Exhibit 10.17
INDEXING INSTRUCTIONS:
To the Chancery Clerk of the Second
Judicial District of Xxxxxxxx County Mississippi
Part of Biloxi Section Blocks 100, 130, and
130.5 in Fractional Section 27, Township 7
South, Range 9 West, Biloxi, Xxxxxxxx County,
Second Judicial District, Mississippi.
PREPARED BY, RECORDED AT REQUEST OF
AND WHEN RECORDED RETURN TO:
Xxxxxx and Xxxxxxx
000 X. Xxxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-8197
Attention: Xxxxxxx X. Xxxxxx, Esq.
SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT
This SUBORDINATION, NONDISTURBANCE, AND ATTORNMENT AGREEMENT ("AGREEMENT")
is made as of January 20, 2004 between 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,
"TRUSTEE"), having its principal place of business at 00 Xxxxxxxxxx Xxxxxx, Xx.
Xxxx, XX 00000, and HARD ROCK CAFE INTERNATIONAL (STP), INC. ("TENANT"), a New
York corporation, having its principal place of business at 000 Xxx Xxxx Xxxx,
Xxxxxxx, Xxxxxxx 00000.
RECITALS
A. Premier Entertainment Biloxi LLC, a Delaware limited liability company
("LANDLORD"), and Premier Finance Corp., a Delaware corporation ("PFC," jointly
and severally with Landlord, the "ISSUER"), and the Trustee have entered into
that certain Indenture dated January 23, 2004 (as amended, modified or
supplemented from time to time, the "INDENTURE") pursuant to which the Issuer
will issue $160,000,000 aggregate principal amount of its 10 3/4% First Mortgage
Notes due 2012 (together with all notes issued under the Indenture, including
all notes issued in exchange or replacement therefore, the "FIRST MORTGAGE
NOTES"), to Trustee on behalf of the holders from time to time of the First
Mortgage Notes (the "NOTEHOLDERS"), to finance Project Costs, as more
particularly described therein.
B. Landlord's obligations under the Indenture are secured by that certain
Construction Deed of Trust, Leasehold Deed of Trust, Security Agreement, Fixture
Filing, with Assignment of Leases and Rents and Agreements, dated as of January
__, 2004, recorded on ______________, 2004, as Deed of Trust Book No. _________,
Page No. ______________, in the Official Records of the County Recorder of
Xxxxxxxx County, Mississippi, and recorded on
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______________, 2004, as Deed Book No. ________, Page No. ___________, in the
Official Records of the County Recorder of Xxxxxxxx County, Mississippi
(together with all amendments, increases, renewals, modifications,
consolidations, spreaders, combinations, supplements, replacements,
substitutions, and extensions, either current or future, referred to hereafter
as the "DEED OF TRUST") encumbering Landlord's ownership interest in real
property located in Biloxi, State of Mississippi and assigning all leases,
rents, issues and profits from the Premises. The legal description of the
encumbered real property (the "PREMISES") is set forth in Exhibit A, attached to
this Agreement. The Deed of Trust, the Indenture, the First Mortgage Notes, the
Collateral Documents (as defined in the Indenture), and other documents executed
in connection with it are hereafter collectively referred to as the "FINANCING
DOCUMENTS."
C. On December 30, 2003, Tenant and Landlord entered into that certain
Lease Agreement (Retail Store) for a portion of the Premises (the "LEASE"). The
Lease creates a leasehold estate in favor of Tenant for space (the "LEASED
PREMISES") located on the Premises.
AGREEMENT
TO CONFIRM their understanding concerning the legal effect of the Deed of
Trust and the Lease, in consideration of the mutual covenants and agreements
contained in this Agreement and other valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Trustee and Tenant, intending to
be legally bound, agree and covenant as follows:
1. REPRESENTATIONS AND WARRANTIES. Tenant warrants and represents that
the Lease is in full force and effect and that, as of the date of this Agreement
and to the best of Tenant's knowledge, there is no default under the Lease by
Landlord or Tenant.
2. RESERVED.
3. TENANT SUBORDINATION.
3.1 Subject to the provisions of this Agreement, the Financing
Documents shall constitute a lien or charge on the Premises that is prior and
superior to the Lease, to the leasehold estate created by it, and to all rights
and privileges of Tenant under it; by this Agreement, the Lease, the leasehold
estate created by it, together with all rights and privileges of Tenant under
it, is subordinated, at all times, to the lien or charge of the Financing
Documents in favor of Trustee.
3.2 By executing this Agreement, Tenant subordinates the Lease and
Xxxxxx's interest under it to the lien right and security title and to all
advances or payments made, or to be made, under any Financing Document.
4. NONDISTURBANCE.
4.1 Trustee consents to the Lease.
4.2 Despite Xxxxxx's subordination under SECTION 3, and subject to
the termination provisions set forth in SECTION 6 and SECTION 11, Xxxxxx's
peaceful and quiet possession of the Leased Premises shall not be disturbed and
Tenant's rights and privileges under
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the Lease shall not be diminished, modified, enlarged or otherwise affected
during the term of the Lease, as extended, by Trustee's exercise of its rights
or remedies under the Financing Documents (subject to the provisions of SECTION
6 or otherwise), provided that Tenant:
(a) is not in default in the payment of the rent or additional
rent or in the performance of any of the other material terms, covenants,
or conditions of the Lease that Tenant is required to perform (beyond any
period given Tenant under the Lease to cure such default); and
(b) has not canceled or terminated the Lease (without regard to
whether Landlord or Tenant is then in default under the Lease), nor
surrendered the Leased Premises.
4.3 If (a) Trustee or any Transferee (as hereinafter defined) shall
acquire title to, and possession of, the Leased Premises on foreclosure in an
action in which Trustee shall have been required to name Tenant as a party
defendant, and (b) Tenant is not in default under the Lease beyond any
applicable cure or grace periods, has not canceled or terminated the Lease
(without regard to whether Landlord or Tenant is then in default under the
Lease), nor surrendered the Leased Premises at the time Trustee or such
Transferee shall so acquire title to, and possession of, the Leased Premises,
Trustee or such Transferee and Tenant shall enter into a new lease on the same
terms and conditions as were contained in the Lease, except that:
(a) Trustee or the Transferee shall have no obligations or
liabilities to Tenant under any such new lease beyond those of Landlord (or
its predecessors-in-interest) as were contained in the Lease; and
(b) the expiration date of any new lease shall coincide with the
original expiration date of the Lease, together with any remaining
extension options.
4.4 Tenant shall not be named or joined in any foreclosure, trustee's
sale, or other proceeding to enforce the Financing Documents unless such joinder
shall be legally required to perfect the foreclosure, trustee's sale, or other
proceeding.
4.5 Notwithstanding any provision in this Agreement to the contrary,
but subject to SECTION 6, simultaneously with acquiring the Landlord's interest
under the Lease (whether by foreclosure, deed in lieu of foreclosure or
otherwise), the Trustee or any Transferee, as the case may be, shall (a) abide
by the provisions of the Lease, (b) expressly and unconditionally assume in
writing all obligations of Landlord under the Lease that arise or are to be
performed from and after the date of such assumption, (c) cure all monetary
defaults such that the aggregate amount of outstanding monetary defaults (after
such cure) is not more than the sum of all rental payments made by Tenant during
the six (6) month period immediately preceding the date upon which the Trustee
or the Transferee, as the case may be, acquires the Landlord's interest under
the Lease (the remaining uncured monetary default being subject to a right of
set-off against future rents due under the Lease), and (d) agree in writing to
cure all non-monetary defaults of Landlord under the Lease reasonably capable of
cure within a reasonable period after acquiring the Landlord's interest under
the Lease.
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5. ATTORNMENT.
5.1 If Trustee shall succeed to Landlord's interest in the Premises
by foreclosure of the Deed of Trust, by deed in lieu of foreclosure, or in any
other manner, Tenant shall be bound to Trustee under all the terms, covenants
and conditions of the Lease for the balance of its term with the same force and
effect as if Trustee were the Landlord under the Lease. Tenant shall be deemed
to have full and complete attornment to, and to have established direct privity
between Tenant and any of the following, after the same has satisfied all of the
requirements of Section 4.5 (a) through (d) hereof as of the date such transfer
of the Landlord's interest in the Lease:
(a) Trustee when in possession of the Premises;
(b) a receiver appointed in any action or proceeding to
foreclose the Deed of Trust;
(c) any party acquiring title to the Premises;
(d) any successor to Xxxxxxxx; or
(e) any successor to Trustee.
5.2 Except as provided in Section 5.1 hereof, Xxxxxx's attornment is
self-operating, and it shall continue to be effective without execution of any
further instrument by any of the parties to this Agreement or the Lease. Xxxxxxx
agrees to give Xxxxxx written notice if Trustee has succeeded to the interest of
Landlord under the Lease. Subject to SECTION 6, the terms of the Lease are
incorporated into this Agreement by reference.
5.3 If the interests of Landlord under the Lease are transferred by
foreclosure of the Deed of Trust, deed in lieu of foreclosure, or otherwise, to
a party other than Trustee ("TRANSFEREE"), in consideration of, and as condition
precedent to, Xxxxxx's agreement to attorn to any such Transferee, Transferee
shall comply with the requirements of Section 4.5 (a) through (d) hereof as of
the date such transfer of the Landlord's interest in the Lease.
6. TRUSTEE AS LANDLORD. If Trustee or any Transferee shall succeed to the
interest of Landlord under the Lease (any such successor (including the
Trustee), a "SUCCESSOR"), Successor shall be bound to Tenant under all the
terms, covenants and conditions of the Lease, and Tenant shall, from the date of
Successor's succession to Xxxxxxxx's interest under the Lease, have the same
remedies against Successor for breach of the Lease that Tenant would have had
under the Lease against Landlord; provided, however, that despite anything to
the contrary in this Agreement or the Lease, any Successor shall not be:
(a) except as otherwise provided herein, liable for any act or
omission of any previous landlord (including Landlord), provided that the
foregoing shall not be construed to limit Tenant's right to possession of
the Leased Premises for the entire term of the Lease, as extended, on the
terms and conditions of the Lease;
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(b) liable for any security deposit not received by Trustee, or
bound by any rent or additional rent that Tenant may have paid for more
than one month in advance to any previous landlord (including Landlord);
(c) bound by any covenant to undertake or complete any
construction of the Premises, the Leased Premises, or any portion of them
if any Successor elects not to undertake or complete such construction by
giving notice to Tenant within thirty (30) days after such Successor
succeeds to the interest of Landlord under the Lease; provided, however, if
any Successor so elects, then Tenant may, as its sole remedy against
Trustee or any Successor, terminate the Lease by providing notice thereof
to such Successor within fifteen (15) days after such Successor gives
written notice of such election to Tenant, and in the event Tenant
terminates the Lease in the manner provide above, such Successor shall pay
to Tenant an amount equal to the amount of costs and expenses actually
incurred by Tenant in designing, constructing and installing improvements
to the Leased Premises ("TENANT IMPROVEMENTS") to prepare the Leased
Premises for Tenant's use (such costs and expenses, "TENANT IMPROVEMENT
COSTS") within thirty (30) days after such Successor receives an invoice
therefor; nor
(d) bound by any obligation to repair, replace, rebuild or
restore the Premises, the Leased Premises, or any portion of them, in the
event of damage by fire or other casualty, or in the event of partial
condemnation if any Successor elects not to undertake or complete such
repair, replacement, rebuilding or restoration by giving notice to Tenant
within thirty (30) days after such Successor succeeds to the interest of
Landlord under the Lease; provided, however, if any Successor so elects,
then Tenant may, as its sole remedy against such Successor, terminate the
Lease by providing notice thereof to such Successor within fifteen (15)
days after such Successor gives written notice of such election to Tenant,
and in the event Tenant terminates the Lease in the manner set forth above,
then such Successor shall pay to Tenant, within thirty (30) days after such
Successor receives an invoice from Tenant, an amount equal to the
difference of: (i) the unamortized amount of any Tenant Improvement Costs
based on straight line amortization over the Initial Term (as defined in
the Lease) as of the date of termination, less (ii) the amount of any
insurance proceeds or condemnation award paid or payable to Tenant with
respect to the value of Tenant Improvements. The right of Successor to
elect not to repair, replace, rebuild or restore the Premises, the Leased
Premises, or any portion of them in the even of damage by fire or other
casualty or in the event of partial condemnation shall not apply if such
fire, other casualty or partial condemnation impacts five percent (5%) or
less (measured by based on total square footage) of the Leased Premises,
and impacts five percent (5%) or less (measured by the total square
footage) of the Premises.
7. NOTICE OF DEFAULT; RIGHT TO CURE.
7.1 In the event Tenant gives written notice to Landlord of a breach
of its obligations under the Lease, Tenant shall forthwith furnish a copy of
such notice to Trustee.
7.2 In the event that Xxxxxxxx receives notice from Tenant of a
breach by Landlord of any of its monetary obligations under the Lease, and such
breach is not cured by
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Landlord pursuant to the provisions of the Lease, Tenant shall not terminate the
Lease in connection with such default except as provided in this SECTION 7.2
(but shall be entitled to avail itself of all other remedies provided to Tenant
under the Lease), and Tenant shall, in addition to the notice provided in
SECTION 7.1 hereof, give notice of the monetary failure to cure on the part of
Landlord to Trustee at the expiration of the period within which Landlord may
cure as set forth in the Lease. Then, Trustee may proceed to cure any such
failure within sixty (60) days after receipt of the additional notice herein set
forth. If Trustee fails to cure such monetary default within such sixty (60) day
period, Tenant shall be entitled to exercise all rights and remedies for such
monetary default as provided in the Lease (including, but not limited to, the
right to terminate the Lease), without the necessity to provide any further
notice or cure period whatsoever.
7.3 In the event that Landlord receives notice from Tenant of a
non-monetary breach by Landlord of any of its obligations under the Lease, and
such breach is not cured by Landlord pursuant to the provisions of the Lease,
Tenant shall not terminate the Lease in connection with such default except as
provided in this SECTION 7.3 (but shall be entitled to avail itself of all other
remedies provided to Tenant under the Lease), and Tenant shall, in addition to
the notice provided in SECTION 7.1 hereof, give notice of the failure to cure on
the part of Landlord to Trustee at the expiration of the period within which
Landlord may cure as set forth in the Lease ("TENANT'S NOTICE"). Thereafter,
Trustee may, by providing written notice of its intention to cure any such
non-monetary default to Tenant within sixty (60) days after receipt of the
Tenant's Notice, proceed to cure any such non-monetary default. In the event
Trustee elects to proceed to cure such non-monetary default, Trustee shall
complete such cure within sixty (60) days after the date of receipt of the
Tenant's Notice; PROVIDED, HOWEVER, if: (a) the non-monetary default cannot
reasonably be cured within such sixty (60) day period; (b) Trustee materially
commences cure of such non-monetary default within such sixty (60) day period;
and (c) after commencing efforts to cure such non-monetary default, diligently
and in good faith pursues same to completion, then such sixty (60) day period
shall be extended to a reasonable amount of time (not to exceed one hundred
(100) total days from the Tenant's Notice) to cure such non-monetary default;
PROVIDED, FURTHER, if:
(a) after exercising Trustee's commercially reasonable efforts
to cure such default, including, but not limited to, by seeking appointment
of a receiver, exercising legal self-help rights, or obtaining access to
the property by other commercially reasonable means to cure such default,
as a result of the nature of such default, such default is not reasonably
susceptible of being cured without Trustee obtaining possession of the
Project by institution of a foreclosure proceeding (any such default, a
"POSSESSORY DEFAULTS");
(b) unless it is enjoined or stayed, Trustee takes steps to
acquire or sell Landlord's interest in the Premises by foreclosure or other
appropriate means and diligently prosecutes the same to completion; and
(c) before the expiration of such sixty (60) day period, Trustee
provides notice of such Possessory Default to Tenant, an explanation of the
efforts undertaken by Trustee to cure such default without first
instituting foreclosure proceedings and the reasons such efforts failed;
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then such sixty (60) day cure period shall be extended for such reasonable
amount of time (not to exceed eleven (11) total months from the Tenant's Notice)
to obtain possession of the Premises and cure such non-monetary default. If
Trustee fails to cure such non-monetary default within such sixty (60) day
period (as extended as permitted in the previous sentence, if applicable),
Tenant shall be entitled to exercise all rights and remedies for such
non-monetary default as provided herein (including, but not limited to,
termination of the Lease), without the necessity to provide any further notice
or cure period whatsoever. Trustee shall not be required to continue such
foreclosure proceeding after the default has been cured, and if the default
shall be cured and Trustee shall discontinue such foreclosure proceedings, the
Lease shall continue in full force and effect as if Landlord had timely cured
the default under the Lease.
Except as expressly provided in SECTION 7.3 with respect to extension of
the cure periods, the commencement and/or prosecution of foreclosure proceedings
shall not be deemed to xxxxx, toll, extend or otherwise modify the cure rights
of Trustee set forth in this SECTION 7.
8. ASSIGNMENT OF RENTS. If Landlord defaults in its performance of the
terms of the Financing Documents, Xxxxxx agrees to recognize the assignment of
leases and rents made by Landlord to Trustee under the Deed of Trust and shall
pay to Trustee, as assignee, from the time Trustee gives Tenant notice that
Landlord is in default under the terms of the Financing Documents, the rents
under the Lease, but only those rents that are due or that become due under the
terms of the Lease after notice by Trustee. Payments of rents to Trustee by
Tenant under the assignment of leases and rents and Landlord's default shall
continue until the first of the following occurs:
(a) No further rent is due or payable under the Lease;
(b) Trustee gives Tenant notice that Xxxxxxxx's default under
the Financing Documents has been cured and instructs Tenant that the rents
shall thereafter be payable to Landlord; or
(c) The lien of the Deed of Trust has been foreclosed and the
purchaser at the foreclosure sale (whether Trustee or a Transferee) gives
Tenant notice of the foreclosure sale. On giving notice, the purchaser
shall succeed to Landlord's interests under the Lease, after which time the
rents and other benefits due Landlord under the Lease shall be payable to
the purchaser as the owner of the Premises.
9. TENANT'S RELIANCE. When complying with the provisions of SECTION 8,
Tenant shall be entitled to rely on the notices given by Trustee under SECTION
8, and Landlord and Trustee each, jointly and severally agree to release,
relieve, protect and indemnify Tenant from and against any and all loss, claim,
damage, or liability (including reasonable attorney's fees) arising out of
Tenant's compliance with such notice.
Tenant shall be entitled to full credit under the Lease for any rents paid
to Trustee in accordance with SECTION 8 to the same extent as if such rents were
paid directly to Landlord. Any dispute between Trustee (or Trustee's Transferee)
and Landlord as to the existence of a default by Landlord under the terms of the
Deed of Trust, the extent or nature of such default, or Trustee's right to
foreclosure of the Deed of Trust, shall be dealt with and adjusted solely
EXECUTION VERSION
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between Trustee (or Transferee) and Landlord, and Tenant shall not be made a
party to any such dispute (unless required by law).
10. TRUSTEE'S STATUS. Nothing in this Agreement shall be construed to be
an agreement by Trustee to perform any covenant of Landlord under the Lease nor
shall it deem Trustee as Landlord under the Lease, unless and until it obtains
title to the Premises by power of sale, judicial foreclosure, or deed in lieu of
foreclosure, obtains possession of the Premises under the terms of the Financing
Documents or expressly agrees to perform such covenant in a writing duly
executed by Trustee after the date hereof. Notwithstanding the foregoing, if
Trustee exercises its rights provided in SECTION 7 hereof, Trustee shall be
subject to the obligations of Landlord to indemnify Tenant as set forth in the
Lease, but solely with respect to the activities undertaken by Trustee in order
to cure such breach.
11. TERMINATION OF LEASE. Notwithstanding any other provision of this
Agreement or the Lease, if the Trustee provides an Election Notice (as defined
in that certain Consent and Acknowledgement Agreement dated January 23, 2004
among Hard Rock Hotel Licensing, Inc., a Florida corporation ("HRL"), Tenant,
Issuers, Trustee, GAR, LLC, a Mississippi limited liability company, AA Capital
Equity Fund, L.P., a Delaware limited partnership, and AA Capital Biloxi
Co-Investment Fund, L.P., a Delaware limited partnership (the "CONSENT")), and
the Premises is conveyed by judicial or non-judicial foreclosure, conveyance in
lieu of foreclosure or otherwise (but the rights of the licensee under the
License Agreement and the tenant under the Memorabilia Lease shall not so
transfer), then the Lease shall automatically terminate simultaneously with the
transfer of the Premises without the necessity of any further action by either
party to such Lease, and upon any such termination the Successor shall pay to
Tenant an amount equal to the unamortized portion of the Tenant Improvement
Costs based on straight-line amortization over the Initial Term (as defined in
the Lease) as of the date of termination within thirty (30) days after such
Successor receives an invoice therefor.
12. SPECIAL COVENANTS. Subject to the requirements of the License
Agreement, if Trustee acquires title to the Premises, Tenant agrees that:
Trustee shall have the right at any time in connection with the sale or other
transfer of the Premises to assign the Lease or Trustee's rights under it to any
person or entity, and that Trustee, its officers, directors, shareholders,
agents, and employees shall be released from any further liability under the
Lease arising after the date of such transfer, provided that the assignee of
Trustee's interest assumes Trustee's obligations under the Lease, in writing,
from the date of such transfer.
13. ADDITIONAL RIGHTS AND OBLIGATIONS.
13.1 For the avoidance of doubt, in the event Trustee exercises its
rights under this Agreement and the Deed of Trust to foreclose on the Premises:
(a) upon commencement of foreclosure proceedings by Trustee,
Landlord hereby releases Tenant of and from any and all claims against
Tenant and its officers, directors, shareholder, and employees, in their
corporate and individual capacities, including, without limitation, claims
arising under federal, state, and local laws, rules, and ordinances,
arising from or related to this Agreement; and
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(b) Landlord shall remain liable for all of the obligations to
Tenant in connection with the Premises prior to the effective date of the
transfer of its interest in the Lease.
14. RESERVED.
15. NOTICE. All notices required by this Agreement shall be given in
writing and shall be deemed to have been duly given for all purposes when:
(a) deposited in the United States mail (by registered or
certified mail, return receipt requested, postage prepaid); or
(b) deposited with a nationally recognized overnight delivery
service such as Federal Express or Airborne.
Each notice must be directed to the party to receive it at its address stated
below or at such other address as may be substituted by notice given as provided
in this section.
The addresses are:
TRUSTEE: U.S. BANK NATIONAL ASSOCIATION
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, XX 00000-0000
Attn: Xxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
TENANT: HARD ROCK CAFE INTERNATIONAL (STP), INC.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx X. Xxxxxxxxx, Esquire
Vice President and General Counsel
Copy to: AKERMAN SENTERFITT
Citrus Center, 17th Floor
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxx X. Xxxxx, Esquire
Copies of notices sent to the parties' attorneys or other parties are courtesy
copies, and failure to provide such copies shall not affect the effectiveness of
a notice given hereunder.
16. MISCELLANEOUS PROVISIONS.
16.1 This Agreement may not be modified orally; it may be modified
only by an agreement in writing signed by the parties or their
successors-in-interest. This Agreement shall inure to the benefit of and bind
the parties and their successors and assignees.
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16.2 The captions contained in this Agreement are for convenience only
and in no way limit or alter the terms and conditions of the Agreement.
16.3 This Agreement has been executed under and shall be construed,
governed, and enforced, in accordance with the laws of the State of Mississippi
except to the extent that Mississippi law is preempted by the U.S. federal law.
The invalidity or unenforceability of one or more provisions of this Agreement
does not affect the validity or enforceability of any other provisions.
16.4 This Agreement has been executed in duplicate. Trustee and Tenant
agree that one (1) copy of the Agreement will be recorded.
16.5 This Agreement shall be the entire and only agreement concerning
subordination of the Lease and the leasehold estate created by it, together with
all rights and privileges of Tenant under it, to the lien or charge of the
Financing Documents and shall supersede and cancel, to the extent that it would
affect priority between the Lease and the Financing Documents, any previous
subordination agreements, including provisions, if any, contained in the Lease
that provide for the subordination of the Lease and the leasehold estate created
by it to a deed of trust or mortgage. This Agreement supersedes any inconsistent
provision of the Lease.
16.6 Tenant acknowledges that this Agreement satisfies any requirement
in the Lease that Landlord obtain a nondisturbance agreement for Tenant's
benefit.
16.7 This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be deemed to be an original
and all of which copies, taken together, shall constitute but one and the same
instrument. Signature and acknowledgment pages may be detached from the copies
and attached to a single copy of this Agreement to physically form one original
document, which may be recorded without an attached copy of the Lease.
16.8 If any legal action or proceeding is commenced to interpret or
enforce the terms of this Agreement or obligations arising out of it, or to
recover damages for the breach of the Agreement, the party prevailing in such
action or proceeding shall be entitled to recover from the non-prevailing party
or parties all reasonable attorney fees, costs, and expenses it has incurred.
16.9 Unless the context clearly requires otherwise, (a) the plural and
singular numbers will each be deemed to include the other; (b) the masculine,
feminine, and neuter genders will each be deemed to include the others; (c)
"shall," "will," "must," "agrees," and "covenants" are each mandatory; (d) "may"
is permissive; (e) "or" is not exclusive; and (f) "includes" and "including" are
not limiting.
17. ADDITIONAL PROVISIONS.
17.1 Notwithstanding any provision herein or in any of the other
Financing Documents to the contrary, but subject to Section 11 hereof and
Section 6 of the Consent, the
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licensee under the License Agreement, the landlord under the Lease and the owner
of the Premises shall at all times be the same person or entity.
17.2 This Agreement constitutes a subordination of the Lease to the
lien of the Financing Documents only and not to the terms and conditions
contained therein. Except as otherwise specifically provided herein, nothing in
this Agreement or any other Financing Documents shall be deemed to amend,
modify, abridge or alter any of the terms and conditions of the Lease.
17.3 If the Trustee or any Transferee or Successor fails to make a
payment to the Tenant on or before the date specified herein for such person or
entity to make such payment, Tenant shall be entitled to a lien against the
Premises in the amount of such payment, together with interest at the maximum
rate permitted by law accruing from the date such payment is due until the date
paid. The lien granted herein shall not be subject to extinguishment by
foreclosure or reforeclosure by Trustee or any Transferee or Successor.
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Executed on the date first above written.
TRUSTEE:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TENANT:
HARD ROCK CAFE INTERNATIONAL
(STP), INC., a New York corporation
By: /s/ Xxx Xxxxxxxxx
--------------------------------
Name: Xxx Xxxxxxxxx
Title: Vice President
ACCEPTED AND AGREED TO:
LANDLORD:
PREMIER ENTERTAINMENT BILOXI LLC,
a Delaware limited liability company
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: President and COO
EXECUTION VERSION
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ACKNOWLEDGMENT
STATE OF MINNESOTA
COUNTY OF XXXXXX
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 20th day of January, 2004, within my
jurisdiction, the within named Xxxxx X. Xxxxxx, who acknowledged that he/she
is Vice President of U.S. Bank National Association, a national banking
association, and that for and on behalf of the said U.S. Bank National
Association, and as its act and deed he/she executed the above and foregoing
instrument, after first having been duly authorized by said U.S. Bank National
Association so to do.
(
/s/ X. Xxxxxx Xxx
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NOTARY PUBLIC
ACKNOWLEDGMENT
STATE OF __________________
COUNTY OF _________________
Personally appeared before me, the undersigned authority in and for the
said county and state, on this ___ day of __________, 2004, within my
jurisdiction, the within named __________________, who acknowledged that he/she
is _________________________ of Hard Rock Cafe International (STP), Inc., a New
York corporation, and that for and on behalf of the said _____________________,
and as its act and deed he/she executed the above and foregoing instrument,
after first having been duly authorized by said ________________ so to do.
(
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NOTARY PUBLIC
My commission expires:
EXECUTION VERSION
13
ACKNOWLEDGMENT
STATE OF MISSISSIPPI
COUNTY OF XXXXXXXX
Personally appeared before me, the undersigned authority in and for the
said county and state, on this 19th day of January, 2004, within my
jurisdiction, the within named Xxxxxx Xxxxxxxxx, who acknowledged that he/she
is President and COO of Premier Entertainment Biloxi LLC, a Delaware
limited liability company (successor in interest by merger with Premier
Entertainment, LLC, a Mississippi limited liability company), and that for and
on behalf of the said Company, and as its act and deed he/she
executed the above and foregoing instrument, after first having been duly
authorized by said Company so to do.
(
/s/ Xxxxxxxx Xxxx Signs
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NOTARY PUBLIC
My commission expires: 4-25-06
EXECUTION VERSION
14
