Exhibit 10.11
PREMIER ENTERTAINMENT BILOXI LLC
PLEDGE AND SECURITY AGREEMENT
(PLEDGED EQUITY INTERESTS)
Dated as of January 23, 2004
among
GAR, LLC,
a Mississippi limited liability company,
AA CAPITAL EQUITY FUND, L.P.,
a Delaware limited partnership,
AA CAPITAL BILOXI CO-INVESTMENT FUND, L.P.,
a Delaware limited partnership,
and
U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as Trustee
EXECUTION VERSION
TABLE OF CONTENTS
PAGE
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1. DEFINITIONS...................................................................................2
2. ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTEREST.............................................3
3. OBLIGATIONS SECURED...........................................................................4
4. EVENTS OF DEFAULT.............................................................................4
5. REPRESENTATIONS AND WARRANTIES OF PLEDGORS....................................................4
6. COVENANTS OF PLEDGORS.........................................................................7
7. REMEDIES UPON EVENT OF DEFAULT................................................................9
8. REMEDIES CUMULATIVE; DELAY NOT WAIVER........................................................10
9. APPLICATION OF PROCEEDS......................................................................11
10. CERTAIN CONSENTS AND WAIVERS...............................................................11
11. PREMIER'S CONSENT..........................................................................13
12. ATTORNEY-IN-FACT...........................................................................13
13. PERFECTION; FURTHER ASSURANCES.............................................................13
14. LIMITATIONS ON OBLIGATIONS.................................................................15
15. PLACE OF BUSINESS; LOCATION OF RECORDS.....................................................15
16. CONTINUING ASSIGNMENT AND SECURITY INTEREST; TRANSFER OF FIRST MORTGAGE NOTES..............15
17. TERMINATION OF SECURITY INTEREST...........................................................15
18. SECURITY INTEREST ABSOLUTE.................................................................15
19. ABSENCE OF FIDUCIARY RELATIONSHIP..........................................................16
20. LIMITATION ON DUTY OF THE TRUSTEE WITH RESPECT TO THE COLLATERAL...........................16
21. LIABILITY..................................................................................16
22. AMENDMENTS; WAIVERS; CONSENTS..............................................................17
23. NOTICES....................................................................................17
24. FINANCIAL STATUS...........................................................................18
25. MODIFICATION OF OBLIGATIONS................................................................18
26. DELIVERY OF COLLATERAL.....................................................................19
27. REGARDING THE TRUSTEE......................................................................20
28. GOVERNING LAW..............................................................................20
29. REINSTATEMENT..............................................................................20
30. SEVERABILITY...............................................................................20
31. SURVIVAL OF PROVISIONS.....................................................................20
32. HEADINGS DESCRIPTIVE.......................................................................20
33. ENTIRE AGREEMENT...........................................................................20
34. COUNTERPARTS...............................................................................21
35. ATTORNEYS' FEES............................................................................21
36. CONSENT TO JURISDICTION....................................................................21
37. WAIVER OF JURY TRIAL.......................................................................21
38. CONSENT OF HARD ROCK STP AND HARD ROCK LICENSING...........................................21
39. GAMING LAWS................................................................................22
40. SEVERAL OBLIGATIONS, NOT JOINT OR JOINT AND SEVERAL........................................22
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EXHIBITS
Exhibit A: Ownership Structure
Exhibit B-1: Ownership Power (GAR, LLC)
Exhibit B-2: Ownership Power (AA CAPITAL EQUITY FUND, L.P.)
Exhibit B-3: Ownership Power (AA CAPITAL BILOXI CO-INVESTMENT FUND, L.P.)
Exhibit C: Form of Agreement to be Bound
EXECUTION VERSION
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PREMIER ENTERTAINMENT BILOXI LLC
PLEDGE AND SECURITY AGREEMENT
(PLEDGED EQUITY INTERESTS)
This PREMIER ENTERTAINMENT BILOXI LLC
PLEDGE AND SECURITY AGREEMENT
(PLEDGED EQUITY INTERESTS) (as amended, supplemented, restated or otherwise
modified from time to time, this "AGREEMENT"), dated as of January 23, 2004, is
entered into by and among AA CAPITAL BILOXI CO-INVESTMENT FUND, L.P., a Delaware
limited partnership ("AA CAPITAL BILOXI") and AA CAPITAL EQUITY FUND, L.P., a
Delaware limited partnership ("AA CAPITAL EQUITY" and collectively with AA
Capital Biloxi, "AA CAPITAL"), GAR, LLC, a Mississippi limited liability company
("GAR" and collectively with AA Capital Equity and AA Capital Biloxi, the
"PLEDGORS"), PREMIER ENTERTAINMENT BILOXI LLC (d/b/a Hard Rock Hotel & Casino
Biloxi), a Delaware limited liability company ("PREMIER"), 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. PLEDGORS. The Pledgors are the sole members of Premier pursuant to
that certain Limited Liability Company Operating Agreement of Premier
Entertainment Biloxi LLC, dated as of January 23, 2004 (the "CONSTITUENT
AGREEMENT"), and are holding the membership interests listed in Exhibit A
attached hereto.
C. FIRST MORTGAGE NOTES. Concurrently herewith, Premier is entering into
that certain Indenture, dated as of even date herewith (as amended, modified or
supplemented from time to time, the "INDENTURE") among Premier,
Premier Finance
Biloxi Corp., a Delaware corporation ("PFC," jointly and severally with Premier,
the "ISSUER") and the Trustee, pursuant to which the Issuer shall issue
$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"), to
finance Project Costs. Each of the Pledgors and Premier acknowledges that it
will derive substantial direct and indirect benefits from the issuance of First
Mortgage Notes pursuant to the Indenture.
D. USE OF PROCEEDS. Premier will use the net proceeds from the sale of
the First Mortgage Notes, together with the net proceeds from the Subordinated
Note issued concurrently therewith, to pay (among other things) Project Costs
associated with the design, development, equipping, construction, pre-opening
and operation of the Facility.
E. 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.
EXECUTION VERSION
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 and each Pledgor hereby agree with the Trustee, for the benefit of the
Noteholders, as follows:
1. DEFINITIONS.
1.1 "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.
1.2 "HARD ROCK DOCUMENTS" means collectively the License Agreement,
Memorabilia Lease, Cafe Lease Agreement and Retail Store Lease Agreement.
1.3 "LICENSE AGREEMENT" means that certain License Agreement dated
as of May 16, 2003 between Hard Rock Licensing, Inc., as licensor, and Premier,
as licensee.
1.4 "LICENSE PLEDGE" means that certain
Pledge and Security
Agreement dated as of January 23, 2004, among Premier, PFC and the Trustee for
the benefit of the Noteholders.
1.5 "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.
1.6 "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.
1.7 "UCC" shall mean the Uniform Commercial Code as the same may,
from time to time, be in effect in the State of
New York; PROVIDED, HOWEVER, in
the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the security interest in any Collateral is
governed by the Uniform Commercial Code as in effect in a jurisdiction other
than the State of
New York, the term "UCC" shall mean the Uniform Commercial
Code as in effect in such other jurisdiction for purposes of the provisions
hereof relating to such attachment, perfection or priority and for purposes of
definitions related to such provisions.
1.8 All capitalized terms used, but not otherwise defined herein,
shall have the meanings provided in the Indenture. The rules of interpretation
contained in the Indenture shall apply to this Agreement.
2. ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTEREST.
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2.1 To secure the timely payment and performance of the Obligations
(as defined below), each Pledgor hereby collaterally assigns and pledges to the
Trustee for the benefit of the Noteholders, and grants to the Trustee for the
benefit the Noteholders a security interest in all the estate, right, title and
interest of such Pledgor, now owned or hereafter acquired, in, to and under any
and all of the following (the "COLLATERAL"):
Any and all of such Pledgor's limited liability company
interest(s), whether now owned or subsequently acquired, in Premier, including,
without limitation, the certificates representing such interest(s) and such
Pledgor's share of (i) all rights to receive all income, gain, profit, loss or
other items allocated or distributed to such Pledgor under the Constituent
Agreement; (ii) all rights to receive all income, profit or other distributions
of any nature whatsoever by Premier with respect to such interest(s); (iii) all
of such Pledgor's capital or ownership interest, including capital accounts, in
Premier, and all accounts, deposits or credits of any kind with Premier; (iv)
all of such Pledgor's voting rights in or rights to control or direct the
affairs of Premier; (v) all of such Pledgor's right, title and interest in
Premier, in or to any and all of Premier's assets or properties; (vi) all other
right, title and interest in or to Premier, as such rights are derived from such
Pledgor's interest in Premier; (vii) all claims of such Pledgor for damages
arising out of or for breach of or default relating to the Collateral; (viii)
all rights of such Pledgor to terminate, amend, supplement, modify or waive
performance under the Constituent Agreement, to perform thereunder and to compel
performance and otherwise exercise all remedies thereunder; and (ix) all
proceeds of any of the above.
2.2 Subject to Pledge Provisions, if any default by any Pledgor
under the Constituent Agreement (a "CONSTITUENT AGREEMENT DEFAULT") shall occur,
the Trustee shall, at its option, be permitted (but shall not be obligated)
after the occurrence and during the continuance of an Event of Default to remedy
any such Constituent Agreement Default by giving written notice of such intent
to Premier and each Pledgor. The Trustee shall have a period of 60 days after
giving such notice in which to cure such Constituent Agreement Default. In the
event that any such Constituent Agreement Default (except monetary defaults)
shall not be reasonably curable within such sixty-day period, neither Premier
nor any Person acting on behalf of Premier shall exercise any remedies
thereunder if the Trustee shall, within such 60-day period, initiate action to
cure such Constituent Agreement Default and proceed diligently to the curing
thereof within 120 days after giving written notice of a Constituent Agreement
Default. Any cure by the Trustee of a Constituent Agreement Default shall not be
construed as an assumption by the Trustee or any of the Noteholders of any
obligations, covenants or agreements of any Pledgor under the Constituent
Agreement, and neither the Trustee nor any of the Noteholders shall be liable
for any action taken pursuant to this Section 2.2 to cure any such Constituent
Agreement Default. This Agreement shall not be deemed to release or to affect in
any way the obligations of any Pledgor under the Constituent Agreement.
2.3 A copy of this Agreement shall constitute reasonable proof that
collateral assignment of the Collateral to the Trustee has been made to secure
timely payment and performance of the Obligations.
2.4 Any purchase money obligation created by the Transaction
Documents shall continue even after the Financing Documents have been amended,
supplemented, modified, restated, refinanced, consolidated or restructured. In
addition, to the extent proceeds of the First
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Mortgage Notes may have been used to finance or refinance any asset, the parties
intend for the Trustee to have a related purchase money security interest in
connection therewith.
2.5 Unless and until an Event of Default occurs and the Trustee
notifies the Pledgors in writing that such rights to vote shall cease during the
continuance of such Event of Default, the Pledgors shall be entitled to vote, if
and as applicable, and exercise any other consensual rights (or managerial
rights, if and as applicable) pertaining to any and all of the Collateral;
provided; however, that no vote shall be cast or any action taken by Pledgors
which would violate or be inconsistent with any of the terms of this Agreement
or the Indenture, or which would authorize or effect actions prohibited under
the terms of this Agreement or the Indenture.
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). 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 Pledge Provisions, Trustee shall
have the right, at any time in its discretion and without prior notice to the
Pledgors, 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 the Pledgors 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 Pledgor 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 obligations of the Issuer to the Trustee and the Noteholders pursuant
to the Financing Documents (the "OBLIGATIONS").
4. EVENTS OF DEFAULT. The occurrence and continuance of an "Event of
Default" (as defined under the Indenture) (each, an "EVENT OF DEFAULT," and
collectively the "EVENTS OF DEFAULT"), whatever the reason for such Event of
Default, and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body, shall
entitle the Trustee to exercise any and all of its rights and remedies hereunder
or at law.
5. REPRESENTATIONS AND WARRANTIES OF PLEDGORS. Each of AA Capital and GAR
severally (but not jointly and severally) represents and warrants as follows as
of the Closing Date:
5.1 It has been duly organized and is validly existing as a limited
partnership or limited liability company, as the case may be, in good standing
under the laws of its respective jurisidiction, with power and authority under
such laws to own, lease and operate its properties and conduct its business as
described in the Offering Memorandum and to enter into and perform its
obligations under the Transaction Documents to which it is a party, and has been
duly
EXECUTION VERSION
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qualified as a foreign limited partnership or limited liability company for
the transaction of business and is in good standing under the laws of each
jurisdiction in which the conduct of its business or it ownership or leasing of
properties requires such qualification.
5.2 It has the full right, power and authority to execute, deliver
and perform this Agreement and to pledge and collaterally assign the Collateral.
Since it obtained its ownership interest in Premier, it has (i) taken all
necessary action to authorize the execution and delivery of the Constituent
Agreement, this Agreement and each other Transaction Document to which Premier
is a party; and (ii) duly executed and delivered the Constituent Agreement, this
Agreement and each Transaction Document to which Premier is a party, in each
case on behalf of Premier. Its execution and delivery of the Transaction
Documents to which it respectively is a party, if any, performance of its
obligations under the Transaction Documents to which it respectively is a party,
if any, the consummation of the transactions contemplated by the Transaction
Documents and its compliance with the terms of the Transaction Documents to
which it respectively is a party, if any, have been duly authorized by all
necessary limited partnership or limited liability company action, as the case
may be, on its part and do not and will not, whether with or without the giving
of notice or passage of time or both, violate, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or result in
the creation or imposition of any Lien (other than those created pursuant to the
Collateral Documents) upon any of its properties or assets pursuant to, any
agreements, nor will any of the foregoing result in any material violation by it
of any applicable laws, statutes, rules, regulations, judgments, orders, writs
or decrees of any government, governmental authority, agency or instrumentality
or court (collectively, "GOVERNMENTAL ENTITIES"), nor will any of the foregoing
result in any violation of the provisions of its organizational documents; it
being understood that, as used herein, a "REPAYMENT EVENT" means any event or
condition which gives the holder or owner of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's behalf) the
right to require the repurchase, redemption or repayment of all or a portion of
such indebtedness.
5.3 The Constituent Agreement has been duly authorized, executed
and delivered by it, has not been amended or otherwise modified since its date
of execution, is in full force and effect, and is binding upon and 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. There exists no
default under the Constituent Agreement by it, or to the best of its knowledge,
by any other party thereto.
5.4 No consent of any other party (including, without limitation,
any creditor, shareholder, member or partner of any Pledgor) and no consent,
authorization, approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required either (i) for its pledge
of the Collateral pursuant to this Agreement or for the execution, delivery or
performance of this Agreement by it or (ii) for the exercise by the Trustee of
the voting or other rights provided for in this Agreement or the remedies in
respect of the Collateral pursuant to this Agreement (except as has been
obtained or made or as may be required in connection with disposition of any
Collateral by laws affecting the offering and sale of securities generally or as
may be required by the Mississippi Gaming Commission).
EXECUTION VERSION
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5.5 It is the lawful owner of and has full right, title and
interest in and to, its interest(s) in Premier together with the other rights
and interests comprising the Collateral described above, to the extent such
other rights and interests exist.
5.6 It has not previously assigned, or granted a security interest
in and to, any of its rights under the Constituent Agreement or any of the
Collateral except as specifically permitted by the Financing Documents.
5.7 It 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 of the Collateral on file in any recording office,
except such as may have been filed pursuant to this Agreement and the other
Financing Documents.
5.8 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 and the State of
Mississippi, respectively, pursuant to this Agreement, the execution of this
Agreement by it and the delivery of the LLC interest certificate 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.
5.9 It is in compliance with its organizational and/or governing
documents, any requirement under a governmental approval, and any government
rule in each case applicable to or binding upon it or any of its properties or
to which it or any of its properties is subject in connection with the
Transaction Documents to which it is a party. There is no action, suit,
proceeding, inquiry or investigation before or brought by any governmental
entity, now pending, or, to its knowledge, threatened, against it or any of its
respective properties, which is not disclosed in the Offering Memorandum or
which could reasonably be expected to materially and adversely affect the
consummation of the transactions contemplated by this Agreement or the Indenture
or the performance by it of its obligations hereunder, thereunder or under the
First Mortgage Notes or the performance of any Transaction Document by it.
5.10 AA Capital Equity's identification number with the State of
Delaware is DE 3494003. The name of AA Capital Equity is AA Capital Equity Fund,
L.P., as indicated in the public records of the State of Delaware. AA Capital
Biloxi's identification number with the State of Delaware is DE 3689822. The
name of AA Capital Biloxi is AA Capital Biloxi Co-Investment Fund, L.P., as
indicated in the public records of the State of Delaware. GAR's identification
number with the State of Mississippi is MS 724120. The name of GAR is GAR, LLC
as indicated in the public records of the State of Mississippi.
5.11 The Collateral includes all of the outstanding limited
liability company interests of Premier. Except for the Collateral, there are no
outstanding options, warrants or other rights to subscribe for or purchase
limited liability company interests of Premier, nor any notes, bonds, debentures
or other evidences of indebtedness that (1) are at any time convertible into
limited liability interests of Premier or (2) have or at any time would have
voting rights with respect to Premier.
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6. COVENANTS OF PLEDGORS. Each Pledgor severally (but not jointly and
severally) covenants and agrees so long as this Agreement is in effect as
follows:
6.1 It shall perform and comply with all obligations and conditions
on its part to be performed hereunder, required to be performed under the
Constituent Agreement and with respect to the Collateral; provided, if any
Pledgor shall fail to perform and comply, the other Pledgor shall be provided a
reasonable time period in which to cure such failure or non-compliance not to
exceed thirty (30) days.
6.2 It shall, so long as any Obligations shall be outstanding,
defend (at Premier's sole cost and expense) its title to the Collateral and the
interest of the Trustee in the Collateral pledged hereunder against the claims
and demands of all persons whomsoever.
6.3 It shall not directly or indirectly create, incur, assume or
from and after the Closing Date, suffer to exist any Liens on or with respect to
any part of the Collateral (other than the Lien created by this Agreement and
other Permitted Liens).
6.4 It will not file or authorize or authenticate or permit to be
filed in any jurisdiction any financing statements under the UCC or any like
statement relating to the Collateral in which the Trustee is not named as the
sole secured party.
6.5 Except as permitted by the Indenture, this Agreement or the
other Financing Documents, it will not cause, suffer or permit the sale,
assignment, conveyance or other transfer of all or any portion of its ownership
interest or interests in Premier. As used herein, the transfer of an ownership
interest in Premier includes (i) the sale, assignment, pledge, hypothecation,
transfer or other disposition (voluntarily or involuntarily, by gift or
otherwise, and whether as security or otherwise) of an equity interest in any
Person substantially all of the assets of which consist directly or indirectly
of an interest in Premier, or (ii) the merger or consolidation of a Person
referred to in clause (i), with another Person.
6.6 Except as permitted by the Indenture and except as to
ministerial amendments or modifications, it shall not terminate the Constituent
Agreement or modify or amend the Constituent Agreement . in any manner that
would or is reasonably likely to adversely affect the Trustee's interests in the
Collateral or under this Agreement, without the Trustee's prior written consent
obtained in accordance with Section 9.02 of the Indenture. Within fifteen (15)
days after entering into any modification or amendment to the Constituent
Agreement, the Pledgors shall deliver to the Trustee a true, complete and
correct copy of such modification or amendment.
6.7 It shall give to the Trustee prompt notice of (i) each material
demand or notice received or given by it relating to the Constituent Agreement;
and (ii) any Default, Event of Default or event which with the giving of notice
or the passage of time or both might become an Event of Default (as "Default"
and "Event of Default" are defined in the Constituent Agreement) under the
Constituent Agreement, whether by Premier, any Pledgor or any other Person, of
which it has knowledge or has received written notice.
6.8 If it, in its capacity as an owner of Premier, receives any
income or distribution of money or property of any kind from Premier other than
as permitted hereby or by
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the Financing Documents, it shall hold such income or distribution as trustee
for and shall deliver the same to the Trustee for deposit and application in
accordance with the Financing Documents.
6.9 It will, at all times, keep accurate and complete records in
all material respects of the Collateral. It shall permit representatives of the
Trustee, upon reasonable prior written notice, at any time during normal
business hours of such Pledgor (without disrupting the business or affairs of
Pledgor) to inspect and make abstracts from (at Premier's sole cost and expense)
such Pledgor'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, it shall promptly deliver copies of any and all such records to the
Trustee.
6.10 It shall notify the Trustee within 15 Business Days' of
changing the location at which its books and records are kept or state of
organization and shall at the expense of Premier execute and deliver, and
authorize the filing of, such records, instruments and documents as may be
reasonably required by the Trustee to maintain a prior perfected security
interest in the Collateral.
6.11 In the event notification is given to any account debtor of
Premier to discharge its obligations by paying the Trustee (under Section 9-406
of the UCC or otherwise), such notification shall be binding until the Trustee
gives alternate instructions. It 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
stating that the Obligations have been repaid in full or otherwise expressly
authorizes such Pledgor to give alternate instructions. Notwithstanding the
foregoing in this Section 6.11, the Trustee is only authorized and permitted to
give such notification to an account debtor of Premier after the occurrence and
during the continuance of an Event of Default. Under no circumstances shall the
Trustee contact or notify any account debtor of either of the Pledgors.
6.12 It shall not create or permit to be created any additional
limited liability company interests in Premier unless: (a) the new members of
Premier pledge their limited liability company interests in Premier to the
Trustee as provided in this Agreement (including delivery of the certificates
representing such membership interests to the Trustee); (b) such new member duly
executes and delivers a counterpart signature page to this Agreement and an
"Agreement to be Bound" in the form of Exhibit C; (c) a legal opinion from
counsel reasonably acceptable to the Trustee and substantially similar to the
legal opinions with respect to the Pledgors and this Agreement delivered by the
Pledgors on the date hereof, confirming the Trustee has a first priority
perfected security interest in the Collateral held by such new members; and (d)
the new members have paid, or have caused Premier to pay, the Trustee's
attorneys fees and costs in connection therewith; provided, however, that
Pledgors may, in addition, assign or sell all or any portion of their respective
Collateral to any Affiliate or Related Person as long as (i) such sale is
expressly made subject to the security interest created by this Agreement, (ii)
the Person which acquires such Collateral, at the time it acquires such
Collateral, duly executes and delivers to the Trustee a counterpart signature
page to this Agreement and an "Agreement to be Bound" in the form of Exhibit C,
(iii) such sale is made in accordance with the terms and provisions of the
Constituent Agreement and, to the extent applicable, the Indenture, (iv) a legal
opinion from counsel reasonably acceptable to the Trustee and substantially
similar to the legal opinions delivered by the Pledgors on the date hereof,
confirming the Trustee has a first priority perfected security interest in the
Collateral held by such Affiliate or Related Person, and
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(v) such Pledgor has paid or has caused Premier or the Person who acquires such
Collateral to pay, the Trustee's attorneys fees and costs in connection
therewith.
7. REMEDIES UPON EVENT OF DEFAULT.
7.1 Subject to Pledge Provisions, if any Event of Default has
occurred and is continuing, the Trustee shall have the right, at its election,
but not the obligation, to do any of the following to the extent permitted by
applicable law: (i) in connection with any acceleration and foreclosure, vote or
exercise any and all of any Pledgor's rights or powers under the Constituent
Agreement, including any rights or powers to manage or control Premier; (ii)
demand, ▇▇▇ for, collect or receive any money or property at any time payable to
or receivable by any Pledgor on account of or in exchange for all or any part of
the Collateral; (iii) cause any action at law or suit in equity or other
proceeding to be instituted and prosecuted to collect or enforce any Obligations
or rights hereunder or included in the Collateral, including specific
enforcement of any covenant or agreement contained herein or in the Constituent
Agreement, or to foreclose or enforce the security interest in all or any part
of the Collateral granted herein, or to enforce any other legal or equitable
right vested in it by this Agreement or by law; (iv) sell or otherwise dispose
of all or any part of the Collateral or cause all or any part of 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 appropriate, and for cash
or on credit or for future delivery, without assumption of any credit risk, at
any broker's board or at public or private sale, without demand of performance
or notice of intention to sell or of time or place of sale (except such notice
which under applicable law cannot be waived) it being agreed that the Trustee
may be a purchaser on behalf of the Noteholders or on its own behalf at any such
sale and that the Trustee, any Noteholder 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 any Pledgor
or Premier, any such demand, notice or right and equity being hereby expressly
waived and released; (v) incur expenses, including reasonable attorneys' fees,
reasonable consultants' fees, and other costs appropriate to the exercise of any
right or power under this Agreement; (vi) perform any obligation of any Pledgor
hereunder or under the Constituent Agreement; (vii) secure the appointment of a
receiver for any Pledgor without notice to Premier or any Pledgor which receiver
shall be subject to the prior written approval of Hard Rock Licensing, Inc.; or
(viii) exercise any other or additional rights or remedies granted to a secured
party under the UCC. If, pursuant to applicable law, prior notice of any such
action is required to be given to any Pledgor or Premier, each Pledgor and
Premier hereby acknowledge and agree that the minimum time required by such
applicable law, or if no minimum is specified, of 10 Business Days, shall be
deemed a reasonable notice period. Notwithstanding the foregoing, in any sale of
the Collateral by the Trustee hereunder after and during the continuance of an
Event of Default, either (a) all of the Collateral must be sold, (b) all of the
Class A Common Units and the Class B Common Units must be sold, or (c) a pro
rata portion of the Class A Common Units and the Class B Common Units must be
sold).
7.2 Subject to Pledge Provisions, in addition to the foregoing
remedies, the Trustee may, but shall not be obligated to, cure any Event of
Default and incur reasonable fees, costs and expenses in doing so, and such
fees, costs and expenses shall be reimbursed in accordance with the terms of by
the Indenture and the other Financing Documents.
EXECUTION VERSION
9
7.3 All costs and expenses (including, without limitation,
reasonable attorneys' fees and expenses) incurred by the Trustee in connection
with exercising any remedy provided for herein or at law, curing any Event of
Default or any Constituent Agreement Default, performing any of Pledgors'
agreements contained herein or after the occurrence and during the continuance
of an Event of Default in the Constituent Agreement or in respect of any part of
the Collateral shall constitute Obligations secured by this Agreement.
7.4 So long as no Event of Default has occurred and is continuing,
each Pledgor reserves the right to exercise all of its rights under the
Constituent Agreement (except as limited by the Financing Documents) and to
receive all income and other distributions from the Collateral (except as
limited by the Financing Documents). If an Event of Default under the Indenture
shall occur and be continuing (a) all payments received by any Pledgor under or
in connection with any of the Collateral shall be held by such Pledgor in trust
for the Trustee, shall be segregated from other funds of such Pledgor and shall,
forthwith upon receipt by such Pledgor, be turned over to the Trustee or its
designee in the same form as received by such Pledgor (duly endorsed by such
Pledgor to the Trustee, if requested), and (b) any and all such payments so
received by the Trustee or its designee (whether from any Pledgor or otherwise)
may, in the sole discretion of the Trustee or its designee, be held by the
Trustee or such designee as collateral security for, and/or then or at any time
thereafter be applied, subject only to the relevant provisions of the Depositary
Agreement or as otherwise may be required by applicable law, in whole or in part
by the Trustee or its designee in the manner specified in Section 9 hereof.
8. REMEDIES CUMULATIVE; DELAY NOT WAIVER.
8.1 No right, power or remedy herein conferred upon or reserved to
the Trustee or the Noteholders 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 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.
8.2 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. 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.
9. 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 (including reasonable attorneys fees and expenses,
and expenses of any other agents or experts deemed by the Trustee to be required
or beneficial) incurred by and due and owing to the Trustee and the Trustee with
respect to the Indenture, the other Financing Documents or the Collateral
Documents; SECOND, to accrued and unpaid interest and premium, if any, on the
Obligations (including any interest which, but for
EXECUTION VERSION
10
the provisions of the Bankruptcy Code, would have accrued on such amounts);
THIRD, to the principal amounts of the Obligations outstanding; FOURTH, to any
other Obligations of Premier or any Pledgor owing to the Trustee; FIFTH, so long
as the indebtedeness under the Rank Note is then outstanding, to Rank to be
applied in accordance with the Rank Note, the Rank Purchase 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 this
Agreement, to AA Capital to be distributed in accordance with that certain
Equity Agreement entered into among Premier, AA Capital and GAR, dated as of
even date herewith, or to the persons legally entitled thereto as directed by a
court of competent jurisdiction; and (ii) if the Trustee shall not have
foreclosed upon the pledge of the membership interests in Premier pursuant to
this Agreement, 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 Premier to Hard Rock Hotel Licensing, Inc., and, thereafter,
shall be applied as set forth above.
10. CERTAIN CONSENTS AND WAIVERS.
10.1 Each Pledgor hereby waives, to the maximum extent permitted by
applicable law (i) all rights under any law limiting remedies, including
recovery of a deficiency, under an obligation secured by a mortgage or deed of
trust on real property if the real property is sold under a power of sale
contained in the mortgage, and all defenses based on any loss whether as a
result of any such sale or otherwise, of such Pledgor's right to recover any
amount from Premier or any other Person, whether by right of subrogation or
otherwise; (ii) all rights under any law to require the Trustee to pursue
Premier or any other Person, any security which the Trustee may hold, or any
other remedy before proceeding against such Pledgor; (iii) all rights of
reimbursement or subrogation, all rights to enforce any remedy that the Trustee
or any Noteholder may have against Premier or any other Person, and all rights
to participate in any security held by the Trustee until the Obligations have
been paid and the covenants of the Financing Documents have been performed in
full; (iv) all rights to require the Trustee to give any notices of any kind,
including, without limitation, notices of nonpayment, nonperformance, protest,
dishonor, default, delinquency or acceleration, or to make any presentments,
demands or protests, except as set forth herein or expressly provided in the
Indenture or any other Financing Document; (v) all rights to assert the
bankruptcy or insolvency of Premier or any other Person as a defense hereunder
or as the basis for rescission hereof; (vi) subject to Section 17 hereof, all
rights under any applicable law purporting to reduce such Pledgor's obligations
hereunder if the Obligations are reduced; (vii) all defenses based on the
disability or lack of authority of Premier or any other Person, the repudiation
of the Financing Documents by Premier or any other Person, the failure by the
Trustee or any Noteholder to enforce any claim against Premier or any other
Person, or the unenforceability in whole or in part of any Financing Documents;
(viii) all suretyship and guarantor's defenses generally; (ix) all rights to
insist upon, plead or in any manner whatever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension, marshaling of assets,
redemption or similar law, or exemption, whether now or at any time hereafter in
force, which may delay, prevent or otherwise affect the performance by such
Pledgor of its obligations under, or the enforcement by the Trustee of, this
Agreement; and (x) except as otherwise specifically set forth herein, all rights
of notice and hearing of any kind prior to the exercise of rights by the Trustee
upon the occurrence and during the continuation of
EXECUTION VERSION
11
an Event of Default to repossess with judicial process or to replevy, attach or
levy upon the Collateral. To the extent permitted by applicable law, such
Pledgor waives the posting of any bond otherwise required of the Trustee in
connection with any judicial process or proceeding to obtain possession of,
replevy, attach, or levy upon the Collateral, to enforce any judgment or other
security for the Obligations, to enforce any judgment or other court order
entered in favor of the Trustee, or to enforce by specific performance,
temporary restraining order, preliminary or permanent injunction, this Agreement
or any other agreement or document between such Pledgor, the Trustee and the
Noteholders. Each Pledgor further agrees that upon the occurrence and during the
continuation of an Event of Default under the Indenture, the Trustee may elect
to nonjudicially or judicially foreclose against any real or personal property
security it holds for the Obligations or any part thereof, or to exercise any
other remedy against Premier or any other Person, any security or any guarantor,
even if the effect of that action is to deprive such Pledgor of the right to
collect reimbursement from Premier or any other Person for any sums paid by such
Pledgor to the Trustee or any Bank.
10.2 Subject to Pledge Provisions, if the Trustee shall, under
applicable law, proceed to realize the benefits of the Secured Parties under any
of the Financing Documents giving the Trustee a Lien upon any Collateral,
whether owned by Premier or by any other Person, either by judicial foreclosure
or by nonjudicial sale or enforcement, the Trustee may, at its sole option,
determine which of its remedies or rights it may pursue without affecting any of
the rights and remedies of the Trustee under this Agreement. If, in the exercise
of any of such rights and remedies, the Trustee shall forfeit any of its rights
or remedies, including any right to enter a deficiency judgment against Premier
or any other Person, whether because of any applicable laws pertaining to
"election of remedies" or the like, each Pledgor hereby consents to such action
by the Trustee and, to the extent permitted by applicable law, waives any claim
based upon such action, even if such action by the Trustee shall result in a
full or partial loss of any rights of subrogation, indemnification or
reimbursement which such Pledgor might otherwise have had but for such action by
the Trustee or the terms herein. Any election of remedies which results in the
denial or impairment of the right of the Trustee to seek a deficiency judgment
against any of the parties to any of the Financing Documents or Collateral
Documents shall not, to the extent permitted by applicable law, impair any
Pledgor's pledge or obligations hereunder. In the event the Trustee shall bid at
any foreclosure or trustee's sale or at any private sale permitted by law or the
Financing Documents, the Trustee may bid all or less than the amount of the
Obligations. To the extent permitted by applicable law, the amount of the
successful bid at any such sale, whether the Trustee or any other party is the
successful bidder, shall be conclusively deemed to be the fair market value of
the Collateral and the difference between such bid amount and the remaining
balance of the Obligations shall be conclusively deemed to be the amount of the
Obligations.
11. PREMIER'S CONSENT. Premier hereby consents to the collateral
assignment of and grant of a security interest in the Collateral to the Trustee,
for the benefit of the Secured Parties, and to the exercise by the Trustee of
all rights and powers assigned or delegated to the Trustee by any Pledgor
hereunder, including, without limitation, the rights during the existence of an
Event of Default to exercise such Pledgor's voting rights and other rights under
the Constituent Agreement to manage or control Premier.
12. ATTORNEY-IN-FACT. Each Pledgor hereby irrevocably constitutes and
appoints the Trustee its true and lawful attorney-in-fact with full power and
authority in the place and stead of
EXECUTION VERSION
12
such Pledgor and in the name of such Pledgor, the Trustee or otherwise, from
time to time after the occurrence of and during the continuance of an Event of
Default in the Trustee's discretion to take any action and to execute any
instrument (all at the sole cost and expense of Premier) to enforce all rights
of such Pledgor with respect to the Collateral, including, without limitation,
the right to ask, require, demand, receive and give acquittance for any and all
moneys and claims for money due and to become due under or arising out of the
Collateral; to elect remedies thereunder, to endorse any checks or other
instruments or orders in connection therewith; to vote, demand, receive and
enforce such Pledgor's rights with respect to the Collateral; to give
appropriate receipts, releases and satisfactions for and on behalf of and in the
name of such Pledgor or, at the option of the Trustee, in the name of the
Trustee, solely in connection with the Collateral, with the same force and
effect as such Pledgor could do if this Agreement had not been made; and 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;
provided, however, the Trustee shall not exercise such rights unless upon the
occurrence and during the continuation of an Event of Default. This power of
attorney is a power coupled with an interest and shall be irrevocable.
13. PERFECTION; FURTHER ASSURANCES.
13.1 Each Pledgor agrees that from time to time, at the sole expense
of Premier, each Pledgor 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. Without limiting the generality of the
foregoing, each Pledgor shall (i) deliver the Collateral or any part thereof to
the Trustee, as the Trustee may reasonably request, accompanied by such duly
executed records of transfer or assignment as the Trustee may reasonably
request, and (ii) execute and file such financing or continuation statements, or
amendments thereto, and such other records, instruments, documents, endorsements
or notices, as may be reasonably necessary or as the Trustee may reasonably
request, in order to perfect and preserve the assignments and security interests
granted or purported to be granted hereby.
13.2 Each Pledgor 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 the signature or other authorization of
such Pledgor, 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. Each Pledgor 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) except as permitted by the Indenture, without the prior
written approval and authorization by the Trustee, consenting to the form and
substance of such filing or record. Each Pledgor approves and ratifies any
filing or recording of records made by or on behalf of the Trustee in connection
with the perfection of the security interest in favor of the Trustee in the
Collateral
EXECUTION VERSION
13
13.3 Each Pledgor shall, promptly upon reasonable request, and at
the sole cost of Premier, 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.
13.4 Premier shall pay all filing, registration and recording fees
and all refiling, re-registration and re-recording fees, and all reasonable
expenses incident to the execution or authentication 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 and delivery of this Agreement, any
agreement supplemental hereto, any financing statements, and any instruments of
further assurance.
13.5 Without the prior written consent of the Trustee, to the extent
either Pledgor may do so under applicable law, each Pledgor, for itself, its
successors and assigns, agrees that it shall not cast any vote as an owner in
Premier for so long as the Obligations remain unpaid (i) in favor of the
commencement of a voluntary case or other proceeding seeking liquidation,
reorganization, rehabilitation or other relief with respect to Premier or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect in any jurisdiction or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of the owners of Premier or any
substantial part of Premier's property, (ii) to authorize Premier to consent to
any such aforesaid relief or to the appointment of or taking possession by any
such aforesaid official in an involuntary case or other proceeding commenced
against Premier or (iii) to authorize Premier to make a general assignment for
the benefit of creditors.
13.6 Each Pledgor will take all commercially reasonable actions
within its power to obtain like title to and the right to pledge any other
property at any time hereafter pledged by it to the Trustee as Collateral
hereunder, if any.
13.7 Each Pledgor will pay, before any fine, penalty, interest or
cost attaches thereto, all taxes, assessments and other governmental or
non-governmental charges or levies (other than those taxes that it is contesting
in good faith and by appropriate proceedings, and in respect of which it has
established adequate, reserves for such taxes) now or hereafter assessed, levied
against the Collateral pledged by it hereunder (or against the Collateral in
which such Pledgor has granted to the Trustee a security interest of first
priority) or upon the Liens for taxes and assessments not then delinquent or
subject to a contest and shall retain copies of, and, upon reasonable prior
written request, permit the Trustee or any Noteholder to examine receipts
showing payment of any of the foregoing.
14. LIMITATIONS ON OBLIGATIONS. Anything herein to the contrary
notwithstanding, each Pledgor shall remain liable under any Transaction Document
to which it is a party, if any, to the extent set forth therein to perform all
of its duties and obligations thereunder, to the same extent as if this
Agreement had not been executed. The exercise by the Trustee of any of the
rights or remedies hereunder shall not release any Pledgor from any of its
duties or obligations under any Transaction Document to which it is a party, if
any.
15. PLACE OF BUSINESS; LOCATION OF RECORDS. Unless the Trustee is
otherwise notified under Section 6.10, GAR's state of organization is and will
be the State of Mississippi, AA Capital Equity's state of organization is and
will be the State of Delaware, and AA Capital Biloxi's state of organization is
and will be the State of Delaware, and all records of any Pledgor
EXECUTION VERSION
14
concerning the Collateral are and will be, located at, and the mailing address
of such Pledgor is the address set forth in Section 23 hereof with respect to
such Pledgor.
16. CONTINUING ASSIGNMENT AND SECURITY INTEREST; TRANSFER OF FIRST
MORTGAGE NOTES. This Agreement shall create a continuing pledge and collateral
assignment of and security interest in the Collateral and shall (a) remain in
full force and effect until payment in full of the Obligations (other than those
contingent obligations that are intended to survive the termination of this
Agreement); (b) be binding upon Premier, each Pledgor, and their respective
successors and assigns; and (c) inure, together with the rights and remedies of
the Trustee, to the benefit of the Trustee, the Noteholders and their respective
successors, transferees and assigns. Without limiting the generality of the
foregoing, the Trustee or the Noteholders may assign or otherwise transfer all
or any part of or interest in the First Mortgage Notes or other evidence of
indebtedness held by them 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 for the benefit of the Noteholders 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 obligor on the indebtedness secured hereby.
17. TERMINATION OF SECURITY INTEREST. In the case of a refinancing of the
Obligations, upon the payment and performance in full of the Obligations (other
than those contingent obligations that are intended to survive the termination
of this Agreement), and otherwise upon the indefeasible payment and performance
in full of the Obligations (other than those contingent obligations that are
intended to survive the termination of this Agreement), this Agreement and the
security interest and all other rights granted hereby shall terminate and all
rights to the Collateral shall revert to the Pledgors respectively. Upon any
such termination, the Trustee will return all certificates evidencing ownership
interests in Premier, and all ownership powers executed hereunder, to the
Pledgors and will, at Premier's sole cost and expense, authenticate and, subject
to Section 26 hereof, deliver to the Pledgors such records (including, without
limitation, UCC-3 termination statements) as Premier or any Pledgor shall
reasonably request to evidence such termination.
18. SECURITY INTEREST ABSOLUTE. All rights of the Trustee and the
Noteholders and the security interests hereunder, and all obligations of each
Pledgor hereunder, shall be absolute and unconditional irrespective of:
18.1 Any lack of validity or enforceability of the Indenture, any
other Financing Document or any other agreement or instrument relating thereto;
18.2 Any change in the time, manner or place of payment of, or in
any other term of the Obligations (including any increase in the amount
thereof), or any other amendment or waiver of or any consent to any departure
from the Indenture or any other Financing Document;
18.3 Any exchange, surrender, release or non-perfection of any
Collateral, or any release, amendment or waiver of or consent to departure from
any guaranty, for all or any of the Obligations;
EXECUTION VERSION
15
18.4 Any bankruptcy or insolvency of any Pledgor or any other
Person; or
18.5 Any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any Pledgor.
19. ABSENCE OF FIDUCIARY RELATIONSHIP. The Trustee undertakes to perform
or to observe only such of its agreements and obligations as are specifically
set forth in this Agreement or any other Collateral Document, and no implied
agreements, covenants or obligations with respect to any Pledgor or any other
party to the Indenture or any other Transaction Document to which any Pledgor is
a party shall be read into this Agreement against the Trustee or any of the
Noteholders; neither the Trustee, nor any of the Noteholders in its and their
capacity as such is a fiduciary of and shall not owe or be deemed to owe any
fiduciary duty to any Pledgor or any other party to any Transaction Document to
which such Pledgor is a party, except as otherwise specifically required by law.
20. LIMITATION ON DUTY OF THE TRUSTEE WITH RESPECT TO THE COLLATERAL. 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 any 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 with respect 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 substantially
equivalent to that which the Trustee accords its own property, it being
expressly agreed, to the maximum extent permitted by applicable law, that
neither Trustee nor any Noteholder shall have the responsibility for (a) taking
any necessary steps to preserve rights against any parties with respect to any
Collateral, but the Trustee may do so and all expenses incurred in connection
therewith shall be part of the Obligations or (b) taking any action to protect
against any diminution in value of the Collateral.
21. LIABILITY. Recourse against each Pledgor and its Affiliates, members,
partners, stockholders, officers, directors and employees under this Agreement
shall be limited to the extent provided in Section 11.07 of the Indenture.
NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, THE TRUSTEE'S RIGHTS PURSUANT TO THIS AGREEMENT ARE EXPRESSLY LIMITED
TO THE COLLATERAL PLEDGED HEREUNDER AND THE TRUSTEE'S SOLE RECOURSE WITH RESPECT
TO EITHER OF THE PLEDGORS TO SATISFY THE OBLIGATIONS SECURED HEREBY SHALL BE TO
EXERCISE REMEDIES WITH RESPECT TO THE COLLATERAL ONLY. WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, NEITHER OF THE PLEDGORS SHALL BE LIABLE FOR ANY
DEFICIENCY IF THE PROCEEDS OF ANY DISPOSITION OF THE COLLATERAL PLEDGED HEREBY
IS INSUFFICIENT TO SATISFY THE OBLIGATIONS SECURED HEREBY. Neither Pledgor shall
have any personal liability under this Agreement or any other instrument,
document or agreement entered into or delivered in connection with this
Agreement and the transactions contemplated hereby (collectively, the
"Transaction Documents") and no recourse for the payment of any amount due under
this Agreement, for the Obligations secured hereby, or for any claim arising out
of this Agreement or any other Transaction Document, whether for failure to pay,
perform or discharge any monetary or non-monetary obligation, breaches of
representations, warranties or covenants, the occurrence of defaults, or
otherwise, shall be due or owing, or had or recoverable against or from, either
Pledgor or any past, present
EXECUTION VERSION
16
or future member, partner, shareholder, manager, director, officer, employee,
agent, or Affiliate of either Pledgor or Issuer (or any successor or assign
thereof).
22. AMENDMENTS; WAIVERS; CONSENTS. No amendment, modification, termination
or waiver of any provision of this Agreement, or consent to any departure by any
Pledgor therefrom, shall in any event be effective without the written
concurrence of the Trustee, Premier and each Pledgor.
23. 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 Trustee or Premier may be given at the address set forth in such
Section 14.03 of the Indenture. Notices to any Pledgor may be given at the
following address:
AA CAPITAL
AA Capital Equity Fund, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇., Managing Director,
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
AA Capital Biloxi Co-Investment Fund, L.P.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇., Managing Director,
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
GAR, LLC
GAR, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Mr. ▇▇▇ ▇▇▇▇▇▇▇▇, III, Member
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
EXECUTION VERSION
17
With Copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
(Post Office ▇▇▇ ▇▇▇)
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (39502-0130)
Attn: ▇▇▇▇▇ ▇. ▇▇▇, Esquire
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
24. FINANCIAL STATUS. Each Pledgor hereby assumes responsibility for
keeping itself informed of the financial condition of Premier, and any and all
endorsers of any instrument or document evidencing all or any part of the
Obligations and of all other circumstances bearing upon the risk of nonpayment
of the Obligations or any part thereof that diligent inquiry would reveal. Each
Pledgor hereby agrees that the Trustee shall have no duty to advise such Pledgor
of information known to the Trustee regarding such condition or any such
circumstances or of any changes or potential changes affecting the Collateral.
In the event the Trustee, in its discretion, undertakes at any time or from time
to time to provide any such information to any Pledgor, the Trustee shall be
under no obligation (i) to undertake any investigation not a part of its regular
business routine, or reasonable commercial lending practices or (ii) to make any
other or future disclosure of such information to any other information to such
Pledgor.
25. MODIFICATION OF OBLIGATIONS. If the Trustee shall at any time or from
time to time, with or without the consent of, or notice to, any Pledgor:
25.1 Change or extend the manner, place or terms of payment of, or
renew or alter all or any portion of, the Obligations;
25.2 Take any action under or in respect of the Financing Documents
in the exercise of any remedy, power or privilege contained therein or available
at law, equity or otherwise, or waive or refrain from exercising any such
remedies, power or privileges;
25.3 Amend or modify, in any manner whatsoever, the Financing
Documents;
25.4 Extend or waive the time for such Pledgor's, or any other
Person's performance of, or compliance with, any term, covenant or agreement on
its part to be performed or observed under the Financing Documents, or waive
such performance or compliance or consent to a failure of, or departure from,
such performance or compliance;
25.5 Take and hold security or collateral for the payment of the
Obligations, or sell, exchange, release, dispose of, or otherwise deal with, any
property pledged, mortgaged or conveyed, or in which the Trustee has been
granted a Lien, to secure any indebtedness associated with the Financing
Documents of such Pledgor or any other Person to the Trustee;
25.6 Release or limit the liability of anyone who may be liable in
any manner for the payment of any amounts under the Financing Documents owed by
such Pledgor or any other Person to the Trustee;
EXECUTION VERSION
18
25.7 Modify or terminate the terms of any intercreditor or
subordination agreement pursuant to which claims of other creditors of such
Pledgor, any Affiliate or any other Person are subordinated to the claims of the
Trustee under the Financing Documents; or
25.8 Apply any sums by whomever paid or however realized to any
amounts owing pursuant to the Financing Documents by Premier or any other
obligor to the Trustee in such manner as the Trustee shall determine in its
discretion in accordance with the Financing Documents;
then, subject to Section 16 hereof, neither the Trustee nor any Noteholder shall
incur any liability to any Pledgor pursuant hereto as a result thereof and no
such action shall impair or release the obligations of such Pledgor under this
Agreement.
26. DELIVERY OF COLLATERAL. All certificates or instruments representing
or evidencing the Collateral shall be delivered to and held by or on behalf of
the Trustee pursuant hereto. 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
reasonably acceptable to the Trustee. The Trustee shall have the right, at any
time in its discretion and without prior notice to any Pledgor, following the
occurrence and during the continuation of an Event of Default, to transfer to or
to register in the name of the Trustee or any of its nominees any or all of the
Collateral and to exchange certificates or instruments representing or
evidencing Collateral for certificates or instruments of smaller or larger
denominations; PROVIDED that the Trustee shall promptly notify each Pledgor 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, subject to Pledge Provisions, that once such Event of Default has been
cured, the Trustee will promptly transfer to or register in the name or cause
its nominees to transfer to or register in the name of each Pledgor all such
Collateral. In furtherance of the foregoing, each Pledgor shall further execute
and deliver to the Trustee an ownership power in the form of Exhibits ▇-▇, ▇-▇
and B-3 attached hereto with respect to the ownership interest(s) of Premier
owned by each Pledgor that are represented by certificates or other instruments.
27. REGARDING THE TRUSTEE. The Trustee shall be afforded all of the
rights, powers, protections, immunities and indemnities set forth in Article 2
of that certain Security Agreement dated as of the date hereof between each
Pledgor and the Trustee as if the same were specifically set forth herein.
28. GOVERNING LAW. This Agreement, including all matters of construction,
validity, performance and the creation, validity, enforcement or priority of the
lien of, and security interests created by, this Agreement in or upon the
Collateral shall be governed by the laws of the state of
New York, without
reference to conflicts of law (other than Section 5-1401 of the
New York General
Obligations Law), except as required by mandatory provisions of law and except
to the extent that the validity or perfection of the lien and security interest
hereunder, or remedies hereunder, in respect of any particular Collateral are
mandatorily governed by the laws of a jurisdiction other than the state of
New
York.
EXECUTION VERSION
19
29. 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 Obligations is rescinded or must otherwise be restored
or returned by the Trustee upon the insolvency, bankruptcy, reorganization,
liquidation of any Pledgor or upon the dissolution of, or appointment of any
intervenor or conservator of, or trustee or similar official for, such Pledgor
or Premier or any substantial part of Premier's assets, or otherwise, all as
though such payments had not been made.
30. 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.
31. SURVIVAL OF PROVISIONS. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Agreement and the
Indenture and the issuance of the First Mortgage Notes. Notwithstanding anything
in this Agreement or implied by law to the contrary, the agreements,
representations and warranties of each Pledgor set forth herein shall terminate
only upon payment of the Obligations (other than those contingent obligations
that are intended to survive the termination of this Agreement), and the
termination of all other obligations (other than those contingent obligations
that are intended to survive the termination of this Agreement) of the
Noteholders under the Financing Documents. For the avoidance of doubt, all
representations, warranties and certifications shall only be made on the Closing
Date unless otherwise expressly provided in this Agreement.
32. HEADINGS DESCRIPTIVE. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
33. 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.
34. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
35. 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 Premier 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.
36. CONSENT TO JURISDICTION. Each Pledgor agrees that any legal action or
proceeding by or against such Pledgor or with respect to or arising out of this
Agreement, or any other Financing Document or Collateral Document may be brought
in or removed to the courts of the State of
New York, in and for the County of
New York, or of the United States of America for
EXECUTION VERSION
20
the Southern District of
New York, as the Trustee may elect. By execution and
delivery of the Agreement, each Pledgor accepts, for themselves and in respect
of their property, generally and unconditionally, the jurisdiction of the
aforesaid courts. Each Pledgor irrevocably consents to the service of process
out of any of the aforementioned courts in any manner permitted by law. Nothing
herein shall affect the right of the Trustee to bring legal action or
proceedings in any other competent jurisdiction, including judicial or
non-judicial foreclosure. Each Pledgor further agrees that the aforesaid courts
of the State of
New York and of the United States of America shall have
exclusive jurisdiction with respect to any claim or counterclaim of such Pledgor
based upon the assertion that the rate of interest charged by the Noteholders on
or under the First Mortgage Notes and/or the other Financing Documents is
usurious. Each Pledgor hereby waives any right to stay or dismiss any action or
proceeding under or in connection with any or all of the Facility, this
Agreement or any other Financing Document or Collateral Document brought before
the foregoing courts on the basis of forum non-conveniens.
37. WAIVER OF JURY TRIAL. EACH PLEDGOR AND TRUSTEE HEREBY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY DEALINGS BETWEEN THEM RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT AND THE RELATIONSHIP AMONG SUCH PLEDGOR AND
TRUSTEE THAT IS BEING ESTABLISHED. EACH PLEDGOR AND TRUSTEE ACKNOWLEDGE THAT
THIS WAIVER IS A MATERIAL INDUCEMENT TO ENTER INTO A BUSINESS RELATIONSHIP, THAT
EACH HAS ALREADY RELIED ON THE WAIVER IN ENTERING INTO THIS AGREEMENT, AND THAT
EACH WILL CONTINUE TO RELY ON THE WAIVER IN THEIR RELATED FUTURE DEALINGS.
PLEDGOR AND TRUSTEE FURTHER WARRANT AND REPRESENT THAT EACH HAS REVIEWED THIS
WAIVER WITH ITS LEGAL COUNSEL, AND THAT EACH KNOWINGLY AND VOLUNTARILY WAIVES
ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
38. 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 Cafe International (STP), Inc., a
New York corporation, Hard
Rock Hotel Licensing, Inc., a Florida corporation, Premier, PFC, GAR, AA Capital
and the Trustee of even date herewith.
39. 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 Financing 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.
EXECUTION VERSION
21
40. SEVERAL OBLIGATIONS, NOT JOINT OR JOINT AND SEVERAL. Any and all
obligations and liabilities hereunder of GAR, AA Capital Biloxi and AA Capital
Equity are and shall be several, but not joint or joint and several.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
EXECUTION VERSION
22
IN WITNESS WHEREOF, each of the undersigned has caused this Premier
Entertainment Biloxi LLC
Pledge and Security Agreement (Pledged Equity
Interests) to be duly executed and delivered as of the day and year first above
written.
PLEDGOR
GAR, LLC,
a Mississippi limited liability company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇, III
-------------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, III
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Being all of its Members
AA CAPITAL EQUITY FUND, L.P.,
a Delaware limited partnership
By: AA Private Equity Investors Management LLC,
a Delaware limited liability company
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: President
----------------------------------
EXECUTION VERSION
AA CAPITAL BILOXI CO-INVESTMENT
FUND, L.P., a Delaware limited partnership
By: AA Private Equity Investors Management LLC,
a Delaware limited liability company
Its: General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Title: President
--------------------------------------
PREMIER
PREMIER ENTERTAINMENT BILOXI LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Title: President
--------------------------------------
TRUSTEE
U.S. BANK NATIONAL ASSOCIATION,
a national banking association
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------------
Title: Vice President
--------------------------------------
EXECUTION VERSION
EXHIBIT A
OWNERSHIP STRUCTURE
NUMBER OF PERCENTAGE
TYPE OF SECURITIES HOLDER SHARES INTEREST
CLASS A COMMON STOCK GAR, LLC 100 100%
CLASS B COMMON STOCK AA CAPITAL EQUITY FUND, L.P. 70 70%
CLASS A PREFERRED STOCK AA CAPITAL EQUITY FUND, L.P.
AA CAPITAL BILOXI CO- 70 70%
CLASS B COMMON STOCK INVESTMENT FUND, L.P.
AA CAPITAL BILOXI CO- 30 30%
CLASS A PREFERRED STOCK INVESTMENT FUND, L.P. 30 30%
Exhibit A
EXECUTION VERSION
EXHIBIT B-1
OWNERSHIP POWER
(GAR, LLC)
FOR VALUE RECEIVED, GAR, LLC, a Mississippi limited liability company,
hereby sells, assigns and transfers unto U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as trustee, for the benefit of the Noteholders,
all of its ownership interest(s) of PREMIER ENTERTAINMENT BILOXI LLC, a Delaware
limited liability company, standing in its name on the books of PREMIER
ENTERTAINMENT BILOXI LLC, a Delaware limited liability company, represented by
the following certificate(s): ___________, and irrevocably appoints
___________________ as attorney to transfer the ownership interest(s) with full
power of substitution in the premises.
DATED: GAR, LLC,
-------------------------- a Mississippi limited liability company
By:
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
By:
-------------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇, III
By:
-------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
In the presence of:
--------------------------------
Exhibit B-1
EXECUTION VERSION
EXHIBIT B-2
OWNERSHIP POWER
(AA CAPITAL EQUITY FUND, L.P.)
FOR VALUE RECEIVED, AA CAPITAL EQUITY FUND, L.P., a Delaware limited
partnership, hereby sells, assigns and transfers unto U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee, for the benefit of the
Noteholders, all of its ownership interest(s) of PREMIER ENTERTAINMENT BILOXI
LLC, a Delaware limited liability company, standing in its name on the books of
PREMIER ENTERTAINMENT BILOXI LLC, a Delaware limited liability company,
represented by the following certificate(s): ___________, and irrevocably
appoints ___________________ as attorney to transfer the ownership interest(s)
with full power of substitution in the premises.
DATED: AA CAPITAL EQUITY FUND, L.P.,
---------------------- a Delaware limited partnership
By: AA Private Equity Investors Management LLC,
a Delaware limited liability company
Its: General Partner
------------------------------------------
By:
----------------------------------
Name:
--------------------------------
Title:
-------------------------------
In the presence of:
-----------------------------
Exhibit B-2
EXECUTION VERSION
EXHIBIT B-3
OWNERSHIP POWER
(AA CAPITAL BILOXI CO-INVESTMENT FUND, L.P.)
FOR VALUE RECEIVED, AA CAPITAL BILOXI CO-INVESTMENT FUND, L.P., a Delaware
limited partnership, hereby sells, assigns and transfers unto U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee, for the benefit of the
Noteholders, all of its ownership interest(s) of PREMIER ENTERTAINMENT BILOXI
LLC, a Delaware limited liability company, standing in its name on the books of
PREMIER ENTERTAINMENT BILOXI LLC, a Delaware limited liability company,
represented by the following certificate(s): ___________, and irrevocably
appoints ___________________ as attorney to transfer the ownership interest(s)
with full power of substitution in the premises.
DATED: AA CAPITAL BILOXI CO-INVESTMENT FUND,
---------------------- L.P., a Delaware limited partnership
By: AA Private Equity Investors Management LLC,
a Delaware limited liability company
Its: General Partner
------------------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
In the presence of:
--------------------------------------
Exhibit B-3
EXECUTION VERSION
EXHIBIT C
FORM OF AGREEMENT TO BE BOUND
This AGREEMENT TO BE BOUND is executed by [INSERT NAME OF TRANSFEREE] (the
"TRANSFEREE").
Reference is made to that certain
Pledge and Security Agreement (Pledged Equity
Interests) dated as of January 23, 2004 between U.S. Bank National Association,
a national banking association, as trustee under the Indenture (together with
its successors and assigns from time to time under the Indenture, the
"TRUSTEE"), AA Capital Equity Fund, L.P., a Delaware limited partnership ("AA
CAPITAL EQUITY"); AA Capital Biloxi Co-Investment Fund, L.P., a Delaware limited
partnership (collectively with AA Capital Equity, "AA CAPITAL") and GAR, LLC, a
Mississippi limited liability company ("GAR") and Premier Entertainment Biloxi
LLC (d/b/a Hard Rock Hotel & Casino Biloxi), a Delaware limited liability
company ("PREMIER") (the "AGREEMENT"). Capitalized terms used but not otherwise
defined herein shall have the meaning set forth in the Agreement.
On ____________, 20__ (the "TRANSFER DATE"), [_______________] transferred to
Transferee [insert amount and description of interest transferred] of such
Pledgor's limited liability company interest in Premier ("MEMBERSHIP
INTERESTS").
Therefore, and pursuant to Section 6.12 of the Agreement, such Pledgor
hereby executed this AGREEMENT TO BE BOUND, WHEREBY Transferee acknowledges
that, as of the Transfer Date, it has become a "Pledgor" under the Agreement.
The Transferee also hereby agrees to assume all of the obligations of a
"Pledgor" under the Agreement and be otherwise bound by all of the terms
thereunder, including without limitation the provisions relating to assignment
of its Membership Interest. The Transferee further agrees to execute all
documents necessary to carry out the purpose of this AGREEMENT TO BE BOUND and
to cooperate with the Trustee for the expeditious filing of any and all
documents and the fulfillment of the terms of this AGREEMENT TO BE BOUND. The
Transferee recognizes that a security interest has been granted in the
Membership Interests to the Trustee, that such security interest shall be
unaffected by transfer of the Membership Interest to the Transferee, and that
the Transferee shall be bound by all covenants with respect thereto, set forth
in the Agreement.
Executed on this ___ day of ______, 20__.
[INSERT NAME OF TRANSFEREE],
as Transferee
----------------------------------
Name:
Title:
Exhibit C
EXECUTION VERSION
