
by and among
PREMIER ENTERTAINMENT BILOXI LLC,
a Delaware limited liability company,
PREMIER FINANCE BILOXI CORP,
a Delaware corporation,
and
U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Trustee for the benefit of the Noteholders
EXECUTION VERSION
TABLE OF CONTENTS
Page
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1. Definitions.................................................................1
2. Assignment, Pledge and Grant of Security Interest...........................4
3. Obligations Secured.........................................................9
4. Representations and Warranties..............................................9
5. Subsequent Changes Affecting Collateral; Transfers and Other Liens.........10
6. Covenants..................................................................10
7. Collections on Collateral..................................................12
8. Events of Default..........................................................12
9. Remedies Upon Event of Default.............................................12
10. Remedies Cumulative; Delay Not Waiver......................................14
11. Application of Proceeds....................................................14
12. Attorney-In-Fact...........................................................14
13. Issuer May Perform.........................................................15
14. Perfection; Further Assurances.............................................15
15. Place of Business; Location of Records.....................................16
16. Continuing Assignment and Security Interest; Transfer of Guaranty..........16
17. Termination of Security Interest...........................................17
18. Reinstatement..............................................................17
19. Trustee's Duties; Reasonable Care..........................................17
20. Survival of Provisions.....................................................17
21. Miscellaneous..............................................................17
EXECUTION VERSION
PLEDGE AND SECURITY AGREEMENT
This
PLEDGE AND SECURITY AGREEMENT, dated as of January 23, 2004 (as
amended, supplemented, restated or otherwise modified from time to time, this
"AGREEMENT"), is entered into by PREMIER ENTERTAINMENT BILOXI LLC (d/b/a Hard
Rock Hotel & Casino Biloxi), a Delaware limited liability company ("PREMIER"),
PREMIER FINANCE BILOXI CORP, a Delaware corporation ("PFC," jointly and
severally with Premier, the "ISSUER"), and U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as trustee under the Indenture (the "TRUSTEE"),
for the benefit of the holders from time to time (the "NOTEHOLDERS") of the
First Mortgage Notes (as defined below).
RECITALS
A. 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 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. USE OF PROCEEDS. Premier will use the net proceeds from the sale of
the First Mortgage Notes and the proceeds from the Subordinated Note issued
concurrently therewith, together with any additional equity provided by the
Issuer or its affiliates, to pay (among other things) Project Costs associated
with the design, development, equipping, construction, pre-opening and operation
of the Facility.
D. PURPOSE. In order to secure the payment and performance by the
Issuer of all of its covenants, agreements and obligations under the First
Mortgage Notes, the Trustee (on behalf of the Noteholders) requires that the
Issuer shall have executed this Agreement.
AGREEMENT
In consideration of the promises contained herein, and as a material
inducement to the purchase of the First Mortgage Notes by the Noteholders, the
Issuer hereby agrees with the Trustee, for the benefit of the Noteholders, as
follows:
1. DEFINITIONS.
1.1 DEFINED TERMS. The terms defined in this SECTION 1 shall have
the meanings herein specified:
EXECUTION VERSION
"AA CAPITAL" means collectively, AA Capital Equity Fund, L.P., a
Delaware limited partnership and AA Capital Biloxi Co-Investment Fund, L.P., a
Delaware limited partnership.
"BOND FINANCING DOCUMENTS" shall have the meaning ascribed thereto
in the Cash Collateral and Disbursement Agreement.
"BONDS" shall mean the industrial development bonds issued by the
Mississippi Business Finance Corporation pursuant to Code Section 00-00-000, et
seq., Mississippi Code of 1972 and the Bond Financing Documents, pursuant to
which Premier intends to use the proceeds of such bonds to fund the costs of
acquiring, constructing and installing certain land-based improvements and
equipment.
"CAFE LEASE AGREEMENT" means that certain Lease Agreement (Cafe)
dated as of December 30, 2003 between Hard Rock STP, as leasee, and Premier, as
lessor.
"CASH EQUIVALENTS" has the meaning ascribed thereto in the
Indenture.
"DISBURSEMENT AGENT" means U.S. Bank National Association, a
national banking association, or the then acting Disbursement Agent under the
Cash Collateral and Disbursement Agreement.
"EQUITY AGREEMENT" means that certain Equity Agreement entered into
among, Premier, AA Capital and GAR dated as of event date herewith.
"GAMING AUTHORITY" shall have the meaning ascribed thereto in the
Indenture.
"GAMING LAWS" shall have the meaning ascribed thereto in the
Indenture.
"GAR" means GAR, LLC, a Mississippi limited liability company.
"GOVERNMENTAL ENTITY" shall have the meaning ascribed thereto in the
Indenture.
"HARD ROCK DOCUMENTS" means collectively the License Agreement,
Memorabilia Lease, Cafe Lease Agreement and Retail Store Lease Agreement.
"HARD ROCK STP" means Hard Rock Cafe International (STP), Inc., a
New York corporation.
"HARD ROCK LICENSING" means Hard Rock Hotel Licensing, Inc., a
Florida corporation.
"LAND" shall have the meaning ascribed thereto in that certain
Construction Deed of Trust, Leasehold Deed of Trust and Fixture Filing with
Assignment of Leases and Rents dated as of even date herewith.
"LAW" shall mean any federal, state or local law, including any
statute, decision, rule or regulation of the United States or any State of the
United States.
EXECUTION VERSION
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"LEASE AND AIR RIGHTS AGREEMENT" means that certain Lease and Air
Rights Agreement dated as of November 18, 2003 between the City of Biloxi,
Mississippi, as lessor, and Premier, as lessee.
"LICENSE AGREEMENT" means that certain License Agreement dated as of
May 16, 2003 between Hard Rock Licensing, Inc., as licensor, and Premier, as
licensee.
"MEMORABILIA LEASE" means that certain Memorabilia Agreement dated
as of May 15, 2003 between Hard Rock STP, as lessor, and Premier, as leasee.
"
NEW YORK UCC" means the Uniform Commercial Code as the same may,
from time to time, be in effect in the State of
New York.
"PLEDGE PROVISIONS" means: (i) the terms and conditions of the
Consent and Acknowledgement Agreement, the Subordination Non-Disturbance and
Attornment Agreement for the Cafe Lease Agreement and the Subordination
Non-Disturbance and Attornment for the Retail Store Lease Agreement, and (ii)
the appropriate provisions of the Hard Rock Documents governing (a) the pledge
of the rights created therein as collateral for any loan arising from or related
to the Facility, or (b) the assignment or other transfer of Premier's interest
in the applicable Hard Rock Document(s), including, but not limited to, Sections
16 and 24 of the License Agreement, Section 19(B) of the Memorabilia Lease,
Section 29 of the Cafe Lease Agreement and Section 29 of the Retail Store Lease
Agreement.
"PLEDGORS" shall mean, collectively, AA Capital and GAR.
"PROJECT COSTS" shall have the meaning ascribed thereto in the Cash
Collateral and Disbursement Agreement.
"RETAIL STORE LEASE AGREEMENT" means that certain Lease Agreement
(Retail Store) dated as of December 30, 2003, between Hard Rock STP, as leasee,
and Premier, as lessor.
"TIDELANDS LEASE" means that certain Public Trust Tidelands Lease
dated as of October 27, 2003 between the Secretary of State, with the approval
of the Governor, for and on behalf of the State of Mississippi, as lessor, and
Premier, as lessee.
"TRANSACTION DOCUMENTS" shall have the meaning ascribed thereto in
the Indenture.
"UCC" means: (i) with respect to the creation and attachment of any
security interest, the
New York UCC and (ii) with respect to the perfection, the
effect of perfection or non-perfection and priority of any security interest,
the Uniform Commercial Code of the jurisdiction specified by the mandatory
choice of law rules set forth in the
New York UCC.
1.2 INDEX OF ADDITIONAL DEFINED TERMS. In addition, the terms
listed in the left column below shall have the respective meanings ascribed to
such terms in the Section of this Agreement listed opposite such terms in the
right column below:
EXECUTION VERSION
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DEFINED TERM SECTION
------------ -------
AGREEMENT.................................................Introduction
ASSIGNED AGREEMENTS.............................................2.1(a)
BUILDINGS....................................................2.1(a)(i)
CASH COLLATERAL AND DISBURSEMENT AGREEMENT.........................1.3
COLLATERAL......................................................2.1(k)
DISBURSEMENT AGENT.................................................1.3
EVENT OF DEFAULT.....................................................8
FACILITY.................................................A of Recitals
FIRST MORTGAGE NOTES.....................................B of Recitals
INDENTURE................................................B of Recitals
ISSUER....................................................Introduction
LIQUOR LAWS......................................................21.13
NOTEHOLDERS...............................................Introduction
PFC.......................................................Introduction
PREMIER...................................................Introduction
RANK................................................................11
SECURED OBLIGATIONS..................................................3
TRUSTEE...................................................Introduction
VESSEL.......................................................2.1(a)(j)
1.3 All capitalized terms used, but not otherwise defined herein,
shall have the meanings provided in the Cash Collateral and Disbursement
Agreement by and among the Disbursement Agent, the Trustee, the Independent
Construction Consultant (as defined therein), and the Issuer dated as of the
date hereof (the "CASH COLLATERAL AND DISBURSEMENT AGREEMENT") if defined
therein, and if such terms are not defined in the Cash Collateral and
Disbursement Agreement, such terms shall have the meanings given them in the
UCC.
2. ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTEREST.
2.1 Subject to applicable Law (including, without limitation, all
applicable rules and regulations of the Mississippi Gaming Commission), to
secure the timely payment and performance of the Secured Obligations, the Issuer
does hereby collaterally assign and pledge to, and grant a security interest in
favor of, the Trustee all the estate, right, title and interest of the Issuer,
whether now owned or hereafter acquired, in, to and under:
(a) all contracts, agreements and documents, including
without limitation the following contracts, agreements and documents, as
amended, amended and restated, supplemented or otherwise modified from time to
time (individually, an "ASSIGNED AGREEMENT," and collectively, the "ASSIGNED
AGREEMENTS") and all of the Issuer's rights thereunder:
(i) all Construction Contracts with respect to the
Facility to which the Issuer is or may become a party from time to time;
EXECUTION VERSION
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(ii) the insurance policies maintained or required to
be maintained by the Issuer or any other Person under the Collateral
Documents or any Construction Contracts, including, without limitation, any
such policies insuring against loss of revenues by reason of interruption
of the operation of the Facility and all loss proceeds and other amounts
payable to the Issuer thereunder, and all eminent domain proceeds relating
to the Facility;
(iii) all other agreements, including vendor
warranties, running to the Issuer or assigned to the Issuer, that relate to
the construction, maintenance, improvement, operation or acquisition of the
Facility or any part thereof, or transport of material, equipment and other
parts of the Facility or any part thereof; provided that the security
interest granted hereby with respect to any management contract relating to
the Facility shall only relate to the right to payments under such
management contract;
(iv) the Cafe Lease Agreement;
(v) the Memorabilia Lease;
(vi) the License Agreement;
(vii) the Retail Store Lease Agreement;
(viii) the Tidelands Lease;
(ix) the Lease and Air Rights Agreement;
(x) any other lease or sublease agreements relating
to the Facility or any part thereof or any ancillary facilities to which
the Issuer is or becomes a party, but excluding any lease or sublease
agreement of interest in real property;
(xi) all amendments, supplements, substitutions and
renewals to any of the aforesaid agreements; and
(xii) to the extent assignable, all permits and
governmental approvals issued in the name of the Issuer or relating in any
way to the operation of the Facility, including without limitation
approvals of the Mississippi Gaming Commission;
(b) all rents, profits, income, distributions, royalties and
revenues derived in any manner by the Issuer from the Facility or any part
thereof and the operation of the Facility or any part thereof;
(c) all goods, money, instruments, securities, accounts,
contract rights, commercial tort claims, letters of credit, letter of credit
rights, payment intangibles, promissory notes, software, supporting obligations,
documents, deposit accounts, chattel paper (including tangible and electronic
chattel paper), as-extracted collateral, general intangibles and inventory,
including, without limitation, those relating to the Facility and the Bonds;
EXECUTION VERSION
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(d) all investment property (including both certificated and
uncertificated securities, security entitlements, security accounts, commodity
contracts and commodity accounts), and including each of the Construction Period
Accounts, and all Financial Assets and other assets therein and all security
entitlements with respect thereto;
(e) all deposit accounts, including the Issuer's Payment
Account, and all monies and other assets on deposit therein;
(f) all Cash Equivalents;
(g) all other personal property of the Issuer, including
without limitation personal property relating to the Facility, whether now owned
or existing or hereafter acquired or arising, or in which the Issuer may have an
interest, and wheresoever located, whether or not of a type which may be subject
to a security interest under the UCC, including without limitation (except to
the extent that any of the following are deemed to be fixtures) all machinery,
tools, control equipment, appliances, mechanical and electrical systems,
elevators, lighting, alarm systems, fire control systems, furnishings,
furniture, as-extracted collateral, equipment, service equipment, motor
vehicles, building or maintenance equipment, gaming machines or devices of any
type, building or maintenance materials, pipes and pipelines supplies, goods and
property covered by any warehouse receipts or bills of lading or other such
documents, spare parts, maps, plans, specifications, architectural, engineering,
construction or shop drawings, manuals or similar documents, copyrights,
trademarks and trade names, and any replacements, renewals or substitutions for
any of the foregoing or additional tangible or intangible personal property
hereafter acquired by the Issuer;
(h) any other personal property assets or personal property
owned by the Issuer, to the extent not included (or expressly excluded) in the
foregoing;
(i) all buildings ("BUILDINGS"), structures, facilities and
improvements of every nature now or later on the Land, including any vessels
permanently moored on the Land and all appurtenances and accessories and
additions on any such vessel, and all appurtenances, easements, water and water
rights, and pumps and pumping plants; all gaming equipment and devices, all
machinery, equipment, appliances, and fixtures for generating or distributing
air, water, heat, electricity, light, fuel, or refrigeration or for ventilating
or sanitary purposes or for the exclusion of vermin or insects or for the
removal of dust, refuse, or garbage; all wall safes, built-in furniture, and
installations, shelving, lockers, partitions, doorstops, vaults, elevators,
dumbwaiters, awnings, window shades, venetian blinds, light fixtures, fire hoses
and brackets and boxes for them, fire sprinklers, alarm systems, draperies,
drapery rods and brackets, screens, linoleum, carpets, furniture, furnishings,
fixtures, plumbing, laundry tubs and trays, iceboxes, refrigerators, heating
units, stoves, water heaters, incinerators, communication systems and
installations for which any Building is specially designed; the specific
enumerations in this Agreement not excluding the general;
(j) the whole of the following described vessel (the
"VESSEL"), together with all materials, equipment and accessories now or from
time to time installed thereon, and substitutions therefor, whether now existing
or hereafter acquired, including without limitation its boilers, engines,
machinery, masts, spars, boats, cables, motors, navigation and
EXECUTION VERSION
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radar equipment, tools, anchors, chains, booms, cranes, rigs, pumps, pipe,
tanks, tackle, apparel, furniture, fixtures, rigging, supplies, fittings and
machinery, equipment and accessories relating to gaming operations (including
but not limited to all gaming supplies, table games, money counting and wrapping
equipment, casino related signage, gaming equipment (as hereinafter defined) and
communication systems, visual and electronic surveillance systems and
transportation systems), tools, utensils, food and beverage, liquor, uniforms,
linens, housekeeping and maintenance supplies, fuel, all financial equipment,
computer equipment, calculators, adding machines and any other electronic
equipment of every nature used in connection with the operation of the Vessel,
all machinery, equipment, engines, appliances and fixtures for generating or
distributing air, water, heat, electricity, light, fuel or refrigeration, or for
ventilating or sanitary purposes, or for the exclusion of vermin or insects, or
for the removal of dust, refuse or garbage, all wall-beds, wall-safes, built-in
furniture and installations, shelving, lockers, partitions, doorstops, vaults,
motors, elevators, dumbwaiter, awnings, window shades, venetian blinds, light
fixtures, fire hoses and brackets and boxes for the same, fire sprinklers,
alarm, surveillance and security systems, computers, drapes, drapery rods and
brackets, mirrors, mantels, screens, linoleum, carpets and carpeting, plumbing,
bathtubs, showers, sinks, basins, pipes, faucets, water closets, laundry
equipment, washers, dryers, ice-boxes and heating units, all kitchen and
restaurant equipment, including but not limited to silverware, dishes, menus,
cooking utensils, stoves, refrigerators, ovens, ranges, dishwashers, disposals,
water heaters, incinerators, furniture, fixtures and furnishings, all cocktail
lounge supplies, including but not limited to bars, glassware, bottles and
tables used in connection with the Vessel, all chaise lounges, hot tubs,
swimming pool heaters and equipment, and all other recreational equipment
(computerized and otherwise), beauty and xxxxxx equipment, and maintenance
supplies used in connection with the Vessel, all specifically designed
installations and furnishings, and all furniture, furnishings and personal
property of every nature whatsoever now or hereafter owned or leased by the
Mortgagor or in which the Mortgagor has any rights or interest and located in or
on, or attached to, or used or intended to be used or which are now or may
hereinafter be appropriated for use on or in connection with the operation of
the Vessel, or in connection with any construction being conducted or which may
be conducted thereon, and all extensions, additions, accessions, improvements,
betterments, renewals, substitutions, and replacements to any of the foregoing,
all of which (to the fullest extent permitted by law) shall be conclusively
deemed appurtenances to the Vessel, all earnings, freight, sub-freights, charter
hires and sub-charter hires, if any, and all other appurtenances to the Vessel
appertaining or belonging, whether now owned or hereafter acquired, whether on
board or not, and all additions, improvements and replacements hereafter made in
or to the Vessel; and
(k) the proceeds (including cash and noncash proceeds) of
all of above including without limitation (i) all rights of the Issuer to
receive monies due and to become due under or pursuant to the collateral
described in clauses (a) through (k); (ii) all rights of the Issuer to receive
the return of any premiums for, or proceeds of, any insurance, indemnity,
warranty or guaranty with respect to the such collateral or to receive any
condemnation proceeds; (iii) all claims of the Issuer for damages arising out
of, or for breach of or default under, the Assigned Agreements or any other such
collateral; (iv) all rights of the Issuer to terminate, amend, supplement,
modify or waive performance under the Assigned Agreements, to perform thereunder
and to compel performance and otherwise exercise all remedies thereunder; and
(v) to the extent not included in the foregoing, all proceeds receivable or
received when any and all of
EXECUTION VERSION
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such collateral is sold, collected, exchanged or otherwise disposed of, whether
voluntarily or involuntarily foregoing (all of the collateral described in
clauses (a) through (k), as modified by each other provision of SECTIONS 2.1
through 2.6, being herein collectively referred to as the "COLLATERAL");
PROVIDED, HOWEVER, that the Collateral shall not include any assets, revenues,
accounts, property or other interests of the Issuer that the Issuer is
prohibited from alienating under applicable federal law or state law, including
any statute, decision, rule or regulation of the United States or the State of
New York or under any contract or agreement with the United States or the State
of
New York (except to the extent Section 9407, 9408 or 9409 of the UCC or the
analogous provision of the Uniform Commercial Code in effect in any other
jurisdiction, as applicable, would permit the creation of a security interest in
such property without violating applicable Law); PROVIDED, FURTHER, the
Collateral shall not include any license, permit or approval if (x) such item is
a license or permit to operate gaming at the Facility, (y) by its terms or
operation of law such item is not assignable, or (z) the assignment of, or grant
of a security interest in, such item would cause such item to become void, would
constitute a breach under such item, is prohibited by such item or by Law or
would violate any Law, except to the extent Section 9407, 9408 or 9409 of the
UCC or the analogous provisions of the Uniform Commercial Code in effect in any
other jurisdiction, as applicable, would permit and allow such assignment
without causing such a breach or violation and without causing such item to be
void.
2.2 In order to effectuate the foregoing, the Issuer has
heretofore delivered, or concurrently with the delivery hereof is delivering, to
the Trustee an executed counterpart or certified copy of each of the Assigned
Agreements. The Issuer will likewise deliver to the Trustee an executed
counterpart of each material future lease, construction agreement, operation
agreement and other agreement, including without limitation those relating to
the Facility or any part thereof, and amendments and supplements to the
foregoing, included in the Collateral, as they are entered into by the Issuer
promptly upon the execution thereof.
2.3 Notwithstanding anything to the contrary contained herein,
the Issuer shall remain liable under each of the Assigned Agreements to perform
all of the obligations undertaken by it thereunder, all in accordance with and
pursuant to the terms and provisions thereof. Except as otherwise provided in
the Pledge Provisions of the Hard Rock Documents, the Trustee shall have no
obligation or liability to perform or make payments under any of such Assigned
Agreements by reason of or arising out of this Agreement, nor shall the Trustee
be required or obligated in any manner to perform or fulfill any obligations of
the Issuer thereunder or to make any payment or inquiry as to the nature or
sufficiency of any payment received by it, or present or file any claim or take
any action to collect or enforce the payment of any amounts which may have been
assigned to it or to which it may be entitled at any time.
2.4 If any default by the Issuer under any of the Assigned
Agreements shall occur and be continuing, then the Trustee shall, at its option,
be permitted (but shall not be obligated) to remedy any such default by giving
written notice of such intent to the Issuer and to the parties to the Assigned
Agreement or Assigned Agreements for which the Trustee intends to remedy the
default. Any cure by the Trustee of the Issuer's default under any of the
Assigned Agreements shall not be construed as an assumption by the Trustee of
any obligations, covenants or agreements of the Issuer under such Assigned
Agreement, and the Trustee shall not be liable
EXECUTION VERSION
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to the Issuer or any other Person as a result of any actions undertaken by the
Trustee in curing or attempting to cure any such default, except as a result of
the Trustee's gross negligence, bad faith or willful misconduct. This Agreement
shall not be deemed to release or to affect in any way the obligations of the
Issuer under the Assigned Agreements.
2.5 Any purchase money obligation created by any of the
Collateral Documents shall continue even after the Collateral Documents have
been amended, supplemented, modified, restated, refinanced, consolidated or
restructured. In addition, to the extent any of the Proceeds may have been used
to finance or refinance any asset, the parties intend for the obligations of the
Issuer related thereto to constitute purchase money obligations and for the
Trustee to have a related purchase money security interest.
2.6 All certificates or instruments from time to time
representing or evidencing the Collateral shall be delivered to and held by or
on behalf of Trustee pursuant hereto (including any new or replacement
certificates or instruments issued from time to time), excluding the Bonds. All
such certificates or instruments shall be in suitable form for transfer by
delivery, or shall be accompanied by duly executed instruments of transfer or
assignment in blank, all in form and substance acceptable to Trustee. Subject to
the Pledge Provisions, Trustee shall have the right, at any time in its
discretion and without prior notice to the Issuers, following the occurrence and
during the continuation of an Event of Default, to transfer to or to register in
the name of Trustee or any of its nominees any or all of the Collateral and to
exchange certificates or instruments representing or evidencing such Collateral
for certificates or instruments of smaller or larger denominations; PROVIDED
that Trustee shall promptly notify Issuers of any such transfer or registration;
but the failure to provide such notice shall not invalidate the effectiveness of
such transfer or registration; PROVIDED, FURTHER, that once such Event of
Default has been cured, Trustee will promptly transfer to or register in the
name or cause its nominees to transfer to or register in the name of such Issuer
all such Collateral.
3. OBLIGATIONS SECURED. Without limiting the generality of the foregoing,
this Agreement and all of the Collateral secure the payment and performance when
due of all covenants, agreements and payment and other obligations of the Issuer
under the Indenture and the Collateral Documents to which the Issuer is a party,
including the First Mortgage Note Obligations (the "SECURED OBLIGATIONS").
4. REPRESENTATIONS AND WARRANTIES. The Issuer represents and warrants as
of the date hereof as follows:
4.1 The Issuer is duly organized and is validly existing under
the laws of the jurisdiction under which it was organized with full corporate or
limited liability company, as applicable, power to execute, deliver, and perform
the Agreement and consummate the transactions contemplated hereby.
4.2 The Issuer has not assigned any of its rights under the
Collateral except as permitted in the Indenture and the Collateral Documents.
4.3 The Issuer has not authenticated and is not aware of any
effective financing statement, security agreement or other record similar in
effect covering all or any part
EXECUTION VERSION
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of the Collateral, except such as may have been filed pursuant to or
contemplated by this Agreement, the Indenture and the other Collateral Documents
or pursuant to the documents evidencing Permitted Liens.
4.4 Except as permitted by the Indenture and the Collateral
Documents, the Issuer has full right, title and interest in and to the
Collateral, including all rights purported to be granted to it under the
Assigned Agreements, not subject to any mortgages, liens, charges, or
encumbrances except Permitted Liens. The Issuer has full corporate or limited
liability company, as applicable, power and lawful authority to grant a security
interest in and collaterally assign the Collateral hereunder.
4.5 This Agreement is its legal, valid and binding obligation,
enforceable against it in accordance with its terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency, moratorium,
reorganization or other similar laws affecting the enforcement of creditors'
rights and by the effect of general equitable principles. Upon filing the UCC-1
financing statements authenticated by it with respect to the Collateral at the
office of the Secretary of State for the State of Delaware, pursuant to this
Agreement, the execution of this Agreement by it and the delivery of the stock
certificate of PFC and undated ownership power endorsed in blank, the Trustee
will have a valid and perfected first priority security interest in the
Collateral, securing payment of the Obligations.
4.6 PFC's identification number with the State of Delaware is DE
3718235. The name of PFC is
Premier Finance Biloxi Corp, as indicated in the
public records of the State of Delaware. Premier's identification number with
the State of Delaware is DE 3716089. The name of Premier is Premier
Entertainment Biloxi LLC, as indicated in the public records of the State of
Delaware.
5. SUBSEQUENT CHANGES AFFECTING COLLATERAL; TRANSFERS AND OTHER LIENS.
5.1 The Issuer agrees that the Trustee shall have no
responsibility or liability for informing the Issuer of any such changes or
potential changes affecting the Collateral or for taking any action or omitting
to take any action with respect thereto, except as a result of the Trustee's
gross negligence, bad faith or willful misconduct.
5.2 The Issuer agrees that it will not, except as expressly
permitted by the Indenture (subject to SECTION 17 hereof) and except for
Permitted Liens, create or permit to exist any lien, mortgage, security interest
or encumbrance of any kind upon or with respect to any of the Collateral, except
pursuant to this Agreement.
6. COVENANTS. Until this Agreement is terminated in accordance with
SECTION 17 hereof, the Issuer covenants as follows:
6.1 After the occurrence and during the continuance of an Event
of Default, any action or proceeding to enforce this Agreement or any Assigned
Agreement may be taken by the Trustee in Premier's name, PFC's name or in the
Trustee's name, as the Trustee may deem necessary.
EXECUTION VERSION
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6.2 The Issuer will, so long as any Secured Obligations are
outstanding, warrant and defend its title to the Collateral and the interest of
the Trustee in the Collateral against any claim or demand of any Persons (other
than Permitted Liens) which could reasonably be expected to materially adversely
affect the Issuer's title to, or the Trustee's right or interest in, such
Collateral.
6.3 The Issuer will at all times keep accurate and complete
records of the Collateral in all material respects. The Issuer shall permit
representatives of the Trustee upon reasonable prior notice at any time during
normal business hours of the Issuer with, prior to the occurrence and during the
continuance of an Event of Default, prior written notice to inspect and make
abstracts from the Issuer's books and records pertaining to the Collateral. Upon
the occurrence and during the continuation of any Event of Default, at the
Trustee's request, the Issuer shall promptly deliver copies of any and all such
records to the Trustee.
6.4 Unless waived in writing by the Trustee, the Issuer shall
give the Trustee notice within 15 days of changing the location of its principal
place of business, chief executive office or location or form of organization
and shall, at the expense of the Issuer, execute and deliver, and authorize the
filing of, such records, instruments and documents as may reasonably be required
by the Trustee to maintain a perfected security interest in the Collateral,
subject only to Permitted Liens.
6.5 Unless waived in writing by the Trustee, the Issuer shall
give the Trustee notice within 15 days of changing the location of any of the
Collateral if such change in location would result in a failure of the Trustee
to maintain a perfected security interest in the Collateral (except with respect
to sales of inventory in the ordinary course of business or sales of obsolete
equipment permitted under the Indenture) and shall, at the expense of the
Issuer, execute and deliver, and authorize the filing of, such records,
instruments and documents as may reasonably be required by the Trustee to
maintain a perfected security interest in the Collateral, subject only to
Permitted Liens.
6.6 In the event notification is given after the occurrence and
during the continuance of an Event of Default to any account debtor to discharge
its obligations by paying the Trustee (under Section 9406 of the UCC or
otherwise), such notification shall be binding against the Issuer until the
Trustee gives alternate instructions. During the existence and continuance of
any Event of Default, the Issuer shall not give, provide, authenticate or
deliver, nor authorize the giving, provision, authentication or delivery of,
alternate instructions unless the Trustee expressly authenticates a record
providing for such alternative instructions.
6.7 PFC shall not amend or modify the Bond Financing Documents
without the prior written consent of the Trustee unless such amendment or
modification is expressly permitted by the Indenture. PFC shall not assign or
transfer its interest in the Bonds without the prior written consent of the
Trustee.
6.8 All payments received by PFC with respect to the Bonds during
the Construction Period shall be immediately deposited by PFC into the
Construction Disbursement Account (as defined in the Cash Collateral and
Disbursement Agreement).
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7. COLLECTIONS ON COLLATERAL.
7.1 Upon the occurrence and during the continuance of an Event of
Default, the Trustee shall have the right from time to time to instruct any
party otherwise required to make payments to the Issuer in connection with the
Collateral to make such payments (including without limitation all proceeds,
sums or other property arising out of the enforcement of any rights of the
Issuer with respect to the Collateral) instead directly to the Trustee or such
other party or parties as the Trustee may designate for application to and
satisfaction of the Secured Obligations.
7.2 If the Issuer receives any such payments at any time when,
pursuant to the provisions of this SECTION 7 or any written notice delivered
pursuant hereto, such payments should not have been accepted or should have been
paid instead to another party, then such payments shall be received by the
Issuer in trust for, and shall be promptly deposited and delivered in kind to,
the Trustee. During the existence and continuance of an Event of Default, the
Trustee shall have the right to exercise all rights and remedies of the Issuer
under the Collateral Documents and to enforce the First Mortgage Notes and the
other Collateral Documents in accordance with the terms of this Agreement.
8. EVENTS OF DEFAULT. The occurrence of an Event of Default under and as
defined in the Indenture shall constitute an event of default hereunder (an
"EVENT OF DEFAULT").
9. REMEDIES UPON EVENT OF DEFAULT.
9.1 Subject to and in accordance with the terms and conditions of
the Pledge Provisions, if any Event of Default has occurred and is continuing,
the Trustee may (SUBJECT TO ANY FEDERAL OR STATE LIMITATIONS ON THE OPERATION,
USE, POSSESSION AND TRANSPORTATION OF GAMING DEVICES) (a) proceed to protect and
enforce the rights vested in it by this Agreement, including but not limited to,
the right to cause all revenues pledged hereby as security and all other monies
pledged hereunder to be paid directly to it for application to and satisfaction
of the Secured Obligations, and to enforce its rights hereunder to such payments
and all other rights hereunder by such appropriate judicial proceedings as it
shall deem most effective to protect and enforce any of such rights, either at
law or in equity or otherwise, whether for specific enforcement of any covenant
or agreement contained in any of the Assigned Agreements, or in aid of the
exercise of any power therein or herein granted, or for any foreclosure
hereunder and sale under a judgment or decree in any judicial proceeding, or to
enforce any other legal or equitable right vested in it by this Agreement or by
applicable Law; (b) cause any action at law or suit in equity or other
proceeding to be instituted and prosecuted to collect or enforce any of the
Secured Obligations or rights hereunder or included in the Collateral, or to
foreclose or enforce any other agreement or other instrument by or under or
pursuant to which such Secured Obligations are issued or secured, subject in
each case to the provisions and requirements thereof; (c) subject to applicable
Law, including, without limitation, all applicable rules and regulations of the
Mississippi Gaming Commission, sell or otherwise dispose of any or all of the
Collateral or cause the Collateral to be sold or otherwise disposed of in one or
more sales or transactions, at such prices and in such manner as the Trustee may
deem commercially reasonable providing Issuer with at least 10 Business Days'
prior written notice of Trustee's intention or decision to conduct such sale or
disposition, and for cash
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or on credit or for future delivery, without assumption of any credit risk at
any broker's board or at public or private sale, with or without a warranty of
title, without demand of performance or notice of intention to sell or of time
or place of sale (except such notice as is required by applicable statute and
cannot be waived) but, at a minimum, it being agreed that the Trustee may be a
purchaser on its own behalf at any such public sale and that the Trustee, or any
other Person who may be a bona fide purchaser for value and without notice of
any claims of any or all of the Collateral so sold shall thereafter hold the
same absolutely free from any claim or right of whatsoever kind, including any
equity of redemption, of the Issuer, any such demand, notice or right and equity
being hereby expressly waived and released to the extent permitted by applicable
Law; (d) incur reasonable expenses, including reasonable attorneys' fees,
reasonable consultants' fees, and other costs appropriate to the exercise of any
right or power under this Agreement; (e) subject to applicable Law, including,
without limitation, all applicable rules and regulations of the Mississippi
Gaming Commission, perform any obligation of the Issuer hereunder, under the
First Mortgage Notes or under any other Collateral Documents, and make payments,
purchase, contest or compromise any encumbrance, charge or lien, and pay taxes
and expenses without, however, any obligation to do so; (f) subject to
applicable Law, including, without limitation, all applicable rules and
regulations of the Mississippi Gaming Commission, in connection with any
acceleration and foreclosure, take possession of the Collateral and render it
usable and repair and renovate the same without, however, any obligation to do
so, and enter upon the Facility or any other location where the same may be
located for that purpose, control, manage, operate, rent and lease the
Collateral, either separately or in conjunction with the Facility, collect all
rents and income from the Collateral and apply the same to reimburse the Trustee
for any cost or expenses incurred hereunder, under the First Mortgage Notes or
under any of the Collateral Documents and to the payment or performance of the
Issuer's obligations hereunder, under the First Mortgage Notes or under any of
the Collateral Documents, and apply the balance to the First Mortgage Notes and
any remaining excess balance to whomsoever is legally or contractually entitled
thereto; (g) secure the appointment of a receiver of the Collateral or any part
thereof (which receiver shall be subject to the prior written approval of Hard
Rock Licensing); (h) direct the Disbursement Agent to stop payment of any
disbursements being made at such time or to be made from any of the Construction
Period Accounts or the Issuer's Payment Account, and direct all further
disbursements of funds from any of the Construction Period Accounts or the
Issuer's Payment Account; or (i) exercise any other or additional rights or
remedies granted to a secured party under the UCC, if and as applicable. If
pursuant to applicable Law prior notice of any such action is required to be
given to the Issuer, the Issuer hereby acknowledges that the minimum time
required by such applicable Law, or if no minimum time is specified, ten
Business Days' prior written notice, shall be deemed a reasonable notice period.
9.2 All reasonable costs and expenses (including reasonable
attorneys' fees and expenses) actually incurred by the Trustee in connection
with any such suit or proceeding or in connection with the performance by the
Trustee of any of the Issuer's agreements contained in any of the Assigned
Agreements or any exercise of its rights or remedies hereunder, pursuant to the
terms of this Agreement, together with interest thereon (to the extent permitted
by applicable Law) computed at a rate per annum equal to the ten and three
fourths percent (10 3/4%) from the date on which such costs or expenses are
actually incurred to the date of payment thereof, shall
EXECUTION VERSION
13
constitute additional Secured Obligations secured by this Agreement and shall be
paid by the Issuer to the Trustee on written demand.
10. REMEDIES CUMULATIVE; DELAY NOT WAIVER.
10.1 No right, power or remedy herein conferred upon or reserved
to the Trustee is intended to be exclusive of any other right, power or remedy
and every such right, power and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder or otherwise shall not
prevent the concurrent assertion or employment of any other appropriate right or
remedy. Resort to any or all security now or hereafter held by the Trustee may
be taken concurrently or successively and in one or several consolidated or
independent judicial actions or lawfully taken nonjudicial proceedings, or both.
10.2 No delay or omission of the Trustee to exercise any right or
power accruing upon the occurrence and during the continuance of any Event of
Default as aforesaid shall impair any such right or power or shall be construed
to be a waiver of any such Event of Default or an acquiescence therein; and
every power and remedy given by this Agreement may be exercised from time to
time, and as often as shall be deemed expedient, by the Trustee.
11. APPLICATION OF PROCEEDS . Upon the occurrence and during the
continuation of an Event of Default, the proceeds of any sale of or other
realization upon, all or any part of the Collateral shall be applied: FIRST, to
all fees, costs and expenses actually incurred by and due and owing to the
Trustee under the First Mortgage Notes or the Collateral Documents; SECOND, to
accrued and unpaid interest on the Secured Obligations (including any interest
which, but for the provisions of Bankruptcy Law, would have accrued on such
amounts); THIRD, to the principal amounts of the Secured Obligations
outstanding; FOURTH, to any other Secured Obligations of Premier or any Pledgor
owing to the Trustee; FIFTH, so long as the indebtedeness under the Junior
Subordinated Note is then outstanding, to Rank America, Inc. ("RANK") to be
applied in accordance with the Junior Subordinated Note, the Junior Subordinated
Note Investment Agreement and the Intercreditor Agreement; and SIXTH, (i) if the
Trustee shall have foreclosed upon the pledge of the membership interests in
Premier pursuant to the "Collateral Documents" (as defined in the Indenture), to
AA Capital to be distributed in accordance with the Equity Agreement or to the
persons legally entitled thereto as directed by a court of competent
jurisdiction; and (2) if the Trustee shall not have foreclosed upon the pledge
of the membership interests in Premier pursuant to the "Collateral Documents"
(as defined in the Indenture), to Premier or to the persons legally entitled
thereto as directed by a court of competent jurisdiction; PROVIDED, HOWEVER,
prior to (i) commencement of an action by the Trustee to foreclose on all or any
portion of the Collateral, or (ii) the filing of a petition (either voluntary or
involuntary) for bankruptcy by the Issuer, the proceeds of any such sale of all
or any portion of the Collateral shall be applied first to satisfy the
obligations of Issuer to Hard Rock Licensing, and, thereafter, shall be applied
as set forth above.
12. ATTORNEY-IN-FACT. Except with respect to the Hard Rock Documents and
the rights, interest and remedies of Issuer with respect thereto, the Issuer
hereby constitutes and appoints the Trustee, acting for and on behalf of itself
and each successor or assign of the Trustee, the true
EXECUTION VERSION
14
and lawful attorney-in-fact of the Issuer, with full power and authority in the
place and stead of the Issuer and in the name of the Issuer, the Trustee or
otherwise to, upon the occurrence and during the continuance of an Event of
Default, enforce all rights, interests and remedies of the Issuer with respect
to the Collateral, including, without limitation, the right:
12.1 to ask, require, demand, receive and give acquittance for any
and all monies and claims for monies due and to become due under or arising out
of the Assigned Agreements or any of the other Collateral, including without
limitation, any insurance policies;
12.2 to elect remedies thereunder and to endorse any checks or
other instruments or orders in connection therewith;
12.3 to file any claims or take any action or institute any
proceedings in connection therewith which the Trustee may reasonably deem to be
necessary or advisable;
12.4 to pay, settle or compromise all bills and claims which may
be or become liens or security interests against any or all of the Collateral,
or any part thereof, unless a bond or other security satisfactory to the Trustee
has been provided; and
12.5 upon foreclosure, subject to the limitations contained in
SECTION 9.1, to do any and every act which the Issuer may do on its behalf with
respect to the Collateral or any part thereof and to exercise any or all of the
Issuer's rights and remedies under any or all of the Assigned Agreements;
PROVIDED, HOWEVER, that the Trustee shall not exercise any such rights except
upon the occurrence and continuation of an Event of Default. This power of
attorney is a power coupled with an interest and shall be irrevocable. The
Trustee shall exercise all remedies under this Agreement in accordance with the
terms of the Indenture.
13. ISSUER MAY PERFORM. Upon the occurrence and during the continuance of
an Event of Default, if the Issuer fails to perform any agreement contained
herein, the Trustee may itself perform, or cause performance of, such agreement
and the Trustee shall notify the Issuer in writing of such performance promptly
thereafter, and the reasonable expenses of the Trustee incurred in connection
therewith shall be part of the Secured Obligations.
14. PERFECTION; FURTHER ASSURANCES.
14.1 The Issuer agrees that from time to time, at the expense of
the Issuer, the Issuer shall promptly execute and deliver all records,
instruments and documents, and take all action, that may be reasonably
necessary, or that the Trustee may reasonably request, in order to perfect and
protect the assignment and security interest granted or intended to be granted
hereby or to enable the Trustee to exercise and enforce its rights and remedies
hereunder with respect to any Collateral.
14.2 The Issuer hereby authorizes the Trustee to file one or more
financing or continuation statements and other records with respect to all or
any part of the Collateral (including any amendments thereto, or continuation or
termination statements thereof), without
EXECUTION VERSION
15
the signature or other authorization of the Issuer in such form and in such
offices as the Trustee reasonably determines appropriate to perfect or maintain
the perfection of the security interest of the Trustee hereunder. The Issuer
acknowledges and agrees that it is not authorized to, and will not, authenticate
or file, or authorize the filing of, any financing statements or other record
with respect to the Collateral (including any amendments thereto, or
continuation or termination statements thereof), without the express prior
written approval and authorization by the Trustee, consenting to the form and
substance of such filing or record. The Issuer approves, authorizes and ratifies
any required or advisable filing or recording of records made by or on behalf of
the Trustee with the Delaware or Mississippi Secretary of State in connection
with the perfection of the security interest in favor of the Trustee.
14.3 The Issuer shall pay all filing, registration and recording
fees and all refiling, re-registration and re-recording fees (including, but not
limited to, attorney fees), and all reasonable expenses incident to the
execution and acknowledgment of this Agreement, any assurance, and all federal,
state, county and municipal stamp taxes and other taxes, duties, imports,
assessments and charges arising out of or in connection with the execution or
authentication and delivery of this Agreement, any agreement supplemental
hereto, any financing statements, and any instruments of further assurance.
14.4 The Issuer shall, promptly upon written request, provide to
the Trustee all information and evidence it may reasonably request concerning
the Collateral to enable the Trustee to enforce the provisions of this
Agreement.
15. PLACE OF BUSINESS; LOCATION OF RECORDS. Unless the Trustee is
otherwise notified under SECTION 6.4, the place of business and chief executive
office of the Issuer is, and all records of the Issuer concerning the Collateral
are and will be, located at the address set forth in SECTION 14.03 of the
Indenture.
16. CONTINUING ASSIGNMENT AND SECURITY INTEREST; TRANSFER OF GUARANTY.
This Agreement shall create a continuing assignment of, and security interest
in, the Collateral and shall (a) remain in full force and effect until payment
in full of the Secured Obligations; (b) be binding upon the Issuer and its
successors and assigns; provided, however, that the obligations of the Issuer
and its successors and assigns hereunder may not be assigned without the prior
written consent of the Trustee; and (c) inure, together with the rights and
remedies of the Trustee, to the benefit of the Trustee and its successors,
transferees and assigns. Without limiting the generality of the foregoing but
subject to the terms of the Indenture, any Noteholder may assign or otherwise
transfer all or any part of or interest in the First Mortgage Notes or other
evidence of indebtedness held by it to any other Person to the extent permitted
by and in accordance with the Indenture, and such other Person shall thereupon
become vested with all or an appropriate part of the benefits in respect thereof
granted to the Trustee herein or otherwise. The release of the security interest
in any or all of the Collateral, the taking or acceptance of additional
security, or the resort by the Trustee to any security it may have in any order
it may deem appropriate, shall not affect the liability of any person on the
indebtedness secured hereby. If this Agreement shall be terminated or revoked by
operation of law prior to the termination of this Agreement under SECTION 17
hereof, the Issuer will indemnify and save the Trustee harmless from any loss
which is actually suffered or incurred by the Trustee in acting hereunder prior
to the receipt by the Trustee, its successors, transferees, or assigns of notice
of such termination or revocation.
EXECUTION VERSION
16
17. TERMINATION OF SECURITY INTEREST. Upon the satisfaction of the
conditions set forth in SECTION 10.04 of the Indenture (Release of Collateral),
the security interest in all or a portion of the Collateral hereunder shall
terminate to the extent set forth in such SECTION 10.04. Upon any such
termination, the Trustee shall promptly, at the Issuer's expense, authenticate
and, subject to SECTION 18 hereof, deliver to the Issuer such records
(including, without limitation, termination statements under the UCC) as the
Issuer shall reasonably request to evidence such termination.
18. REINSTATEMENT. This Agreement shall continue to be effective or be
reinstated, as the case may be, if at any time any amount received by the
Trustee in respect of the Secured Obligations is rescinded or must otherwise be
restored or returned by the Trustee upon the insolvency, bankruptcy,
reorganization, liquidation of the Issuer or upon the dissolution of, or
appointment of any intervenor or conservator of, or trustee or similar official
for, the Issuer or any substantial part of the Issuer's assets, or otherwise,
all as though such payments had not been made.
19. TRUSTEE'S DUTIES; REASONABLE CARE. The powers conferred on the Trustee
hereunder are solely to protect its interest in the Collateral and shall not
impose any duty on it to exercise such powers. Except for the safe custody of
any Collateral in its possession and the accounting for monies actually received
by it hereunder, the Trustee shall have no duty as to any Collateral. The
Trustee shall be deemed to have exercised reasonable care in the custody and
preservation of the Collateral in its possession if the Collateral is accorded
treatment that is not materially less protective to that which the Trustee
accords its own property, it being expressly agreed that neither the Trustee nor
any Noteholder shall have responsibility for (i) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relative to any Collateral, whether or not the Trustee or any Noteholder
has or is deemed to have knowledge of such matters, or (ii) taking any necessary
steps to preserve rights against any parties with respect to any Collateral, but
the Trustee may do so at its option and all reasonable expenses (including
reasonable attorneys' fees) incurred in connection therewith shall be payable by
and for the sole account of the Issuer.
20. SURVIVAL OF PROVISIONS. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Agreement, the
First Mortgage Notes and the Indenture. Notwithstanding anything in this
Agreement or implied by law to the contrary, without the consent of the Trustee,
the agreements, representations and warranties of the Issuer set forth herein
shall terminate only upon indefeasible payment in full of the Secured
Obligations.
21. MISCELLANEOUS.
21.1 NO PERSONAL LIABILITY. No past, present or future officer or
office holder, employee, agent, representative, member of the Issuer shall have
any liability for any obligations of the Issuer under this Agreement for any
claim based on, in respect of, or by reason of, such obligations or their
creation.
21.2 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
EXECUTION VERSION
17
YORK INCLUDING WITHOUT LIMITATION, SECTION 5-1401 OF THE
NEW YORK GENERAL
OBLIGATIONS LAW; PROVIDED, HOWEVER THAT WITH RESPECT TO THE CREATION,
ATTACHMENT, PERFECTION OR PRIORITY OF THE SECURITY INTEREST IN ANY COLLATERAL OR
THE ENFORCEMENT OF ANY RIGHTS THEREIN, THE GOVERNING LAW SHALL BE THE APPLICABLE
UCC AS SET FORTH IN THE DEFINITION OF THE TERM "UCC."
21.3 SEVERABILITY. In case any provision in the Agreement shall be
invalid, illegal or unenforceable, the validity, legality, and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
21.4 TABLES OF CONTENTS, HEADINGS, ETC. The Table of Contents and
Headings in this Agreement have been inserted for convenience of reference only,
are not to be considered a part of this Agreement and shall in no way modify or
restrict any of the terms or provisions hereof.
21.5 COUNTERPARTS, ORIGINALS. The parties may sign any number of
copies of this Agreement. Each signed copy shall be an original, but all of them
together represent the same agreement.
21.6 TIME. Time is of the essence of this Agreement.
21.7 AMENDMENTS; WAIVERS; CONSENTS. No amendment, modification,
termination or waiver of any provision of this Agreement, or consent to any
departure by the Issuer therefrom, shall in any event be effective without the
written concurrence of the Issuer and the Trustee.
21.8 NOTICES. All notices required or permitted under the terms
and provisions hereof shall be in writing and any such notice shall be effective
if given in accordance with the provisions of SECTION 14.03 of the Indenture.
Notices to the Issuer may be given at the address of the Issuer set forth in
such SECTION 14.03.
21.9 ENTIRE AGREEMENT. This Agreement, together with any other
agreement executed in connection herewith, is intended by the parties as a final
expression of their agreement and is intended as a complete and exclusive
statement of the terms and conditions thereof. This Agreement supercedes all
oral negotiations and prior writings in respect of the subject matter hereof.
21.10 ATTORNEYS' FEES. In the event any legal action or proceeding
(including, without limitation, any of the remedies provided for herein or at
law) is commenced to enforce or interpret this Agreement or any provision
thereof the Issuer shall indemnify the Trustee for its reasonable attorneys'
fees and other costs and expenses incurred therein, and if a judgment or award
is entered in any such action or proceeding, such reasonable attorneys' fees and
other costs and expenses may be made a part of such judgment or award.
EXECUTION VERSION
18
21.11 ASSIGNMENT. The Trustee's right to assign its rights under
this Agreement with respect to the Hard Rock Documents is governed and
controlled by the Pledge Provisions and other terms and conditions of the Hard
Rock Documents.
21.12 CONSENT OF HARD ROCK STP AND HARD ROCK LICENSING. This Pledge
is subject to and conditioned upon the Consent and Acknowledgement Agreement by
and among Hard Rock STP, Hard Rock Licensing and the Trustee of even date
herewith.
21.13 NO SECURITY INTEREST IN MEMORABILIA. Notwithstanding any
provision contained herein or in any other Collateral Document to the contrary
(including, but not limited to, SECTION 2 hereof), the Trustee acknowledges that
it does not and shall not have any right, title, or interest whatsoever in the
Property (as defined in the Memorabilia Lease) which is now or at any time
hereafter subject to the Memorabilia Lease, other than a pledge of the leasehold
right of Premier therein as created by, and in accordance with, the Memorabilia
Lease.
21.13 GAMING LAWS. This Agreement is subject to Gaming Laws
(including without limitation the Mississippi Gaming Control Act Section 75-76-1
et seq., Mississippi Code of 1972 and the rules and regulations thereunder), and
laws involving the sale, distribution and possession of alcoholic beverages (the
"LIQUOR LAWS"). Without limiting the foregoing, each of the Trustee and the
Noteholders acknowledge by its acceptance hereof that (i) it is subject to being
called forward by any Gaming Authority and any Governmental Entity enforcing the
Liquor Laws, in their discretion, for licensing or a finding of suitability or
to file or provide other information, and (ii) all rights, remedies and powers
under this Agreement and the other Transaction Documents, including with respect
to the entry into and ownership and operation of gaming facilities, and the
possession or control of gaming equipment, alcoholic beverages or a gaming or
liquor license, may be exercised only to the extent that the exercise thereof
does not violate any applicable provisions of the Gaming Laws and Liquor Laws
and only to the extent that required approvals (including prior approvals) are
obtained from the requisite Governmental Entities.
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19
IN WITNESS WHEREOF, each of the undersigned has caused this
Pledge and
Security Agreement to be duly executed and delivered as of the day and year
first above written.
PREMIER ENTERTAINMENT BILOXI LLC,
a Delaware limited liability company
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
PREMIER FINANCE BILOXI CORP,
a Delaware corporation
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President
U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
EXECUTION VERSION
20
