Exhibit 4.3
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
Among
U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as Disbursement Agent,
U.S. BANK NATIONAL ASSOCIATION,
a national banking association, as Trustee,
PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES, INC.,
a California corporation
PREMIER ENTERTAINMENT BILOXI LLC,
a Delaware limited liability company
and
PREMIER FINANCE BILOXI CORP.,
a Delaware corporation
dated as of
January 23, 2004
TABLE OF CONTENTS
PAGE
1. DEFINITIONS.................................................................................. 3
1.1 DEFINED TERMS...........................................................................3
1.2 INDEX OF ADDITIONAL DEFINED TERMS......................................................14
2. APPOINTMENT OF DISBURSEMENT AGENT; ESTABLISHMENT OF SECURITIES
ACCOUNTS; RELATED PROVISIONS................................................................ 15
2.1 APPOINTMENT OF THE DISBURSEMENT AGENT................................................. 15
2.2 ESTABLISHMENT OF ACCOUNTS............................................................. 16
2.3 ACKNOWLEDGEMENT OF SECURITY INTEREST; CONTROL......................................... 17
2.4 CONTROL OF SECURITIES ACCOUNTS........................................................ 17
2.5 CONTROL OF ISSUER'S PAYMENT ACCOUNT................................................... 18
2.6 CONTROL OF PFC PAYMENT ACCOUNT........................................................ 19
2.7 THE ISSUER'S RIGHTS................................................................... 20
2.8 CASH EQUIVALENTS...................................................................... 20
2.9 REMEDIES.............................................................................. 20
2.10 WAIVER OF SET-OFF RIGHTS.............................................................. 21
2.11 COOPERATION........................................................................... 21
2.12 FUNDING MECHANICS FOR FF&E COSTS...................................................... 21
2.13 FUNDING MECHANICS FOR BOND FINANCING.................................................. 22
3. CERTAIN RESPONSIBILITIES OF DISBURSEMENT AGENT AND INDEPENDENT
CONSTRUCTION CONSULTANT..................................................................... 23
3.1 DISBURSEMENTS FROM THE ACCOUNTS....................................................... 23
3.2 TRANSFER OF FUNDS AT DIRECTION OF TRUSTEE............................................. 23
3.3 PAYMENT OF COMPENSATION............................................................... 23
3.4 PERIODIC REVIEW....................................................................... 24
3.5 REVIEW BY INDEPENDENT CONSTRUCTION CONSULTANT......................................... 24
3.6 THE SPECIAL PROCEDURES FOR UNPAID CONTRACTORS......................................... 25
4. DISBURSEMENTS DURING CONSTRUCTION PERIOD.................................................... 25
4.1 INITIAL DISBURSEMENTS FROM THE CONSTRUCTION DISBURSEMENT ACCOUNT...................... 25
4.2 SUBSEQUENT DISBURSEMENTS FROM THE CONSTRUCTION DISBURSEMENT ACCOUNT. ................. 26
4.3 ADVANCE CONSTRUCTION DISBURSEMENTS.................................................... 31
4.4 INTEREST RESERVE ACCOUNT DISBURSEMENTS................................................ 32
4.5 ISSUER'S REIMBURSEMENT OF PREVIOUSLY FUNDED PROJECT COSTS............................. 33
4.6 DISBURSEMENT OF FUNDS IN CONSTRUCTION PERIOD ACCOUNTS FOLLOWING
THE INITIAL OPERATING DATE............................................................ 33
4.7 FINAL DISBURSEMENT OF FUNDS IN CONSTRUCTION PERIOD ACCOUNTS........................... 35
4.8 TIDELANDS LEASE DISBURSEMENTS......................................................... 36
5. CERTAIN CONSTRUCTION PERIOD COVENANTS....................................................... 36
5.1 AMENDMENTS TO PROJECT BUDGET.......................................................... 36
5.2 CONSTRUCTION CONTRACT AMENDMENT PROCESS............................................... 38
5.3 CONSTRUCTION CONTRACTS ENTERED INTO AFTER THE ISSUANCE DATE........................... 38
5.4 AVAILABLE CONSTRUCTION FUNDS CERTIFICATE.............................................. 39
5.5 PROJECT COST SCHEDULE CERTIFICATE..................................................... 40
5.6 FINAL PLANS........................................................................... 40
5.7 NOTICE THAT PROJECT IS OPERATING...................................................... 40
5.8 MAINTENANCE OF PERMITTED INVESTMENTS.................................................. 40
5.9 BOND FINANCING AMOUNTS................................................................ 41
5.10 APPLICATION OF INSURANCE AND CONDEMNATION PROCEEDS.................................... 41
6. TIDELANDS LEASE ACCOUNT..................................................................... 41
6.1 DEPOSITS INTO TIDELANDS LEASE ACCOUNT................................................. 41
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7. LIMITATION OF LIABILITY..................................................................... 42
7.1 LIMITATION OF DISBURSEMENT AGENT'S LIABILITY.......................................... 42
7.2 LIMITATION OF INDEPENDENT CONSTRUCTION CONSULTANT'S LIABILITY......................... 43
8. INDEMNITY AND INSURANCE..................................................................... 43
9. TERMINATION................................................................................. 44
10. SUBSTITUTION OR RESIGNATION OF THE DISBURSEMENT AGENT....................................... 44
10.1 PROCEDURE............................................................................. 44
10.2 SUCCESSOR DISBURSEMENT AGENT BY MERGER, ETC........................................... 45
10.3 ELIGIBILITY; DISQUALIFICATION......................................................... 45
10.4 CONSENT OF INDEPENDENT CONSTRUCTION CONSULTANT........................................ 45
11. INDEPENDENT CONSTRUCTION CONSULTANT......................................................... 45
11.1 REMOVAL AND FEES...................................................................... 45
11.2 DUTIES................................................................................ 45
11.3 ACTS OF DISBURSEMENT AGENT............................................................ 45
12. STATEMENT OF SECURITIES ACCOUNTS............................................................ 45
13. MISCELLANEOUS............................................................................... 46
13.1 WAIVER................................................................................ 46
13.2 INVALIDITY............................................................................ 46
13.3 NO AUTHORITY.......................................................................... 46
13.4 ASSIGNMENT............................................................................ 46
13.5 BENEFIT............................................................................... 46
13.6 TIME.................................................................................. 46
13.7 ENTIRE AGREEMENT; AMENDMENTS.......................................................... 46
13.8 NOTICES............................................................................... 46
13.9 COUNTERPARTS.......................................................................... 48
13.10 CAPTIONS.............................................................................. 48
13.11 RIGHT TO CONSULT COUNSEL.............................................................. 48
13.12 CHOICE OF LAW......................................................................... 48
13.13 DESIGNATION OF APPLICABLE COURTS AND JURISDICTIONS.................................... 48
13.14 SURETYSHIP WAIVERS.................................................................... 49
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TABLE OF EXHIBITS
EXHIBIT
A Initial Disbursements Certificate
B-1 Form of Issuer's Closing Certification
B-2 Form of Trustee's Closing Certification
C-1 Construction Disbursement Request
C-2 Pre-Opening Disbursement Request
C-3 Form of Advance Construction Disbursement Request Certificate
C-4 Form of Interest Reserve Account Disbursement Certificate
C-5 Form of Interest Reserve Excess Transfer Certificate
C-6 Form of Tidelands Lease Certificate
D-1 Form of Available Construction Funds Certificate
D-2 Form of Project Cost Schedule Certificate
D-3 Finishes Line-Items and Amounts (from Initial Project Budget)
E Form of Project Budget Amendment Certificate
F Construction Contract Amendment Certificate
G-1 Form of Issuer's Initial Operating Date Disbursement Request
Certificate
G-2 Form of Certificate of Objection of General Contractor to Issuer's
Initial Operating Date Disbursement Request Certificate
G-3 Form of Issuer's Final Disbursement Request Certificate
G-4 Form of Tidelands Lease Disbursement Certificate
H-1 Long Form of Consent to Security Assignment of Construction
Contract (Contracts Over $1,000,000)
H-2 Short Form of Consent to Security Assignment of Construction
Contract (Contracts Between $500,000 and $1,000,000)
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TABLE OF EXHIBITS
EXHIBIT
I Initial Project Budget
J Form of Final Plans Amendment Certificate
K Form of Additional Construction Contract Certificate
L Permitted Encumbrances
M-1 Form of Interim Lien Affidavit (Owner)
M-2 Form of Interim Lien Affidavit (General Contractor)
M-3 Form of Interim Lien Affidavit (Other Contractor)
M-4 Form of Final Lien Affidavit (Owner)
M-5 Form of Final Lien Affidavit (General Contractor)
M-6 Form of Final Lien Affidavit (Other Contractors)
N-1 Form of Commitment to Issue Update Endorsement
N-2 Form of Separate Tax Lot Endorsement
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CASH COLLATERAL AND DISBURSEMENT AGREEMENT
THIS
CASH COLLATERAL AND DISBURSEMENT AGREEMENT (as amended, supplemented,
restated or otherwise modified from time to time, this "AGREEMENT") is dated as
of January 23, 2004, by and among U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as disbursement agent, securities intermediary and
depositary bank (together with any successor disbursement agent permitted
hereunder, the "DISBURSEMENT AGENT"), U.S. BANK NATIONAL ASSOCIATION, a national
banking association, as trustee under the Indenture (as defined below) (together
with its successors and assigns from time to time under the Indenture, the
"TRUSTEE"), PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES, INC., a California
corporation (the "INDEPENDENT CONSTRUCTION CONSULTANT"), PREMIER ENTERTAINMENT
BILOXI LLC (d/b/a Hard Rock Hotel & Casino Biloxi), a Delaware limited liability
company (successor in interest by merger with Premier Entertainment, LLC, a
Mississippi limited liability company ("PREMIER"), and
PREMIER FINANCE BILOXI
CORP., a Delaware corporation ("PFC," jointly and severally with Premier, the
"ISSUER"). Defined terms used herein have the meanings specified in SECTION 1.
RECITALS
A. FACILITY. Premier desires to develop, construct and operate the Hard
Rock Hotel and Casino Biloxi, a full service gaming, hotel and entertainment
resort and certain related amenities (the "FACILITY") to be developed upon
approximately 8.5 acres along the Mississippi Gulf Coast in Biloxi, Mississippi.
B. FIRST MORTGAGE NOTES. Concurrently herewith, the Issuer is issuing
$160,000,000 aggregate principal amount of its 10 3/4% First Mortgage Notes due
2012 (together with all notes issued under the Indenture, including all notes
issued in exchange or replacement therefore, the "FIRST MORTGAGE NOTES"),
pursuant to the Indenture to finance Project Costs.
C. JUNIOR SUBORDINATED NOTE. Concurrently herewith, Rank America, Inc.
("RANK") shall purchase from the Issuer an unsecured subordinated note in an
amount of $10,000,000, the proceeds of which will be applied to finance Project
Costs, as more particularly described herein and in the Junior Subordinated Note
Investment Agreement (as defined herein).
D. INTERCREDITOR AGREEMENT. Concurrently herewith, the Trustee (acting on
behalf of itself and the Noteholders) and Rank have entered into an
Intercreditor Agreement, pursuant to each of which the parties thereto have set
forth certain intercreditor provisions, including the priority of the liens, the
method of decision making, the arrangements applicable to actions in respect of
approval rights and waivers, the limitations on rights of enforcement upon
default and the application of proceeds upon enforcement.
E. FF&E FINANCING. Premier intends to finance the costs of acquiring and
installing Additional Funding FF&E by issuing additional First Mortgage Notes
("ADDITIONAL NOTES") or by entering into agreements with respect to the FF&E
Financing pursuant to which Premier will obtain certain loans to finance
acquisition and installation costs of Additional Funding FF&E, as more
particularly described in the Indenture.
F. MBFC BOND FINANCING. Premier intends to finance the costs of
acquiring, constructing and installing certain land-based improvements and
equipment with the proceeds of industrial development bonds (the "BONDS") issued
by the Mississippi Business Finance Corporation (the "MBFC") pursuant to Code
SECTION ▇▇-▇▇-▇▇▇ et seq. (the "IDB ACT"). PFC will purchase the Bonds issued by
MBFC using equity contributions made by Premier to PFC and funded by
disbursements made from the Construction Disbursement Account (as defined below)
under this Agreement. The proceeds of the Bonds sold to PFC will be used by MBFC
to make certain loans to Premier to pay certain Project Costs incurred in
connection with such land-based improvements and equipment. This financing
transaction, as more particularly described herein and in the Bond Financing
Documents, is referred to herein as the "BOND FINANCING."
G. INITIAL EQUITY CONTRIBUTION. Concurrently herewith, $[33,665,245.43]
of equity shall be irrevocably and unconditionally contributed to Premier and
deposited into the Construction Disbursement Account.
H. USE OF PROCEEDS. The net proceeds from the issuance of the First
Mortgage Notes and the proceeds of the Junior Subordinated Note (collectively,
the "PROCEEDS"), together with the initial and any additional equity provided by
the Issuer or its Affiliates, will be used to pay Project Costs and to initially
fund the Tidelands Lease Account. The proceeds of the Bond Financing will be
used to pay Project Costs.
I. ACCOUNTS. $33,100,000.00 of the Proceeds will be deposited
contemporaneously with the execution of this Agreement into the Interest Reserve
Account. $1,031,900.00 of the Proceeds will be deposited contemporaneously with
the execution of this Agreement into the Tidelands Lease Account. The remaining
Proceeds (in the amount of $128,962,500.00) and an initial equity contribution
in the amount of $15,180,809.71 will be deposited contemporaneously with the
execution of this Agreement into the Construction Disbursement Account. The PFC
Payment Account will be established contemporaneously with the execution of this
Agreement to facilitate the Bond Financing. Assets maintained in the
Construction Disbursement Account and the Tidelands Lease Account and the
Interest Reserve Account are owned beneficially by Premier, subject to the terms
and conditions of this Agreement. The assets maintained in the PFC Payment
Account are owned beneficially by PFC, subject to the terms and conditions of
this Agreement.
J. PURPOSE. The parties have entered into this Agreement in order to set
forth the conditions upon which, and the manner in which funds will be disbursed
(a) from the Construction Disbursement Account, the Issuer's Payment Account and
the PFC Payment Account in order to permit Premier to design, develop, equip,
construct, operate and open the Facility, (b) from the Interest Reserve Account
for payment of interest due on the First Mortgage Notes, and (c) from the
Tidelands Lease Account to pay the rent and additional rent provided for under
the Tidelands Lease.
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AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. DEFINITIONS.
1.1 DEFINED TERMS. The terms defined in this SECTION 1 shall have
the meanings herein specified:
"ADDITIONAL FUNDING FF&E" means FF&E which Premier reasonably expects
to fund through the FF&E Financing or the issuance of Additional Notes.
"ADDITIONAL NOTES FF&E" means the FF&E that is financed through the
issuance of additional First Mortgage Notes pursuant to this Agreement.
"ADDITIONAL PRE-OPERATING REVENUE" means revenue generated by Premier
after the date hereof (including the net proceeds of the issuance of any
Additional Notes), other than from disposition of its assets, but only to the
extent that such revenue (a) has been deposited in the Construction Period
Accounts and (b) (i) has been disbursed from the Construction Disbursement
Account or (ii) is held by Premier, free and clear of any claims of any other
Person whatsoever; PROVIDED, HOWEVER, that as of any date of measurement,
Additional Pre-Operating Revenue shall also include without duplication:
(x) Anticipated Investment Income; and
(y) the lesser of (A) the net amount of FF&E Financing that the Issuer
has obtained or reasonably expects to obtain, or the amount of net proceeds of
Additional Notes that the Issuer has issued or expects to issue, in accordance
with the Indenture to fund the costs of procuring Additional Funding FF&E and
(B) the aggregate amount of Remaining Costs allocated to the "FF&E", "owner
supplied FF&E," "systems" or "gaming equipment" line items in the Project Budget
which has not yet been expended.
"ADVANCE CONSTRUCTION DISBURSEMENT" means a disbursement from the
Construction Disbursement Account pursuant to SECTION 4.3.
"AFFILIATE" has the meaning ascribed thereto in the Indenture.
"AGREED PERMITS" has the meaning ascribed thereto in EXHIBIT B-1
attached hereto.
"ANTICIPATED INVESTMENT INCOME" means, at any time, with respect to
the Construction Disbursement Account and the Issuer's Payment Account, the
amount of investment income which the Issuer reasonably determines will accrue
on the funds in each such account through the anticipated Initial Operating
Date, taking into account the current and future anticipated rates of return on
investments in each such account permitted under the Indenture and the
anticipated times and amounts of draws from each such account for the payment of
Project Costs.
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"APPLICABLE PERMITS" means national, state and local license
authorizations, certifications, filings, recordings, permits or other approvals
with or of any governmental authority, including, without limitation,
environmental, construction, operating or occupancy permits and any agreements,
consents or approvals that are required or that are otherwise necessary for the
performance of the design, construction, operation or maintenance of the
Facility. Without limiting the foregoing, Applicable Permits also include
Construction Period permits for temporary construction utilities and temporary
sanitary facilities, dump permits, road use permits, permits related to the use,
storage and disposal of Hazardous Materials introduced to the Site for or in
connection with the performance of the design, construction, operation or
maintenance of the Facility, and permits issued pursuant to any building,
mechanical, electrical, plumbing or similar codes.
"ARCHITECT" means ▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd. and its successors identified by
notice from the Issuer to the Disbursement Agent.
"ARCHITECTURAL SERVICES AGREEMENT" means that certain Owner-Architect
Agreement dated as of November 21, 2003 between Premier and Architect.
"AVAILABLE ADVANCE CONSTRUCTION DISBURSEMENT AMOUNT" means (a) (i)
prior to June 1, 2004, the amount of $1,000,000; (ii) on or after June 1, 2004
through August 31, 2004, the amount of $3,000,000; and (iii) on or after
September 1, 2004, the amount of $5,000,000; MINUS (b) the aggregate amount then
outstanding with respect to all Advance Construction Disbursements submitted
under SECTION 4.3 which (i) have not been documented, as required in this
Agreement for other Construction Disbursements, or (ii) in the case of
Disbursements to fund Disputed Amounts under SECTION 4.3(b), which have not been
finally settled with the applicable Contractor.
"AVAILABLE CONSTRUCTION FUNDS" means, subject to SECTION 5.4.1 with
respect to the Issuer at any given time, the sum of (a) the Original
Construction Allocation, (b) any additional equity, Loss Proceeds or other
additional amounts then on deposit in the Construction Disbursement Account
(excluding the Original Construction Allocation) and (c) all Additional
Pre-Operating Revenue as of such time, all less the sum of (x) the proceeds of
FF&E Financing that the Issuer has theretofore expended in connection with the
Facility and (y) the amount of disbursements theretofore made from the
Construction Disbursement Account.
"BANKRUPTCY LAW" means Title 11, U.S. Code or any similar federal or
state law for the relief of debtors.
"BARGE CONSTRUCTION CONTRACT" means that certain construction contract
to be entered into by General Contractor and a subcontractor in accordance with
SECTION 4.24 of the Indenture providing for the construction of two barges (upon
which the casino portion of the Facility will be built).
"BOND FINANCING DOCUMENTS" shall mean the Bond Purchase Contract, the
Bond Loan Agreement, the Bond Indenture, the Bonds, the Series 2004 Note, and
the other related documents or instruments that are entered into among PFC,
Premier, and the Bond Trustee in connection with the Bond Financing.
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"BOND INDENTURE" means that certain Trust Indenture to be entered into
by the Bond Trustee and the Mississippi Business Finance Corporation
substantially in the form of Exhibit H to the Indenture.
"BOND LOAN AGREEMENT" means that certain Loan Agreement to be entered
into by Premier and the Mississippi Business Finance Corporation substantially
in the form of Exhibit I to the Indenture.
"BOND PURCHASE CONTRACT" means that certain Bond Purchase Contract to
be entered into by PFC, Premier and the Mississippi Business Finance Corporation
substantially in the form of Exhibit J to the Indenture.
"BOND REQUISITION" shall mean the requisition substantially in the
form attached as Exhibit D to the Bond Loan Agreement.
"BOND TRUSTEE" shall have the meaning assigned to the term "Trustee"
in the Bond Indenture.
"BOND TRUSTEE'S CONSTRUCTION DISBURSEMENT ACCOUNT" shall mean the
"Trustee Disbursement Account" of "Construction Fund" established under SECTION
5.01 of the Bond Indenture at a bank reasonably acceptable to the Disbursement
Agent.
"BUSINESS DAY" has the meaning ascribed thereto in the Indenture.
"CASH EQUIVALENTS" has the meaning ascribed thereto in the Indenture.
"COLLATERAL" means all of the following:
(a) the Securities Accounts;
(b) all cash, Cash Equivalents, instruments, investments
and other securities or Financial Assets at any time on deposit in or credited
to the Securities Accounts;
(c) the Issuer's Payment Account;
(d) the PFC Payment Account;
(e) the Bonds;
(f) any other collateral under any of the Collateral
Documents; and
(g) all proceeds of any of the foregoing;
"COLLATERAL DOCUMENTS" has the meaning ascribed thereto in the
Indenture.
"COMPANY'S DIRECT DISBURSEMENT ACCOUNT" shall mean the "Company's
Direct Disbursement Account" established under SECTION 5.01 of the Bond
Indenture at a bank reasonably acceptable to the Disbursement Agent.
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"CONSTRUCTION CONTRACT AMENDMENT" means any material amendment or
modification of a Construction Contract (including, without limitation, any
material change order or any material owner construction change directive to a
Construction Contract).
"CONSTRUCTION CONTRACTS" means the direct contracts between Premier
and any Person pertaining to the construction of the Facility, including the GMP
Contract and the Architectural Services Agreement.
"CONSTRUCTION DISBURSEMENT REQUEST DATE" shall mean each date the
Issuer requests that the Disbursement Agent make a Disbursement pursuant to a
Construction Disbursement Request.
"CONSTRUCTION EXPENSES" means Project Costs incurred in accordance
with the Project Budget, excluding, however, (a) any Pre-Issuance Expenses, (b)
any Pre-Opening Expenses and (c) any Debt Financing Costs.
"CONSTRUCTION PERIOD" means the period from the Issuance Date
continuing until all of the funds on deposit in the Construction Period Accounts
are disbursed pursuant to SECTION 4.7.
"CONSTRUCTION SCHEDULE" means a schedule describing the sequencing of
the components of work to be undertaken in connection with the Facility, which
schedule (as the same may be amended) demonstrates that the Initial Operating
Date will occur on or before the Operating Deadline.
"CONTRACTOR" means a contractor or supplier of materials, fixtures,
equipment or services in connection with the construction of the Facility
pursuant to a direct contract or purchase order with Premier, including the
General Contractor and each counterparty to a contract or purchase order for a
"Direct Purchase Item" as defined in the GMP Contract.
"DEBT FINANCING COSTS" means all payments of principal, interest,
premium (if any), and other amounts payable by the Issuer from time to time
under the Indenture, and any other senior debt or subordinated debt, if any,
incurred in accordance with the terms of the Indenture.
"DEEDS OF TRUST" means, collectively, (a) that certain Construction
Deed of Trust, Leasehold Deed of Trust and Fixture Filing, with Assignment of
Leases and Rents dated on or about the date hereof with respect to the Site
entered into by Premier, as Trustor, ▇▇▇▇▇▇▇▇ Bull, as Real Estate Trustee, and
Trustee, as Beneficiary; and (b) that certain Ship Mortgage with respect to the
barge casino to be entered into by Premier, as Grantor, and Trustee, as
Beneficiary.
"DEFAULT" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"DISBURSEMENT" means (a) a release of funds from the Construction
Disbursement Account to the Issuer's Payment Account or directly to any
Contractor or to Premier to pay Project Costs; (b) a release of funds from the
Construction Disbursement Account to the PFC Payment Account to enable PFC to
purchase Bonds as permitted under SECTIONS 4.2.1(b); (c) a release of funds from
the Interest Reserve Account to pay Debt Financing
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Costs on the First Mortgage Notes as provided in SECTION 4.4(a); or (d) a
release of funds from the Tidelands Lease Account as provided in SECTION 4.8; in
each case, made pursuant to Article 4 of the Disbursement Agreement and the
Indenture.
"DISPUTED AMOUNTS" means payments for work, services or materials
which are being disputed in good faith by the Issuer under the Construction
Contracts so long as (1) such disputes do not involve any substantial danger of
the sale, forfeiture or loss of the Facility or the Collateral, title thereto or
any interest therein and shall not interfere in any material respect with the
construction or operation of the Facility; (2) adequate cash reserves have been
provided therefor (except to the extent of any Advance Construction Disbursement
that has been Disbursed to the Title Insurer, to the General Contractor, or to
an escrow agent pursuant to SECTIONS 12.1 or 13.9 of the GMP Contract), to
secure Premier's obligation to pay for such work, services or materials, in each
case, through an allocation in the cost report attached as Schedule 1 to the
most recent Construction Disbursement Request; and (3) sufficient funds remain
available under the applicable line item in the Project Budget to pay such
disputed amount in full should Premier be obligated to make such payment under
the terms of the applicable Construction Contract.
"EVENT OF DEFAULT" means the occurrence of any of the following
specified events:
(a) the occurrence and existence of an "Event of Default"
under the Indenture; and
(b) the failure of the Issuer to deliver any documents
required to be delivered by the Issuer pursuant to this Agreement and any such
failure continues for 30 days after written notice thereof without being cured.
"EVENT OF LOSS" has the meaning ascribed thereto in the Indenture.
"EVENT OF LOSS OFFER" has the meaning ascribed thereto in the
Indenture.
"FF&E" means furniture, fixtures and equipment that is or will be
installed in the Facility.
"FF&E COLLATERAL" means FF&E in respect of which the lenders under the
FF&E Financing have advanced funds and which are not subject to a Lien in favor
of the Trustee in accordance SECTION 4.09 of the Indenture.
"FF&E FINANCING" has the meaning ascribed thereto in the Indenture.
"FINAL PLANS" means, with respect to any particular work or
improvement that constitutes a portion of the Facility:
(a) the Plans for such work or improvement, if any, that
are described on EXHIBIT 5 to the Issuer's Closing Certification; and
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(b) to the extent Plans for such work or improvement are
not described on EXHIBIT 5 to the Issuer's Closing Certification, the Plans for
such work or improvement to the extent such Plans:
(i) have received all approvals from all
governmental authorities required to approve such Plans that are necessary to
commence construction of such work or improvements, if any;
(ii) contain sufficient specificity to permit the
completion of such work or improvement;
(iii) are consistent with constructing the Facility to
include the Minimum Facilities;
(iv) have been signed by an architect licensed to
practice architecture in the State of Mississippi;
(v) call for construction of the Facility in a
manner consistent with the Initial Operating Date occurring on or prior to the
Operating Deadline;
PROVIDED, HOWEVER, that the Final Plans may be modified from time to time in
accordance with the terms hereof.
"FINAL PLANS AMENDMENT CERTIFICATE" means an Officer's Certificate
from the Issuer in the form attached hereto as EXHIBIT J, together with the
General Contractor's, Independent Construction Consultant's and Architect's
certificates as provided in EXHIBITS 1, 2 AND 3 and attached thereto.
"FINISHES" means the following Hard Costs with respect to the
Facility: flooring, bathroom fixtures and accessories, decorative metals,
decorative light fixtures and mill work, countertops, artwork, mirrors, water
and other special effects, paint, ceiling finishes and wall coverings, all of
which items are included in the line items set forth on EXHIBIT D-3 attached
hereto.
"FIRST MORTGAGE NOTE OBLIGATIONS" means any principal, interest,
premium (if any), liquidated damages (if any), penalties, fees, indemnification,
reimbursements, damages and other liabilities payable with respect to the First
Mortgage Notes pursuant to the Indenture and any other obligations of the Issuer
pursuant to the Indenture or the Collateral Documents.
"GENERAL CONTRACTOR" means ▇▇▇ ▇▇▇▇▇▇▇▇ Corp, a Mississippi
corporation.
"GMP CONTRACT" means that certain Owner-Contractor Agreement dated as
of December 24, 2003 between Premier and the General Contractor, as amended by
that certain First Amendment to Agreement between Owner and Contractor dated as
of January 22, 2004.
"GOVERNMENT SECURITIES" has the meaning ascribed thereto in the
Indenture.
"GOVERNMENTAL ACTION" means any resolution, ordinance, statute,
regulation, order or decision regardless of how constituted having the force of
law.
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"HARD COSTS" means the costs and expenses in respect of supplying
goods, materials and labor for the construction of improvements relating to the
Facility or other amounts payable pursuant to a Construction Contract,
including, among other things, the Permitted Land-Based Project Costs.
"INDENTURE" means the Indenture dated as of the date hereof, among the
Issuer and the Trustee, relating to the First Mortgage Notes (as the same may be
amended, modified or supplemented from time to time).
"INDEPENDENT CONSTRUCTION CONSULTANT" means Professional Associates
Construction Services, Inc. and its successors and replacements, as designated
by the Trustee.
"INDEPENDENT CONSTRUCTION CONSULTANT'S ENGAGEMENT AGREEMENT" means
that certain Professional Services Agreement dated October 30, 2003 between the
Independent Construction Consultant and the Issuer.
"INITIAL DISBURSEMENTS CERTIFICATE" means the Officer's Certificate
signed by Premier on behalf of the Issuer in the form attached hereto as EXHIBIT
A.
"INITIAL OPERATING DATE" has the meaning ascribed thereto in the
Indenture.
"INITIAL PROJECT BUDGET" means the itemized schedules setting forth on
a line item basis all of the estimated Project Costs attached hereto as EXHIBIT
I (except that the Initial Project Budget shall not include the Issuance Fees
and Expenses).
"INTERCREDITOR AGREEMENT" has the meaning ascribed thereto in the
Indenture.
"INTEREST PAYMENT DATE" has the meaning ascribed thereto in the
Indenture.
"ISSUANCE DATE" means the date of the Indenture.
"ISSUANCE FEES AND EXPENSES" means fees and expenses (a) incurred by
the Issuer or AA Capital Equity Fund, L.P. (one of its members), in connection
with the raising of debt to finance the Facility that is evidenced by the First
Mortgage Notes and the Junior Subordinated Note and (b) paid on or before the
Issuance Date. The Issuance Fees and Expenses are identified on EXHIBIT 1 to the
Issuer's Closing Certification as "Transaction Fees and Expenses."
"ISSUER'S CLOSING CERTIFICATION" means an Officer's Certificate signed
by Premier on behalf of the Issuer in the form attached hereto as EXHIBIT B-1.
"ISSUING AGENT" means ▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, in its capacity as issuing
agent for the Title Company, together with any successor issuing agent
designated from time to time by the Title Company in a written notice to the
Disbursement Agent.
"JUNIOR SUBORDINATED NOTE" means that certain $10,000,000 junior
subordinated unsecured note evidencing the unsecured subordinated loans made by
Rank to the Issuer under the Junior Subordinated Note Investment Agreement.
9
"JUNIOR SUBORDINATED NOTE INVESTMENT AGREEMENT" means that certain
Investment Agreement dated as of January 13, 2004, entered into among the Issuer
and Rank.
"KNOWLEDGE" of the Issuer, the Trustee, the Disbursement Agent, the
Architect, the General Contractor or the Independent Construction Consultant,
means the actual knowledge of any officer, director or management employee of
such Person.
"LIEN" has the meaning ascribed thereto in the Indenture.
"MATERIAL CONSTRUCTION CONTRACT" means each Construction Contract
identified by the Issuer to be material to the Facility (which the Issuer agrees
shall include the GMP Contract and all other Construction Contracts with an
individual contract amount in excess of $500,000).
"MINIMUM FACILITIES" means, with respect to the Hard Rock Hotel &
Casino Biloxi, a casino with at least 1,350 slot machines and 45 table games, a
hotel with at least 275 hotel rooms, three restaurants with seating for at least
1,000 people (including, without limitation, a Hard Rock Cafe), three bars
(including, without limitation, the rooftop bar), a 900 person capacity Hard
Rock Live! branded entertainment venue and a parking structure for at least 1440
vehicles.
"
NEW YORK UCC" means the Uniform Commercial Code as the same may, from
time to time, be in effect in the State of
New York.
"NOTEHOLDERS" means holders from time to time of the First Mortgage
Notes.
"OFFICER'S CERTIFICATE" means: (i) prior to the Initial Operating
Date, a certificate of Premier signed by one officer of Premier who must be the
principal executive officer, the principal financial officer, the treasurer or
the principal accounting officer of Premier; and (ii) on or after the Initial
Operating Date, a certificate of Premier signed by two officers of Premier, one
of whom must be the principal executive officer, the principal financial
officer, the treasurer or the principal accounting officer of Premier; PROVIDED,
HOWEVER that if amounts are requested to be Disbursed to the PFC Payment
Account, such certificate must also be signed by one officer of PFC whom must be
the principal executive officer, the principal financial officer, the treasurer
or the principal accounting officer of PFC.
"OPERATING" has the meaning ascribed thereto in the Indenture.
"OPERATING PERIOD" means the period commencing on the Initial
Operating Date of the Facility and continuing until the date of termination of
this Agreement under SECTION 8.
"OPERATING DEADLINE" means December 31, 2005.
"ORIGINAL CONSTRUCTION ALLOCATION" means: (a) the total amount of the
Proceeds plus (b) the initial equity that is deposited into the Construction
Disbursement Account pursuant to SECTION 4.1(b), LESS (w) the Initial
Disbursements listed in Paragraphs (a) through (o) of the Initial Disbursements
Certificate, (x) the difference of (i) the portion of the Proceeds that has been
deposited into the Interest Reserve Account LESS (ii) the portion of such
Proceeds that is transferred into the Construction Disbursement Account pursuant
to SECTION 4.4(b), and (y) the
10
$1,031,900 deposited in the Tidelands Lease Account pursuant to SECTION 6.1, and
(z) to the extent not otherwise excluded from the definition of "Proceeds", the
Issuance Fees and Expenses.
"OTHER PROJECT COSTS" shall mean all Project Costs (other than the
Permitted Land-Based Project Costs).
"PERMITTED ENCUMBRANCES" means the exceptions set forth on EXHIBIT L
and a standard A.L.T.A. exception for mechanics liens; provided that any
mechanic's or materialman's lien that has actually been filed or recorded shall
not constitute a Permitted Encumbrance.
"PERMITTED AMOUNTS" means, without duplication, (a) uncompleted
Punchlist Items with an aggregate Punchlist Completion Amount (as reasonably
determined by the Independent Construction Consultant) of less than $800,000;
(b) Disputed Amounts with an aggregate value (as reasonably determined by the
Independent Construction Consultant) of less than $2,000,000; and (c) the
Retainage Amounts with an aggregate value (as reasonably determined by the
Independent Construction Consultant) of less than $5,000,000.
"PERMITTED LAND-BASED PROJECT COSTS" shall mean those Project Costs in
the aggregate amount not to exceed $60,000,000 that constitute "Costs" (as such
term is defined in the Bond Loan Agreement) permitted to be financed with the
proceeds of the Bonds pursuant to the Bond Financing Documents.
"PERMITTED LIENS" has the meaning ascribed thereto in the Indenture.
"PERSON" has the meaning ascribed thereto in the Indenture.
"PFC" means
Premier Finance Biloxi Corp., a Delaware corporation.
"PLANS" means all drawings, plans and specifications prepared by or on
behalf of Premier, as amended or supplemented from time to time in accordance
with this Agreement, and, if required, submitted to and approved by the
appropriate regulatory authorities, which describe and show the Facility and the
labor and materials necessary for the construction thereof.
"PLEDGE AND SECURITY AGREEMENT" means that certain Pledge and Security
Agreement dated as of the date hereof, among Premier, PFC and the Trustee, for
the benefit of the Noteholders (as the same may be amended, modified or
supplemented from time to time).
"PRE-ISSUANCE EXPENSES" means, collectively, (a) any expenses paid by
the Issuer or AA Capital Equity Fund, L.P. (one of its members), in connection
with the Facility prior to the Issuance Date, and (b) to the extent not included
within clause (a), any expenses paid pursuant to Paragraphs (a) through (o) of
the Initial Disbursements Certificate.
"PRELIMINARY PLANS" means, with respect to any particular work or
improvement, the Plans for such work or improvement, if any, that are described
on EXHIBIT 4 to the Issuer's Closing Certification.
"PRE-OPENING EXPENSES" means expenses of the Issuer related to the
preparation of the Facility for opening and operation (other than expenses
directly related to the construction
11
of the Facility) to be incurred prior to the Initial Operating Date as set forth
in the Project Budget, excluding, however, (i) any Debt Financing Costs and (ii)
any Pre-Issuance Expenses (except Pre-Opening Expenses may include
$804,039 of Pre-Issuance Expenses).
"PROJECT BUDGET" means the Initial Project Budget as the Initial
Project Budget may be amended from time to time in accordance with this
Agreement.
"PROJECT COST SCHEDULE" means an itemized schedule in the form
attached as SCHEDULE 1 to EXHIBIT D-2 hereto.
"PROJECT COSTS" means the costs to be incurred in connection with the
acquisition, financing, design, development, construction, equipping and opening
of the Facility, including all Construction Expenses, Debt Financing Costs and
Pre-Opening Expenses.
"PUNCHLIST COMPLETION AMOUNT" means, from time to time from and after
the Initial Operating Date, the estimated cost to complete all remaining
Punchlist Items if the owner of the Facility were to engage independent,
reputable and appropriately experienced and licensed contractor(s) to complete
such work and no other work (certified by the Issuer and the Independent
Construction Consultant with respect to each Disbursement from and after the
Initial Operating Date in their respective certificates in the form of EXHIBIT
C-1 and EXHIBIT 2 TO EXHIBIT C-1).
"PUNCHLIST ITEMS" means minor or insubstantial details of construction
or mechanical adjustment, the non-completion of which, when all such items are
taken together, will not interfere in any material respect with the use or
occupancy of the Facility for its intended purposes or the ability of the owner
or lessee, as applicable, of any portion of the Facility (or any tenant thereof)
to perform work that is necessary or desirable to prepare such portion of the
Facility for such use or occupancy; PROVIDED that, in all events, "Punchlist
Items" shall include (to the extent not already completed), without limitation,
the items set forth in the punchlist to be delivered by the General Contractor
in connection with "Substantial Completion" under the GMP Contract and all items
that are listed on the "punchlists" furnished by the ▇▇▇▇▇▇▇▇ County Building
Department, the Mississippi Department of Transportation or the ▇▇▇▇▇▇▇▇ County
Department of Public Works in connection with, or after, the issuance of the
temporary certificate of occupancy as those that must be completed in order for
the ▇▇▇▇▇▇▇▇ County Building Department to issue a permanent certificate of
occupancy for the Facility.
"REALIZED SAVINGS" means, with respect to any line item in the Project
Budget, the excess of the Remaining Budgeted Amount for such line item over the
amount of funds expended or to be expended by the Issuer after the Issuance Date
to complete the tasks set forth in such line item and for the materials and
services used to complete such tasks; PROVIDED, HOWEVER, that Realized Savings
for any line item shall be deemed to be zero unless and until the Issuer has
delivered an executed Project Budget Amendment Certificate (together with all
exhibits thereto) which includes such Realized Savings; PROVIDED, FURTHER, that
no Realized Savings shall be obtainable with respect to the "working capital and
machine loads" or "contingency" line items under the Project Budget; PROVIDED,
STILL FURTHER, that the Realized Savings for the "GMP Contract" line item shall
be deemed to be zero until all work or improvements contemplated by such line
item are not subject to any allowances under the GMP
12
Contract and Final Plans have been completed with respect to such work or
improvements as evidenced by a Final Plans Amendment Certificate delivered in
accordance with SECTION 5.6.
"REGISTRATION RIGHTS AGREEMENT" has the meaning ascribed thereto in
the Indenture.
"REMAINING BUDGETED AMOUNT" for any line item on the Project Budget
means the Total Budgeted Amount for such line item in the Project Budget less
the amount of Pre-Issuance Expenses with respect to such line item.
"REMAINING COSTS" means, at any given time, the amount of Construction
Expenses (including Retainage Amounts) and Pre-Opening Expenses set forth in the
Project Budget that remain unpaid at such time (including amounts that have not
yet accrued at such time).
"RETAINAGE AMOUNTS" means, at any given time, amounts that have
accrued and are owing under the terms of a Construction Contract for work or
services to the Issuer already provided but which at such time (in accordance
with the terms of the Construction Contract) are being withheld from payment to
the Contractor thereunder until certain subsequent events (e.g., completion
benchmarks) have been achieved.
"SECURITIES ACCOUNTS" means the Construction Period Accounts and the
Tidelands Lease Account, each as defined in SECTION 2.2.
"SERIES 2004 NOTE" shall have the meaning assigned to the term "Series
2004 Note" in the Bond Indenture.
"SHIP MORTGAGE" means that certain First Preferred Ship Mortgage dated
as of the date hereof, between Premier and the Trustee.
"SOFT COSTS" means all costs and expenses (other than Hard Costs) set
forth in the Project Budget, including, without limitation, Pre-Opening
Expenses.
"TIDELANDS LEASE" means that certain Public Trust Tidelands Lease
dated as of October 27, 2003 between Premier and the Secretary of State, with
the approval of the Governor, for and on behalf of the State of Mississippi.
"TIDELANDS LEASE REQUIRED PAYMENT AMOUNT" means, as of any time of
calculation, the total amount of money (including rent) that Premier reasonably
anticipates will be due and owing to the State of Mississippi under the
Tidelands Lease during the 60 days immediately following the date of
calculation.
"TIDELANDS LEASE SHORTAGE AMOUNT" means, as of any time of
calculation, the excess of the Tidelands Lease Required Payment Amount over the
balance then on deposit in the Tidelands Lease Account.
"TITLE INSURER" means First American Title Insurance Company.
13
"TOTAL BUDGETED AMOUNT" with respect to any line item in the Project
Budget at any given time means the total amount budgeted for such line item in
the Project Budget at such time.
"TRANSACTION DOCUMENTS" means each of this Agreement, the Indenture,
the First Mortgage Notes, the Registration Rights Agreement, the Junior
Subordinated Note Investment Agreement, the Pledge and Security Agreement, the
Deeds of Trust, each other Collateral Document, the Construction Contracts, the
Bond Financing Documents, the Hard Rock Cafe Lease, the Hard Rock License
Agreement, the Hard Rock Memorabilia Lease, the Hard Rock Retail Store Lease,
the Tidelands Lease, and the City of Biloxi Lease (each as defined in the
Indenture).
"TRUSTEE'S CLOSING CERTIFICATE" means a closing certificate from the
Trustee in the form of EXHIBIT B-2 attached hereto.
"TRUSTEE'S TITLE POLICIES" means: (i) the policy of title insurance
with respect to the real property issued by the Title Insurer as of the Issuance
Date as provided in SECTION 4.25 of the Indenture; and (ii) from and after the
date the Ship Mortgage is required under SECTION 4.24 of the Indenture, the
policy of title insurance with respect to the Ship Mortgage to be issued by the
Title Insurer as provided in SECTION 4.24 of the Indenture.
"UCC" means: (a) with respect to the creation and attachment of any
security interest, the
New York UCC and (b) with respect to the perfection, the
effect of perfection or non-perfection and priority of the security interest,
the Uniform Commercial Code of the jurisdiction specified by the mandatory
choice of law rules set forth in the
New York UCC.
1.2 INDEX OF ADDITIONAL DEFINED TERMS. In addition, the terms
listed in the left column below shall have the respective meanings assigned to
such terms in the Section of this Agreement listed opposite such terms in the
right column below:
DEFINED TERM SECTION
------------ -------
ADDITIONAL CONSTRUCTION CONTRACT CERTIFICATE....................................5.3
ADDITIONAL NOTES......................................................E of Recitals
ADVANCE CONSTRUCTION DISBURSEMENT REQUEST.......................................4.3
AGREEMENT..............................................................Introduction
APPLICABLE COURTS.............................................................13.12
AVAILABLE CONSTRUCTION FUNDS CERTIFICATE........................................5.4
BOND FINANCING........................................................F of Recitals
BONDS.................................................................F of Recitals
CONSTRUCTION CONTRACT AMENDMENT CERTIFICATE.....................................5.2
CONSTRUCTION DISBURSEMENT ACCOUNT.............................................2.2.1
CONSTRUCTION DISBURSEMENT REQUEST .........................................4.2.1(a)
CONSTRUCTION PERIOD ACCOUNTS..................................................2.2.1
DISBURSEMENT AGENT.....................................................Introduction
DISBURSEMENT REQUEST..........................................................4.2.1
ENTITLEMENT ORDER...............................................................2.4
EXPECTED INTEREST RESERVE INCOME AMOUNT......................................4.4(b)
14
FACILITY..............................................................A of Recitals
FF&E AGENT............................................................D of Recitals
FINANCIAL ASSETS................................................................2.4
FIRST MORTGAGE NOTES..................................................B of Recitals
IDB ACT...............................................................F of Recitals
INDENTURE.............................................................A of Recitals
INDEPENDENT CONSTRUCTION CONSULTANT....................................Introduction
INITIAL DISBURSEMENTS...........................................................4.1
INITIAL DISBURSEMENTS CERTIFICATE ..............................................4.1
INITIAL INTEREST RESERVE ACCOUNT TARGET......................................4.4(b)
INTEREST RESERVE ACCOUNT......................................................2.2.1
INTEREST RESERVE INCOME REQUIREMENT..........................................4.4(b)
ISSUER.................................................................Introduction
ISSUER'S PAYMENT ACCOUNT......................................................2.2.2
ISSUER'S PAYMENT ACCOUNT ORDER..................................................2.5
LOSS PROCEEDS..................................................................5.10
MATERIAL CONSTRUCTION CONTRACT AMENDMENT........................................5.2
MBFC..................................................................F of Recitals
OBLIGATIONS.....................................................................2.3
OUTSTANDING RELEASES............................................................4.3
PFC....................................................................Introduction
PFC PAYMENT ACCOUNT...........................................................2.2.4
PFC PAYMENT ACCOUNT ORDER.......................................................2.6
PRE-OPENING DISBURSEMENT REQUEST..............................................4.2.1
PREMIER................................................................Introduction
PROCEEDS..............................................................H of Recitals
PROJECT BUDGET AMENDMENT CERTIFICATE..........................................5.1.3
PROJECT COST SCHEDULE CERTIFICATE...............................................5.5
RANK..................................................................C of Recitals
RESERVED AMOUNT.................................................................4.6
SITE..................................................................B of Recitals
SECURITY ENTITLEMENTS ..........................................................2.4
TIDELANDS LEASE ACCOUNT.......................................................2.2.3
TIDELANDS LEASE CERTIFICATE..................................................6.1(a)
TRUSTEE................................................................Introduction
UNINCORPORATED MATERIALS...................................................4.2.2(e)
UPDATE ENDORSEMENT.........................................................4.2.2(d)
2. APPOINTMENT OF DISBURSEMENT AGENT; ESTABLISHMENT OF SECURITIES ACCOUNTS;
RELATED PROVISIONS.
2.1 APPOINTMENT OF THE DISBURSEMENT AGENT. The Disbursement Agent
is hereby appointed by the Issuer and the Trustee as disbursement agent
hereunder, and the Disbursement Agent hereby agrees to act as such and to accept
all cash, payments, other amounts and Cash Equivalents to be delivered to or
held by the Disbursement Agent pursuant to the terms of this Agreement. The
Disbursement Agent shall hold and safeguard the Securities Accounts , the
Issuer's Payment Account and the PFC Payment Account (and the cash, instruments
and
15
securities on deposit therein) during the term of this Agreement and shall
treat the Securities Accounts, the Issuer's Payment Account, and the PFC Payment
Account and the cash, instruments, and securities in the Securities Account, the
Issuer's Payment Account and the PFC Payment Account, as funds, instruments and
securities pledged by Premier to the Trustee for the ratable benefit of the
Noteholders to be held in accordance with the provisions hereof.
2.2 ESTABLISHMENT OF ACCOUNTS.
2.2.1 ESTABLISHMENT OF CONSTRUCTION PERIOD ACCOUNTS. The
Disbursement Agent hereby establishes at its offices located at ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, the following accounts, each of which shall be
maintained as special, segregated securities account at all times until such
accounts are closed as set forth in SECTION 4.7, unless earlier termination is
otherwise provided for herein:
ACCOUNT: ACCOUNT NUMBER:
Construction Disbursement Account 744829001
Interest Reserve Account 744829002
The terms set forth in the left column above, as used in this Agreement, shall
be deemed to refer to the accounts having the account numbers listed in the
right column above or any substitute account selected in accordance with the
terms of this Agreement. The Construction Disbursement Account and the Interest
Reserve Account are sometimes referred to collectively herein as the
"CONSTRUCTION PERIOD ACCOUNTS."
2.2.2 ESTABLISHMENT OF ISSUER'S PAYMENT ACCOUNT. The
Disbursement Agent hereby establishes at its offices located at ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, the following special, segregated and
irrevocable collateral account for deposits and checking which shall be
maintained at all times until the termination of this Agreement, unless earlier
termination is otherwise provided for herein:
ACCOUNT: ACCOUNT NUMBER:
Issuer's Payment Account 744829003
The term set forth in the left column above, as used in this Agreement, shall be
deemed to refer to the account having the account number listed in the right
column above or any substitute account selected in accordance with the terms of
this Agreement.
2.2.3 ESTABLISHMENT OF TIDELAND'S LEASE ACCOUNT. The
Disbursement Agent hereby establishes at its offices located at ▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, the following special, segregated and
irrevocable securities account which shall be maintained at all times until the
termination of this Agreement, unless earlier termination is otherwise provided
for herein:
ACCOUNT: ACCOUNT NUMBER:
Tidelands Lease Account 744829005
16
The term set forth in the left column above, as used in this Agreement, shall be
deemed to refer to the account having the account number listed in the right
column above or any substitute account selected in accordance with the terms of
this Agreement.
2.2.4 ESTABLISHMENT OF PFC PAYMENT ACCOUNT. The Disbursement
Agent hereby establishes at its offices located at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, the following special, segregated and irrevocable
collateral account for deposits and checking with PFC as the account holder,
which shall be maintained at all times until the termination of this Agreement,
unless earlier termination is otherwise provided for herein:
ACCOUNT: ACCOUNT NUMBER:
PFC Payment Account 744829004
The term set forth in the left column above, as used in this Agreement, shall be
deemed to refer to the account having the account number listed in the right
column above or any substitute account selected in accordance with the terms of
this Agreement.
2.3 ACKNOWLEDGEMENT OF SECURITY INTEREST; CONTROL. Pursuant to the
Pledge and Security Agreement, in order to secure the payment and performance of
all covenants, agreements and payment and other obligations of the Issuer under
the Indenture and the Collateral Documents (the "OBLIGATIONS"), the Issuer has
pledged to and created in favor of the Trustee a security interest in and to,
the Securities Accounts, the Issuer's Payment Account, the PFC Payment Account,
all cash, Cash Equivalents, instruments, investments, securities entitlements
and other securities at any time on deposit in the Securities Accounts, the
Issuer's Payment Account, and the PFC Payment Account, and all proceeds of any
of the foregoing. All moneys, Cash Equivalents, instruments, investments and
securities at any time on deposit in any of the Securities Accounts, the
Issuer's Payment Account, or the PFC Payment Account shall constitute collateral
security for the payment and performance by the Issuer of its obligations and
shall at all times be subject to the control of the Trustee, and shall be held
in the custody of the Disbursement Agent in trust for the purposes of, and on
the terms set forth in, this Agreement.
2.4 CONTROL OF SECURITIES ACCOUNTS. The Disbursement Agent hereby
agrees and confirms that it has established the Securities Accounts as set forth
and defined in this Agreement. The Disbursement Agent and the Issuer agree that
(a) the Disbursement Agent is acting as a "securities intermediary" (within the
meaning of SECTION 8-102(14) of the UCC) with respect to the Securities Accounts
and the "financial assets" (within the meaning of SECTION 8-102(a)(9) of the
UCC, the "FINANCIAL ASSETS") credited to the Securities Accounts; (b) each such
Securities Account established by the Disbursement Agent is and will be
maintained as a "securities account" (within the meaning of SECTION 8-501 of the
UCC); (c) the Issuer is an "entitlement holder" (within the meaning of SECTION
8-102(a)(7) of the UCC) in respect of the Financial Assets credited to such
Securities Accounts and with respect to such Securities Accounts and the
Disbursement Agent shall so note in its records pertaining to such Financial
Assets and Securities Accounts; and (d) all Financial Assets in registered form
or payable to or to the order of and credited to any such Securities Account
shall be registered in the name of,
17
payable to or to the order of, or specially endorsed to, the Disbursement Agent,
or in blank, or credited to another securities account maintained in the name of
the Disbursement Agent, as applicable, and in no case will any Financial Asset
credited to any such Securities Account be registered in the name of, payable to
or to the order of, or endorsed to, the Issuer except to the extent the
foregoing have been subsequently endorsed by the Issuer to the Disbursement
Agent or in blank. Each item of property (including a security, security
entitlement, investment property, instrument or obligation, share,
participation, interest or other property whatsoever) credited to any Securities
Account shall be treated as a Financial Asset. Until this Agreement terminates
in accordance with the terms hereof, the Trustee shall have "control" (within
the meaning of SECTION 8-106(d)(2) of the UCC) of the Issuer's "security
entitlements" (within the meaning of SECTION 8-102(a)(17) of the UCC, "SECURITY
ENTITLEMENTS") with respect to the Securities Accounts and the Financial Assets
credited to the Securities Accounts. All property delivered to the Disbursement
Agent by or on behalf of the Issuer pursuant to this Agreement will be promptly
credited to the Securities Accounts and shall be treated as Financial Assets. If
at any time the Disbursement Agent shall receive from the Trustee any
"entitlement order" (within the meaning of SECTION 8-102(8) of the UCC, an
"ENTITLEMENT ORDER") relating to the Securities Accounts or Financial Assets
credited to the Securities Accounts, the Disbursement Agent shall comply with
such Entitlement Order without further consent by the Issuer or any other
Person. In the event that the Disbursement Agent receives conflicting
Entitlement Orders relating to the Securities Accounts or Financial Assets
credited to the Securities Accounts from the Trustee and any other Person
(including, without limitation, the Issuer), the Disbursement Agent shall comply
with the Entitlement Orders originated by the Trustee. Each of the Issuer and
the Disbursement Agent agrees that it has not and will not execute and deliver,
or otherwise become bound by, any agreement under which it agrees with any
Person other than the Trustee (and, to the extent provided herein, the Issuer)
to comply with Entitlement Orders originated by such Person relating to the
Securities Accounts or Financial Assets credited to the Securities Accounts.
Except for the claims and interests of the Trustee and the Issuer in the
Securities Accounts and the Financial Assets credited to the Securities
Accounts, neither the Disbursement Agent nor the Issuer has Knowledge of any
claim to, or interest in, any Securities Account or Financial Assets credited to
the Securities Accounts. If the Disbursement Agent or the Issuer obtains
Knowledge that any Person has asserted a lien, encumbrance or adverse claim
against any of the Securities Accounts or Financial Assets credited to the
Securities Accounts, such party will promptly notify the Trustee thereof. In the
event that the Disbursement Agent has or subsequently obtains by agreement,
operation of law or otherwise a lien or security interest in any Securities
Account, any Security Entitlement carried therein or credited thereto or any
Financial Asset that is the subject of any such Security Entitlement, the
Disbursement Agent agrees that such lien or security interest shall be
subordinate to the lien and security interest of the Trustee. The Financial
Assets standing to the credit of the Securities Accounts will not be subject to
deduction, set-off, banker's lien or any other right, and the Disbursement Agent
shall not grant, permit or consent to any other right or interest in such
Financial Assets, in favor of any Person (including the Disbursement Agent)
other than the Trustee. Regardless of any provision in any other agreement, for
purposes of the UCC, the State of
New York shall be deemed to be the
Disbursement Agent's jurisdiction (within the meaning of SECTION 8-110 of the
UCC). The Securities Accounts shall be governed by the laws of the State of
New
York except as specified in SECTION 13.12.
2.5 CONTROL OF ISSUER'S PAYMENT ACCOUNT. The Disbursement Agent
hereby agrees and confirms that it has established the Issuer's Payment Account
as set forth and defined
18
in this Agreement. For so long as this Agreement remains in effect, the
Disbursement Agent waives its rights of chargeback, setoff (including such right
of setoff as set forth in SECTION 9-340 of the UCC) and/or banker's lien against
the Issuer's Payment Account. Until this Agreement terminates in accordance with
the terms hereof, the Trustee shall have "control" (within the meaning of
SECTION 9-104 of the UCC) of the Issuer's Payment Account. If at any time the
Disbursement Agent shall receive from the Trustee any instruction directing
disposition of any funds in the Issuer's Payment Account (a "ISSUER'S PAYMENT
ACCOUNT ORDER"), the Disbursement Agent shall comply with such Issuer's Payment
Account Order without further consent by the Issuer or any other Person. In the
event that the Disbursement Agent receives conflicting Issuer's Payment Account
Orders relating to the Issuer's Payment Account, the Disbursement Agent shall
comply with the Issuer's Payment Account Orders originated by the Trustee. Each
of the Issuer and the Disbursement Agent agrees that it has not and will not
execute and deliver, or otherwise become bound by, any agreement under which it
agrees with any Person other than the Trustee to comply with Issuer's Payment
Account Orders originated by such Person relating to the Issuer's Payment
Account. If the Disbursement Agent or the Issuer obtains Knowledge that any
Person has asserted a lien, encumbrance or adverse claim against the Issuer's
Payment Account, such party will promptly notify the Trustee thereof. In the
event that the Disbursement Agent has or subsequently obtains by agreement,
operation of law or otherwise a lien or security interest in the Issuer's
Payment Account, the Disbursement Agent agrees that such lien or security
interest shall be subordinate to the lien and security interest of the Trustee.
Regardless of any provision in any other agreement, for purposes of the UCC, the
State of
New York shall be deemed to be the Disbursement Agent's jurisdiction
(within the meaning of SECTION 9-304 of the UCC). The Issuer's Payment Account
shall be governed by the laws of the State of
New York except as specified in
SECTION 13.12.
2.6 CONTROL OF PFC PAYMENT ACCOUNT. The Disbursement Agent hereby
agrees and confirms that it has established the PFC Payment Account as set forth
and defined in this Agreement. For so long as this Agreement remains in effect,
the Disbursement Agent waives its rights of chargeback, setoff (including such
right of setoff as set forth in SECTION 9-340 of the UCC) and/or banker's lien
against the PFC Payment Account. Until this Agreement terminates in accordance
with the terms hereof, the Trustee shall have "control" (within the meaning of
SECTION 9-104 of the UCC) of the PFC Payment Account. If at any time the
Disbursement Agent shall receive from the Trustee any instruction directing
disposition of any funds in the PFC Payment Account (a "PFC PAYMENT ACCOUNT
ORDER"), the Disbursement Agent shall comply with such PFC Payment Account Order
without further consent by PFC or any other Person. In the event that the
Disbursement Agent receives conflicting PFC Payment Account Orders relating to
the PFC Payment Account, the Disbursement Agent shall comply with the PFC
Payment Account Orders originated by the Trustee. Each of PFC and the
Disbursement Agent agrees that it has not and will not execute and deliver, or
otherwise become bound by, any agreement under which it agrees with any Person
other than the Trustee to comply with PFC Payment Account Orders originated by
such Person relating to the PFC Payment Account. If the Disbursement Agent or
PFC obtains Knowledge that any Person has asserted a lien, encumbrance or
adverse claim against the PFC Payment Account, such party will promptly notify
the Trustee thereof. In the event that the Disbursement Agent has or
subsequently obtains by agreement, operation of law or otherwise a lien or
security interest in the PFC Payment Account, the Disbursement Agent agrees that
such lien or security interest shall be subordinate to the lien and security
interest of the Trustee. Regardless of any provision in any other agreement, for
purposes of the UCC, the State of
New York shall be deemed to be the
Disbursement Agent's
19
jurisdiction (within the meaning of SECTION 9-304 of the UCC). The PFC Payment
Account shall be governed by the laws of the State of
New York except as
specified in SECTION 13.12.
2.7 THE ISSUER'S RIGHTS. The Issuer shall not have any rights or
powers with respect to any amounts in the Securities Accounts, the Issuer's
Payment Account, or the PFC Payment Account or any part thereof except (a) as
provided in SECTION 2.8 and (b) the right to have such amounts applied in
accordance with the provisions hereof.
2.8 CASH EQUIVALENTS. Subject to the last sentence of this
SECTION 2.8, the Disbursement Agent shall invest any money held in any
Securities Account other than in the Interest Reserve Account, in such Cash
Equivalents, and in the case of the Interest Reserve Account, in such Government
Securities, in each case, as directed in writing by the Issuer from time to
time. In the event that the Disbursement Agent has not received any such written
directions, the Disbursement Agent shall be under no obligation to invest any
such money. Any income or gain realized as a result of any such investment shall
be held as part of the applicable Securities Account and reinvested as provided
in this Agreement until released in compliance with the terms of this Agreement.
Any income tax payable on account of any such income or gain shall be paid by
the Issuer. The Disbursement Agent shall have no liability for any loss
resulting from any such investment other than solely by reason of its willful
misconduct or gross negligence or bad faith or from failure to exercise such
care in the custody of any such investments as it does for accounts held by
other customers or in the custody of its own investments. Any such investment
may be sold (without regard to maturity date) by the Disbursement Agent as
directed in writing by the Issuer to make any distribution required by this
Agreement. In addition, if an Event of Default exists, the Disbursement Agent
shall liquidate and sell any investment if so directed in writing by the
Trustee, and shall invest any money held in any Securities Account only as
directed by the Trustee. The Issuer shall direct the Disbursement Agent to
invest any money held in the Interest Reserve Account only in such Permitted
Investments, as defined in, and in accordance with, the Indenture, that will
mature approximately on, but not later than, any of the first four Interest
Payment Dates, and with respect to each such Interest Payment Date, that will
mature in such amounts as will be sufficient to pay the interest that is due on
the First Mortgage Notes on such Interest Payment Date.
2.9 REMEDIES. Notwithstanding any other provision of this
Agreement, in addition to the rights provided hereunder and at law or in equity
and to any rights and remedies provided in the Collateral Documents, upon an
Event of Default and for so long as such Event of Default exists, the
Disbursement Agent shall disburse funds from the Securities Accounts only as
directed by the Trustee, and the Trustee may exercise any or all of the
following remedies, successively or concurrently and in such order as the
Trustee elects:
(a) The Trustee may deliver some or all of the notices
contemplated by SECTIONS 2.4, 2.5, 2.6, and 2.8.
(b) Any cash that is Collateral held by the Disbursement
Agent and all cash proceeds received by the Disbursement Agent in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral shall be applied (after payment of any and all amounts payable to the
Disbursement Agent pursuant to the Collateral Documents) against the Obligations
for the benefit of the Trustee. Any surplus of such cash or cash proceeds held
by the Disbursement Agent and remaining after payment in full of all the
Obligations shall be paid
20
over to the Issuer or to whomsoever may be lawfully entitled to receive such
surplus or as a court of competent jurisdiction may direct.
(c) The Issuer hereby irrevocably appoints the Trustee as
its attorney-in-fact effective upon and during the existence of an Event of
Default with full power of substitution to do any act which the Issuer is
obligated hereby to do, to exercise such rights as the Issuer might exercise
with respect to the Collateral and to execute and file in the Issuer's name any
financing statements and amendments thereto required or advisable to protect the
Trustee's rights or security interest hereunder and under any other Collateral
Documents. Such appointment and power of attorney shall be irrevocable and
coupled with an interest. The Trustee shall exercise all remedies under this
SECTION 2.9 in accordance with the terms of the Indenture.
2.10 WAIVER OF SET-OFF RIGHTS. The Disbursement Agent hereby
acknowledges the Trustee's security interests as set forth above and under any
other Collateral Documents and waives any security interest or other lien in the
Collateral and further waives any right to set-off the Collateral now or in the
future against any indebtedness of the Issuer. The waivers set forth in this
SECTION 2.10 are of rights which may exist now or hereafter in favor of the
Disbursement Agent in its individual capacity, and not of any such rights which
may exist now or hereafter in favor of the Disbursement Agent in its capacity as
Disbursement Agent for the Trustee. Nothing in this SECTION 2.10 shall be
construed as waiving, limiting or diminishing any rights of the Trustee
vis-a-vis the Issuer.
2.11 COOPERATION. The Disbursement Agent is hereby directed to
cooperate with the Trustee in the exercise of its rights in the Collateral
provided for herein. The Trustee may take all necessary action to preserve and
protect the security interests created hereby and by the other Collateral
Documents as a lien and encumbrance upon such Collateral and, upon demand, the
Issuer and the Disbursement Agent will execute and deliver to the Trustee such
instruments and documents as the Trustee may reasonably deem necessary or
advisable to confirm or perfect the rights of the Trustee under this Agreement
and the Trustee's interest in the Collateral.
2.12 FUNDING MECHANICS FOR FF&E COSTS. The parties hereto
acknowledge that funds for the costs of acquisition and installation of the
Additional Funding FF&E will be made available to the Issuer through the FF&E
Financing or through the issuance of Additional Notes. Advances of funds under
the FF&E Financing, if any, will not be made pursuant to this Agreement but,
instead, will be made pursuant to separate agreements entered into between the
Issuer and the providers of FF&E Financing. In order to account for such FF&E
Financing for purposes of tracking the progress and status of the Facility
hereunder, including the amount of Available Construction Funds from time to
time, (i) the Issuer has represented that the Project Budget, Construction
Schedule and Plans include and reflect the work to be performed in connection
with the Additional Funding FF&E, (ii) the Disbursement Requests to be submitted
by the Issuer hereunder require the Issuer to, among other things, certify as to
the Project Costs incurred and work from time to time performed in connection
with the Additional Funding FF&E and the amounts drawn and amounts available to
be drawn under the FF&E Financing, and (iii) the Independent Construction
Consultant will confirm the Issuer's certifications and representations to the
extent set forth in the certificates to be submitted by the Independent
Construction Consultant hereunder from time to time unless the Independent
Construction
21
Consultant has a good faith basis, in its professional judgment, for withholding
its confirmation. Upon request by the Disbursement Agent or the Independent
Construction Consultant, the Issuer shall cause the providers of such FF&E
Financing to confirm the amounts drawn and the amounts available to be drawn
under such FF&E Financing (including interest or fees due and payable
thereunder). The Issuer shall cause the proceeds of any Additional Notes issued
before the Initial Operating Date to be deposited into the Construction
Disbursement Account and such proceeds will be advanced pursuant to this
Agreement.
2.13 FUNDING MECHANICS FOR BOND FINANCING. The parties hereto
acknowledge that funds for the costs of acquisition, construction and
installation of certain land-based improvements and equipment will be disbursed
pursuant to both this Agreement and the Bond Financing Documents.
(a) Construction Disbursement Requests submitted by the
Issuer may from time to time: (i) include as an attachment a copy of a completed
Bond Requisition (substantially in the form of Exhibit D to the Bond Loan
Agreement) signed by Premier and request that amounts be Disbursed from the
Construction Disbursement Account to the PFC Payment Account in an amount equal
to the total Permitted Land-Based Project Costs shown on the attached copy of
the completed Bond Requisition or (ii) request that amounts be Disbursed from
the Construction Disbursement Account to the PFC Payment Account to fund or
replenish the Company's Direct Payment Account in accordance with the terms
hereof.
(b) All amounts transferred from the Construction
Disbursement Account to the PFC Payment Account upon satisfaction of the
conditions precedent to Disbursements set forth in this Agreement shall be
deemed to be an equity contribution by Premier to PFC.
(c) In each such Construction Disbursement Request which
includes a request that amounts be Disbursed to the PFC Payment Account, PFC
will also:
(i) confirm that the conditions precedent set forth
in SECTION 8 of the Bond Purchase Agreement have been satisfied or waived; and
(ii) (1) in the case of clause (a)(i), instruct the
Disbursement Agent to immediately transfer such funds from the PFC Payment
Account to the Bond Trustee's Construction Disbursement Account to effect the
purchase of the Bonds and (2) in the case of clause (a)(ii), instruct the
Disbursement Agent to immediately transfer such funds from the PFC Payment
Account to the Company's Direct Disbursement Account to effect the purchase of
the Bonds. The Independent Construction Consultant shall review each such
Construction Disbursement Request (including those Project Costs separately
identified on the copy of the Bond Requisition submitted therewith) as part of
the conditions precedent to Disbursements in accordance with the requirements of
this Agreement. The Disbursement Agent's transfer of funds from the Construction
Disbursement Account to the PFC Payment Account and thereafter to the Bond
Trustee's Construction Disbursement Account or the Company's Direct Disbursement
Account, as instructed in such Construction Disbursement Request, shall make
funds available from time to time for PFC to purchase the Bonds and for loans to
be made to Premier to pay Permitted Land-Based Project Costs in accordance with
the Bond Financing Documents and SECTION 5.9 hereof.
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3. CERTAIN RESPONSIBILITIES OF DISBURSEMENT AGENT AND INDEPENDENT
CONSTRUCTION CONSULTANT.
3.1 DISBURSEMENTS FROM THE ACCOUNTS. Prior to making a
Disbursement, the Disbursement Agent shall telephone or email the Issuing Agent
for the Title Insurer on the requested disbursement date to confirm that the
Title Insurer is prepared to issue the Update Endorsement if an Update
Endorsement is required under SECTIONS 4.2.2(d), 4.6.1(a)(iii), 4.6.2(b) OR 4.7
(d), as applicable. The Disbursement Agent shall disburse funds from the
Securities Accounts, and the PFC Payment Account only upon satisfaction of the
applicable conditions to disbursement set forth herein. Upon satisfaction of the
applicable conditions to disbursement set forth herein, the Disbursement Agent
shall disburse funds from the applicable Securities Account and the PFC Payment
Account as specified in the applicable disbursement request or certificate.
3.2 TRANSFER OF FUNDS AT DIRECTION OF TRUSTEE. Notwithstanding
anything to the contrary in this Agreement, from and after the date the
Disbursement Agent receives written notice from the Trustee or the Issuer that
an Event of Default (as defined in the Indenture) exists until such time as the
Disbursement Agent receives written notice from the Trustee that such Event of
Default no longer exists, the Disbursement Agent shall only withdraw or transfer
amounts in any Securities Account and the PFC Payment Account at the direction
of the Trustee.
3.3 PAYMENT OF COMPENSATION.
3.3.1 COMPENSATION. On the first Business Day of each year
during the Construction Period (except for the initial payment, which shall be
disbursed as set forth in SECTION 4.1 below), the Disbursement Agent shall
disburse $6,000.00 from the Construction Disbursement Account to U.S. Bank
National Association, which amount shall constitute compensation for services to
be performed by it in its capacity as Disbursement Agent, Trustee and Bond
Trustee during such year. On the first Business Day of each year during the
Operating Period, the Issuer shall pay $6,000.00 to U.S. Bank National
Association, which amount shall constitute compensation for services to be
performed by Disbursement Agent, Trustee and Bond Trustee under the Transaction
Documents during such year.
3.3.2 INDEPENDENT CONSTRUCTION CONSULTANT'S COMPENSATION. The
Independent Construction Consultant shall deliver to the Disbursement Agent, on
or prior to the last Business Day of each month during the Construction Period,
an invoice setting forth the amounts owed to it as compensation for its services
during such month and reasonable documentation of its out-of-pocket expenses
incurred in connection with such services as provided in the Independent
Construction Consultant's Engagement Agreement. On the first Business Day of
each month during the Construction Period (except for the initial payment, which
shall be disbursed as set forth below), the Disbursement Agent shall disburse
funds to the Independent Construction Consultant from the Construction
Disbursement Account as compensation for services performed by the Independent
Construction Consultant during the previous month, as set forth on such invoice
(which amount shall not exceed a total of $20,000 during any calendar quarter),
plus the total amount of all out-of-pocket expenses of the Independent
Construction Consultant incurred in connection with the performance of its
duties hereunder during such month, unless the Trustee or Premier notifies the
Disbursement Agent and the Independent Construction Consultant that the
Independent Construction Consultant is in default. Until such time as the
Trustee provides written notice to the contrary to the
23
Disbursement Agent and the Independent Construction Consultant in accordance
with the terms hereof, all amounts payable to the Independent Construction
Consultant shall be applied to the "working capital and machine loads" line item
in the Project Budget.
3.3.3 PROCEDURE. The payments contemplated by this
SECTION 3.3 shall be made without the requirement of obtaining any further
consent or action on the part of the Issuer with respect to such payments.
Disbursements for each subsequent calendar month shall be made on the first day
of each such subsequent calendar month. The final payments pursuant to this
SECTION 3.3 shall also be prorated if for a partial month.
3.4 PERIODIC REVIEW.
3.4.1 REVIEW BY DISBURSEMENT AGENT. The Disbursement Agent
shall exercise commercially reasonable efforts and utilize commercially prudent
practices in the performance of its duties hereunder consistent with those of
similar institutions holding similar collateral and disbursing similar
disbursement control funds. Commencing upon execution and delivery hereof, the
Disbursement Agent shall have the right, but shall have no obligation, to meet
periodically at reasonable times upon reasonable advance notice with
representatives of the Trustee, the Issuer, the Independent Construction
Consultant and such other employees, consultants or agents as the Disbursement
Agent shall reasonably request to be present for such meetings. In addition, the
Disbursement Agent shall have the right, but shall have no obligation, at
reasonable times during customary business hours and at reasonable intervals
upon prior notice to review, to the extent it deems reasonably necessary or
appropriate to permit it to perform its duties hereunder, all information
(including Construction Contracts) supporting any Disbursement Request and any
certificates in support of any of the foregoing. The Disbursement Agent shall be
entitled to examine, copy and make extracts of the books, records, accounting
data and other documents of the Issuer which are reasonably necessary or
appropriate to permit it to perform its duties hereunder, including, without
limitation, bills of sale, statements, receipts, contracts or agreements, which
relate to any materials, fixtures or articles incorporated into the Facility.
The rights of the Disbursement Agent under this SECTION 3.4 shall not be
construed as an obligation, it being understood that the Disbursement Agent's
duty is solely limited to act upon certificates and draw requests submitted by
the Issuer and the Trustee hereunder.
3.5 REVIEW BY INDEPENDENT CONSTRUCTION CONSULTANT. The Independent
Construction Consultant shall exercise commercially reasonable efforts and
utilize commercially prudent practices in the performance of its duties
hereunder consistent with those of similar institutions disbursing disbursement
control funds and reviewing construction progress. Commencing upon execution and
delivery hereof, the Independent Construction Consultant shall have the right to
meet periodically at reasonable times during customary business hours and at
reasonable intervals, however no less frequently than monthly, with
representatives of the Issuer, the General Contractor, the Architect and such
other employees, consultants or agents as the Independent Construction
Consultant shall reasonably request to be present for such meetings. The
Independent Construction Consultant may perform such inspections of the Site and
the Facility as it deems reasonably necessary or appropriate in the performance
of its duties hereunder, however no less frequently than monthly. In addition,
the Independent Construction Consultant shall have the right at reasonable times
during customary business hours upon prior notice to review, to the extent it
deems reasonably necessary or appropriate to permit it to perform its duties
hereunder, all information (including Construction Contracts) supporting the
24
amendments to the Project Budget, amendments to any Construction Contracts, any
Construction Disbursement Request and any certificates in support of any of the
foregoing, to inspect materials stored on the Site and the Facility, at off-site
facilities where materials designated for use in the Facility are stored, to
review the insurance required pursuant to the terms of the Indenture, and to
examine the Plans and all shop drawings relating to the Facility. The
Independent Construction Consultant is authorized to contact any payee for
purposes of confirming receipt of progress payments. The Independent
Construction Consultant shall be entitled to examine, copy and make extracts of
the books, records, accounting data and other documents of the Issuer relating
to the construction of the Facility, including, without limitation, bills of
sale, statements, receipts, lien releases and affidavits, contracts or
agreements, which relate to any materials, fixtures or articles incorporated
into the Facility. From time to time, at the request of the Independent
Construction Consultant, the Issuer shall make available to the Independent
Construction Consultant a Project Cost Schedule and/or the Construction Schedule
for the Facility. The Issuer agrees to reasonably cooperate, shall cause the
General Contractor and each other Contractor to reasonably cooperate, with the
Independent Construction Consultant in assisting the Independent Construction
Consultant to perform its duties hereunder and to take such further steps as the
Independent Construction Consultant reasonably may request in order to
facilitate the Independent Construction Consultant's performance of its
obligations hereunder. The Independent Construction Consultant will confirm the
Issuer's certifications and representations to the extent set forth in the
certificates to be submitted by the Independent Construction Consultant
hereunder from time to time, and shall timely execute and deliver all
certificates provided for under this Agreement, in the form required by the
exhibits attached hereto, unless the Independent Construction Consultant has a
good faith basis, in its professional judgment, for withholding its
confirmation.
3.6 THE SPECIAL PROCEDURES FOR UNPAID CONTRACTORS. The Issuer
agrees that the Disbursement Agent may make advances and transfer any or all
sums in the Construction Disbursement Account directly into the account of (a)
any Contractor for amounts due and owing to such Contractor under the relevant
Construction Contract or (b) any other subcontractors, vendors or materialsmen,
in each case in payment of amounts due and owing to such parties from the Issuer
without further authorization from the Issuer and the Issuer hereby constitutes
and appoints the Disbursement Agent its true and lawful attorney-in-fact to make
such direct payments and this power of attorney shall be deemed to be a power
coupled with an interest and shall be irrevocable; provided that, the
Disbursement Agent shall not exercise its rights under this power of attorney
except to make payments (a) as directed by the Issuer pursuant to a Disbursement
Request or (b) upon the occurrence and continuation of an Event of Default. No
further direction or authorization from the Issuer shall be necessary to warrant
or permit the Disbursement Agent to make such advances in accordance with the
foregoing sentence.
4. DISBURSEMENTS DURING CONSTRUCTION PERIOD.
4.1 INITIAL DISBURSEMENTS FROM THE CONSTRUCTION DISBURSEMENT
ACCOUNT. Upon satisfaction of the conditions described below in this SECTION
4.1, the Disbursement Agent shall make the disbursements (the "INITIAL
DISBURSEMENTS") described in the Initial Disbursements Certificate attached
hereto as EXHIBIT A (the "INITIAL DISBURSEMENTS CERTIFICATE") from the
Construction Disbursement Account. The conditions to the Initial Disbursements
shall consist of the following:
25
(a) (i) $33,100,000.00 of the Proceeds shall have been
deposited into the Interest Reserve Account, (ii) $1,031,900.00 of the Proceeds
shall have been deposited into the Tidelands Lease Account, and (iii) the
remaining Proceeds (in the amount of $128,962,500.00) shall have been deposited
into the Construction Disbursement Account;
(b) (i) $34,819,190.29 of equity shall have been
irrevocably and unconditionally contributed to Premier on or prior to the
Issuance Date, and (ii) $15,180,809.71 of equity shall have been irrevocably and
unconditionally contributed to Premier and deposited contemporaneously with the
execution of this Agreement into the Construction Disbursement Account;
(c) the Disbursement Agent shall have received the Issuer's
Closing Certificate and the Trustee's Closing Certificate; and
(d) the Title Company shall have issued the Trustee's real
property title policy (or an irrevocable commitment to issue such title policy
conditioned only upon payment of [$381,636.45] for recording fees, title
premiums and real property taxes and the recordation of the Deeds of Trust and
the subordination nondisturbance and attornment agreements with Hard Rock Cafe
International (STP), Inc., a New York corporation, with respect to the Cafe
Lease and Retail Store Lease) in form and substance reasonably satisfactory to
the Trustee on the date specified in the Trustee's Closing Certificate.
4.2 SUBSEQUENT DISBURSEMENTS FROM THE CONSTRUCTION DISBURSEMENT
ACCOUNT.
4.2.1 DISBURSEMENT REQUESTS.
(a) The Issuer shall have the right from time to time
during the Construction Period to submit to the Disbursement Agent a request for
the disbursement of funds from the Construction Disbursement Account
substantially in the form of EXHIBIT C-1 hereto (a "CONSTRUCTION DISBURSEMENT
REQUEST") or in the form of EXHIBIT C-2 hereto (a "PRE-OPENING DISBURSEMENT
REQUEST" and, together with a Construction Disbursement Request, each a
"DISBURSEMENT REQUEST"), together with the exhibits attached thereto, as further
described below. The Disbursement Agent shall comply with any Disbursement
Request that satisfies each of the conditions set forth in SECTION 4.2.2. The
Disbursement Agent shall notify the Issuer and the Trustee in writing as soon as
reasonably possible (and in any event: (i) within two (2) Business Days after
the Disbursement Agent receives a Disbursement Request relating solely to the
Barge Construction Contract; or (ii) within five (5) Business Days after the
Disbursement Agent receives any other Disbursement Request) if any Disbursement
Request fails to satisfy any such condition which notice shall describe the
nature of such failure in reasonable detail. The Issuer may submit Construction
Disbursement Requests no more often than weekly. The Issuer may submit
Pre-Opening Disbursement Requests no more often than weekly. The Issuer shall
have the right from time to time during the Construction Period to submit to the
Disbursement Agent a preliminary Disbursement Request requesting that a
Disbursement be made meeting the requirements set forth in this SECTION 4.2. The
Disbursement Agent and the Independent Construction Consultant shall promptly
review the preliminary Disbursement Request and advise the Issuer of any
discrepancies, disputes or missing or incomplete information with respect
thereto necessary to make the preliminary Disbursement Request a conforming
Disbursement Request. The Issuer shall not be entitled to any Disbursement
unless and until a final, executed
26
Disbursement Request, with all exhibits and attachments thereto, has been
properly completed and submitted to the Disbursement Agent and the Independent
Construction Consultant in accordance with this SECTION 4.2. Each preliminary
Disbursement Request shall be clearly labeled as such with the phrase
"PRELIMINARY DISBURSEMENT REQUEST" at the top of the first page, and in lieu of
Premier's signature.
(b) Provided that a Disbursement Request satisfies the
requirements of SECTION 4.2.2, within: (i) two (2) Business Days following
submission of a Disbursement Request relating solely to the Barge Construction
Contract; or (ii) five (5) Business Days following submission of any other
Disbursement Request:
(i) the Disbursement Agent shall distribute checks
drawn on (or wire transfers from) the Construction Disbursement Account to the
parties identified in such Disbursement Request to pay Other Project Costs in
the respective amounts listed for such parties in such Disbursement Request;
(ii) the Disbursement Agent shall transfer from the
Construction Disbursement Account to the Issuer's Payment Account funds in the
amount specified in such Disbursement Request;
(iii) solely with respect to Construction Disbursement
Requests, the Disbursement Agent shall transfer from the Construction
Disbursement Account to the PFC Payment Account funds in the amount specified in
such Disbursement Request (which shall be deemed to be an equity contribution to
PFC); and
(iv) immediately after such funds have been
transferred into the PFC Payment Account as described in clause (iii) above, the
Disbursement Agent shall disburse such funds from the PFC Payment Account to the
Bond Trustee's Construction Disbursement Account and the Company's Direct
Disbursement Account in the amounts specified in such Disbursement Request.
The Issuer shall withdraw funds from and write checks on the Issuer's Payment
Account solely for the purpose of paying Construction Expenses and Pre-Opening
Expenses, as the case may be, identified on such Disbursement Request; PROVIDED,
HOWEVER, that any Contractors or other parties in direct contractual privity
with Premier and scheduled to be paid Project Costs in excess of $100,000 shall
be listed in any particular Disbursement Request as a party to be paid directly
by the Disbursement Agent under clause (i) above (or, in the case of Permitted
Land-Based Project Costs, by the Bond Trustee under the Bond Financing
Documents) and may not be paid from the Issuer's Payment Account. The Issuer
shall use the amounts disbursed from the PFC Payment Account to the Bond
Trustee's Construction Disbursement Account solely for the purposes of
purchasing Bonds and paying Permitted Land-Based Project Costs as identified on
the copy of the Bond Requisition attached to such Disbursement Request. The
Issuer shall use the amounts disbursed from the PFC Payment Account to the
Company's Direct Disbursement Account solely for the purposes of purchasing
Bonds and paying, from time to time, Permitted Land-Based Project Costs.
(c) The Trustee may waive any condition to a disbursement
requested in a Disbursement Request.
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4.2.2 ADDITIONAL CONDITIONS TO SUBSEQUENT DISBURSEMENTS FROM
THE CONSTRUCTION DISBURSEMENT ACCOUNT. The Disbursement Agent's compliance with
a Disbursement Request from the Construction Disbursement Account, other than
the Initial Disbursements, shall be subject to the following conditions in
addition to the conditions set forth in SECTION 4.2.1 above. Upon satisfaction
of the conditions described below, the Disbursement Agent shall make the
disbursements specified in the corresponding Disbursement Request in accordance
with SECTION 4.2.1(b):
(a) With respect to the Construction Disbursement Request,
the Issuer shall have submitted to the Disbursement Agent a Construction
Disbursement Request as provided for herein pertaining to the amounts requested
for disbursement, together with (i) completed SCHEDULES 1 AND 3 thereto
substantially in the form contemplated thereby, (ii) a completed SCHEDULE 2
thereto substantially in the form contemplated, (iii) all lien releases,
affidavits and agreements required to be attached under clause (c) of such
Construction Disbursement Request; (iv) the commitment from the Title Insurer to
issue an Update Endorsement if an Update Endorsement is required to be attached
pursuant to SECTION 4.2.2(d); and (v) the certifications of the General
Contractor, the Independent Construction Consultant and the Architect
substantially in the form of EXHIBITS 1, 2, and 3 to the Construction
Disbursement Request; to the extent required pursuant to the terms of the
Construction Disbursement Request;
(b) With respect to any Pre-Opening Disbursement Request,
the Issuer shall have submitted to the Disbursement Agent a Pre-Opening
Disbursement Request as provided for herein pertaining to the amounts requested
for disbursement, together with a completed SCHEDULE 1 thereto substantially in
the form contemplated thereby;
(c) The Trustee and the Independent Construction Consultant
shall have received copies of all Construction Contracts executed as of the date
of any Construction Disbursement Request and, with respect to each Material
Construction Contract executed on or before the date of such Construction
Disbursement Request: (i) a consent signed by the counterparty to such Material
Construction Contract if and to the extent required under SECTION 5.3; and (ii)
copies of any performance and payment bonds required pursuant to such Material
Construction Contract. Such bonds shall name the Issuer and the Trustee as
co-obligees and shall be in full force and effect;
(d) Until such time as the aggregate amount of all prior
Disbursements equals or exceeds the aggregate principal amount of the First
Mortgage Notes then outstanding, the Issuer shall have caused the Title Insurer
to have delivered to the Independent Construction Consultant a commitment from
the Title Insurer in the form of EXHIBIT N-1 to issue an endorsement to the
Trustee's Title Policies increasing the coverage under the disbursement clause
of the Trustee's Title Insurance Policies by the amount of the requested
Disbursement (without adding any additional exclusions or exceptions to
coverage) (an "UPDATE ENDORSEMENT"), conditioned solely upon the making of the
Disbursement within five (5) Business Days after the issuance of such
commitment. The Issuer shall cause the Title Insurer to deliver each required
Update Endorsement to the Trustee (with a copy to the Independent Construction
Consultant) within five (5) Business Days after the making of such Disbursement;
(e) The Issuer shall have delivered to the Independent
Construction Consultant a written inventory substantially in the form of
SCHEDULE 3 to the Issuer's
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Disbursement Request identifying all materials, machinery, fixtures, furniture,
equipment or other items purchased or manufactured for incorporation into the
Facility but which, at the time of the Disbursement Request, (x) are not located
at the Site and for which the Issuer has paid or intends to pay with the
proceeds of the Disbursement all or a portion of the purchase price, or (y) are
located at the Site but are not expected to be incorporated into the Facility
within ninety (90) days after such Disbursement Request (such materials, the
"UNINCORPORATED MATERIALS") and including the value thereof, together with
evidence reasonably satisfactory to the Independent Construction Consultant that
the following conditions have been satisfied with respect to such Unincorporated
Materials:
(i) all Unincorporated Materials for which full
payment has previously been made or is being made with the proceeds of the
Disbursement to be disbursed are, or will be upon full payment, owned by the
Issuer, as evidenced by the bills of sale, certificates of title or other
evidence reasonably satisfactory to the Independent Construction Consultant, and
all lien rights or claims of the supplier has been or will be released
simultaneously with such full payment and all amounts, if any, required to be
paid to the supplier thereof with respect to the installation of such
Unincorporated Materials (including any Retainage Amounts) (PROVIDED, HOWEVER,
that lien releases, affidavits and agreements need not be provided for
Unincorporated Materials from a single supplier with a contract price (or
expected aggregate amount to be paid in the case of "cost plus" contracts) of
less than $100,000);
(ii) the Issuer believes that the Unincorporated
Materials are consistent with the Final Plans;
(iii) all Unincorporated Materials are properly
inventoried, securely stored, protected against theft and damage at the Site or
at such other location which has been specifically identified by its complete
address to the Independent Construction Consultant (or if the Issuer cannot
provide the complete address of the current storage location, the Issuer shall
list the name and complete address of the applicable contracting party supplying
or manufacturing such Unincorporated Materials);
(iv) are insured against casualty, loss and theft for
an amount equal to their replacement costs in accordance with the Indenture;
(v) the amounts paid by the Issuer in respect of
Unincorporated Materials not at the Site (other than those related to the Barge
Construction Contract) are not more than $2,000,000 at any one time;
(vi) the amounts paid by the Issuer in respect of
Unincorporated Materials not at the Site and related to the Barge Construction
Contract are not more than $9,000,000 at any one time;
(vii) the Independent Construction Consultant shall
have confirmed the accuracy of the certification required in subparagraph (iii)
above, and in connection therewith the Independent Construction Consultant may,
but shall not be required to, visit the site of and inspect the Unincorporated
Materials at the Issuer's expense; and
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(viii) The Independent Construction Consultant, at the
request of the Issuer, may from time to time agree to increase the thresholds
set forth in clauses (v) and (vi) above;
(f) The following condition only applies to the first
Disbursement made after January 31, 2005: The Issuer shall have caused the Title
Insurer to have delivered to the Trustee (with a copy to the Independent
Construction Consultant) an updated separate tax lot endorsement to the
Trustee's Title Policies. The updated separate tax lot shall: (i) be in the form
of EXHIBIT N-2; (ii) insure that Parcels 2, 3, 4, 5, and 6 consist of separate
tax parcels; and (iii) shall be delivered prior to January 31, 2005;
(g) The Disbursement Request on its face has been completed
as to the information required therein and the required attachments, if any, are
attached;
(h) The Disbursement Agent shall not have Knowledge of any
material error, inaccuracy, misstatement or omission of material fact in any
Disbursement Request or an exhibit or attachment thereto or information provided
by the Issuer upon the request of the Disbursement Agent;
(i) The Disbursement Agent does not have Knowledge (solely
from the facts set forth in any Disbursement Request or any certificate from the
General Contractor, the Independent Construction Consultant or the Architect or
any written notice from the Trustee or the Issuer) that an Event of Default
exists;
(j) The Disbursement Agent shall have telephoned or emailed
the Issuing Agent for the Title Insurer on the requested disbursement date and
prior to making the requested Disbursement and confirmed that the Title Insurer
is prepared to issue the Update Endorsement if an Update Endorsement is required
under clause (d) above;
(k) The Disbursement Agent shall be entitled to rely upon
the certification of the Issuer, the General Contractor, the Architect and the
Independent Construction Consultant in the relevant Disbursement Request in
determining that the conditions specified in SECTIONS 4.2.2(a) THROUGH 4.2.2(f)
have been satisfied unless the Disbursement Agent shall have Knowledge that such
certifications are inaccurate; and
(l) Concurrently with the submission of the Construction
Disbursement Request, the Issuer shall submit an Available Construction Funds
Certificate to the Disbursement Agent, the Trustee and the Independent
Construction Consultant in accordance with SECTION 5.4 and, if applicable, a
Tidelands Lease Certificate to the Disbursement Agent in accordance with SECTION
6.1.
4.2.3 NON-SATISFACTION OF CONDITIONS. In the event that the
Disbursement Agent determines that any conditions of SECTION 4.2.2 described
above has not been satisfied in respect of any Construction Disbursement Request
and so long as such conditions are not satisfied, the Disbursement Agent shall
not authorize any disbursement of funds from the Construction Disbursement
Account pursuant to a Construction Disbursement Request; PROVIDED, HOWEVER, the
following payments may be made by the Disbursement Agent:
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(a) if all other conditions in SECTION 4.1 and
SECTION 4.2.2 hereof are met (except for SECTION 4.2.2(i), payments for work
completed or materials purchased on or prior to the date that the Disbursement
Agent determined that condition (i) of SECTION 4.2.2 was not satisfied and has
so notified the Issuer in writing;
(b) payments not to exceed $5,000,000 in the aggregate to
prevent the condition of the Facility from deteriorating or to preserve any work
completed as certified to be reasonably necessary or advisable by the Issuer (in
writing); and
(c) if such condition continues for a period of three
consecutive months or more, at the request of the Issuer, Retainage Amounts for
the portion of the Facility completed; provided that the Issuer certifies that
the conditions for paying such amounts (other than completion of the Facility)
are met.
4.3 ADVANCE CONSTRUCTION DISBURSEMENTS.
(a) In addition to the payments permitted by SECTION 4.2.3,
the Issuer shall have the right from time to time (but no more frequently than
once per calendar month, unless otherwise permitted by the Disbursement Agent)
to deliver to the Disbursement Agent an Advance Construction Disbursement
Request in the form of EXHIBIT C-3 (an "ADVANCE CONSTRUCTION DISBURSEMENT
REQUEST"), which Advance Construction Disbursement Request shall not be required
to include or attach the supporting documentation required for all other
Construction Disbursement Requests; PROVIDED, HOWEVER, that in the event a
Default or Event of Default subsequently exists (in addition to any other rights
and remedies hereunder or permitted by law), the Issuer shall promptly take all
action reasonably required to cause to be delivered to the Independent
Construction Consultant all supporting documentation with respect thereto that
would otherwise be required for a Construction Disbursement Request.
(b) In any Advance Construction Disbursement Request, the
Issuer may request payment to any Contractor of Disputed Amounts so long as the
Available Advance Construction Disbursement Amount minus the aggregate amount
requested to be disbursed in such Advance Construction Disbursement submitted
under this SECTION 4.3 is greater than zero.
(c) In addition, in any Advance Construction Disbursement
Request, the Issuer may request a disbursement to the PFC Payment Account to
enable PFC to purchase Bonds the proceeds from which will not be immediately
disbursed by the Bond Trustee to pay Permitted Land-Based Project Costs. In such
event, PFC may instruct the Disbursement Agent to transfer such funds from the
PFC Payment Account to the Company's Direct Disbursement Account to write checks
against from time to time (rather than being disbursed by the Bond Trustee
directly to Contractors for payment of Project Costs as set forth in a Bond
Requisition). The aggregate amount then outstanding with respect to all Advance
Construction Disbursements submitted under this clause (c) which have not been
documented as required in this Agreement for other Disbursements shall not
exceed $500,000.
(d) The Disbursement Agent shall comply with any Advance
Construction Disbursement Request, so long as (i) the Advance Construction
Disbursement Request on its face has been completed as to substantially all the
information required therein; (ii) the Disbursement Agent shall not have
received written notice by any party hereto that a
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Default or an Event of Default exists; and (iii) the Issuer and the Independent
Construction Consultant certify that the Available Advance Construction
Disbursement Amount MINUS the amount of the then requested Advance Construction
Disbursement shall be greater than zero.
4.4 INTEREST RESERVE ACCOUNT DISBURSEMENTS.
(a) At least five (5) Business Days prior to each Interest
Payment Date during the Construction Period, the Issuer shall deliver to the
Disbursement Agent a certificate in the form of EXHIBIT C-4 certifying as to the
amount required to be paid with respect to the First Mortgage Notes under the
Indenture on such Interest Payment Date and the calculation of such amount. On
each such Interest Payment Date, Disbursement Agent shall liquidate securities
held in the Interest Reserve Account (to the extent required) and pay over to
the Trustee the amounts due with respect to the First Mortgage Notes, as
specified in such certificate, from the Interest Reserve Account. In the event
that the Issuer fails to deliver the certificate required by the first sentence
of this paragraph (or sets forth in such certificate an incorrect calculation of
the amount required to be paid with respect to the First Mortgage Notes under
the Indenture on such Interest Payment Date), the Trustee may direct the
Disbursement Agent to liquidate such securities (to the extent required), and
disburse to the Trustee the amounts necessary to pay the amounts due with
respect to the First Mortgage Notes. In the event there are insufficient funds
in the Interest Reserve Account to pay any amount due pursuant to such
certificate or direction so given by the Trustee, the Issuer shall, prior to the
applicable Interest Payment Date, deposit in cash into the Interest Reserve
Account an amount equal to such deficiency; PROVIDED, HOWEVER, that the Trustee
shall direct the Disbursement Agent to disburse an amount equal to such
deficiency from the Construction Disbursement Account to the Interest Reserve
Account in the event such amounts are not received from the Issuer on a timely
basis. The Issuer acknowledges that any failure by the Issuer to provide notice
or deposit funds referenced in this SECTION 4.4(a) shall not in any way
exonerate or diminish its obligation to make all payments under the Indenture as
and when due.
(b) The parties generally intend that the portion of the
Proceeds that will be held in the Interest Reserve Account will equal the
difference (the "INITIAL INTEREST RESERVE ACCOUNT TARGET") of (a) the aggregate
amount of the interest payments that will be due on the First Mortgage Notes on
each of the first four Interest Payment Dates (the "INTEREST RESERVE INCOME
REQUIREMENT") less (b) the amount of interest and other income that the Issuer
reasonably expects to earn on amounts held in the Interest Reserve Account (the
"EXPECTED INTEREST RESERVE INCOME AMOUNT"). The portion of the Proceeds that
will be deposited into the Interest Reserve Account contemporaneously with the
execution of this Agreement may exceed the Initial Interest Reserve Account
Target since the Expected Interest Reserve Income Amount will be established
with greater clarity after the Issuer directs the Disbursement Agent in writing
to invest such Proceeds. As such, within five (5) Business Days after the date
hereof, the Issuer shall deliver to the Disbursement Agent a request for the
disbursement of such excess funds from the Interest Reserve Account to the
Construction Disbursement Account in the form of EXHIBIT C-5 hereto. The
Disbursement Agent shall, after receiving such request, transfer such amounts
specified on such request to the Construction Disbursement Account. On the
second (2nd) Business Day after the Disbursement Agent's receipt of written
confirmation from the Trustee that each of the four interest payments with
respect to the First Mortgage Notes required to be made to the Trustee under
this Section have been received by the Trustee and provided that the
Disbursement Agent has not received written notice from the Trustee or the
Issuer that
32
an Event of Default exists, the Disbursement Agent shall release all remaining
funds in the Interest Reserve Account to (A) the Construction Disbursement
Account if the release of funds therefrom permitted under SECTION 4.6 shall have
not yet occurred; and (B) an account designated by the Issuer, if the release of
funds permitted under SECTION 4.6 has occurred.
4.5 ISSUER'S REIMBURSEMENT OF PREVIOUSLY FUNDED PROJECT COSTS. If,
at any time and from time to time, the Issuer shall be unable to satisfy the
conditions precedent to any disbursement set forth in this Article, the Issuer
shall be entitled to pay Project Costs then due and owing and to later seek
reimbursement of such Project Costs from the Construction Disbursement Account
as part of a Disbursement Request as and when permitted in accordance with the
terms of this Agreement at the time (if any) that the Issuer is able to satisfy
the conditions precedent to disbursement set forth in this Article.
4.6 DISBURSEMENT OF FUNDS IN CONSTRUCTION PERIOD ACCOUNTS FOLLOWING
THE INITIAL OPERATING DATE.
4.6.1 IF THE CONDITIONS SET FORTH IN CLAUSES (a), (b) AND (c)
BELOW ARE SATISFIED:
(a) The Issuer provides to the Disbursement Agent (with a
copy to the Independent Construction Consultant and the General Contractor):
(i) an Officer's Certificate in the form of EXHIBIT
G-1 attached hereto certifying that:
(A) the Facility is Operating and has been
Operating uninterrupted for at least ten (10) days prior to the date of the
certification;
(B) all amounts required to be paid to
Contractors in connection with causing the Facility to become Operating have
been paid, other than Permitted Amounts, so long as: (1) 175% of the Punchlist
Completion Amount for such uncompleted Punchlist Items shall have been reserved
in the Construction Disbursement Account; (2) 125% of the Disputed Amounts with
respect to the GMP Contract shall have been reserved in the Construction
Disbursement Account; (3) 200% of the Disputed Amounts for any Construction
Contract other than the GMP Contract shall have been reserved in the
Construction Disbursement Account; and (4) 100% of the Retainage Amounts shall
have been reserved in the Construction Disbursement Account (this clause (4),
collectively with amounts under clauses (1), (2) and (3) the "RESERVED AMOUNT");
(C) the Issuer has received lien releases,
affidavits and agreements from Premier and each Contractor in the form of
EXHIBIT ▇-▇, ▇-▇ ▇▇ ▇-▇, as applicable (other than (1) with respect to Permitted
Amounts described in clause (B) above and (2) from a single Contractor with a
contract price (or expected aggregate amount to be paid in the case of "cost
plus" contracts) of less than $100,000); and
(D) there are no mechanic's liens or other
liens, charges or orders filed against the Facility or any portion thereof by
any Contractor or any other party that have not been discharged of record or
bonded, other than Permitted Liens;
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(ii) a certificate of the Independent Construction
Consultant confirming the factual certification described in clause (i) above;
and
(iii) unless at such time the aggregate amount of all
prior Disbursements equals or exceeds the aggregate principal amount of the
First Mortgage Notes then outstanding, a commitment from the Title Insurer in
the form of EXHIBIT N-1 to issue an Update Endorsement to the Trustee's Title
Policies increasing the coverage under the disbursement clause of the Trustee's
Title Insurance Policies by the amount of the requested Disbursement,
conditioned solely upon the making of the requested Disbursement within five (5)
Business Days after the issuance of such commitment. The Issuer shall cause the
Title Insurer to deliver the Update Endorsement to the Trustee (with a copy to
the Independent Construction Consultant) within five (5) Business Days after the
making of such Disbursement;
(b) The General Contractor has not delivered an objection
certificate in the form of EXHIBIT G-2 to the Disbursement Agent, Premier and
the Independent Construction Consultant objecting to Premier's calculation of
the Permitted Amounts set forth in the Officer's Certificate delivered pursuant
to clause (a)(i) above within five (5) Business Days after Premier's delivery
thereof to the Disbursement Agent; and
(c) The Disbursement Agent shall have telephoned or emailed
the Issuing Agent for the Title Insurer on the requested disbursement date, and
prior to making the requested Disbursement, and confirmed that the Title Insurer
is prepared to issue any Update Endorsement required under clause (a)(iii)
above;
THEN the Disbursement Agent shall, within five (5) Business Days after the
direction of the Issuer pursuant to the Officer's Certificate delivered pursuant
to clause (a)(i) above, disburse all funds on deposit in the Construction
Disbursement Account, if any, excluding the Reserved Amount set forth in such
Officer's Certificate, to the Issuer's account specified in such Officer's
Certificate.
4.6.2 If the General Contractor delivers an objection
certificate in the form of Exhibit G-2 to the Disbursement Agent, the
Independent Construction Consultant and Premier within five (5) Business Days
after the date Premier delivers its Officer's Certificate to the Disbursement
Agent under SECTION 4.6.1(a)(i) above, THEN:
(a) the Officer's Certificate, Independent Construction
Consultant's certificate and commitment to issue the Update Endorsement
previously delivered to the Disbursement Agent shall be invalid;
(b) Premier shall revise its Officer's Certificate to
calculate the Reserved Amount based on the Permitted Amounts set forth in the
objection certificate delivered by the General Contractor (so long as the
Permitted Amounts set forth in such objection certificate do not exceed the
various thresholds for Permitted Amounts set forth in the definition of
"Permitted Amounts" in SECTION 1 hereof) and re-deliver the same, together with
the items required under CLAUSES (ii) AND (iii) OF SECTION 4.6.1(a) to the
Disbursement Agent;
(c) the Disbursement Agent shall have telephoned or emailed
the Issuing Agent for the Title Insurer on the requested disbursement date and
prior to making the
34
requested Disbursement and confirmed that the Title Insurer is prepared to issue
any Update Endorsement delivered as required under clause (b) above.
If (i) the Permitted Amounts set forth in such objection certificate or such
revised Officer's Certificate exceed the various thresholds for Permitted
Amounts set forth in the definition of "Permitted Amounts" in SECTION 1 hereof
or (ii) Premier fails to re-deliver the items required under SECTION 4.6.2(b)
above to the Disbursement Agent or (iii) the Disbursement Agent is unable to
confirm verbally or by email that the Title Insurer is prepared to issue any
Update Endorsement delivered as required SECTION 4.6.2(c) above, THEN no
Disbursement shall be made from the Construction Disbursement Account until such
time as the conditions set forth in this SECTION 4.6 shall have been satisfied.
If the conditions set forth in SECTIONS 4.6.2(b)AND (c) above have been
satisfied, then the Disbursement Agent shall, upon the direction of the Issuer
pursuant to the revised Officer's Certificate delivered pursuant to SECTION
4.6.2(b), disburse all funds on deposit in the Construction Period Accounts, if
any, excluding the Reserved Amount set forth in such revised Officer's
Certificate, to the Issuer's account specified in such Officer's Certificate.
4.7 FINAL DISBURSEMENT OF FUNDS IN CONSTRUCTION PERIOD ACCOUNTS.
If the Issuer provides:
(a) to the Disbursement Agent an Officer's Certificate in
the form of EXHIBIT G-3 attached hereto to the effect that (i) the Facility
is Operating and has been Operating uninterrupted for at least ten (10) days
prior to the date of the certification, (ii) all amounts required to be paid
to Contractors have been paid, (iii) the Issuer has received final lien
releases, affidavits and agreements from Premier and from each Contractor in
the form of EXHIBIT ▇-▇, ▇-▇ ▇▇ ▇-▇, as applicable (PROVIDED, HOWEVER, lien
releases, affidavits and agreements need not be provided for from a single
Contractor with a contract price (or expected aggregate amount to be paid in
the case of "cost plus" contracts) of less than $100,000); and (iv) there
are no mechanic's liens or other liens, charges or orders filed against the
Facility or any portion thereof by any Contractor or any other party that
have not been discharged of record or bonded to other than Permitted Liens;
(b) a certificate of each of the General Contractor and the
Independent Construction Consultant confirming the factual certification
described in clause (a) above;
(c) unless at such time the aggregate amount of all prior
Disbursements equals or exceeds the aggregate principal amount of the First
Mortgage Notes then outstanding, a commitment from the Title Insurer in the
form of EXHIBIT N-1 to issue an Update Endorsement to the Trustee's Title
Policies increasing the coverage under the disbursement clause of the
Trustee's Title Insurance Policies by the amount of the requested
Disbursement, conditioned solely upon the making of the requested
Disbursement within five (5) Business Days after the issuance of such
commitment. The Issuer shall cause the Title Insurer to deliver the Update
Endorsement to the Trustee (with a copy to the Independent Construction
Consultant) within five (5) Business Days after the making of such
Disbursement; and
35
(d) The Disbursement Agent shall have telephoned or emailed
the Issuing Agent for the Title Insurer on the requested disbursement date
and prior to making the requested Disbursement and confirmed that the Title
Insurer is prepared to issue any Update Endorsement required under clause
(d) above;
THEN the Disbursement Agent shall, upon the direction of the Issuer pursuant to
the Officer's Certificate delivered pursuant to clause (a) above, disburse all
remaining funds in the Construction Disbursement Account, if any, to the
Issuer's account specified in such Officer's Certificate.
4.8 TIDELANDS LEASE DISBURSEMENTS. The Disbursement Agent shall
liquidate securities held in the Tidelands Lease Account (to the extent
required) and disburse such funds from the Tidelands Lease Account:
(a) if Premier provides to the Disbursement Agent an
Officer's Certificate in the form of EXHIBIT G-4 attached hereto: (i) specifying
the name of the payee; (ii) the payment information of the payee; and (iii)
certifying that the Tidelands Lease requires Premier to pay such amount to the
payee; or
(b) as directed by the State of Mississippi upon the
receipt of a written notice from the State of Mississippi that Premier is in
default under the Tidelands Lease, and that such default has not been cured by
Premier, and that such default may be cured by the payment of a liquidated sum
of money to the State of Mississippi.
5. CERTAIN CONSTRUCTION PERIOD COVENANTS.
The following covenants apply only during the Construction Period:
5.1 AMENDMENTS TO PROJECT BUDGET. The Project Budget for the
Facility may be amended from time to time in the manner set forth herein. The
Issuer shall have the right from time to time to amend the Project Budget
without consent of the Trustee, Independent Construction Consultant or any other
party to this Agreement to change the amounts allocated for specific line item
components of the Facility; PROVIDED that, in any such amendment, the Issuer may
neither modify the description of any line item nor modify the Pre-Issuance
Expense amount set forth for any such line item and, for each line item, the
Remaining Budgeted Amount must equal the difference of the Total Budgeted Amount
for such line item less the amount of Pre-Issuance Expenses for such line item.
5.1.1 SOURCES OF FUNDS FOR LINE-ITEM INCREASES. A line item
in the Project Budget may be increased only if the funds for such increase are
made available in the Project Budget from:
(a) an increase in Additional Pre-Operating Revenue to
the extent not previously expended or dedicated to the payment of items
contained in the Project Budget;
(b) an increase in Realized Savings from another line item
and a corresponding reduction in the construction line items related to such
Realized Savings; or
36
(c) the reduction of the "contingency" line item in the
Project Budget, PROVIDED, HOWEVER, that the "contingency" line item may not be
reduced below Five Million Dollars ($5,000,000) until the date that is
forty-five (45) days after the date the Final Plans have been completed and such
reserved amount shall not be available for application to any other line item in
the Project Budget unless and until the Final Plans have been completed.
5.1.2 PROJECT BUDGET AMENDMENT PROCESS. Any amendment to the
Project Budget shall be in writing. Any such amendment shall identify with
particularity the line item to be increased or decreased, if any, the amount of
the increase or decrease (if any), and in the event of an increase in a
construction line item, the Realized Savings, Additional Pre-Operating Revenue,
and/or line item for "contingency" in the Project Budget permitted to be reduced
pursuant to SECTION 5.1.1 (but not any Retainage Amounts), which are proposed to
be utilized to pay for the increase; and (y) in the case of a decrease in a
construction line item, the Realized Savings in the amount of such decrease. The
parties acknowledge that a portion of any cost reduction achieved with respect
to the work performed under a Construction Contract may be payable to the
General Contractor or another Contractor under such Construction Contract
(subject to the conditions contained in the GMP Contract or such other
Construction Contract with respect to application of savings) and that in such
case the entire reduction may not become Realized Savings. Construction line
items may be reduced only upon obtaining, and in the amount of, Realized
Savings. The total amount allocated in the Project Budget for the line items for
Finishes, as such line items are set forth on EXHIBIT D-3 hereto, may not be
reduced by more than fifteen percent (15%) of the sum of the amounts allocated
to such line items on EXHIBIT D-3 hereto. The "pre-opening expenses" line item
on the Project Budget may not be reduced by more than fifteen percent (15%). The
"contingency" line item on the Project Budget may be reduced by allocation to
other line items subject to the restrictions contained in SECTION 5.1.1(c). The
"working capital and machine loads" line item, the "excess liquidity" line item,
the "owner supplied FF&E" line item, and the "FF&E" line item on the Project
Budget may not be reduced. Any amounts of Realized Savings, Additional
Pre-Operating Revenue, contingency amounts or previously allocated reserves so
identified for use in connection with a particular line item thenceforth shall
be deemed dedicated to the particular line item, unless and until the Project
Budget is amended to reduce the amounts budgeted for the line item of the
Project Budget. Notwithstanding the foregoing, at any time Soft Costs may be
applied against the "excess liquidity" line item of the Project Budget;
PROVIDED, HOWEVER that (x) $ 3,000,000.00 constitutes a reserve against which no
Project Costs may be applied and represents amounts that can only be disbursed
to the Issuer upon satisfaction of the conditions precedent in Section 4.6, and
(y) $1,031,900.00 shall be deposited concurrently with the execution of this
Agreement into the Tidelands Lease Reserve Account and constitutes a reserve
that can only be disbursed upon satisfaction of the conditions precedent in
Section 4.8.
5.1.3 PROJECT BUDGET AMENDMENT CERTIFICATE. The Issuer shall
submit the Project Budget amendment to the Disbursement Agent by an Officer's
Certificate in the form of EXHIBIT E hereto (an "PROJECT BUDGET AMENDMENT
CERTIFICATE") together with the certificates of the General Contractor (for Hard
Costs under GMP Contract (including "Direct Purchase Items" as defined in GMP
Contract) if modified by such Project Budget amendment), Independent
Construction Consultant and Architect (for Hard Costs with respect only to Plans
prepared by it) as provided in the form of EXHIBITS 1 through 3 to the Project
Budget Amendment Certificate. Upon submission of such Project Budget Amendment
Certificate, together with the
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Exhibits thereto, such amendment shall become effective hereunder, and the
Project Budget for the Facility shall thereafter be as so amended.
5.2 CONSTRUCTION CONTRACT AMENDMENT PROCESS. The Issuer shall not
enter into or approve any Construction Contract Amendment except as set forth in
this SECTION 5.2. The Issuer shall have the right from time to time to amend any
Construction Contract to change the scope of work for any portion of the
Facility and/or the Issuer's payment obligations in connection therewith. Any
Construction Contract Amendment that (i) results in a cost increase in a
Material Construction Contract in excess of $250,000, individually (or, with
respect to the GMP Contract only, in excess of $500,000, individually) or when
taken together with all other Construction Contract Amendments, results in a
cost increase of $2,000,000 in the aggregate (or, with respect to the GMP
Contract only, in excess of $5,000,000 in the aggregate), (ii) when taken
together with all related Construction Contract Amendments and after giving
effect to any new, related Construction Contracts, results in a material
lessening of the scope or quality of the work constituting the design or
construction of the Facility or (iii) results in the likely addition of no less
than two weeks of construction (or such amendments, in the aggregate, result in
the likely addition of no less than eight weeks of construction) (a "MATERIAL
CONSTRUCTION CONTRACT AMENDMENT") shall be in writing and shall identify with
particularity all changes being made. Each Material Construction Contract
Amendment shall be effective when and only when: (a) the Issuer has, or the
Issuer and the Contractor have, executed and delivered the Material Construction
Contract Amendment (with the effectiveness thereof subject only to satisfaction
of the applicable conditions in clauses (b) and (c) below); (b) the Issuer has
submitted the Material Construction Contract Amendment to the Disbursement Agent
and the Trustee together with an Officer's Certificate in the form attached
hereto as EXHIBIT F (a "CONSTRUCTION CONTRACT AMENDMENT CERTIFICATE"), together
with the certificates of the Independent Construction Consultant, the General
Contractor (only for Hard Costs under the GMP Contract (including "Direct
Purchase Items" as defined in the GMP Contract), unless such Hard Costs relate
to an owner change directive issued by Premier under the GMP Contract) and
Architect (for Hard Costs with respect only to Plans prepared by it) as provided
in the form of EXHIBITS 1 through 3 to such Construction Contract Amendment
Certificate. Construction Contract Amendments which are not Material
Construction Contract Amendments shall not require compliance with the
requirements set forth in this SECTION 5.2 or the approval of the Trustee or any
other Person to be effective.
5.3 CONSTRUCTION CONTRACTS ENTERED INTO AFTER THE ISSUANCE DATE.
The Issuer may from time to time enter into Construction Contracts consistent
with the Final Plans and the Project Budget, as each is in effect from time to
time. Each such Construction Contract shall be in writing. Each Material
Construction Contract shall become effective when and only when: (a) the Issuer
and the counterparty to such Material Construction Contract have executed and
delivered the Material Construction Contract (with the effectiveness thereof
subject only to satisfaction of the conditions in clauses (b), (c) and (d)
below); (b) the Issuer has submitted to the Trustee, with a copy to the
Disbursement Agent and the Independent Construction Consultant: (i) such
Material Construction Contract together with an Officer's Certificate in the
form attached hereto as EXHIBIT K (an "ADDITIONAL CONSTRUCTION CONTRACT
CERTIFICATE") and all exhibits, attachments and certificates required thereby,
each duly completed and executed, and (ii) copies of such performance and
payment bonds as the counterparty to such Construction Contract may be required
to provide to the Issuer pursuant to such Material Construction Contract (which
performance and payment bonds shall name the Trustee as an additional
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obligee) and (iii) (y) and the Issuer shall use its best efforts to obtain a
consent from the counterparty (i) substantially in the form attached hereto as
EXHIBIT H-1 for Construction Contracts where the amount to be paid to the
Contractor under such Construction Contract and all related Construction
Contracts with the same Contractor exceeds $1,000,000, and (ii) substantially in
the form EXHIBIT H-2 for Construction Contracts where the amount to be paid to
the Contractor under such Construction Contract and all related Construction
Contracts with the same Contractor is between $500,000 and $1,000,000, signed by
the counterparty to such Material Construction Contract; (c) if entering into
such Material Construction Contract will result in an amendment to the Project
Budget, the Issuer has complied with the requirements of SECTION 5.1; and (d) if
entering into such Material Construction Contract will cause the Available
Construction Funds to be less than the Remaining Costs, then the Issuer,
treating such difference as a cost overrun, has complied with the requirements
of SECTION 5.4. A consent shall not be required where the amount to be paid to
the Contractor under such Construction Contract and all related Construction
Contracts with the same Contractor is less than $500,000.
5.4 AVAILABLE CONSTRUCTION FUNDS CERTIFICATE. Concurrently with the
submission of any Construction Disbursement Request, the Issuer shall submit an
Officer's Certificate in the form of EXHIBIT D-1 (an "AVAILABLE CONSTRUCTION
FUNDS CERTIFICATE"), to the Disbursement Agent, the Trustee and the Independent
Construction Consultant. Each Available Construction Funds Certificate shall
include (i) an Available Construction Funds Schedule dated as of the first
Business Day of such month and shall set forth (A) the actual investment income
earned on the Construction Disbursement Account or the Issuer's Payment Account
through a date not more than 30 days prior to the date of the Available
Construction Funds Schedule, and (B) the Anticipated Investment Income and (ii)
either (x) shall include a certification that the amount currently on deposit in
the Tidelands Lease Account is equal to or exceeds the amount of the Tidelands
Lease Required Payment or (y) shall attach a completed Tidelands Lease
Certificate in accordance with SECTION 6.1(a).
5.4.1 ADDITIONAL PRE-OPERATING REVENUE. If at any time the
Issuer submits an Available Construction Funds Certificate pursuant to this
Section and the Issuer can no longer reasonably anticipate that the Additional
Pre-Operating Revenue earned (and anticipated to be earned through the date that
the Issuer reasonably anticipates that the Initial Operating Date will occur)
from investments of funds in the Construction Disbursement Account or the
Issuer's Payment Account will equal the amount of such Additional Pre-Operating
Revenue set forth in the Project Budget, then:
(a) if the total amount of such Additional Pre-Operating
Revenue at such date earned or anticipated to be earned is less than the total
amount of such Additional Pre-Operating Revenue set forth in the Project Budget,
then the Available Construction Funds shall be deemed reduced by the amount of
such deficiency and the Issuer, as a condition to the next Construction
Disbursement Request, shall reallocate contingencies, provide additional
Available Construction Funds or otherwise amend the Project Budget so that the
Remaining Costs do not exceed the total Available Construction Funds; or
(b) if the total amount of such Additional Pre-Operating
Revenue at such date earned or anticipated to be earned is greater than the
total amount of such Additional Pre-Operating Revenue set forth in the Project
Budget, then the Available Construction Funds shall be deemed increased by the
amount of such excess.
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5.4.2 COST OVERRUNS. The Issuer covenants to cure any
anticipated cost overrun for any line item on the Project Budget (taking into
account any applicable contingencies which have been allocated to such line item
by an amendment to the Project Budget) or for the Facility as a whole within ten
days after the Issuer becomes aware of any such anticipated cost overrun by:
(a) providing sufficient funds to cover in full such cost
overrun from previously unallocated Available Construction Funds or Additional
Pre-Operating Revenue (but in each case only to the extent that the same have
not previously been expended or allocated (including Retainage Amounts) to the
payment of items contained in the Project Budget); and/or
(b) with respect to a cost overrun as to a particular line
item, effecting an amendment to the Project Budget to allocate such funds to the
line item in question.
5.5 PROJECT COST SCHEDULE CERTIFICATE. The Issuer shall submit an
Officer's Certificate in the form of EXHIBIT D-2 (a "PROJECT COST SCHEDULE
CERTIFICATE") to the Independent Construction Consultant within five Business
Days following the delivery of a written request for the same by the Independent
Construction Consultant (but no more frequently than once per calendar month).
Each Project Cost Schedule Certificate shall include a Project Cost Schedule
dated as of the first Business Day of the month in which such Project Cost
Schedule Certificate is delivered and shall set forth (a) for each line item in
the Project Budget, each of the items required on EXHIBIT D-2, (b) (i) the
actual investment income earned on the Construction Disbursement Account or the
Issuer's Payment Account through a date not more than 30 days prior to the date
of the Project Cost Schedule, and (ii) the additional amount of investment
income which the Issuer reasonably anticipates will accrue on the Construction
Disbursement Account or the Issuer's Payment Account from such date through the
date that the Issuer reasonably anticipates that the Initial Operating Date will
occur and (c) a calculation certified by the Issuer of the Remaining Costs and
the Available Construction Funds as of such date. In addition, the Issuer shall
deliver to the Independent Construction Consultant any backup documentation or
other information with respect to the items on the Project Cost Schedule from
time to time as reasonably requested by the Independent Construction Consultant.
5.6 FINAL PLANS. The Issuer shall not construct or permit to be
constructed any portion of the Facility except in substantial conformance with
the Final Plans for such portion of the Facility. The Issuer may modify the
Final Plans or cause Preliminary Plans to become Final Plans, only if such Final
Plans, as amended, or Preliminary Plans which will become Final Plans have been
delivered to the Independent Construction Consultant together with a Final Plans
Amendment Certificate in the form of EXHIBIT J delivered to the Trustee, with a
copy to the Disbursement Agent and the Independent Construction Consultant.
5.7 NOTICE THAT PROJECT IS OPERATING. Promptly after (but in any
event within thirty days after) the Initial Operating Date of the Facility, the
Issuer shall deliver an Officers' Certificate to Disbursement Agent, the
Trustee, and the Independent Construction Consultant to the effect that the
Facility is Operating, together with a certificate from the Independent
Construction Consultant concurring with such certificate of the Issuer.
5.8 MAINTENANCE OF PERMITTED INVESTMENTS. The Issuer shall maintain
all of its Permitted Investments in a Construction Period Account.
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5.9 BOND FINANCING AMOUNTS. All amounts transferred by the
Disbursement Agent from the PFC Payment Account and thereafter to the Bond
Trustee's Construction Disbursement Account pursuant to any Disbursement Request
shall be deemed to be an equity contribution by Premier to PFC. PFC shall use
such amounts solely to purchase Bonds pursuant to the Bond Financing Documents.
All amounts loaned to Premier under the Bond Financing Documents shall be used
by Premier solely to pay Permitted Land-Based Project Costs in accordance with
the Bond Financing Documents and this Disbursement Agreement.
5.10 APPLICATION OF INSURANCE AND CONDEMNATION PROCEEDS. If any
Event of Loss shall occur with respect to the Facility or any other asset of the
Issuer, the Issuer shall (a) promptly upon discovery or receipt of notice
thereof to provide written notice thereof to the Disbursement Agent, and (b)
diligently to pursue all its rights to compensation against all relevant
insurers, reinsurers and/or governmental authorities, as applicable, in respect
of such event to the extent that the Issuer has a reasonable basis for a claim
for compensation or reimbursement, including, without limitation, under any
insurance policy required to be maintained hereunder. All amounts and proceeds
(including instruments) in respect of any Event of Loss, including the proceeds
of any insurance policy required to be maintained by the Issuer hereunder
(collectively, "LOSS PROCEEDS") shall be applied as provided in this Section.
All Loss Proceeds (other than those in respect of the FF&E Collateral which
shall be governed by the FF&E Financing documentation) shall be paid by the
insurers, reinsurers, governmental authorities or other payors directly to the
Disbursement Agent for deposit in the Construction Disbursement Account. If any
Loss Proceeds are paid directly to the Issuer, any Affiliate of the Issuer, the
Trustee or any Noteholder by any insurer, reinsurer, governmental authority or
such other payor, (i) such Loss Proceeds shall be received in trust for the
Disbursement Agent, (ii) such Loss Proceeds shall be segregated from other funds
of the Issuer or such other Person, and (iii) the Issuer or such other Person
shall pay (or, if applicable, the Issuer shall cause such of its Affiliates to
pay) such Loss Proceeds over to the Disbursement Agent in the same form as
received (with any necessary endorsement) for deposit in the Construction
Disbursement Account. Any Loss Proceeds deposited in the Construction
Disbursement Account (1) prior to the Initial Operating Date, shall be disbursed
to pay Project Costs pursuant to the requirements of SECTION 4 hereof; (2) after
the Initial Operating Date, shall be disbursed to pay for or reimburse Premier
for the actual cost of a permitted use of the Net Loss Proceeds as provided in
the Indenture; or (3) at any time, shall be applied (together with funds on
deposit in the Interest Reserve Account) to prepay or redeem the First Mortgage
Notes in accordance with the Indenture.
6. TIDELANDS LEASE ACCOUNT. The following covenant applies during the
Construction Period and the Operating Period:
6.1 DEPOSITS INTO TIDELANDS LEASE ACCOUNT.
Premier shall:
(i) during the Construction Period concurrently with the delivery of
each Available Funds Certificate pursuant to SECTION 5.4 if the Tidelands Lease
Shortage Amount is greater than zero and within two (2) Business Days after the
Tidelands Lease Required Payment has increased: (a) deliver to the Disbursement
Agent an Officer's Certificate in the form of EXHIBIT C-6 (the "TIDELANDS LEASE
CERTIFICATE") certifying as to the amount of the Tidelands Lease Required
Payment and the Tidelands
41
Lease Shortage Amount, if any; and (b) deposit cash into the Tidelands Lease
Account an amount equal to any Tidelands Lease Shortage Amount, or submit a
Project Budget Amendment Certificate applying available contingency or Realized
Savings to fund such Tidelands Lease Shortage Amount and instruct the
Disbursement Agent in the Tidelands Lease Certificate to transfer the Tidelands
Lease Shortage Amount from the Construction Disbursement Account into the
Tidelands Lease Account.
(ii) during the Operating Period, not later than the second (2nd)
Business Day of the month, and within two Business Days after the Tidelands
Lease Required Payment has increased: (a) deliver to the Disbursement Agent an
Officer's Certificate in the form of EXHIBIT C-6 (the "TIDELANDS LEASE
CERTIFICATE") certifying as to the amount of the Tidelands Lease Required
Payment and the Tidelands Lease Shortage Amount, if any; and (b) deposit cash
into the Tidelands Lease Account an amount equal to any Tidelands Lease Shortage
Amount, or submit a Project Budget Amendment Certificate applying available
contingency or Realized Savings to fund such Tidelands Lease Shortage Amount and
instruct the Disbursement Agent in the Tidelands Lease Certificate to transfer
the Tidelands Lease Shortage Amount from the Construction Disbursement Account
into the Tidelands Lease Account.
7. LIMITATION OF LIABILITY.
7.1 LIMITATION OF DISBURSEMENT AGENT'S LIABILITY. The Disbursement
Agent's responsibility and liability under this Agreement shall be limited as
follows: (a) the Disbursement Agent does not represent, warrant or guaranty to
the Trustee or the Noteholders the performance of the Issuer, the Architect, any
Contractor or provider of materials or services in connection with construction
of the Facility; (b) the Disbursement Agent shall have no responsibility to the
Issuer, the Trustee or the Noteholders as a consequence of performance by the
Disbursement Agent hereunder except for any gross negligence or willful
misconduct of the Disbursement Agent; (c) the Issuer shall remain solely
responsible for all aspects of its business and conduct in connection with its
Site and the Facility, including, but not limited to, the quality and
suitability of the Plans, the supervision of the work of construction, the
qualifications, financial condition and performance of all architects,
engineers, contractors, subcontractors, suppliers, consultants and property
managers, the accuracy of all applications for payment, and the proper
application of all disbursements; (d) the Disbursement Agent is not obligated to
supervise, inspect or inform the Issuer, the Trustee or any third party of any
aspect of the construction of the Facility or any other matter referred to
above; and (e) the Disbursement Agent owes no duty of care to the Issuer to
protect against, or to inform the Issuer against, any negligent, faulty,
inadequate or defective design or construction of the Facility, provided that
the Disbursement Agent shall inform the Issuer if the Disbursement Agent has
Knowledge of such condition. The Disbursement Agent shall have no duties or
obligations hereunder except as expressly set forth herein (including with
respect to review of the substantive terms and conditions of any contracts
delivered to the Disbursement Agent), shall be responsible only for the
performance of such duties and obligations, shall not be required to take any
action otherwise than in accordance with the terms hereof and shall not be in
any manner liable or responsible for any loss or damage arising by reason of any
act or omission to act by it hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss that
may occur by reason of forgery, false representations, the exercise of its
discretion, or any other reason, except for its gross negligence or willful
misconduct. Copies of any Project Budget Amendment Certificate, Contract
Amendment Certificate, Final Plan Amendment
42
Certificate or Additional Contract Certificate that are provided to the
Disbursement Agent pursuant to this Agreement shall not be construed as
requiring the Disbursement Agent's approval of the Project Budget, Construction
Contract or Final Plans associated therewith. In addition, the Disbursement
Agent shall have no responsibility to inquire into or determine the genuineness,
authenticity, or sufficiency of any certificates, documents or instruments
submitted to it in connection with its duties hereunder, and shall be entitled
to deem the signatures on any such certificates, documents or instruments
submitted to it hereunder as being those purported to be authorized to sign such
certificates, documents or instruments on behalf of the parties hereto and shall
be entitled to rely upon the genuineness of the signatures of such signatories
without inquiry and without requiring substantiating evidence of any kind.
7.2 LIMITATION OF INDEPENDENT CONSTRUCTION CONSULTANT'S LIABILITY.
The Independent Construction Consultant's responsibility and liability under
this Agreement shall be limited as follows: (a) the Independent Construction
Consultant does not represent, warrant or guaranty to the Trustee or the
Noteholders the performance of the Issuer, the Disbursement Agent, the General
Contractor, the Architect or any Contractor, subcontractor or provider of
materials or services in connection with construction of the Facility; (b)
except to the extent the Independent Construction Consultant has Knowledge, the
Independent Construction Consultant shall not be responsible for, and shall not
be obligated to make any specific inquiry with respect to, matters pertaining
to: historical architecture review, gaming regulatory authorities, gaming
licenses, liens against the Facility (except in connection with the
responsibilities of the Independent Construction Consultant set forth herein);
and (c) the Issuer shall remain solely responsible for all aspects of its
business and conduct in connection with the Facility, the accuracy of all
applications for payment, and the proper application of all disbursements. The
Independent Construction Consultant shall have no duties or obligations
hereunder, except as expressly set forth herein and in the Independent
Construction Consultant's Engagement Agreement, shall be responsible only for
the performance of such duties and obligations, shall not be required to take
any action otherwise than in accordance with the terms hereof and shall not be
in any manner liable or responsible for any loss or damage arising by reason of
any act or omission to act by it hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss that
may occur by reason of forgery, false representations, the exercise of its
discretion, or any other reason, except for its gross negligence or willful
misconduct. The Independent Construction Consultant shall have the right to rely
(so long as such reliance is reasonable and in good faith) on certificates
received from the Issuer, the Architect and the General Contractor. Anything in
this Agreement to the contrary notwithstanding, in no event shall the
Independent Construction Consultant be liable to any party hereto for any form
of special, indirect or consequential damages, including, without limitation,
damages for economic loss (such as business interruption or loss of profits,
however the same may be caused).
8. INDEMNITY AND INSURANCE. Each of Premier and PFC hereby indemnifies,
holds harmless and defends the Disbursement Agent and its officers, directors,
agents and employees from and against any and all claims, actions, obligations,
liabilities and expenses, including defense costs, investigative fees and costs,
legal fees, and claims for damages, arising from the Disbursement Agent's
performance under this Agreement, except to the extent that such liability,
expense or claim is attributable to the gross negligence or willful misconduct
of the Disbursement Agent. The foregoing indemnities in this paragraph shall
survive the resignation or substitution of the Disbursement Agent or the
termination of this Agreement.
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9. TERMINATION. This Agreement shall terminate automatically 91 days after
the repayment and performance of all First Mortgage Note Obligations; PROVIDED,
HOWEVER, that the obligations of the Issuer under SECTION 8 of this Agreement
shall survive termination of this Agreement.
10. SUBSTITUTION OR RESIGNATION OF THE DISBURSEMENT AGENT.
10.1 PROCEDURE. A resignation or removal of the Disbursement Agent
and appointment of a successor Disbursement Agent shall become effective only
upon the successor Disbursement Agent's acceptance of appointment as provided in
this SECTION 10.
10.1.1 The Disbursement Agent may resign in writing at any
time and be discharged from all duties hereunder upon 60 days' written notice to
all parties hereto subject to this SECTION 10.1.4. The Trustee or the
Noteholders of a majority in principal amount of the then outstanding First
Mortgage Notes may remove the Disbursement Agent as provided below by so
notifying the Disbursement Agent and the Issuer in writing, if:
(a) the Disbursement Agent fails to comply with
SECTION 10.3 hereof;
(b) the Disbursement Agent is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to the Disbursement
Agent under any Bankruptcy Law;
(c) a custodian or public officer takes charge of the
Disbursement Agent or its property; or
(d) the Disbursement Agent becomes incapable of acting.
10.1.2 If the Disbursement Agent resigns or is removed or if a
vacancy exists in the office of Disbursement Agent for any reason, the Trustee
shall, and the Noteholders of a majority in principal amount of the then
outstanding First Mortgage Notes (if such Noteholders provided a notice pursuant
to SECTION 10.1.1 or if there is no Trustee capable of acting at such time) may,
promptly appoint a successor Disbursement Agent acceptable to the Issuer. Within
one year after any successor Disbursement Agent appointed by the Trustee takes
office, the Noteholders of a majority in principal amount of the then
outstanding First Mortgage Notes may appoint a successor Disbursement Agent
acceptable to the Issuer to replace the successor Disbursement Agent appointed
by the Trustee.
10.1.3 If a successor Disbursement Agent does not take office
within 60 days after the retiring Disbursement Agent resigns or is removed, the
retiring Disbursement Agent, the Trustee, the Issuer or the Noteholders of at
least 10% in principal amount of the then outstanding First Mortgage Notes may
petition any court of competent jurisdiction for the appointment of a successor
Disbursement Agent.
10.1.4 A successor Disbursement Agent shall deliver a written
acceptance of its appointment to the retiring Disbursement Agent, the Issuer and
the Trustee. Thereupon, the resignation or removal of the retiring Disbursement
Agent shall become effective, and the successor Disbursement Agent shall have
all the rights, powers and duties of the Disbursement Agent under this
Agreement. The retiring Disbursement Agent shall promptly transfer all property
held by it as Disbursement Agent to the successor Disbursement Agent.
44
10.2 SUCCESSOR DISBURSEMENT AGENT BY MERGER, ETC. If the
Disbursement Agent consolidates, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor
Disbursement Agent.
10.3 ELIGIBILITY; DISQUALIFICATION. The Disbursement Agent shall at
all times be a bank chartered under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trust power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition and a
Thomson's Bank Watch rating of AA- or better.
10.4 CONSENT OF INDEPENDENT CONSTRUCTION CONSULTANT. The Independent
Construction Consultant acknowledges and agrees that the Trustee shall have the
right to change the party acting as the "Disbursement Agent" pursuant to this
Agreement, and the Trustee agrees to provide written notice to the Independent
Construction Consultant of any such change.
11. INDEPENDENT CONSTRUCTION CONSULTANT.
11.1 REMOVAL AND FEES. Only the Trustee in its sole discretion may
remove the Independent Construction Consultant from time to time and upon such
removal a replacement acceptable to the Trustee shall be appointed in
consultation with the Issuer (unless an Event of Default exists). Notice of any
replacement Independent Construction Consultant shall be given by the Trustee to
the Disbursement Agent, the Issuer and the Independent Construction Consultant
being replaced. All reasonable fees and expenses of the Independent Construction
Consultant (whether the original ones or replacements) shall be paid by the
Issuer. Neither the Disbursement Agent nor the Issuer shall have the right to
remove the Independent Construction Consultant or appoint a replacement. The
Issuer is a party to the Independent Construction Consultant's Engagement
Agreement and hereby agrees to timely pay all fees of the Independent
Construction Consultant set forth therein in accordance with the terms thereof.
11.2 DUTIES. The Independent Construction Consultant shall be
contractually obligated to the Trustee to carry out the activities required of
it in this Agreement and in the Construction Consultant Engagement Agreement and
as otherwise requested by the Trustee, the Issuer, and the Disbursement Agent.
Trustee shall remove Independent Construction Consultant at request of Issuer if
Issuer determines that Independent Construction Consultant is incompetent or
failed to perform a material obligation under this Agreement or the Independent
Construction Consultant's Engagement Agreement.
11.3 ACTS OF DISBURSEMENT AGENT. The Disbursement Agent will take
such actions as the Trustee or the Issuer may reasonably request to cause the
Independent Construction Consultant to act diligently in the issuance of all
certificates required to be delivered by the Independent Construction Consultant
hereunder and to otherwise fulfill their obligations to the Trustee as described
in the first sentence of SECTION 10.2.
12. STATEMENT OF SECURITIES ACCOUNTS. Upon the request of the Issuer or
the Trustee from time to time, the Disbursement Agent shall deliver to the
Issuer and the Trustee an account statement prepared by the Disbursement Agent
in a form satisfactory to the Trustee and the
45
Issuer setting forth with reasonable particularity the balance of funds then in
the Securities Accounts and the manner in which such funds are invested;
PROVIDED, HOWEVER, that the Disbursement Agent shall not be required to provide
such statements more often than weekly. The parties hereto irrevocably instruct
the Disbursement Agent that on the first date upon which the balance in any
Securities Account is reduced to zero, the Disbursement Agent shall deliver to
the Trustee and the Issuer a notice that the balance in such Securities Account
has been reduced to zero.
13. MISCELLANEOUS.
13.1 WAIVER. Any party hereto may specifically waive any breach of
this Agreement by any other party, but no such waiver shall be deemed to have
been given unless such waiver is in writing, signed by the waiving party and
specifically designates the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
13.2 INVALIDITY. If, for any reason whatsoever, any one or more of
the provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other provisions
of this Agreement inoperative, unenforceable or invalid, and the inoperative,
unenforceable or invalid provision shall be construed as if it were written so
as to effectuate, to the maximum extent possible, the parties' intent.
13.3 NO AUTHORITY. The Disbursement Agent shall not have any
authority to, and shall not make any warranty or representation or incur any
obligation on behalf of, or in the name of, the Trustee.
13.4 ASSIGNMENT. This Agreement is personal to the parties hereto,
and the rights and duties of any party hereunder shall not be assignable except
with the prior written consent of the other parties. In any event, this
Agreement shall inure to and be binding upon the parties and their successors
and permitted assigns.
13.5 BENEFIT. The parties hereto and their respective successors and
assigns, but no others, shall be bound hereby and entitled to the benefits
hereof.
13.6 TIME. Time is of the essence of each provision of this
Agreement.
13.7 ENTIRE AGREEMENT; AMENDMENTS. This Agreement (together with the
Indenture and the Collateral Documents) contains the entire agreement among the
parties hereto with respect to the subject matter hereof and supersedes any and
all prior agreements, understandings and commitments, whether oral or written.
This Agreement may be amended only by a writing signed by duly authorized
representatives of all parties.
13.8 NOTICES. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed to have been duly given and received, regardless of when and whether
received, either: (a) on the day of hand delivery; or (b) on the day sent, when
sent by United States certified mail, postage and certification fee prepaid,
return receipt requested; or by facsimile transmission, in each case, addressed
as follows:
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To the Disbursement Agent:
U.S. Bank National Association
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Trustee:
U.S. Bank National Association,
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuer:
Premier Entertainment Biloxi LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇, Esquire
with a further copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Independent Construction Consultant:
Professional Associates Construction Services
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
47
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
To the Issuing Agent:
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ Signs, Esq.
email: ▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
email: ▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, Esq.
email: ▇▇▇▇▇@▇▇▇▇▇.▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this SECTION 13.8 to the others.
13.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
13.10 CAPTIONS. Captions in this Agreement are for convenience only
and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
13.11 RIGHT TO CONSULT COUNSEL. Each of the Disbursement Agent and
the Trustee may, if any of them deems necessary or appropriate, consult with and
be advised by counsel (whether such counsel shall be regularly retained or
specifically employed) in respect of their duties hereunder. Each of the
Disbursement Agent or the Trustee shall be entitled to reasonably rely upon the
advice of its counsel in any action taken in its capacity as the Disbursement
Agent or the Trustee, as the case may be, hereunder and shall be protected from
any liability of any kind for actions taken in reasonable reliance upon such
opinion of its counsel. The Issuer agrees to pay all such reasonable counsel
fees actually incurred.
13.12 CHOICE OF LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York including without
limitation, SECTION 5-1401 of the New York General Obligations Law; PROVIDED,
HOWEVER, that with respect to the creation, attachment, perfection or priority
of the security interest in any Collateral, the governing law shall be the
applicable UCC as set forth in the definition of the term "UCC".
13.13 DESIGNATION OF APPLICABLE COURTS AND JURISDICTIONS. Each of
Premier and PFC hereby irrevocably consents to the following courts,
jurisdictions and venues for the judicial action described in SECTION 13.12
above (the "APPLICABLE COURTS"): (a) the United States District Court for the
Southern District of New York, and all courts to which any appeal therefrom may
be available; (b) any court of the State of New York, and all courts to which
any appeal
48
therefrom may be available; and (c) if none of the foregoing courts shall have
or accept jurisdiction, then any other federal or state court, and all courts to
which any appeal therefrom may be available.
13.14 SURETYSHIP WAIVERS. Each of Premier and PFC hereby waives any
and all defenses available to a surety or guarantor, whether arising as a result
of the joint and several liability hereunder or otherwise. Without limiting the
generality of the foregoing, the waivers of the guarantors under SECTION 13.01
of the Indenture are hereby incorporated herein by this reference mutatis
mutandis and such waivers shall be deemed to be made by Premier and PFC
hereunder as if such waivers had been expressly set forth herein.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
49
IN WITNESS WHEREOF, the parties hereto have each caused this Agreement to
be duly executed by their duly authorized officers, all as of the day and year
first above written.
U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as Disbursement
Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, a
national banking association, as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
PREMIER ENTERTAINMENT BILOXI LLC,
a Delaware limited liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and COO
PREMIER FINANCE BILOXI CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President and COO
PROFESSIONAL ASSOCIATES
CONSTRUCTION SERVICES, INC.
a California corporation
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Secretary-Treasurer
EXHIBIT A TO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
INITIAL DISBURSEMENTS CERTIFICATE
January 23, 2004
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and
Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER")
Cash Collateral and Disbursement Agreement
Initial Construction Disbursements
Ladies and Gentlemen:
This Initial Disbursements Certificate is delivered to you
pursuant to SECTION 4.1 of that certain
Cash Collateral and Disbursement
Agreement dated as of January 23, 2004 (the "AGREEMENT"). Capitalized terms used
herein shall have the meanings assigned to such terms in the Agreement.
The Issuer hereby irrevocably instructs the Disbursement Agent to
disburse the following sums from the Construction Disbursement Account to the
following parties:
(a) (i) transfer $115,415.18 from the Construction Disbursement
Account (U.S. Bank, N.A. Account No. 744829001) to the PFC Payment Account (U.S.
Bank, N.A. Account No. 744829004; which shall be deemed to be an equity
contribution to PFC); and (ii) immediately after such funds have been
transferred into the PFC Payment Account, transfer such funds from the PFC
Payment Account to the Bond Trustee's Construction Disbursement Account (U.S.
Bank, N.A. Account No. 744829009), and disburse such amounts from the Bond
Trustee's Construction Disbursement Account to the following parties for payment
of cost of issuance fees relating to the Bonds:
Mississippi Business Finance Corp. $ 40,000.00
Watkins, Ludlam, Winter & Stennis, P.A. $ 61,415.18
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ $ 9,000.00
▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP $ 5,000.00
(b) (i) transfer $500,000.00 from the Construction Disbursement
Account (U.S. Bank, N.A. Account No. 744829001) to the PFC Payment Account (U.S.
Bank, N.A. Account No. 744829004; which shall be deemed to be an equity
contribution to PFC); and (ii) immediately
Page 1 of 4
EXHIBIT A
after such funds have been transferred into the PFC Payment Account, transfer
such funds from the PFC Payment Account to the Company's Direct Disbursement
Account (U.S. Bank, N.A. Account No. 744829010);
(c) $2,218,068.50 TO THE GENERAL CONTRACTOR (▇▇▇ ▇▇▇▇▇▇▇▇ CORP.) for
payment of the following amounts under the GMP Contract:
Mobilization fee $ 75,000.00
Balance of Required Commencement Deposit
for Corn Island Shipyard, Inc. $ 175,830.50
Pre-Construction (general conditions) Costs $ 126,471.00
▇▇▇▇▇▇▇▇ and Associates, Inc. $ 125,000.00
General Contractor's Performance Bond $ 614,679.00
Contractor's Insurance $ 893,333.00
Building Permit $ 164,579.00
Corn Island Performance Bond $ 43,176.00
(d) $671,447.82 TO THE ARCHITECT (▇▇▇▇ ▇▇▇▇▇▇▇▇ LTD.), as payment of
certain fees incurred under the Architectural Services Agreement for payment of
design and construction drawings;
(e) $16,875.00 TO THE INDEPENDENT CONSTRUCTION CONSULTANT
(PROFESSIONAL ASSOCIATES CONSTRUCTION SERVICES), as compensation payable to the
Independent Construction Consultant pursuant to SECTION 3.3 of the Agreement for
the first month after the Issuance Date;
(f) $650,000.00 TO ▇▇▇▇▇ ▇▇▇▇▇▇ LLP, as payment of certain legal fees
incurred in connection with the issuance of the First Mortgage Notes;
(g) $425,000.00 TO ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as payment of certain legal
fees undertaken in connection with the issuance of the First Mortgage Notes;
(h) $213,486.45 TO ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as Issuing Agent for First
American Title Insurance Company, as Title Insurer, as payment of real estate
taxes incurred in connection with the Site;
(i) $168,000.00 TO ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as Issuing Agent for First
American Title Insurance Company, as Title Insurer, as payment of title
insurance premiums for the Trustee's Title Policies; and
(j) $150.00 TO ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as Issuing Agent for First
American Title Insurance Company, as Title Insurer, as payment of recording fees
incurred in connection with the recordation of certain Transaction Documents.
Page 2 of 4
EXHIBIT A
(k) $59,505.57 TO ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, as payment of certain legal
fees incurred in connection with the issuance of the First Mortgage Notes;
(l) $13,333.33 TO HARD ROCK CAFE INTERNATIONAL, as payment of
technical service fee pursuant to the Hard Rock License Agreement;
(m) $298,053.42 TO ▇▇▇▇▇▇▇ CORP., as payment of printing costs
incurred in connection with the issuance of the First Mortgage Notes;
(n) $80,851.23 TO BANK OF AMERICA, as payment of certain road show
expenses incurred in connection with the issuance of the First Mortgage Notes;
and
(o) $131,250.00 TO AON, as payment of D&O insurance coverage.
THE TOTAL AMOUNT OF DISBURSEMENTS REQUESTED BY THIS INITIAL
DISBURSEMENTS CERTIFICATE IS $5,561,436.50.
Premier Finance Biloxi Corp., a Delaware corporation, hereby confirms
that the conditions precedent set forth in SECTION 8 of the Bond Purchase
Contract have been satisfied or waived. The amounts transferred to the Bond
Trustee's Construction Disbursement Account shall be used solely for the purpose
of purchasing Bonds and paying Permitted Land-Based Project Costs as identified
on the copy of the Bond Requisition attached hereto as Exhibit 1 in accordance
with the Bond Financing Documents. The amounts transferred to the Company's
Direct Disbursement Account shall be used solely for the purpose of purchasing
Bonds and paying Permitted Land-Based Project Costs from time to time in
accordance with the Bond Financing Documents.
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursements requested by this Initial Disbursements Certificate.
[SIGNATURE PAGE FOLLOWS]
Page 3 of 4
EXHIBIT A
IN WITNESS WHEREOF, the undersigned has executed this Initial Disbursement
Certificate as of this 23rd day of January, 2004.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and
Premier Finance Biloxi
Corp., as Issuer
By:
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President/Chief Operating Officer
PREMIER FINANCE BILOXI CORP.
By:
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: President
Page 4 of 4
EXHIBIT A
EXHIBIT 1 TO EXHIBIT A
BOND REQUISITION
[ISSUER TO ATTACH COPY OF COMPLETED
INITIAL BOND REQUISITION]
Page 1 of 1
EXHIBIT 1 TO EXHIBIT A
EXHIBIT B-1 TO
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF ISSUER'S CLOSING CERTIFICATION
__________, 20__
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and
Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Cash Collateral and Disbursement Agreement
Issuer's Closing Certification
Ladies and Gentlemen:
This Issuer's Closing Certification is delivered to you pursuant to SECTION
4.1 of that certain
Cash Collateral and Disbursement Agreement dated as of
January 23, 2004 (the "AGREEMENT"). Capitalized terms used herein shall have the
meanings assigned to such terms in the Agreement.
The Issuer hereby certifies to you as follows:
(a) As of the date hereof, we believe the Initial Operating Date will
occur on or prior to the Operating Deadline.
(b) The Initial Project Budget attached hereto as EXHIBIT 1 constitutes
the Project Budget presently in effect for the Facility.
(c) The Remaining Budget Amount Column of the Initial Project Budget
accurately sets forth in all material respects the anticipated Construction
Expenses through the Initial Operating Date and the various components of the
Facility identified thereon as line items, all within the respective line item
allocations established for those components set forth in the Initial Project
Budget.
(d) The Remaining Budget Amount Column of the Initial Project Budget also
accurately sets forth in all material respects all anticipated Pre-Opening
Expenses which the Issuer will need to incur in order for the Initial Operating
Date to occur on or prior to the Operating Deadline, all within the line item
allocations established for those components set forth in the Initial Project
Budget.
(e) As of the date hereof, there are sufficient Available Construction
Funds to pay for the anticipated costs described in Paragraphs (b) and (c)
above, and, after giving effect to the Initial Disbursements, the Issuer does
not believe that any other material expenses will need to be incurred by the
Issuer in order to cause the Initial Operating Date to occur on or prior to the
Operating Deadline.
Page 1 of 4
EXHIBIT B-1
(f) Attached hereto as EXHIBIT 2 is (i) a list of all contractors,
subcontractors, suppliers and materialmen that have provided work, supplies
and/or labor in connection with the construction of the Facility to date, (ii) a
list of all contractors, subcontractors, suppliers and materialmen that have
provided work, supplies and/or labor in connection with the Facility that will
receive payment pursuant to the Initial Disbursements Certificate, and (iii)
lien releases, affidavits and agreements in the form specified by EXHIBITS ▇-▇,
▇-▇ ▇▇▇ ▇-▇ from Owner and each Contractor identified in the Initial
Disbursements Certificate for payment of Project Costs and otherwise in form and
substance reasonably satisfactory to the Independent Construction Consultant
(PROVIDED, HOWEVER, lien releases, affidavits and agreements need not be
provided from a single Contractor with a contract price (or expected aggregate
amount to be paid in the case of "cost plus" contracts) of less than $100,000).
All work performed and materials delivered to date with respect to the Facility
which could result in a lien against the Facility have been previously paid for
by the Issuer or will be timely paid for with the proceeds of the Initial
Disbursements (in each case subject to withheld Retainage Amounts), and no lien,
notice of lien, or notice of extension of time for filing of lien has been filed
against the Facility in favor of any contractor, subcontractor, supplier or
materialman which has not been removed of record prior to the date hereof.
(g) EXHIBIT 3 lists all Construction Contracts entered into as of the date
hereof. The Issuer has delivered copies of all such Construction Contracts that
are Material Construction Contracts (together with, for each such Material
Construction Contract, if and to the extent required under SECTION 5.3 of the
Agreement a consent in the form attached to the Agreement and copies of any
applicable performance and payment bonds required under SECTION 4.2.2(C) of the
Agreement) to the Disbursement Agent and the Independent Construction
Consultant.
(h) The Issuer is not and, to the Issuer's Knowledge, no other party to
any Transaction Document or Material Construction Contract (other than any
Transaction Document or Material Construction Contract not in existence as of
the Issuance Date) is, or (but for the passage of time or the giving of notice
or both) will be, in breach of any material obligation thereunder.
(i) The Preliminary Plans for the Facility as of the date hereof are
described on EXHIBIT 4 and the Final Plans for the Facility as of the date
hereof are described on EXHIBIT 5. All of such Final Plans:
(i) have received all approvals from all governmental authorities
required to approve such Plans that are necessary to commence construction
of such work or improvements described therein;
(ii) contain sufficient specificity to permit completion of such
work or improvement described therein;
(iii) are consistent with constructing the Facility to include the
Minimum Facilities;
(iv) have been signed by an architect licensed to practice
architecture in the State of Mississippi;
Page 2 of 4
EXHIBIT B-1
(v) call for construction of the Facility in a manner consistent
with the Initial Operating Date occurring on or prior to the Operating
Deadline; and
(vi) have been delivered to the Disbursement Agent.
(j) The only Applicable Permits that will be required for the construction
of the Facility and the operation of the Facility (as of the Initial Operating
Date) are listed on EXHIBIT 9 attached hereto (the "AGREED PERMITS").
(k) Each representation and warranty of (i) the Issuer set forth in the
Agreement or in any of the other Transaction Documents, or in any certificates
delivered in connection with any of the foregoing, is true, correct and complete
in all material respects as if made on the date hereof (except that any
representation and warranty that relates expressly to an earlier date shall be
deemed made only as of such earlier date), and (ii) the General Contractor, the
Independent Construction Consultant, the Architect and each other party (other
than the Issuer) to a Material Construction Contract set forth in its respective
Material Construction Contract, is, to the Issuer's Knowledge, true, correct and
complete in all material respects as if made on the date hereof (except that any
representation and warranty that relates expressly to an earlier date shall be
deemed made only as of such earlier date).
(l) The Transaction Documents required under applicable law to have been
approved by the Mississippi Gaming Commission have been approved by the
Mississippi Gaming Commission, and Premier has obtained all necessary approvals
of its site development plan.
(m) No Event of Default exists.
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
Initial Disbursements.
Attached to this Issuer's Closing Certification as EXHIBITS 6 through 8 are
certificates from the General Contractor, the Independent Construction
Consultant and Architect.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and
Premier Finance Biloxi Corp.,
as Issuer
By:
-------------------------------------------------
Name:
Title:
Page 3 of 4
EXHIBIT B-1
EXHIBIT 1 TO EXHIBIT B-1
INITIAL PROJECT BUDGET
Page 1 of 1
EXHIBIT 1 TO EXHIBIT B-1
EXHIBIT 2 TO EXHIBIT B-1
LIST OF CONTRACTORS, SUBCONTRACTORS AND LIEN RELEASES
Page 1 of 1
EXHIBIT 2 TO EXHIBIT B-1
EXHIBIT 3 TO EXHIBIT B-1
LIST OF CONSTRUCTION CONTRACTS
Page 1 of 1
EXHIBIT 3 TO EXHIBIT B-1
EXHIBIT 4 TO EXHIBIT B-1
PRELIMINARY PLANS
Page 1 of 1
EXHIBIT 4 TO EXHIBIT B-1
EXHIBIT 5 TO EXHIBIT B-1
FINAL PLANS
Page 1 of 1
EXHIBIT 5 TO EXHIBIT B-1
EXHIBIT 6 TO EXHIBIT B-1
FORM OF GENERAL CONTRACTOR'S CERTIFICATE
_________, 20__
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER")
Cash Collateral and Disbursement Agreement
Issuer's Closing Certification dated __________, 20__
Ladies and Gentlemen:
▇▇▇ ▇▇▇▇▇▇▇▇ Corp (the "GENERAL CONTRACTOR"), hereby certifies to each of
you as follows:
(a) The General Contractor has reviewed the above referenced Issuer's
Closing Certification from the Issuer and the Cash Collateral and Disbursement
Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is
a party, to the extent necessary to understand the defined terms contained
herein and in the Issuer's Closing Certification that are incorporated by
reference from the Agreement, and to provide the certification contained herein.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Agreement.
(b) The General Contractor hereby certifies and confirms that it believes
that, with respect to that portion of the Facility to be constructed pursuant to
the GMP Contract entered into by the General Contractor, the Initial Operating
Date will occur on or prior to the Operating Deadline.
(c) The General Contractor hereby certifies that to the best of its
Knowledge, the Facility with the Minimum Facilities may be constructed in
accordance within the Initial Project Budget identified in Issuer's Closing
Certification.
Page 1 of 2
EXHIBIT 6 TO EXHIBIT B-1
(d) The list of contractors, subcontractors and suppliers and materialmen
in EXHIBIT 2 to Issuer's Closing Certificate: (i) relating to the GMP Contract
(including the "Direct Purchase Items" as defined in the GMP Contract) are true
and accurate; and (ii) relating to any other Construction Contracts are, to the
General Contractor's Knowledge, true and accurate.
(e) The list of Construction Contracts in EXHIBIT 3 to the Issuer's
Closing Certificate: (i) relating to the GMP Contract (including the "Direct
Purchase Items" as defined in the GMP Contract) are true, accurate and complete;
and (ii) relating to any other Construction Contracts are, to the General
Contractor's Knowledge, true, accurate and complete.
(f) The General Contractor is not and, to the General Contractor's
Knowledge, Premier is not, or (but in the passage of time or giving of notice or
both) will not be, in breach of any material obligation under any Construction
Contract.
(g) The only Applicable Permits that will be required for the construction
of the Facility are listed on EXHIBIT 9 to the Issuer's Closing Certificate. The
General Contractor expresses no opinion as to the permits required for the
operation of the Facility.
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
-----------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 6 TO EXHIBIT B-1
EXHIBIT 7 to EXHIBIT B-1
FORM OF INDEPENDENT CONSTRUCTION CONSULTANT'S CERTIFICATE
__________, 20__
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER") Cash Collateral and Disbursement Agreement
Issuer's Closing Certification dated __________, 20__
Ladies and Gentlemen:
Professional Associates Construction Associates, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies to each of you as follows:
(a) The Independent Construction Consultant has reviewed the above
referenced Issuer's Closing Certification from the Issuer and the Cash
Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which the Issuer is a party, to the extent necessary to
understand the defined terms contained herein and in Issuer's Closing
Certification that are incorporated by reference from the Agreement, and to
provide the certification contained herein. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Agreement.
(b) The Independent Construction Consultant hereby certifies and confirms
in its professional opinion after due inquiry and investigation, that the
certifications in Paragraphs (b) and (c) of the above-referenced Issuer's
Closing Certification are accurate.
(c) The Independent Construction Consultant hereby certifies and confirms
to the best of its Knowledge after due inquiry and investigation, the
certifications in Paragraphs (g) and (i) of the above-referenced Issuer's
Closing Certification are accurate.
(d) The Independent Construction Consultant hereby acknowledges receipt of
the lien releases, affidavits and agreements from Premier and each Contractor
required by clause (f)(iii)
Page 1 of 2
EXHIBIT 7 to EXHIBIT B-1
of the Issuer's Closing Certification and confirms that the amounts requested to
be paid to such Contractors are appropriately and accurately reflected in the
Issuer's Closing Certification and such lien releases.
(e) The Independent Construction Consultant hereby certifies that, to the
best of its Knowledge, the Facility with the Minimum Facilities may be
constructed in accordance within the Initial Project Budget identified in the
Issuer's Closing Certification.
(f) After reviewing the documentation provided by the Issuer and the
General Contractor with respect to Agreed Permits, the Independent Construction
Consultant believes that such documentation evidences that the Issuer has
performed a commercially reasonable and diligent analysis and has no reason to
believe that the certification with regard to the Agreed Permits required for
the construction of the Facility contained in paragraph (j) of the
above-referenced Issuer's Closing Certification is materially false or
misleading.
The Disbursement Agent and the Issuer are entitled to rely on the foregoing
representations, warranties and certifications in connection with the Initial
Disbursements.
PROFESSIONAL ASSOCIATES CONSTRUCTION
SERVICES, INC.
By:
---------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 7 to EXHIBIT B-1
EXHIBIT 8 TO EXHIBIT B-1
FORM OF ARCHITECT'S CERTIFICATE
__________, 20__
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER") Cash Collateral and Disbursement Agreement
Issuer's Closing Certification dated __________, 20__
Ladies and Gentlemen:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd. (the "ARCHITECT") hereby certifies to each of you as
follows;
(a) The Architect has reviewed the above referenced Issuer's Closing
Certification from the Issuer and the Cash Collateral and Disbursement Agreement
dated as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party,
to the extent necessary to understand the defined terms contained herein and in
Issuer's Closing Certification that are incorporated by reference from the
Agreement, and to provide the certification contained herein. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Agreement.
(b) The Architect hereby certifies and confirms that the Plans described
on EXHIBIT 5 to the Issuer's Closing Certification:
(i) have received all approvals from all governmental authorities
required to approve such Plans that are necessary to commence
construction of such work or improvements, if any, described
therein;
(ii) contain sufficient specificity to permit completion of the work
or improvement described therein;
Page 1 of 2
EXHIBIT 8 to EXHIBIT B-1
(iii) are consistent with constructing the Facility to include the
Minimum Facilities; and
(iv) have been signed by an architect licensed to practice
architecture in the State of Mississippi.
The Architect hereby certifies and confirms in its professional opinion
after due inquiry and investigation, that the certifications in Paragraphs (a),
(c) and (j) of the above-referenced Issuer's Closing Certification are accurate.
The Disbursement Agent and the Issuer are entitled to rely on the foregoing
representations, warranties and certifications in connection with the Initial
Disbursements.
▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.
By:
---------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 8 to EXHIBIT B-1
EXHIBIT 9 TO EXHIBIT B-1
AGREED PERMITS SCHEDULE
CONSTRUCTION PERIOD PERMITS
Page 1 of 2
EXHIBIT 9 TO EXHIBIT B-1
OPERATION PERIOD PERMITS
Page 2 of 2
EXHIBIT 9 to EXHIBIT B-1
EXHIBIT B-2 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF TRUSTEE'S CLOSING CERTIFICATION
__________, 20__
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER") Cash Collateral and Disbursement Agreement
Issuer's Closing Certification dated __________, 20__
Ladies and Gentlemen:
This Trustee's Closing Certification is delivered to each of you pursuant
to that certain Cash Collateral and Disbursement Agreement dated as of January
23, 2004 (the "AGREEMENT"). Capitalized terms used herein shall have the
meanings assigned to such terms in the Agreement.
U.S. Bank National Association, a national banking association (the
"TRUSTEE") hereby certifies to each of you as follows as contemplated by SECTION
4.1(C) of the Agreement that the Trustee has received from the Issuer an
executed Initial Disbursements Certificate and an executed Issuer's Closing
Certification in the form attached to the Agreement as EXHIBIT B-1, together
with closing certifications from the General Contractor, the Independent
Construction Consultant, the Architect, and the other required attachments to
the Issuer's Closing Certification, each in the form called for thereby.
The Disbursement Agent and the Issuer are entitled to rely on the foregoing
representations, warranties and certifications in connection with the Initial
Disbursements; provided that where any certification of the Issuer, the General
Contractor, the Independent Constructor Consultant or the Architect is limited
to such party's Knowledge, for the purposes of this certificate, such
certification shall instead be made to the Trustee's Knowledge, as applicable.
Page 1 of 2
EXHIBIT B-2
U.S. BANK NATIONAL ASSOCIATION, A
NATIONAL BANKING ASSOCIATION
By:
---------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT B-2
EXHIBIT C-1 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
CONSTRUCTION DISBURSEMENT REQUEST
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Construction Disbursement Request No. __________ under
Cash Collateral and Disbursement Agreement
Construction Disbursement Request of $_____
Requested Disbursement Date: _________, 20__
Ladies and Gentlemen:
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER"), hereby
submit this Construction Disbursement Request (the "CONSTRUCTION DISBURSEMENT
REQUEST") pursuant to that certain Cash Collateral and Disbursement Agreement
dated as of January 23, 2004 (the "AGREEMENT"). Capitalized terms used herein
without definition shall have the meanings assigned in the Agreement.
The Issuer hereby requests that you, in your capacity as Disbursement Agent
under the Agreement, on the Requested Disbursement Date set forth above:
(i) transfer from the Construction Disbursement Account to the PFC
Payment Account $[_____][INSERT AMOUNT FROM SECTION A1 TO SCHEDULE 1
(PERMITTED LAND-BASED PROJECT COSTS) PLUS AMOUNT REQUESTED IN CLAUSE (II)
TO FUND OR REPLENISH THE COMPANY'S DIRECT DISBURSEMENT ACCOUNT] (which
shall be deemed to be an equity contribution to PFC);
(ii) immediately after such funds have been transferred into the PFC
Payment Account, transfer from the PFC Payment Account [$______] to the
Bond Trustee's Construction Disbursement Account and $[________] to the
Company's Direct Disbursement Account;
(iii) distribute checks drawn on (or wire transfers from) the
Construction Disbursement Account to the parties identified in SECTIONS B1
and B2 to SCHEDULE 1 (Other Project Costs) in the amounts listed for such
parties under SECTION B1 and B2 to SCHEDULE 1 (Other Project Costs) under
the column "Current Payment Amount"; and
Page 1 of 6
EXHIBIT C-1
(iv) transfer $[_____] from the Construction Disbursement Account to
the Issuer's Payment Account.
In connection with the requested disbursements, the Issuer hereby
represents, warrants and certifies as of the date hereof as follows:
(a) This paragraph concerns Hard Costs. SCHEDULE 1 and the Bond
Requisition accurately lists each party for whom payment is requested and, for
each line item and for each party to whom payment is requested with respect to
such line item, the following: (i) the name of the payee to be paid; (ii) the
current payment requested with respect to the Facility; (iii) the increase or
decrease in accrued but unpaid Retainage Amount, if any, for such payee since
the last Construction Disbursement Request (after giving effect to the payment
contemplated by the Construction Disbursement Request); (iv) the total amount
contemplated to be payable to such payee under the terms of its applicable
Construction Contract through completion of all work and delivery of all
materials contemplated by the Construction Contract (i.e., the total contract
amount) with respect to the Facility; (v) the total payments made to such payee
under its applicable Construction Contract with respect to the Facility as of
the Issuance Date; (vi) the total payments made to such payee since the Issuance
Date (after giving effect to the payment contemplated by this Construction
Disbursement Request) with respect to the Facility; (vii) the sum of all
payments made to such payee (after giving effect to the payment contemplated by
this Construction Disbursement Request) (i.e., the sum of (v) and (vi) above)
with respect to the Facility; (viii) the aggregate accrued Retainage Amounts
which shall continue to be owed with respect to such Construction Contract
(after giving effect to the payment contemplated by the Construction
Disbursement Request); and (ix) the Issuer's reasonable belief as to the
percentage of the work actually completed, or the materials actually delivered,
under the Construction Contract through the date for which payment is made
hereunder (expressed as a percentage of the total work and materials
contemplated by the Construction Contract through completion), or, if payment is
to be made based on invoice, or is otherwise required by such Construction
Contract, confirmation that a copy of the applicable invoice is attached, and a
description of the purpose of such payment, specifying the line item relating to
each such payment. In the event that any Advance Construction Disbursements have
been made and have not otherwise been documented as required hereunder and under
the Agreement, SCHEDULE 1 and SCHEDULE 1 to the Bond Requisition also includes
each party to whom payment was made from such Advance Construction Disbursement
and a description of the purpose of such payments specifying the line item
relating to each such payment. The information set forth in SCHEDULE 1 and
SCHEDULE 1 to the Bond Requisition is true, correct and complete in all material
respects.
(b) This paragraph concerns Soft Costs. SCHEDULE 1 accurately lists each
party and/or purpose for which payment is requested and, for each line item and
for each party and/or purpose for which payment is requested with respect to
such line item, the following: (i) the name of the payee to be paid, and, (ii)
the current payment requested, and (iii) a description of the purpose of such
payment, specifying the line item relating to each such payment. In the event
that any Advance Construction Disbursements have been made and have not
otherwise been documented as required hereunder and under the Agreement,
SCHEDULE 1 also includes each party to whom
Page 2 of 6
EXHIBIT C-1
payment was made from such Advance Construction Disbursement and a description
of the purpose of such payments specifying the line item relating to each such
payment. The information set forth in SCHEDULE 1 is true, correct and complete
in all material respects.
(c) This paragraph concerns Hard Costs. The Issuer has delivered or caused
to be delivered to the Independent Construction Consultant (a) true and complete
invoices that have been tendered for all Hard Costs pursuant to any Construction
Disbursement Request or Bond Requisition and (b) duly executed lien releases,
waivers and agreements in the form specified by EXHIBITS ▇-▇, ▇-▇ ▇▇▇ ▇-▇ and
otherwise in form and substance reasonably satisfactory to the Independent
Construction Consultant (copies of which are attached hereto as ATTACHMENT 1),
from Premier and each Contractor identified on the Construction Disbursement
Request or Bond Requisition for payment of Hard Costs acknowledging that such
Contractor has been paid in full any and all amounts due for work or services
performed and materials furnished to date in connection with the construction of
the Facility, except for (i) Retainage Amounts specified in the applicable
Construction Contract in effect as of the Issuance Date; (ii) Retainage Amounts
specified in any Construction Contract entered into after the Issuance Date
which the Independent Construction Consultant determines to be reasonably
withheld; (iii) amounts identified to be paid to such Contractor in the current
Construction Disbursement Request or Bond Requisition; (iv) Disputed Amounts
(provided that aggregate amount of Disputed Amounts identified by all
Contractors in such lien releases, affidavits and agreements, together with the
aggregate amount payable with respect to Disputed Amounts under all Construction
Contracts for which the Issuer has not delivered a lien release, affidavit and
agreement from the relevant Contractor, does not exceed the Available Advance
Construction Disbursement Amounts, PROVIDED, HOWEVER, that lien releases,
waivers and agreements need not be delivered under this clause (b) from any
single Contractor with a contract price (or expected aggregate amount to be paid
in the case of "cost plus" contracts) of less than $100,000). The lien release
summary chart attached hereto as SCHEDULE 2 and the lien releases, affidavits
and agreements attached hereto as ATTACHMENT 1 are true, correct and complete in
all material respects.
(d) To the Issuer's Knowledge, the construction performed as of the date
hereof is of first-class quality and substantially in accordance with the Final
Plans for the Facility and the disbursement is appropriate in light of the
percentage of construction completed and the amount of Unincorporated Materials.
(e) With respect to amounts requested on SCHEDULE 1 for Pre-Opening
Expenses, all such Pre-Opening Expenses have been or will be incurred and are or
will be payable in accordance with the Agreement and all of the conditions set
forth in the Agreement to the disbursement and payment of said amounts have been
satisfied.
(f) All the commitments, policies and endorsements required to be
delivered on or before the date of this certificate under this Agreement have
been received and are attached hereto as ATTACHMENT 2. ATTACHMENT 2 is true,
correct and complete in all material respects.
Page 3 of 6
EXHIBIT C-1
(g) The Project Budget presently in effect is dated [__________] [choose
one of the following] [and has not been amended] [and includes all amendments
through Project Budget Amendment No. ___.] Said Project Budget accurately sets
forth the anticipated Construction Expenses through completion of construction
of the Facility in the aggregate and for each line item. Further, to the extent
the work or payment required in connection with any line item has not yet been
completed, the Issuer reasonably believes that the estimated cost to complete
such work or payment will not exceed the difference between (a) the Remaining
Budgeted Amount for such line item on the Project Budget and (b) the sum of (i)
the total payments theretofore disbursed from the Construction Disbursement
Account with respect to such line item; (ii) any Retainage Amounts then held
with respect to such line item; and (iii) the portion of the proceeds of the
FF&E Financing that the Issuer has expended in connection with such line item.
(h) The Project Budget continues to accurately set forth all anticipated
Pre-Opening Expenses through the Initial Operating Date in all material
respects.
(i) After giving effect to the requested disbursements from the
Construction Disbursement Account, there are sufficient Available Construction
Funds to pay for the anticipated costs described in Paragraphs (g) and (h) above
and any other material expenses the Issuer reasonably believes will need to be
incurred by the Issuer in order to cause the Initial Operating Date to occur on
or prior to the Operating Deadline.
(j) As of the date hereof, no Event of Default exists, and the requested
disbursements from the Construction Disbursement Account and the payments
contemplated from the Construction Disbursement Account in connection therewith
will not constitute, result in, nor create an Event of Default.
(k) As of the date hereof, the Issuer has submitted to the Disbursement
Agent all Plans which, as of the date hereof, constitute Final Plans. Further,
all disbursements requested under this Construction Disbursement Request
(including any Bond Requisition attached hereto) are for the payment of
Construction Expenses incurred for (i) work consistent with the requirements of
clause (d) above or (ii) materials that have been delivered to the Site and are
incorporated into the Facility or will be incorporated within the next ninety
(90) days, or Unincorporated Materials complying with the requirements of
SECTION 4.2.2(G) of the Agreement, a true, correct and complete inventory of
which is attached hereto as SCHEDULE 3.
(l) The Issuer has previously delivered to Independent Construction
Consultant and the Trustee copies of all Material Construction Contracts
(together with copies of any bonds required under SECTION 4.2.2(C) of the
Agreement).
(m) All Agreed Permits (as listed on in EXHIBIT 9 to the Issuer's Closing
Certificate) required for the construction of the Facility and the operation of
the Facility have either been obtained by the Contractors or the Issuer and are
in full force and effect on the date hereof, or have not yet been obtained and
Issuer has no reason to believe that any Agreed Permit not obtained as of the
date hereof will not be obtained and be in full force and effect on or prior to
Page 4 of 6
EXHIBIT C-1
the date on which such Agreed Permit would be required to be in full force and
effect, so as to permit the Contractor to commence work on the Facility.
(n) The Issuer reasonably believes that the Initial Operating Date will
occur on or prior to the Operating Deadline.
(o) All proceeds of all previous Disbursement Requests, except for $[____]
remaining in the Issuer's Payment Account and $[_____] in the Company's Direct
Disbursement Account, have been expended and have been applied to Construction
Expenses in accordance with the Construction Contracts and the Disbursement
Agreement and the Bond Financing Documents. All funds remaining in the Issuer's
Payment Account represent checks (or wire transfers) that have been issued by
the Issuer but have not yet cleared. SCHEDULE 4 accurately lists the
Construction Expenses paid from the Issuer's Payment Account since the last
Requested Disbursement Date, in each case, segregated by line item. The
information set forth on SCHEDULE 4 is true, correct and complete.
(p) The sum of (i) amount on deposit in the Company's Direct Disbursement
Account, plus (ii) the equity contribution to PFC requested in this Construction
Disbursement Request to fund or replenish the Company's Direct Disbursement
Account plus (iii) the aggregate amount outstanding with respect to checks
written (or wire transfers) that have been issued by Premier to pay Permitted
Land-Based Project Costs which have not been documented as required in the
SECTION 3.03(B)(2) of the Bond Loan Agreement and the Disbursement Agreement for
other Disbursements, does not exceed $500,000. SCHEDULE 5 accurately lists the
Permitted Land-Based Project Costs paid from the Company's Direct Disbursement
Account since the last Requested Disbursement Date, in each case, segregated by
line item. The information set forth on SCHEDULE 5 is true, correct and complete
in all material respects.
(q) All proceeds of all previous Bond Requisitions, except for $[_____]
remaining in the Bond Trustee's Construction Disbursement Account and $[____] in
the Company's Direct Disbursement Account, have been expended and have been
applied to Permitted Land Based Project Costs in accordance with the
Construction Contracts, the Disbursement Agreement and the Bond Financing
Documents. All funds remaining in the Bond Trustee's Construction Disbursement
Account, represent checks (or wire transfers) that have been issued on behalf of
the Issuer but have not yet cleared.
(r) [INCLUDE THE FOLLOWING CERTIFICATION IF THE FUNDS ARE REQUESTED TO BE
DISBURSED TO THE PFC PAYMENT ACCOUNT:] The amounts transferred to the Bond
Trustee's Construction Disbursement Account shall be used solely for the purpose
of purchasing Bonds and paying Permitted Land-Based Project Costs as identified
on the copy of the Bond Requisition attached hereto in accordance with the Bond
Financing Documents. The amounts transferred to the Company's Direct
Disbursement Account shall be used solely for the purpose of purchasing Bonds
and paying Permitted Land-Based Project Costs from time to time in accordance
with the Bond Financing Documents.
Page 5 of 6
EXHIBIT C-1
(s) [INCLUDE THE FOLLOWING CERTIFICATION IF THE FUNDS ARE REQUESTED TO BE
DISBURSED TO THE PFC PAYMENT ACCOUNT] PFC hereby confirms that the conditions
precedent set forth in SECTION 8 of the Bond Purchase Contract have been
satisfied or waived.
(t) [INCLUDE THE FOLLOWING CERTIFICATION IF FUNDS ARE NOT REQUESTED TO BE
DISBURSED TO THE PFC PAYMENT ACCOUNT:] No funds are requested herein to be
disbursed to the PFC Payment Account.
(u) This certificate is submitted concurrently with the Available
Construction Funds Certificate in the form of EXHIBIT D-1 to the Agreement, and
if applicable, a Tidelands Lease Certificate in the form of EXHIBIT C-6 to the
Agreement.
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursements requested by this Construction Disbursement Request.
Attached to this Construction Disbursement Request as EXHIBITS 1 through 3,
as applicable, are certificates from the General Contractor, the Independent
Construction Consultant and the Architect, as applicable.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp.,
as Issuer
By:
-------------------------------------------
Name:
Title:
[IF A BOND REQUISITION REQUESTING FUNDING OF PERMITTED LAND-BASED PROJECT COSTS
IS ATTACHED, PFC'S SIGNATURE SHALL ALSO BE REQUIRED:]
PREMIER FINANCE BILOXI CORP.
By:
-------------------------------------------
Name:
Title:
Page 6 of 6
EXHIBIT C-1
SCHEDULE 1 TO EXHIBIT C-1
COST REPORT
DATE:___________
A. PERMITTED LAND-BASED PROJECT COSTS
1. CONSTRUCTION EXPENSES- HARD COSTS
Equity contribution to PFC in an amount equal to $______________ to be disbursed
to the PFC Payment Account and thereafter to the Bond Construction Fund. (1)
2. BOND TRUSTEE-CONSTRUCTION DISBURSEMENT ACCOUNT
Equity contribution to PFC in an amount equal to $______________ to be disbursed
to the PFC Payment Account and thereafter to the Company's Direct Disbursement
Account. (2)
B. OTHER PROJECT COSTS
1. CONSTRUCTION EXPENSES - HARD COSTS
(iii) Increase/ (viii)
Decrease in (vi) Aggregate
Retainage (iv) (v) Payments Under Accrued and
Amount Since Total Amount Payments Under Construction Unpaid Retainage
(ii) Last Payable Under Construction Contract From (vii) Amounts for
(i) Current Payment Disbursement Construction Contract Prior to and After Total Payments Construction
Payee Amount Request Contract Terms Issuance Date Issuance Date to Date [(v)+ (vi)] Contract
------------------------------------------------------------------------------------------------------------------------------------
Line Item:
(i) (ix) (x)
Payee % of Amount Earned
Construction to Date
Contract Work [(vii)+
Completed (viii)]
------------------------------------------
Line Item:
SCHEDULE 1 TO EXHIBIT C-1
COST REPORT
----------
(1) The equity contribution for Hard Costs listed in Item A1 shall equal: (i)
the amount of Permitted Land-Based Project Costs requested to be paid under the
Bond Requisition attached hereto as Exhibit 4.
(2) The equity contribution listed in Item A2 shall equal the amount requested
to fund or replenish the Company's Direct Disbursement Account, which amount
shall not exceed the Available Direct Payment Amount.
Page 1 of 3
SCHEDULE 1 TO EXHIBIT C-1
TOTAL FOR LINE
ITEM
Line Item:
TOTAL FOR LINE
ITEM
2. CONSTRUCTION EXPENSES- SOFT COSTS
(i) (ii)
Payee Current Payment Amount (iii) Description of Purpose of Soft Cost Construction Expense
Line Item:
TOTAL FOR LINE
ITEM
Line Item:
TOTAL FOR LINE
ITEM
Page 2 of 3
SCHEDULE 1 TO EXHIBIT C-1
SCHEDULE 1 TO EXHIBIT C-1
COST REPORT
DATE: ___________
PRE-OPENING EXPENSES
(i) (ii)
Payee Current Payment Amount
Line Item:
TOTAL FOR
LINE ITEM
Line Item:
TOTAL FOR
LINE ITEM
Page 3 of 3
SCHEDULE 1 TO EXHIBIT C-1
SCHEDULE 2 TO EXHIBIT C-1
LIEN RELEASE SUMMARY - MASTER LIST(1)
Waivers received for work billed through __________ __, ____
Submitted pursuant to Section4.2.2 of the Disbursement Agreement
PAYMENT APPLICATION REFERENCE WAIVER AMOUNT
-------------------------------------- ------------------------------------------------
COMPANY
ADVANCE CONTRACTOR / CONDITIONAL TOTAL WAIVERS
CONTRACTOR / SUBCONTRACTOR DATE REQUEST # SUBCONTRACTOR # (CURRENT PERIOD) UNCONDITIONAL (CUMULATIVE) NOTES
------------------------------------------------------------------------------------------------------------------------------------
----------
(1) Summary chart should address all Project Costs (including Permitted
Land-Based Project Costs).
Page 1 of 1
SCHEDULE 2 TO EXHIBIT C-1
SCHEDULE 3 TO EXHIBIT C-1
UNINCORPORATED MATERIALS INVENTORY SUMMARY NO.___(1)
DATE:____________________
(COLUMN E)
ADDRESS OF LOCATION OF STORED MATERIALS
CONTRACTOR / OFF-SITE (COLUMN D) (AMOUNTS
SUBCONTRACTOR/ STORED MATERIALS (IF DESCRIPTION OF AMOUNT SHOWN IN COLUMN "F" REQUESTED THIS
SUPPLIER NAME AVAILABLE) STORED MATERIALS ON PREVIOUS APPLICATION ADVANCE REQUEST)
-------------------------------------------------------------------------------------------------------------------
TOTALS
(COLUMN F) (COLUMN G)
STORED MATERIALS TOTAL MATERIALS
WHICH WERE PUT IN PRESENTLY STORED
PLACE THIS PERIOD (D+E-F-G)
----------
(1) Summary chart should address all Project Costs (including Permitted
Land-Based Project Costs).
Page 1 of 1
SCHEDULE 3 TO EXHIBIT C-1
ATTACHMENT 1 TO EXHIBIT C-1
LIEN RELEASES
Page 1 of 1
ATTACHMENT 1 TO EXHIBIT C-1
ATTACHMENT 2 TO EXHIBIT C-1
TITLE POLICES, COMMITMENTS AND ENDORSEMENTS
Page 1 of 1
ATTACHMENT 2 TO EXHIBIT C-1
SCHEDULE 4 TO EXHIBIT C-1
RECONCILIATION OF CONSTRUCTION EXPENSES PAID FROM ISSUER'S PAYMENT ACCOUNT
DATE:____________________
--------------------------------------------------------------------------------
Page 1 of 1
SCHEDULE 4 TO EXHIBIT C-1
SCHEDULE 5 TO EXHIBIT C-1
RECONCILIATION OF CONSTRUCTION EXPENSES PAID FROM COMPANY'S DIRECT DISBURSEMENT
ACCOUNT
DATE:____________________
--------------------------------------------------------------------------------
Page 1 of 1
SCHEDULE 5 TO EXHIBIT C-1
EXHIBIT 1 TO EXHIBIT C-1
CERTIFICATE OF GENERAL CONTRACTOR
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Construction Disbursement Request dated ______________, 20__ of
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER")
Ladies and Gentlemen:
▇▇▇ ▇▇▇▇▇▇▇▇ Corp (the "GENERAL CONTRACTOR") hereby certifies as follows:
(a) The General Contractor has reviewed the above referenced Construction
Disbursement Request and the Cash Collateral and Disbursement Agreement dated as
of January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party, to the
extent necessary to understand the defined terms contained herein and in the
Construction Disbursement Request that are incorporated by reference from the
Agreement and to provide the certification contained herein. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Agreement.
(b) The General Contractor hereby certifies and confirms: (i) the accuracy
of each of the certifications contained in paragraphs (d) and (g) relating to
the GMP Contract (including the "Direct Purchase Items" as defined in the GMP
Contract); (ii) to the General Contractor's Knowledge, the accuracy of each of
the certifications contained in paragraphs (d) and (g) relating to any other
Construction Contract; and (iii) the accuracy of the certifications contained in
paragraph (m) (only with respect to Agreed Permits required for the construction
of the Facility required to be obtained by the General Contractor pursuant to
the GMP Contract in the above-referenced Construction Disbursement Request as
they apply to that portion of the Facility to be constructed pursuant to the GMP
Contract); provided that where any certification of the Issuer is limited to the
Issuer's Knowledge, for the purpose of this certificate such certification shall
instead be made to the General Contractor's Knowledge.
Page 1 of 2
EXHIBIT 1 TO EXHIBIT C-1
(c) The General Contractor hereby certifies and confirms that it believes
that, with respect to that portion of the Facility to be constructed pursuant to
the GMP Contract, the Initial Operating Date will occur on or prior to the
Operating Deadline.
(d) The General Contractor hereby acknowledges that the portion of the
Project Budget related to payment under its GMP Contract with the Issuer in
effect as of the date hereof is: (i) the Initial Project Budget as it has been
amended by all applicable Project Budget amendments; and (ii) the Project Budget
pursuant to which the Facility is currently being constructed.
(e) The General Contractor hereby certifies that, to the General
Contractor's Knowledge, that portion of the Facility to be constructed pursuant
to the GMP Contract will be constructed in accordance with the Project Budget so
as to contain at least the Minimum Facilities.
The Disbursement Agent and the Issuer are entitled to rely on the
foregoing representations, warranties and certifications in authorizing and
making the disbursement requested in the Disbursement Request.
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
---------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT C-1
EXHIBIT 2 TO EXHIBIT C-1
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Construction Disbursement Request dated ______________, 20__ of
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
Professional Associates Construction Services, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies as follows:
(a) The Independent Construction Consultant has reviewed the above
referenced Construction Disbursement Request and the Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which
the Issuer is a party, to the extent necessary to understand the defined terms
contained herein and in the Construction Disbursement Request that are
incorporated by reference from the Agreement and to provide the certification
contained herein. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Agreement.
(b) The Independent Construction Consultant hereby acknowledges receipt of
the lien releases, affidavits and agreements from Premier and each Contractor as
required by clause (c) of the Issuer's Disbursement Request and SECTION 4.2.2(D)
of the Disbursement Agreement and confirms that the amounts requested to be paid
to each such person are appropriately and accurately reflected in the Issuer's
Disbursement Request (including the Project Costs identified on the Bond
Requisition attached hereto as EXHIBIT 4) and such lien releases.
(c) The Independent Construction Consultant hereby certifies and confirms
the accuracy of each of the certifications contained in paragraphs (a), (b),
(c), (d) (to the best of its Knowledge after due inquiry), (g) (solely as to the
second sentence of clause (g), to the best of its
Page 1 of 3
EXHIBIT 2 TO EXHIBIT C-1
Knowledge after due inquiry), (i), (k) (to the best of its Knowledge), and (l)
of the above-referenced Construction Disbursement Request; provided that where
any certification of the Issuer is limited to the Issuer's Knowledge, for the
purpose of this certificate such certification shall instead be made to the
Independent Construction Consultant's Knowledge.
(d) The Independent Construction Consultant hereby certifies and confirms
that it believes that the Initial Operating Date will occur on or prior to the
Operating Deadline.
The Disbursement Agent and the Issuer are entitled to rely on the
foregoing representations, warranties and certifications in authorizing and
making the disbursement requested in the Disbursement Request.
PROFESSIONAL ASSOCIATES
CONSTRUCTION SERVICES, INC.
By:
---------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 2 TO EXHIBIT C-1
EXHIBIT 3 TO EXHIBIT C-1
CERTIFICATE OF ARCHITECT
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Construction Disbursement Request dated __________, 20__ of
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd. (the "ARCHITECT") hereby certifies as follows:
(a) The Architect has reviewed the above referenced Construction
Disbursement Request and the Cash Collateral and Disbursement Agreement dated as
of January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party, to the
extent necessary to understand the defined terms contained herein and in the
Construction Disbursement Request that are incorporated by reference from the
Agreement and to provide the certification contained herein. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Agreement.
(b) The Architect hereby certifies and confirms with respect to that
portion of the Facility constructed pursuant to the Plans prepared by the
Architect the accuracy of the certifications in Paragraphs (d), (g) and (m) of
the above-referenced Construction Disbursement Request.
(c) The Architect hereby certifies and confirms that it believes that the
Initial Operating Date will occur on or prior to the Operating Deadline.
The Disbursement Agent and the Issuer are entitled to rely on the
foregoing representations, warranties and certifications in authorizing and
making the disbursement requested in the Disbursement Request.
Page 1 of 2
EXHIBIT 3 TO EXHIBIT C-1
▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.
By:
---------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 3 TO EXHIBIT C-1
EXHIBIT 4 TO EXHIBIT C-1
BOND REQUISITION
[ISSUER TO ATTACH COPY OF COMPLETED
BOND REQUISITION, IF APPLICABLE]
Page 1 of 1
EXHIBIT 4 TO EXHIBIT C-1
EXHIBIT C-2 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
PRE-OPENING DISBURSEMENT REQUEST
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Pre-Opening Disbursement Request No. ___________ under
Cash Collateral and Disbursement Agreement
Pre-Opening Disbursement Request of $_____
Requested Disbursement Date:_____________, 20___
Ladies and Gentlemen:
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER") hereby
submits this Pre-Opening Disbursement Request (the "PRE-OPENING DISBURSEMENT
REQUEST") pursuant to that certain Cash Collateral and Disbursement Agreement
dated as of January 23, 2004 (the "AGREEMENT"). Capitalized terms used herein
without definition shall have the meanings assigned in the agreement.
The Issuer hereby requests that you, in your capacity as Disbursement Agent
under the Agreement, on the Requested Disbursement Date set forth above, (i)
distribute checks drawn on, or wire transfer from, the Construction Disbursement
Account to the parties identified on SCHEDULE 1 attached hereto and in the
respective amounts listed for such parties on SCHEDULE 1 under the column
"Current Payment Amount" and (ii) causing $[____] to be withdrawn from the
Construction Disbursement Account and deposited into the Issuer's Payment
Account.
In connection with the requested disbursements, the Issuer hereby
represents, warrants and certifies as of the date hereof as follows:
(a) SCHEDULE 1 accurately lists each party and/or purpose for which
payment is requested and, for each line item and for each party and/or purpose
for which payment is requested with respect to such line item, the following:
(i) the name of the payee to be paid, and, (ii) the current payment requested,
and (iii) a description of the purpose of such payment, specifically the line
item relating to each such payment. The information set forth in SCHEDULE 1 is
true, correct and complete in all material respects.
Page 1 of 3
EXHIBIT C-2
(b) All funds which are requested to be disbursed on SCHEDULE 1 will be
used to pay Pre-Operating Expenses that have been or will be incurred and are or
will be payable in accordance with the Agreement and the Indenture and all of
the conditions set forth in the Agreement and the Indenture to the disbursement
and payment of said amounts have been satisfied.
(c) The Project Budget presently in effect is dated [____________] [choose
any of the following] [and has not been amended] [and includes all amendments
through Project Budget Amendment No. __.] Said Project Budget accurately sets
forth the anticipated Construction Expenses through completion of construction
of the Facility in the aggregate and for each line item. Further, to the extent
the work or payment required in connection with any line item has not yet been
completed, the Issuer reasonably believes that the estimated cost to complete
such work or payment will not exceed the difference between (a) the Remaining
Budgeted Amount for such line item on the Project Budget and (b) the sum of (i)
the total payments theretofore disbursed from the Construction Disbursement
Account with respect to such line item; (ii) any Retainage Amounts then held
with respect to such line item; and (iii) the portion of the proceeds of the
FF&E Financing that the Issuer has expended in connection with such line item.
(d) The Project Budget continues to accurately set forth all anticipated
Pre-Opening Expenses through the Initial Operating Date in all material
respects.
(e) After giving effect to the requested disbursements from the
Construction Disbursement Account, there are sufficient Available Construction
Funds to pay for the anticipated costs described in Paragraphs (c) and (d) above
and any other expenses the Issuer reasonably believes will need to be incurred
by the Issuer in order to cause the Initial Operating Date to occur on or prior
to the Operating Deadline.
(f) As of the date hereof, no Event of Default exists, and the requested
disbursements from the Construction Disbursement Account and the payments
contemplated from the Construction Disbursement Account in connection therewith
will not constitute, result in, nor create an Event of Default
(g) All disbursements requested under this Pre-Opening Disbursement
Request are for the payment of Pre-Opening Expenses incurred for work consistent
with the preparation of the facility for opening and operation.
(h) The Issuer reasonably believes that the Initial Operating Date will
occur on or prior to the Operating Deadline.
(i) All proceeds of all previous Disbursement Requests, except for
$[______] remaining in the Issuer's Payment Account and $[____] remaining in the
Company's Direct Disbursement Account, have been expended and have been applied
to Project Costs in accordance with the Disbursement Agreement and the Bond
Financing Documents. All funds remaining in the Issuer's Payment Account
represent checks (or wire transfers) that have been
Page 2 of 3
EXHIBIT C-2
issued by the Issuer but have not yet cleared or checks that will be issued in
the ordinary course of business. SCHEDULE 2 accurately lists the Project Costs
paid from the Issuer's Payment Account since the last Requested Disbursement
Date, in each case, segregated by line item. The information set forth on
SCHEDULE 2 is true, correct and complete in all material respects.
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursements requested by this Pre-Opening Disbursement Request.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:(1)
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 3 of 3
EXHIBIT C-2
SCHEDULE 1 TO EXHIBIT C-2
COST REPORT
Page 1 of 1
SCHEDULE 1 TO EXHIBIT C-2
SCHEDULE 2 TO EXHIBIT C-2
RECONCILIATION OF PROJECT COSTS
PAID FROM ISSUER'S PAYMENT ACCOUNT
Page 1 of 1
SCHEDULE 2 TO EXHIBIT C-2
EXHIBIT C-3 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF ADVANCE CONSTRUCTION DISBURSEMENT REQUEST CERTIFICATE
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Copies to:
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Advance Construction Disbursement Request No. ____________ Under
Cash Collateral and Disbursement Agreement
Amount Requested: $
Requested Disbursement Date: __________, 20__
Ladies and Gentlemen:
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER"), hereby
submits this Advance Construction Disbursement Request (the "ADVANCE
CONSTRUCTION DISBURSEMENT REQUEST") pursuant to that certain Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT").
Capitalized terms used herein without definition shall have the meanings
assigned in the Agreement.
The Issuer hereby requests you, in your capacity as Disbursement Agent
under the Agreement, on the Requested Disbursement Date:
(i) transfer $_______ from the Construction Disbursement Account to
the PFC Payment Account (which shall be deemed to be an equity contribution
to PFC);
(ii) immediately after such funds have been transferred into the PFC
Payment Account, transfer such funds from the PFC Payment Account to the
Company's Direct Disbursement Account;
Page 1 of 3
EXHIBIT C-3
(iii) transfer $_______ from the Construction Disbursement Account to
the Issuer's Payment Account.
In connection with the requested disbursements, the Issuer hereby
represents, warrants and certifies as of the date hereof as follows:
(a) amounts disbursed pursuant to this Advance Construction Disbursement
Request shall be used solely for the following purposes, which purposes are not
prohibited by the Indenture: _______;
(b) as of the date hereof, no Event of Default exists, and the requested
disbursement from the Construction Disbursement Account will not constitute,
result in, nor create an Event of Default;
(c) the Available Advance Construction Disbursement Amount MINUS the
amount of the currently requested Advance Construction Disbursement shall be
greater than zero;
(d) the Project Budget presently in effect is dated [________][CHOOSE
ONE][and has not been amended] [and includes all amendments through Project
Budget Amendment No._______]. Said Project Budget accurately sets forth the
anticipated Construction Expenses through completion of construction of the
Facility in the aggregate and for each line item. Further, to the extent the
work or payment required in connection with any line item has not yet been
completed, the Issuer reasonably believes that the estimated cost to complete
such work or payment will not exceed the difference between (a) the Remaining
Budgeted Amount for such line item on the Project Budget less (b) the sum of (i)
the total payments theretofore disbursed from the Construction Disbursement
Account with respect to such line item (ii) any Retainage Amounts then held with
respect to such line item and (iii) the portion of the proceeds of the FF&E
Financing that the Issuer has expended in connection with such line item.
(e) the Project Budget continues to accurately set forth all anticipated
Pre-Opening Expenses through the Initial Operating Date in all material
respects;
(f) after giving effect to the requested disbursements from the
Construction Disbursement Account, there are sufficient Available Construction
Funds to pay for the anticipated costs described in Paragraphs (d) and (e) above
and any other expenses the Issuer reasonably believes will need to be incurred
by the Issuer in order to cause the Initial Operating Date to occur on or prior
to the Operating Deadline.
(g) [INCLUDE THE FOLLOWING CERTIFICATION IF THE FUNDS TO BE DISBURSED TO
THE PFC PAYMENT ACCOUNT:] The sum of (i) amount on deposit in the Company's
Direct Disbursement Account, plus (ii) the equity contribution to PFC requested
in this Advance Construction Disbursement Request to fund or replenish the
Company's Direct Disbursement Account plus (iii) the aggregate amount
outstanding with respect to checks written (or wire transfers) that have
Page 2 of 3
EXHIBIT C-3
been issued by Premier to pay Permitted Land-Based Project Costs which have not
been documented as required in SECTION 3.03(b)(2) of the Bond Loan Agreement and
the Disbursement Agreement for other Disbursements, does not exceed $500,000.
The amounts transferred to the Company's Direct Disbursement Account shall be
used solely for the purpose of purchasing Bonds and paying for Permitted
Land-Based Project Costs from time to time in accordance with the Bond Financing
Documents.
(h) [INCLUDE THE FOLLOWING CERTIFICATION IF THE FUNDS TO BE DISBURSED TO
THE PFC PAYMENT ACCOUNT:] The conditions precedent set forth in SECTION 8 of the
Bond Purchase Contract have been satisfied or waived.
(i) [INCLUDE THE FOLLOWING CERTIFICATION IF FUNDS ARE NOT REQUESTED TO BE
DISBURSED TO THE PFC PAYMENT ACCOUNT:] No funds are requested herein to be
disbursed to the PFC Payment Account.
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursements requested by this Advance Construction Disbursement Request.
Attached to this Advance Construction Disbursement Request as EXHIBIT 1 is a
certificate from the Independent Construction Consultant.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
[IF A BOND REQUISITION REQUESTING FUNDING OF PERMITTED LAND-BASED PROJECT COSTS
IS ATTACHED, PFC'S SIGNATURE SHALL ALSO BE REQUIRED:]
PREMIER FINANCE BILOXI CORP.
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 3 of 3
EXHIBIT C-3
By:
---------------------------------------------
Name:
Title:
Page 4 of 3
EXHIBIT C-3
EXHIBIT 1 TO EXHIBIT C-3
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Advance Construction Disbursement Request dated ______________, 20__ of
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
Professional Associates Construction Services, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies as follows:
(a) The Independent Construction Consultant has reviewed the above
referenced Advance Construction Disbursement Request and the Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which
the Issuer is a party, to the extent necessary to understand the defined terms
contained herein and in the Advance Construction Disbursement Request that are
incorporated by reference from the Agreement and to provide the certification
contained herein. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Agreement.
(b) The Independent Construction Consultant hereby confirms that the
Available Advance Construction Disbursement Amount MINUS the amount of the
currently requested Advance Construction Disbursement shall be greater than
zero.
The Disbursement Agent and the Issuer are entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursement requested in the Disbursement Request.
Page 1 of 3
EXHIBIT 1 TO EXHIBIT C-3
PROFESSIONAL ASSOCIATES
CONSTRUCTION SERVICES, INC.
By:
-------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT C-3
EXHIBIT C-4 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF INTEREST RESERVE ACCOUNT DISBURSEMENT CERTIFICATE
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER") Interest Reserve Account Disbursement
Ladies and Gentlemen:
This certificate is delivered pursuant to SECTION 4.4(A) of that certain
Cash Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which you are a party. Capitalized terms used in this
certificate that are otherwise not defined shall have the meaning assigned in
the Agreement. The Issuer hereby represents, warrants and certifies as follows:
The next Interest Payment Date with respect to the First Mortgage Notes is
__________________. The amount of interest to be paid with respect to the First
Mortgage Notes on such Interest Payment Date is $_____.
The calculation of such amount is as follows: _____
On _____________ [INSERT INTEREST PAYMENT DATE], the Disbursement Agent is
hereby instructed to transfer $__________ [insert amount of interest] from the
Interest Reserve Account to the Trustee for the benefit of the Noteholders to
pay interest with respect to the First Mortgage Notes under the Indenture.
Page 1 of 2
EXHIBIT C-4
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursement requested in the Disbursement Request.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 2 of 2
EXHIBIT C-4
EXHIBIT C-5 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF INTEREST RESERVE EXCESS TRANSFER CERTIFICATE
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER") Interest Reserve Account Disbursement
Ladies and Gentlemen:
This certificate is delivered pursuant to SECTION 4.4(B) of that certain
Cash Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which you are a party. Capitalized terms used in this
certificate that are otherwise not defined shall have the meaning assigned in
the Agreement. The Issuer hereby represents, warrants and certifies as follows:
1. $______________ of the Proceeds has been deposited into the
Interest Reserve Account.
2. The Issuer has caused the funds held in the Interest Reserve
Account to be invested in accordance with SECTION 2.8 of the Agreement.
3. The Initial Interest Reserve Account Target as of the date hereof
is $________________.
4. The amount described in clause 1 (above) exceeds the amount
described in clause 3 (above) by $_______________ (the "INTEREST RESERVE
EXCESS").
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursement requested below.
The Issuer hereby irrevocably instructs the Disbursement Agent to transfer
the Interest Reserve Excess to the Construction Disbursement Account.
Page 1 of 2
EXHIBIT C-5
[IF APPLICABLE:] Premier has attached hereto as EXHIBIT 1 a Project Budget
Amendment Certificate submitted in accordance with SECTION 5.1 of the Agreement
documenting any corresponding adjustment to the [________] line item as a result
of the Initial Interest Reserve Target and transfer of the Interest Reserve
Excess to the Construction Disbursement Account.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 2 of 2
EXHIBIT C-5
EXHIBIT C-6 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF TIDELANDS LEASE CERTIFICATE
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Premier Entertainment Biloxi LLC ("PREMIER") Tidelands Lease Account.
Ladies and Gentlemen:
This certificate is delivered pursuant to SECTION 6.1(a) of that certain
Cash Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which you are a party. Capitalized terms used in this
certificate that are otherwise not defined shall have the meaning assigned in
the Agreement. Premier hereby represents, warrants and certifies as follows:
1. The amount of the Tidelands Lease Required Payment Amount as of
the date hereof is $______________.
2. The excess of the Tidelands Lease Required Payment Amount over
the balance on deposit in the Tidelands Lease Account as of the date hereof
is $_______________ (the "TIDELANDS LEASE SHORTAGE AMOUNT").
Premier has delivered this certificate together with [INCLUDE ONE OR BOTH
OF THE FOLLOWING; HOWEVER, THE SUM OF THE AMOUNT SET FORTH IN CLAUSE (I) PLUS
THE AMOUNT SET FORTH IN CLAUSE (II) MUST EQUAL THE TIDELANDS LEASE SHORTAGE
AMOUNT]:
(i) a check or wire transfer in an amount equal to $[______________];
(ii) a Project Budget Amendment Certificate attached hereto as EXHIBIT 1
and submitted in accordance with SECTION 5.1 of the Agreement applying (A)
$[______] from Realized Savings and (B) $[__________] from the "contingency"
line item to fund such Tidelands Lease Shortage Amount and instructing the
Disbursement Agent to transfer $[_________][INSERT TOTAL OF CLAUSE (a) PLUS
CLAUSE (b)] from the Construction Disbursement Account into the Tidelands Lease
Account.
Page 1 of 2
EXHIBIT C-6
Premier hereby irrevocably instructs the Disbursement Agent to deposit such
funds into the Tidelands Lease Account.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
----------
(1) After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.
Page 2 of 2
EXHIBIT C-6
EXHIBIT D-1 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF AVAILABLE CONSTRUCTION FUNDS CERTIFICATE
[Date]
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services, Inc.
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Available Construction Funds Certificate
Ladies and Gentlemen:
This certificate is delivered pursuant to SECTION 5.4 of that certain Cash
Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which the Disbursement Agent is a party. Each of Premier
Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi Corp. ("PFC",
and jointly and severally with Premier, the "ISSUER") hereby represents,
warrants and certifies that:
(a) The Available Construction Funds Schedule, attached hereto as SCHEDULE
1, is true and correct in all material respects.
(b) The amount set forth in Row M of such Available Construction Funds
Schedule is the amount of Available Construction Funds as of the date of such
Available Construction Funds Schedule.
(c) [CHOOSE ONE:][(1):] The amount currently on deposit in the Tidelands
Lease Account is equal to or exceeds the amount of the Tidelands Lease Required
Payment.][OR][(2):] The amount currently on deposit in the Tidelands Lease
Account is less than the amount of the
Page 1 of 2
EXHIBIT D-1
Tidelands Lease Required Payment. Attached hereto as ATTACHMENT 1 is a Tidelands
Lease Certificate submitted in accordance with SECTION 6.1(c) of the Agreement.]
The Disbursement Agent, the Trustee and the Independent Construction
Consultant are each entitled to rely on representations, warranties and
certifications. Capitalized terms used in this certificate that are otherwise
not defined shall have the meaning assigned in the Agreement.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi Corp.,
as Issuer(1)
By:
--------------------------------------------------
Name:
Title:
By:
--------------------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 2 of 2
EXHIBIT D-1
SCHEDULE 1 TO EXHIBIT D-1
AVAILABLE CONSTRUCTION FUNDS SCHEDULE
Prepared as of: _______________________, 20__
A Additional Pre-Operating Revenue Anticipated (as noted on Project Budget) to be earned from the
Construction Disbursement Account or the Issuer's Payment Account. $______________
B Additional Pre-Operating Revenue earned from investments in the Construction Disbursement Account or the
Issuer's Payment Account, as of ______________, 20__ which date is no more than 30 days prior to the date
of this Available Construction Funds Schedule. $______________
C Additional Pre-Operating Revenue anticipated to be earned, from investments in the Construction
Disbursement Account or the Issuer's Payment Account, from the date of this Available Construction Funds
Schedule through the date Facility anticipated to be Operating $______________
D Total Additional Pre-Operating Revenue anticipated to be earned on the Construction Disbursement Account or
the Issuer's Payment Account (Sum of B+C). $______________
E Additional Pre-Operating Revenue Shortfalls/Surplus (A-D). $______________
F The Amount of FF&E Financing that the Issuer has incurred or reasonably expects to incur, or the net
proceeds of the Additional Notes that the Issuer has issued or expects to issue, in accordance with the
Indenture (as adjusted pursuant to clause (y) of the definition of the Additional Pre-Opening Revenue). $______________
G Other Additional Pre-Operating Revenue [Attach additional pages to document that such amounts constitute
Additional Pre-Operating Revenue] $______________
H Total Additional Pre-Operating Revenue (D+F+G) $______________
I Original Allocation $______________
J Additional equity, Loss Proceeds or other amounts deposited into the Construction Disbursement Account $______________
K Total Disbursements from the Construction Disbursement Account $______________
L The proceeds of FF&E Financing that the Issuer has expended in connection with the Facility.] $______________
M Available Construction Funds (I+J - (K+L)) $______________
Page 1 of 1
SCHEDULE 1 TO EXHIBIT ▇-▇
▇▇▇▇▇▇▇▇▇▇ ▇ ▇▇ ▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇▇▇▇▇ LEASE CERTIFICATE
Page 1 of 1
ATTACHMENT 1 TO EXHIBIT D-1
EXHIBIT D-2 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF PROJECT COST SCHEDULE CERTIFICATE
[Date]
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Project Cost Schedule Certificate
Ladies and Gentlemen:
This certificate is delivered pursuant to SECTION 5.5 of that certain Cash
Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which you are a party. Premier Entertainment Biloxi LLC
("PREMIER") and Premier Finance Biloxi Corp. ("PFC", and jointly and severally
with Premier, the "ISSUER") hereby represents, warrants and certifies that:
(a) The attached Project Cost Schedule, attached hereto as SCHEDULE 1, is
true and correct in all material respects.
(b) The Issuer reasonably believes that the total amount set forth under
the heading "Total Remaining Costs" in Part I of such Project Cost Schedule for
column (iii) is the amount of Remaining Costs as of the date of such Project
Cost Schedule.
(c) The amount set forth in Row M of Part II of such Project Cost Schedule
is the amount of Available Construction Funds as of the date of such Project
Cost Schedule.
Page 1 of 2
EXHIBIT D-2
The Independent Construction Consultant is entitled to rely on the
foregoing representations, warranties and certifications. Capitalized terms used
in this certificate that are otherwise not defined shall have the meaning
assigned in the Agreement.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 2 of 2
EXHIBIT D-2
SCHEDULE 1 TO EXHIBIT D-2
PROJECT COST SCHEDULE CERTIFICATE
Prepared as of: ____________________________, 20__
I. PROJECT COSTS
CONSTRUCTION EXPENSES - HARD COSTS
(iii)
Total estimated
additional amounts to
be paid after the date
of this Schedule to
complete the tasks
(i) (ii) included in such Line
Hard Costs paid from Accrued and unpaid Item through the date (v)
the Issuance Date to Retainage Amounts from the Issuer reasonably (iv) Expected
the date of this the Issuance Date to estimates the Initial Remaining Budgeted Line Item
Line Item from Project Schedule with respect the date of this Operating Date will Amount from the Surplus or
Budget to such line item Schedule occur Project Budget Cost Overrun
CONSTRUCTION EXPENSES - SOFT COSTS
(iii)
Total estimated
additional amounts to
be paid after the date
of this Schedule to
complete the tasks
(i) (ii) included in such Line
Soft Costs paid from Accrued and unpaid Item through the date (v)
the Issuance Date to Retainage Amounts from the Issuer reasonably (iv) Expected
the date of this the Issuance Date to estimates the Initial Remaining Budgeted Line Item
Line Item from Project Schedule with respect the date of this Operating Date will Amount from the Surplus or
Budget to such line item Schedule occur Project Budget Cost Overrun
Page 1 of 3
SCHEDULE 1 TO EXHIBIT D-2
PRE-OPENING EXPENSES
(iii)
Total estimated
(i) (ii) additional amounts to
Costs paid from the Accrued and unpaid be paid after the date (v)
Issuance Date to the Retainage Amounts from of this Schedule to (iv) Expected
date of this Schedule the Issuance Date to complete the tasks Remaining Budgeted Line Item
Line Item from Project with respect to such the date of this included in such Line Amount from the Surplus or
Budget Line Item Schedule Item Project Budget Cost Overrun
TOTAL REMAINING COSTS
Total
1 (iii) [Total Estimated Additional Amounts to be Paid after the Date of this
Schedule to complete the tasks set forth in such line item] includes
amounts described in (ii) [Accrued and Unpaid Retainage Amount to Date]
2 (v) [Expected Line Item Surplus/ or Cost Overrun] equals (iv) [Remaining
Budgeted Amount from the Project Budget] minus the sum of (ii) [Accrued and
Unpaid Retainage Amount to Date] plus (iii) [Total Estimated Additional
Amounts to be Paid after the Date of this Schedule to Complete the Tasks
Set Forth in Such Line Item]
3 Sum of estimated Additional Amounts (Construction Expenses - Hard Costs,
Construction Expenses - Soft Costs, and Pre-Operating Expenses) to be paid
after the date of this Schedule
II. ADDITIONAL PRE-OPERATING REVENUE
A Additional Pre-Operating Revenue anticipated (as noted on Project Budget) to be earned from the
Construction Disbursement Account or the Issuer's Payment Account. $______________
B Additional Pre-Operating Revenue earned from investments in the Construction Disbursement Account or the
Issuer's Payment Account, as of ____________ __, 20__ which date is no more than 30 days prior to the date
of this Project Cost Schedule. $______________
C Additional Pre-Operating Revenue anticipated to be earned, from investments in the Construction
Disbursement Account or the Issuer's Payment Account, from the date of this Project Cost Schedule through
the date Facility anticipated to be Operating $______________
D Total Additional Pre-Operating Revenue anticipated to be earned on the Construction Disbursement Account or
the Issuer's Payment Account (Sum of B+C). $______________
E Additional Pre-Operating Revenue Shortfalls/Surplus (A-D). $______________
F The Amount of FF&E Financing that the Issuer has incurred or reasonably expects to incur, or the net
proceeds of the Additional Notes that the $______________
Page 2 of 3
SCHEDULE 1 TO EXHIBIT D-2
Issuer has issued or expects to issue, in accordance with the Indenture (as adjusted pursuant to clause (y)
of the definition of the Additional Pre-Opening Revenue). $______________
G Other Additional Pre-Operating Revenue [Attach additional pages to document that such amounts constitute
Additional Pre-Operating Revenue]. $______________
H Total Additional Pre-Operating Revenue (D+F+G+H). $______________
I Original Allocation. $______________
J Additional equity, Loss Proceeds or other amounts deposited into the Construction Disbursement Account. $______________
K Total Disbursements from the Construction Disbursement Account. $______________
L The proceeds of FF&E Financing that the Issuer has expended in connection with the Facility. $______________
M Available Construction Funds (H+J - (K+L)). $______________
III. OVERALL COST OVERRUN OR SURPLUS
A. Available Construction Funds (last item from Table II above) minus total Remaining Costs (last item
from Table I above). $______________
Page 3 of 3
SCHEDULE 1 TO EXHIBIT D-2
EXHIBIT D-3
FINISHES LINE-ITEMS AND AMOUNTS
(from Initial Project Budget)
Page 1 of 1
EXHIBIT D-3
EXHIBIT E TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
PROJECT BUDGET AMENDMENT CERTIFICATE
[Date]
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Amendment of Project Budget
Ladies and Gentlemen:
The Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER") requests
that the Project Budget for the Facility be amended as set forth on SCHEDULE 1
to this certificate. This certificate is delivered pursuant to SECTION 5.1.3 of
that certain Cash Collateral and Disbursement Agreement dated as of January 23,
2004 (the "AGREEMENT"), to which the Disbursement Agent is a party. In
connection with the requested Project Budget amendment, the Issuer represents,
warrants and certifies as follows:
(a) Such amendment is reasonably necessary in order to complete the work
with respect to the Facility represented by such line item in the
Project Budget that is amended.
Page 1 of 3
EXHIBIT E
(b) Funding to pay the costs represented by any line item increase is
available from one or more of the sources set forth in SECTION 5.1.1
of the Agreement, as set forth on SCHEDULE 1 hereto.
(c) The Project Budget in effect immediately prior to the proposed
amendment is attached to this Project Budget Amendment Certificate as
SCHEDULE 2, and the Project Budget which will be in effect upon
effectiveness of the proposed amendment is attached to this Project
Budget Amendment Certificate as SCHEDULE 3.
(d) Immediately following any such increase: (i) the Project Budget will
continue to provide for construction of improvements which are
substantially consistent with or in excess of the Minimum Facilities;
(ii) the Project Budget will permit the Initial Operating Date to
occur on or prior to the Operating Deadline; and (iii) the Project
Budget will reasonably establish the line item components of the work
required to be undertaken in order to complete construction of the
Facility, and will reasonably establish the cost of completing each
line item component of such work.
(e) To the Issuer's Knowledge, the construction performed as of the date
hereof is substantially in accordance with the Final Plans. The Issuer
reasonably believes that the Initial Operating Date will occur on or
prior to the Operating Deadline.
(f) After giving effect to the proposed amendment, the Project Budget
accurately sets forth in all material respects the anticipated
Construction Expenses through completion of the construction of the
Facility, allocated among the various line item components thereof
identified on the Project Budget in effect on the Issuance Date.
(g) After giving effect to the proposed amendment, the Project Budget
accurately sets forth the anticipated Pre-Operating Expenses both in
the aggregate and for each line item prior to the Initial Operating
Date.
(h) After giving effect to the proposed amendment, there are sufficient
Available Construction Funds to pay for the anticipated costs
described in Paragraphs (f) and (g) above and any other expenses the
Issuer reasonably believes will need to be incurred by the Issuer in
order to cause the Initial Operating Date to occur on or prior to the
Operating Deadline.
(i) as of the date hereof, no Event of Default exists, and the proposed
amendment will not constitute, result in, nor create an Event of
Default;
Page 2 of 3
EXHIBIT E
(j) The undersigned certifies that this Project Budget Amendment
Certificate is authorized hereby and is permitted pursuant to the
Agreement and the Indenture and all conditions precedent thereto have
been met; and
(k) SCHEDULE 1 attached hereto is true and correct in all material
respects.
The Disbursement Agent, the Independent Construction Consultant and the
Trustee are entitled to rely on the foregoing representations, warranties and
certifications.
Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Agreement.
Attached to this Project Budget Amendment Certificate as EXHIBITS 1 through
3 are certificates from the General Contractor (if the Construction Budget
Amendment affects the budgeted amounts for Hard Costs associated with any of its
work under the GMP Contract (including "Direct Purchase Items" as defined in the
GMP Contract), the Independent Construction Consultant, and the Architect (if
the Construction Budget Amendment affects that portion of the Facility
constructed pursuant to Plans prepared by it).
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 3 of 3
EXHIBIT E
SCHEDULE 1 TO EXHIBIT E
Amendment No.__ to Project Budget.
I. INCREASES TO LINE ITEMS: [REPEAT AS
NECESSARY]
A. The following line item is increased: _____________________
Old Amount of Line Item: _____________________
Amount of Increase: _____________________
New Total For Line Item: _____________________
Source of Funds For Increase: _____________________
Source Amount
Realized Savings _______________
Additional Pre-Operating Revenue _______________(1)
Contingency _______________
Total _______________
I. DECREASES TO LINE ITEMS: [REPEAT AS
NECESSARY]
A. The following line item is decreased: _____________________
Old Amount of Line Item: _____________________
Amount of Decrease: _____________________
New Amount of Line Item: _____________________
----------
(1). Attached deposit slip for deposit of funds into the Construction
Disbursement Account to evidence additional funds or if such increase in
Additional Pre-Operating Revenue results from an increase in investment
income, as described in the definition of Additional Pre-Operating
Revenue, then a copy of the latest submitted Available Construction Funds
Certificate shall be attached.
Page 1 of 3
SCHEDULE 1 TO EXHIBIT E
Reason For Decrease of Line Item (check box as appropriate):
/ / Realized Savings
/ / Reduction in "Contingency" Line Item
III. NEW PROJECT BUDGET TOTALS
The total Project Budget for the
Facility is now: $_____________
The amount disbursed to date for
the Facility is now: $_____________
Remaining amounts to be spent: $_____________
Available Construction Funds for Facility: $_____________
IV. REALIZED SAVINGS: Either the Issuer is not decreasing line items as a
result of Realized Savings or each of the following statements is true and
correct:
A. Such savings are not obtained in a manner that will cause the
Facility to be inconsistent with the Minimum Facilities.
B. Following the subject amendment to the Project Budget,
(i) the total amount allocated for the line items for Finishes,
as such line items are set forth on EXHIBIT D-3 to the Agreement, will
not be reduced by more than 15% of the sum of the amounts allocated to
such line items on EXHIBIT D-3 to the Agreement,
(ii) the "pre-opening expenses" line item on the Project Budget
will not be evidenced by more than 15%,
(iii) any modifications to the "contingency" lien item on the
Project Budget are permitted under SECTION 5.1.1(c) of the Agreement, and
(iv) the "owner supplied FF&E", "FF&E", "working capital and
machine loads" and the "excess liquidity" line items on the Project
Budget will not be reduced.
C. Either of the following is true and correct (check the box as
appropriate) for line item ____ [REPEAT AS NECESSARY]:
/ / 1. all work, improvements and acquisitions covered by the line
item have been completed; or
Page 2 of 3
SCHEDULE 1 TO EXHIBIT E
/ / 2. all of the following have been satisfied: (a) the Issuer
has entered into Construction Contracts providing for the completion of all
tasks set forth in such line item and for all materials and services required
for such tasks for a guaranteed maximum price for each such Construction
Contract; (b) such Construction Contracts, other than the "Direct Purchase
Items" as defined in GMP Contract, provide that the portion of the Facility
covered by such line item will be completed by a specified date consistent with
the timely construction of the Facility and for a cost less than or equal to the
aggregate guaranteed maximum prices in such Construction Contracts; (c) the
aggregate guaranteed maximum prices in such Construction Contracts is equal to
or less than the revised Total Budgeted Amount for such line item and (d) if
such amendment includes Realized Savings for the "GMP Contract" line item, all
work or improvements contemplated by such line item are not subject to any
allowances under the GMP Contract and Final Plans have been completed with
respect to such work or improvements as evidenced by a Final Plans Amendment
Certificate delivered in accordance with SECTION 5.6 of the Agreement.
Page 3 of 3
SCHEDULE 1 TO EXHIBIT E
SCHEDULE 2 TO EXHIBIT E
EXISTING PROJECT BUDGET
Page 1 of 1
SCHEDULE 2 TO EXHIBIT E
SCHEDULE 3 TO EXHIBIT E
NEW PROJECT BUDGET
Page 1 of 1
SCHEDULE 3 TO EXHIBIT E
EXHIBIT 1 TO EXHIBIT E
CERTIFICATE OF GENERAL CONTRACTOR
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Project Budget Amendment Certificate dated __________, 20__ of Premier
Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi Corp.
("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
General Contractor hereby certifies as follows:
(a) The General Contractor has reviewed the above referenced Project
Budget Amendment Certificate and the Cash Collateral and Disbursement Agreement
dated as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party,
to the extent necessary to understand the defined terms contained herein and in
the Project Budget Amendment Certificate that are incorporated by reference from
the Agreement and to provide the certification contained herein.
Page 1 of 2
EXHIBIT 1 TO EXHIBIT E
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Agreement.
(b) The General Contractor hereby certifies and confirms the accuracy of
the certifications in Paragraphs (a), (c), (d), (e) (as to the first sentence
thereof) and (f) of the above-referenced Project Budget Amendment Certificate as
they apply to that portion of the Facility to be constructed pursuant to the GMP
Contract (including the "Direct Purchase Items" as defined in the GMP Contract);
provided that where any certification of the Issuer is limited to the Issuer's
Knowledge for the purpose of this certificate such certification shall instead
be made to the General Contractor's Knowledge.
(c) The General Contractor certifies and confirms that, with respect to
that portion of the Facility to be constructed pursuant to the GMP Contract, it
reasonably believes that the Initial Operating Date will occur on or prior to
the Operating Deadline.
(d) The undersigned has no reason to believe that the proposed amendment
is not consistent with the Final Plans and such further Plans that the
undersigned reasonably believes will become Final Plans.
The Issuer, the Disbursement Agent, the Trustee and the Independent
Construction Consultant are entitled to rely on the foregoing representations,
warranties and certifications in authorizing and making the amendment to the
Project Budget.
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT E
EXHIBIT 2 TO EXHIBIT E
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Vice President
Re: Project Budget Amendment Certificate dated __________, 20__ of the
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance
Biloxi Corp. ("PFC", and jointly and severally with Premier, the
"ISSUER")
Ladies and Gentlemen:
Professional Associates Construction Services, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies as follows:
(a) The Independent Construction Consultant has reviewed the above
referenced Project Budget Amendment Certificate and the Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which
the Issuer and the undersigned are a party, to the extent necessary to
understand the defined terms contained herein and in the Project Budget
Amendment Certificate that are incorporated by reference from the Agreement and
to provide the certification contained herein. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Agreement.
(b) The Independent Construction Consultant hereby certifies and confirms
the accuracy of the certifications in Paragraphs (a), (c), (d) (to the best of
its Knowledge after due
Page 1 of 2
EXHIBIT 2 TO EXHIBIT E
inquiry), (e), (f) (to the best of its Knowledge after due inquiry) and (k) of
the above-referenced Project Budget Amendment Certificate; provided that where
any certification of the Issuer is limited to the Issuer's Knowledge for the
purpose of this certificate such certification shall instead be made to the
Independent Construction Consultant's Knowledge.
(c) The Independent Construction Consultant certifies and confirms that it
believes that the Initial Operating Date will occur on or prior to the Operating
Deadline.
(d) The Independent Construction Consultant last inspected the Facility
on _________.
The Disbursement Agent, the Trustee and the Issuer are entitled to rely on
the foregoing representations, warranties and certifications in authorizing and
making the amendment to the Project Budget.
PROFESSIONAL ASSOCIATES
CONSTRUCTION SERVICES, INC.
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 2 TO EXHIBIT E
EXHIBIT 3 TO EXHIBIT E
CERTIFICATE OF ARCHITECT
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Project Budget Amendment Certificate dated __________, 20__ of the Premier
Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi Corp.
("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd. (the "ARCHITECT") hereby certifies as follows:
(a) The Architect has reviewed the above referenced Project Budget
Amendment Certificate and the Cash Collateral and Disbursement Agreement dated
as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party, to the
extent necessary to understand the defined terms contained herein and in the
Project Budget Amendment Certificate that are incorporated by reference from the
Agreement and to provide the certification contained herein. Capitalized terms
used herein and not otherwise defined shall have the meaning ascribed to them in
the Agreement.
Page 1 of 2
EXHIBIT 3 TO EXHIBIT E
(b) The Architect hereby certifies and confirms the accuracy of the
certifications in Paragraphs (a), (c), (d), (e), (f) and (k) of the
above-referenced Project Budget Amendment Certificate; provided that where any
certification of the Issuer is limited to the Issuer's Knowledge for the purpose
of this certificate such certification shall instead be made to the Architect's
Knowledge.
(c) The Architect certifies and confirms that it believes that the Initial
Operating Date will occur on or prior to the Operating Deadline.
(d) The Architect last inspected the Facility on _________.
The Issuer, the Disbursement Agent, the Trustee and the Independent
Construction Consultant are entitled to rely on the foregoing representations,
warranties and certifications in authorizing and making the amendment to the
Project Budget.
▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 3 TO EXHIBIT E
EXHIBIT F TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
CONSTRUCTION CONTRACT AMENDMENT CERTIFICATE
[Date]
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Amendment No. ___ to Construction Contract dated ___________ (the
"CONSTRUCTION CONTRACT")between __________________________ and Premier
Entertainment Biloxi LLC ("PREMIER")
Ladies and Gentlemen:
Premier notifies you of the amendment to the above-reference Construction
Contract as set forth on SCHEDULE 1 to this certificate. This certificate is
delivered pursuant to SECTION 5.2 of that certain Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which
the Disbursement Agent is a party. Capitalized terms used in this certificate
that are otherwise not defined shall have the meaning assigned in the Agreement.
In connection with the Construction Contract Amendment, Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER") hereby
represents, warrants and certifies as follows:
(a) After giving effect to such Construction Contract Amendment (and any
related amendment to the Project Budget):
Page 1 of 3
EXHIBIT F
(i) The Project Budget will provide for construction of
improvements which are substantially consistent with or in excess of
the Minimum Facilities;
(ii) If the Construction Contract Amendment will effect a
reduction in the scope of the work to be performed by Contractor, then
the work eliminated from the scope of work either: (A) is not
necessary for the completion of the Minimum Facilities, or (B) to the
extent necessary for the completion of the Minimum Facilities or
Finishes (as the same may be adjusted in accordance with SECTION 5.1.2
of the Agreement), will be completed by Contractors under the new or
amended Construction Contracts, copies of which have been provided to
you.
(iii) The Facility can be completed within the line items
pertaining to the Construction Contract: (A) in a timely manner so as
to permit the Initial Operating Date to occur on or prior to the
Operating Deadline; and (B) within the aggregate amounts specified for
the line item on the Project Budget.
(b) After giving effect to the proposed Construction Contract Amendment
(and any related amendment to the Project Budget), the Project Budget
accurately sets forth in all material respects the anticipated
Construction Expenses through completion of the construction of the
Facility, allocated among the various line item components thereof
identified on the Project Budget in effect on the Issuance Date.
(c) After giving effect to the proposed Construction Contract Amendment
(and any related amendment to the Project Budget), the Project Budget
accurately sets forth in all material respects all anticipated
Pre-Opening Expenses through the Initial Operating Date.
(d) As of the date hereof, no Event of Default exists, and the proposed
Construction Contract Amendment (and any related amendment to the
Project Budget) will not constitute, result in, nor create an Event of
Default
The undersigned certifies that this Construction Contract Amendment
Certificate is authorized hereby and is permitted pursuant to the Agreement and
the Indenture, and all conditions precedent thereto have been met.
The Disbursement Agent, the Independent Construction Consultant and the
Trustee are entitled to rely on the foregoing representations, warranties and
certifications.
Attached to this Construction Contract Amendment Certificate as EXHIBITS 1
through 3 are certificates from the General Contractor (only for Hard Costs
under the GMP Contract (including "Direct Purchase Items" as defined in the GMP
Contract), unless such Hard Costs relate to an owner change directive issued by
Premier under the GMP Contract), the Independent Construction Consultant and the
Architect (for Hard Costs with respect only to Plans prepared by it).
Page 2 of 3
EXHIBIT F
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 3 of 3
EXHIBIT F
SCHEDULE 1 TO EXHIBIT F
(COPY OF EXECUTED CONSTRUCTION CONTRACT AMENDMENT)
Page 1 of 1
SCHEDULE 1 TO EXHIBIT F
[EXHIBIT 1 TO EXHIBIT F]
[CERTIFICATE OF GENERAL CONTRACTOR
CONSTRUCTION CONTRACT AMENDMENT CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Construction Contract Amendment Certificate dated __________, 20__ relating
to Construction Contract dated __________ (the "CONSTRUCTION CONTRACT")
with [Contractor] (the "CONTRACTOR")
Ladies and Gentlemen:
▇▇▇ ▇▇▇▇▇▇▇▇ Corp (the "GENERAL CONTRACTOR") hereby certifies as follows:
(a) The General Contractor has reviewed the above-referenced Construction
Contract Amendment Certificate and the Cash Collateral and Disbursement
Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is
a party, to the extent necessary to understand the defined terms contained
herein and in the Construction Contract Amendment Certificate that are
incorporated by reference from the Agreement, and to provide the certification
contained
Page 1 of 2
EXHIBIT 1 TO EXHIBIT F
herein. Capitalized terms used herein and not otherwise defined shall
have the meanings ascribed to them in the Agreement.
(b) The General Contractor hereby certifies and confirms: (i) the accuracy
of the certifications in Paragraphs (a) and (b) of the above-referenced
Construction Contract Amendment Certificate as they apply to the GMP Contract
(including "Direct Purchase Items" as defined in the GMP Contract); and (ii) to
the General Contractor's Knowledge, the accuracy of the certifications in
Paragraphs (a) and (b) of the above-referenced Construction Contract Amendment
Certificate as they apply to any other Construction Contracts.
The Disbursement Agent, the Trustee and the Independent Construction
Consultant are entitled to rely on the foregoing representations, warranties and
certifications.
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT F
EXHIBIT 2 TO EXHIBIT F
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
CONSTRUCTION CONTRACT AMENDMENT CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Construction Contract Amendment Certificate dated __________, 20__ relating
to Construction Contract dated __________ (the "CONSTRUCTION CONTRACT")
with __________ (the "CONTRACTOR")
Ladies and Gentlemen:
Professional Associates Construction Services, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies as follows:
(a) The Independent Construction Consultant has reviewed the
above-referenced Construction Contract Amendment Certificate and the Cash
Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which the Issuer is a party, to the extent necessary to
understand the defined terms contained herein and in the Construction Contract
Amendment Certificate that are incorporated by reference from the Agreement, and
to provide the certification contained herein. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Agreement.
Page 1 of 2
EXHIBIT 2 TO EXHIBIT F
(b) The Independent Construction Consultant hereby certifies and confirms
the accuracy of the certifications in Paragraphs (a) and (b) of the
above-referenced Construction Contract Amendment Certificate.
(c) The Independent Construction Consultant last inspected the Facility
on _________.
The Disbursement Agent, the Trustee and the Issuer are entitled to rely on
the foregoing representations, warranties and certifications.
PROFESSIONAL ASSOCIATES
CONSTRUCTION SERVICES, INC.
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 2 TO EXHIBIT F
EXHIBIT 3 TO EXHIBIT F
CERTIFICATE OF ARCHITECT
CONSTRUCTION CONTRACT AMENDMENT CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Construction Contract Amendment Certificate dated __________, 20__ of
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd. (the "ARCHITECT") hereby certifies as follows:
(a) The Architect has reviewed the above-referenced Construction Contract
Amendment Certificate and the Cash Collateral and Disbursement Agreement dated
as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party, to the
extent necessary to understand the defined terms contained herein and in the
Construction Contract Amendment Certificate that are incorporated by reference
from the Agreement, and to provide the certification contained
Page 1 of 2
EXHIBIT 3 TO EXHIBIT F
herein. Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to them in the Agreement.
(b) The Architect hereby certifies and confirms the accuracy of the
certifications in Paragraphs (a) and (b) of the above-referenced Construction
Contract Amendment Certificate.
(c) The Architect last inspected the Facility on _________.
The Issuer, the Disbursement Agent, the Trustee and the Independent
Construction Consultant are entitled to rely on the foregoing representations,
warranties and certifications in authorizing the amendment to the Construction
Contract.
▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.
By
-------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 3 TO EXHIBIT F
EXHIBIT G-1 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF ISSUER'S INITIAL OPERATING DATE DISBURSEMENT REQUEST CERTIFICATE
__________, 20__
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Copies to:
▇▇▇ ▇▇▇▇▇▇▇▇ Corp
▇.▇. ▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇ III
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
U.S. Bank National Association
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Cash Collateral and Disbursement Agreement
Issuer's Initial Operating Date Disbursement Request Certificate
Ladies and Gentlemen:
This certificate is delivered to you pursuant to SECTION 4.6.1 of that
certain Cash Collateral and Disbursement Agreement dated as of January 23, 2004
(the "AGREEMENT"), to which the Disbursement Agent is a party. Capitalized terms
used in this certificate that are otherwise not defined shall have the meanings
assigned to them in the Agreement. In connection with the requested
disbursements, the Issuer hereby represents, warrants and certifies as follows:
(a) The Facility is Operating and has been Operating uninterrupted for at
least 10 days prior to the date hereof.
Page 1 of 2
EXHIBIT G-1
(b) The Permitted Amounts currently unpaid are as follows: (i) $[_______]
for the Punchlist Completion Amount; (ii) $[___] for the Disputed Amounts with
respect to the GMP Contract; (iii) $[_______] for the Disputed Amounts with
respect to the Construction Contracts other than the GMP Contract; and (iv)
$[____] for Retainage Amounts.
(c) All amounts required to be paid to Contractors in connection with
causing the Initial Operating Date to occur have been paid, other than Permitted
Amounts, so long as (i) 175% of the Punchlist Completion Amount for such
uncompleted Punchlist Items shall have been reserved in the Construction
Disbursement Account; (ii) 125% of the Disputed Amounts with respect to the GMP
Contract shall have been reserved in the Construction Disbursement Account;
(iii) 200% of the Disputed Amounts for any Construction Contract other than the
GMP Contract shall have been reserved in the Construction Disbursement Account;
and (iv) 100% of the Retainage Amounts shall have been reserved in the
Construction Disbursement Account (this clause (iv) collectively, with amounts
reserved under clauses (i), (ii) and (iii), the "RESERVED AMOUNT");
(d) The Issuer has received lien releases, affidavits and agreements from
Premier and each Contractor in the form of EXHIBIT ▇-▇, ▇-▇ ▇▇ ▇-▇, as
applicable (PROVIDED, HOWEVER, lien releases, affidavits and agreements need not
be provided: (i) with respect to Permitted Amounts described in clause (c)
above; and (ii) from a single Contractor with a contract price (or expected
aggregate amount to be paid in the case of "cost plus" contracts) of less than
$100,000);
(e) There are no mechanic's liens or other liens, charges or orders filed
against the Facility or any portion thereof by any Contractor or any other party
that have not been discharged of record or bonded, other than Permitted Liens;
and
(f) Attached hereto as EXHIBIT 1 is the signed Independent Construction
Consultant's Certificate.
The Disbursement Agent, the Trustee and the Independent Construction
Consultant are entitled to rely on the foregoing representations, warranties and
certifications in authorizing and making the disbursement requested below.
Page 2 of 2
EXHIBIT G-1
The Issuer hereby irrevocably instructs the Disbursement Agent to disburse
$[________________] from the Construction Disbursement Account (excluding the
Reserved Amount) to the following wire account: [Bank, City, State],
ABA#_______, for the account of the Issuer, Account No. __________, in
accordance with SECTION 4.6 of the Agreement.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
Page 3 of 2
EXHIBIT G-1
EXHIBIT 1 TO EXHIBIT G-1
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
ISSUER'S INITIAL OPERATING DATE DISBURSEMENT REQUEST CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Issuer's Initial Operating Date Disbursement Request Certificate dated
__________, 20__ of Premier Entertainment Biloxi LLC ("PREMIER") and
Premier Finance Biloxi Corp. ("PFC", and jointly and severally with
Premier, the "ISSUER")
Ladies and Gentlemen:
Professional Associates Construction Services, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies as follows:
(a) The Independent Construction Consultant has reviewed the above
referenced Issuer's Initial Operating Date Disbursement Request Certificate and
the Cash Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which the Issuer and the undersigned are parties to the extent
necessary to understand the defined terms contained herein and in the Issuer's
Disbursement Request Certificate that are incorporated by reference from the
Agreement, and to provide the certification contained herein. Capitalized terms
used herein and not otherwise defined shall have the meaning ascribed to them in
the Agreement.
(b) The Independent Construction Consultant hereby certifies and confirms
the accuracy of the certifications contained in Paragraph (a), (b) (to the best
of its Knowledge) and (c) (to the best of its Knowledge without any duty to
investigate) of the above-referenced Issuer's Initial Operating Date
Disbursement Request Certificate.
Page 1 of 2
EXHIBIT 1 TO EXHIBIT G-1
(c) The Independent Construction Consultant last inspected the Facility
on _________.
The Disbursement Agent, the Trustee and the Issuer are entitled to rely on
the foregoing representations, warranties and certifications.
PROFESSIONAL ASSOCIATES CONSTRUCTION
SERVICES, INC.
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT G-1
EXHIBIT G-2 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
CERTIFICATE OF OBJECTION OF GENERAL CONTRACTOR TO
ISSUER'S INITIAL OPERATING DATE DISBURSEMENT REQUEST CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Issuer's Initial Operating Date Disbursement Request Certificate dated
______________, 20__ of Premier Entertainment Biloxi LLC ("PREMIER")
and Premier Finance Biloxi Corp. ("PFC", and jointly and severally
with Premier, the "ISSUER")
Ladies and Gentlemen:
▇▇▇ ▇▇▇▇▇▇▇▇ Corp (the "GENERAL CONTRACTOR") hereby certifies as follows:
(a) The General Contractor has reviewed the above referenced Issuer's
Initial Operating Date Disbursement Request Certificate and the Cash Collateral
and Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to
which the Issuer is a party, to the extent necessary to understand the defined
terms contained herein and therein that are incorporated by reference from the
Agreement and to provide the certification contained herein. Capitalized
Page 1 of 2
EXHIBIT G-2
terms used herein and not otherwise defined shall have the meanings ascribed to
them in the Agreement.
(b) The General Contractor has a reasonable basis in good faith for
disputing the Permitted Amounts described in paragraph (b) of the Issuer's
Initial Operating Date Disbursement Request Certificate, and reasonably believes
that the correct amounts for such items are as follows: (i) $[_________] for the
Punchlist Completion Amount; (ii) $[______] for the Disputed Amounts with
respect to the GMP Contract; and (iii) $[_____] for Retainage Amounts.
The Issuer, the Disbursement Agent, the Trustee and the Independent
Construction Consultant are entitled to rely on the foregoing representations,
warranties and certifications in authorizing and making the disbursement
requested in the Issuer's Initial Operating Date Disbursement Request
Certificate.
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT G-2
EXHIBIT G-3 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF ISSUER'S FINAL DISBURSEMENT REQUEST CERTIFICATE
__________, 20__
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Cash Collateral and Disbursement Agreement
Issuer's Final Disbursement Request Certificate
Ladies and Gentlemen:
This certificate is delivered to you pursuant to SECTION 4.7 of that
certain Cash Collateral and Disbursement Agreement dated as of January 23, 2004
(the "AGREEMENT"), to which the Disbursement Agent is a party. Capitalized terms
used in this certificate that are otherwise not defined shall have the meanings
assigned to them in the Agreement. In connection with the requested
disbursements, the Issuer hereby represents, warrants and certifies as follows:
(a) The Facility is Operating and has been Operating uninterrupted for at
least 10 days prior to the date hereof;
Page 1 of 2
EXHIBIT G-3
(b) The Issuer has received final lien releases, affidavits, and
agreements from Premier and from each Contractor in the form of EXHIBIT ▇-▇, ▇-▇
▇▇ ▇-▇, as applicable copies of which are attached hereto (PROVIDED, HOWEVER,
lien releases, affidavits and agreements need not be provided from a single
Contractor with a contract price (or expected aggregate amount to be paid in the
case of "cost plus" contracts) of less than $100,000);
(c) There are no mechanic's liens or other liens, charges or orders filed
against the Facility or any portion thereof by any Contractor or any other party
that have not been discharged of record or bonded other than Permitted Liens;
and
(d) Attached hereto as EXHIBITS 1 and 2 are the signed certificates of the
Independent Construction Consultant and the General Contractor.
The Disbursement Agent, the Trustee and the Independent Construction
Consultant are entitled to rely on the foregoing representations, warranties and
certifications in authorizing and making the disbursement requested below.
The Issuer hereby irrevocably instructs the Disbursement Agent to disburse
all remaining sums from the Construction Disbursement Account to the following
wire account: [Bank, City, State], ABA#_______, for the account of the Issuer,
Account No. __________, in accordance with SECTION 4.7 of the Agreement.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT G-3
EXHIBIT 1 TO EXHIBIT G-3
CERTIFICATE OF GENERAL CONTRACTOR
ISSUER'S FINAL DISBURSEMENT REQUEST CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Issuer's Final Disbursement Request Certificate dated ______________,
20__ of Premier Entertainment Biloxi LLC ("PREMIER") and Premier
Finance Biloxi Corp. ("PFC", and jointly and severally with Premier,
the "ISSUER")
Ladies and Gentlemen:
▇▇▇ ▇▇▇▇▇▇▇▇ Corp (the "GENERAL CONTRACTOR") hereby certifies as follows:
(a) The General Contractor has reviewed the above referenced Issuer's
Final Disbursement Request Certificate and the Cash Collateral and Disbursement
Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is
a party, to the extent necessary to understand the defined terms contained
herein and therein that are incorporated by reference from the Agreement and to
provide the certification contained herein. Capitalized terms used herein and
not otherwise defined shall have the meanings ascribed to them in the Agreement.
Page 1 of 2
EXHIBIT 1 TO EXHIBIT G-3
(b) The General Contractor hereby certifies and confirms the accuracy of
each of the certifications contained in Paragraphs (b) and (c); PROVIDED,
HOWEVER, that with respect to Paragraphs (b) and (c) solely as to Contractors
other than the General Contractor and Contractors party to the "Direct Purchase
Items" (as defined in the GMP Contract), this certification is limited to the
best of the General Contractor's Knowledge.
The Issuer, the Disbursement Agent, the Trustee and the Independent
Construction Consultant are entitled to rely on the foregoing representations,
warranties and certifications in authorizing and making the disbursement
requested in the Issuer's Final Disbursement Request Certificate.
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT G-3
EXHIBIT 2 TO EXHIBIT G-3
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
ISSUER'S FINAL DISBURSEMENT REQUEST CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Issuer's Final Disbursement Request Certificate dated __________, 20__
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
Professional Associates Construction Services, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies as follows:
(a) The Independent Construction Consultant has reviewed the above
referenced Issuer's Request Disbursement Certificate and the Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which
the Issuer and the undersigned are a party to the extent necessary to understand
the defined terms contained herein and in the Issuer's Final Disbursement
Request Certificate that are incorporated by reference from the Agreement, and
to provide the certification contained herein. Capitalized terms used herein and
not otherwise defined shall have the meaning ascribed to them in the Agreement.
(b) The Independent Construction Consultant hereby certifies and confirms
the accuracy of the certifications contained in Paragraph (a), (b) (to the best
of its Knowledge), and (c) of the above-referenced Issuer's Final Disbursement
Request Certificate.
Page 1 of 2
EXHIBIT 2 TO EXHIBIT G-3
(c) The Independent Construction Consultant last inspected the Facility
on _________.
The Disbursement Agent, the Trustee and the Issuer are entitled to rely on
the foregoing representations, warranties and certifications.
PROFESSIONAL ASSOCIATES CONSTRUCTION
SERVICES, INC.
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 2 TO EXHIBIT G-3
EXHIBIT G-4 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF TIDELANDS LEASE DISBURSEMENT REQUEST CERTIFICATE
__________, 20__
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Cash Collateral and Disbursement Agreement
Tidelands Lease Disbursement Request Certificate
Ladies and Gentlemen:
This certificate is delivered to you pursuant to SECTION 6 of that certain
Cash Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which the Disbursement Agent is a party. Capitalized terms used
in this certificate that are otherwise not defined shall have the meanings
assigned to them in the Agreement. In connection with the requested
disbursements, the Issuer hereby represents, warrants and certifies as follows:
(a) Premier Entertainment Biloxi LLC, a Delaware limited liability company
("PREMIER") hereby requests that you, in your capacity as Disbursement Agent
under the Agreement, distribute checks drawn on, or wire transfer from, the
Tidelands Lease Account to the Mississippi Secretary of State (the "PAYEE") in
the following amount: $_____________. Premier hereby irrevocably instructs the
Disbursement Agent, in accordance with SECTION 4.8 of the Agreement, to disburse
the requested amounts from the Tidelands Lease Account on behalf of Premier, to
the attention of the Assistant Secretary of State for Public Lands in the Office
of the Secretary of State in Jackson, Mississippi, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or to such other address specified by written
notice from the Secretary of State pursuant to SECTION [ ] of the Tidelands
Lease.
Page 1 of 2
EXHIBIT G-4
(b) Premier certifies that the requested amount herein is required to be
paid to the Payee pursuant to the provisions of the Tidelands Lease.
The Disbursement Agent is entitled to rely on the foregoing
representations, warranties and certifications in authorizing and making the
disbursement requested above.
PREMIER ENTERTAINMENT BILOXI LLC, a
Delaware limited liability company(1)
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 2 of 2
EXHIBIT G-4
EXHIBIT H-1 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
LONG FORM OF CONSENT TO SECURITY ASSIGNMENT OF CONSTRUCTION CONTRACT
(CONTRACTS OVER $1,000,000)
CONSENT AND AGREEMENT
(OWNER CONTRACTOR AGREEMENT)
This CONSENT AND AGREEMENT (OWNER CONTRACTOR AGREEMENT) (the
"CONSENT"), dated as of [___________], 2004, is executed by [________________],
a [______________________] (the "UNDERSIGNED"), 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 (as defined below) (together with its successors
and assigns from time to time under the Indenture, the "TRUSTEE").
RECITALS
A. THE FACILITY. Premier proposes to develop, construct and
operate the Hard Rock Hotel & Casino Biloxi, a full service gaming, hotel and
entertainment resort and certain related amenities to be developed upon
approximately 8.5 acres along the Mississippi Gulf Coast in Biloxi, Mississippi
(the "FACILITY").
B. FIRST MORTGAGE NOTES. Concurrently herewith, Premier and
Premier Finance Biloxi Corp, a Delaware corporation ("PFC" and together with
Premier, the "ISSUER") is issuing $160,000,000 aggregate principal amount of its
10 3/4% First Mortgage Notes due 2012 together with all other notes issued under
the Indenture, including all notes issued in exchange or replacement thereof,
the "FIRST MORTGAGE NOTES"), pursuant to that certain Indenture dated as of
January 23, 2004, among the Issuer and the Trustee (as amended, modified or
supplemented from time to time, the "INDENTURE"), to finance Project Costs. The
first priority liens in favor of the Trustee on behalf of the holders from time
to time of the First Mortgage Notes (collectively, the "SECURED PARTIES")
C. OWNER CONTRACTOR AGREEMENT. The Undersigned and Premier have
entered into that certain [Agreement Between Owner and Contractor] dated as of
[_____________], 20____, pursuant to which the Undersigned has agreed to
[___________________________] in connection with the Facility (as amended and
supplemented or modified from time to time in accordance with its terms and the
terms hereof, the "CONTRACT").
D. SECURITY AGREEMENT. Pursuant to that certain Pledge and
Security Agreement dated as of January 23, 2004 (the "SECURITY AGREEMENT"), by
and between Premier, PFC, the Trustee and the other parties named therein,
Premier has collaterally assigned its interest under the contracts between
Premier and any person pertaining to the construction of the Facility, including
the GMP Contract (the "CONSTRUCTION CONTRACTS") to the Trustee on behalf of the
Secured Parties.
AGREEMENT
NOW THEREFORE, the Parties hereby agree as follows:
1. The Undersigned consents to Premier's transfer, assignment, and
grant of a security interest in and to the Contract, as provided for in the
Security Agreement.
Page 1 of 8
EXHIBIT H-1
2. The Trustee shall be entitled (but not obligated) to cure any
defaults of Premier under the Contract. Upon receipt of notice from the Trustee,
the Undersigned agrees to accept such cure by the Trustee.
3. The Undersigned will not, without the prior written consent of
the Trustee, (i) cancel or terminate the Contract except as provided in the
Contract and in accordance with SECTION 4 hereof, or consent to or accept any
cancellation, termination or suspension thereof by Premier, (ii) sell or assign
any part of its interest in the Contract; or (iii) amend or modify the Contract
in any material respect unless a Construction Contract Amendment Certificate has
been delivered by Premier pursuant to SECTION 5.2 of the Cash Collateral and
Disbursement Agreement entered into among the Issuer, the Trustee, such
construction consultant and a disbursement agent thereunder (the "DISBURSEMENT
AGREEMENT").
4. The Undersigned will not terminate the Contract on account of
any default or breach of Premier thereunder without written notice to the
Trustee and first providing to the Trustee (i) ninety (90) days from the date
notice of default or breach is delivered to the Trustee to cure such default if
such default is the failure to pay amounts to the Undersigned which are due and
payable under the Contract or (ii) a reasonable opportunity, but not fewer than
one hundred twenty (120) days, to cure such breach or default if the breach or
default cannot be cured by the payment of money to the Undersigned. If
possession of the Facility is necessary to cure such breach or default and the
Trustee or its designee(s) or assignee(s) declare Premier in default and
commence foreclosure proceedings, the Trustee or its designee(s) or assignee(s),
will be allowed a reasonable period to complete such proceedings. If the Trustee
or its designee(s) or assignee(s) are prohibited by any court order or
bankruptcy or insolvency proceedings from curing the default or from commencing
or prosecuting foreclosure proceedings, the foregoing time periods shall be
extended by the period of such prohibition, but such extension shall not exceed
one hundred and fifty (150) days beyond the time frames set out in clause (ii)
of the first sentence of this SECTION 4.
5. The Undersigned consents to the transfer of Premier's interest
under the Contract to (i) the Secured Parties or any of them or (ii) a purchaser
or grantee at a foreclosure sale by judicial or nonjudicial foreclosure and sale
or by a conveyance by Premier in lieu of foreclosure (any such purchaser or
grantee, other than the Secured Parties, shall be referred to herein as a "THIRD
PARTY TRANSFEREE"). The Undersigned agrees that upon such foreclosure, sale or
conveyance, the Undersigned shall recognize such Secured Party or Third Party
Transferee as the applicable party under the Contract (provided that such
Secured Party or Third Party Transferee assumes the obligations of Premier under
the Contract and provided further that such Secured Party or Third Party
Transferee is creditworthy). "Assume the obligations of Premier under the
Contract" shall mean the assumption by such Secured Party or Third Party
Transferee of all obligations of Premier under the Contract, regardless of
whether for past or future matters, and specifically, but not by way of
limitation, shall require simultaneous payment of all amounts owed and
acknowledgement of liability for all amounts becoming owed, all as a condition
of the Undersigned's obligation to accept such assumption and to accept
instructions from such Secured Party or Third Party Transferee. A Third Party
Transferee or Secured Party shall be deemed creditworthy if either (a) it has a
net worth of at least $20 million dollars (calculated in accordance with
generally accepted accounting principals in effect from time to time in the
United States); or (b) it has been approved as creditworthy by Undersigned, it
being understood that the Undersigned shall not unreasonably withhold, delay or
condition its approval and shall take into account the net worth of such Secured
Party or Third Party Transferee and any letter of credit or other credit
instrument proposed to be made available as security for the performance of such
Third Party Transferee.
6. If the Trustee gives written notice to the Undersigned that an
event of default has occurred under any of the agreements with the Secured
Parties (the "TRANSACTION DOCUMENTS") and requests that the Undersigned continue
its performance under the Contract, then the Undersigned shall
Page 2 of 8
EXHIBIT H-1
thereafter perform for the Secured Parties under the Contract in accordance with
its terms so long as the Undersigned shall be paid all amounts as and when
required under the Contract, including payment of any sums due to the
Undersigned for work performed up to and including the date of Premier's default
and thereafter, with said request constituting such an agreement by the Trustee
on behalf of one or more of the Secured Parties to so pay the Undersigned in
accordance with the Contract. The Undersigned shall have the right to refuse to
continue performance of the Contract unless and until the Undersigned has been
paid in full for all amounts then due under the Contract. The Undersigned shall
render such performance to the Secured Parties notwithstanding any contrary
directions, instructions or assertions from Premier. Premier hereby authorizes
and directs the Undersigned to render such performance to the Secured Parties as
contemplated herein.
7. In the event that the Contract is rejected by a trustee or
debtor-in possession in any bankruptcy or insolvency proceeding, and if, within
sixty (60) days after such rejection, the Secured Parties or their successors or
assigns shall so request, the Undersigned will execute and deliver to the
Secured Parties or their designee or assignee (if creditworthy as defined
herein) a new Construction Contract, which Construction Contract shall be on the
same terms and conditions as the original Contract, subject to such extensions
of time and additional compensation as may be appropriate under the
circumstances. However, as a condition precedent to the Undersigned's
obligations to execute and deliver any such new Construction Contract, Secured
Parties shall pay all previously unpaid sums owed to the Undersigned under the
original Contract.
8. The parties recognize and agree that the events contemplated in
SECTIONS 1, 2, 3, 4, 5, 6, and 7 may lead to or involve time delays and
increased costs as to the Undersigned's performance under the Contract, and,
therefore, the Undersigned must be granted such extensions of time and
additional compensation as may be appropriate due to actual impacts of the
circumstances contemplated herein.
9. In the event the Secured Parties or their designee(s) or
assignee(s) elect to perform Premier's obligations under the Contract and cure
any default by Premier under the Contract as provided in SECTIONS 2 and 4 above
(and not under SECTIONS 5, 6, 7, or 10 herein), the Secured Parties, their
designee(s) and assignee(s), shall have no personal liability to the Undersigned
for the performance of such obligations, and the sole recourse of the
Undersigned in seeking the enforcement of such obligations shall be to such
parties' interest in the Facility; however, this limitation on personal
liability shall not apply as to actions by the Secured Parties or their
designee(s) or assignee(s) under SECTIONS 5, 6, 7, or 10 herein. Notwithstanding
the foregoing or any foreclosure of the Facility by the Secured Parties, the
Undersigned shall retain any and all of its rights and claims against Premier.
10. In the event the Secured Parties or their designee(s) or
assignee(s) succeed to Premier's interest under the Contract, the Secured
Parties shall have the right to assign all or a pro rata interest in the
Contract or a new Construction Contract entered into pursuant to SECTION 7 to a
person or entity to whom the Facility is transferred, provided such transferee
assumes the obligations of Premier (or the Secured Parties) under the Contract.
Upon such assignment, the Trustee and, if applicable, the Secured Parties
(including their agents and employees) shall be released from any further
liability thereunder to the extent of the interest assigned, upon the following
conditions: (i) the assignee must be a party as to whom the Undersigned does not
have a reasonable objection, including, but not limited to, as to the
creditworthiness (as defined in SECTION 5 above) of the assignee; (ii) all sums
due to the Undersigned as of the time it received notice of that assignment or
as of the time such assignment takes place (whichever is later) are paid in
full; and (iii) the assignee must acknowledge, upon terms and conditions
acceptable to Undersigned, liability for all sums due and owing and becoming due
and owing thereafter and for all other obligations under the Contract,
including, but not limited to obligations as to the issues addressed by SECTION
8.
Page 3 of 8
EXHIBIT H-1
11. The warranties provided by the Undersigned under the Contract
shall continue in full force and effect (until the expiration of the warranty
periods set forth in the Contract) in the event that the Secured Parties or
their designee(s) or assignee(s) succeed to Premier's interest in the Contract
(whether by foreclosure, sale or other assignment) and upon the further
assignment or sale of the Contract by the Secured Parties or their designee(s)
or assignee(s).
12. The Undersigned hereby assigns to Premier (and Premier's
assigns) all its interest in any subcontracts and purchase orders now existing
or hereinafter entered into by the Undersigned for performance of any part of
the Undersigned's obligations under the Contract (the "SUBCONTRACTS"). Such
assignment shall be effective only upon the termination of the Contract for the
default of the Undersigned, and then only as to those Subcontracts which Premier
(or its assigns) at such time accepts in writing. The Undersigned also grants a
security interest to Premier (and Premier's assigns) in all of its interest in
such Subcontracts as security for the performance of the Undersigned's
obligations under the Contract. The Undersigned further assigns to Premier (and
Premier's assigns) all of its rights with respect to any warranties under the
Subcontracts, such assignment shall be effective upon the termination of the
Contract for the default of the Undersigned.
13. The Undersigned hereby agrees (i) to cooperate with
Professional Associates Construction Services, Inc. or any other person
designated from time to time by the Trustee to serve as construction consultant
under the Disbursement Agreement (the "INDEPENDENT CONSTRUCTION CONSULTANT") to
facilitate performance of its duties to monitor the progress of the construction
of the Facility, (ii) to, upon request, deliver to the Independent Construction
Consultant copies of any notices and progress reports delivered to Premier
pursuant to the Contract, (iii) to meet with the Independent Construction
Consultant to discuss the status and progress of construction of the Facility
whenever reasonably requested by the Independent Construction Consultant and
(iv) to allow the Independent Construction Consultant the opportunity to be
included in all material meetings between the Undersigned and Premier related to
the construction of the Facility. However, this shall not prohibit the
Undersigned from moving forward with any meeting when the circumstances
surrounding such meeting make it unreasonable to await involvement by the
Independent Construction Consultant.
14. The Undersigned hereby represents, warrants and certifies that:
(a) The execution, delivery and performance by the Undersigned
of the Contract and this Consent has been duly authorized by all necessary
corporate action, and does not and will not require any further consents or
approvals which have not been obtained, or violate any provision of any law,
regulation, order, judgment, injunction or similar matters or breach any
agreement presently in effect with respect to or binding on the Undersigned
(except as to assignments of Subcontracts set forth in SECTION 12).
(b) This Consent and the Contract are legal, valid and binding
obligations of the Undersigned, enforceable against the Undersigned in
accordance with their respective terms.
(c) The Undersigned has delivered to the Trustee a true and
correct copy of the Contract including all amendments and modifications thereto,
up to the date hereof. As of the date hereof, the Contract is in full force and
effect and constitutes the only agreement between the Undersigned and Premier
with respect to the matters and interest described therein.
15. All Notices required or permitted hereunder shall be in writing
and shall be effective (a) upon receipt if hand delivered, (b) upon receipt if
sent by facsimile and (c) if otherwise delivered, upon the earlier of receipt or
two (2) business days after being sent registered or certified mail,
Page 4 of 8
EXHIBIT H-1
return receipt requested, with proper postage affixed thereto, or by private
courier or delivery service with charges prepaid, and addressed as specified
below:
If to the Undersigned:
______________________________
______________________________
______________________________
Attn:_________________________
Telecopy No.:_________________
Facsimile No.:________________
If to the Trustee:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Premier:
Premier Entertainment Biloxi LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
16. This Consent shall be binding upon and inure to the benefit of
the Undersigned, the Trustee, Premier, PFC, the Secured Parties and their
respective successors, transferees and assigns (including without limitation,
any entity that refinances all or any portion of the Obligations). No
termination, amendment, variation or waiver of any provisions of this Consent
shall be effective unless in writing and signed by the Undersigned, the Trustee,
Premier and PFC. This Consent shall be governed and construed in accordance by
the internal laws of the State of Mississippi.
17. This Consent may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below,
shall constitute a single binding agreement.
Page 5 of 8
EXHIBIT H-1
18. All references in this Consent to any document, instrument or
agreement (a) shall include all exhibits, schedules and other attachments
thereto, (b) shall include all documents, instruments or agreements issued or
executed in replacement thereof, and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 6 of 8
EXHIBIT H-1
IN WITNESS WHEREOF, the Undersigned by its officer thereunto duly
authorized, has duly executed this Consent as of the date first set forth above.
[__________________________],
a [______________________]
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
PREMIER ENTERTAINMENT BILOXI LLC,
(d/b/a Hard Rock Hotel & Casino Biloxi),
a Delaware limited liability company
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
ACKNOWLEDGED AND AGREED:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Trustee
By:
--------------------------------
Name:
--------------------------
Title:
--------------------------
Page 8 of 8
EXHIBIT H-1
EXHIBIT H-2 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
SHORT FORM OF CONSENT TO SECURITY ASSIGNMENT OF CONSTRUCTION CONTRACT
(CONTRACTS BETWEEN $500,000 AND $1,000,000)
CONSENT AND AGREEMENT
This CONSENT AND AGREEMENT (the "CONSENT"), dated as of [___________],
2004, is executed by [____________________], a [______________________], located
at (the "UNDERSIGNED"), PREMIER ENTERTAINMENT BILOXI LLC (d/b/a Hard Rock Hotel
& Casino Biloxi), a Delaware limited liability company, located at ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("PREMIER"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association, as trustee under the Indenture,
located at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, as defined below
(together with its successors and assigns from time to time under the Indenture,
the "TRUSTEE") for the benefit of the holders from time to time of the First
Mortgage Notes (as defined below) (collectively, with the Trustee, the "SECURED
PARTIES")
A. THE FACILITY. Premier proposes to develop, construct and
operate the Hard Rock Hotel & Casino Biloxi, a full service gaming, hotel and
entertainment resort and certain related amenities to be developed upon
approximately 8.5 acres along the Mississippi Gulf Coast in Biloxi, Mississippi
(the "FACILITY").
B. FIRST MORTGAGE NOTES. Concurrently herewith, Premier and
Premier Finance Biloxi Corp., a Delaware corporation ("PFC," and together with
Premier, the "ISSUER") is issuing $160,000,000 aggregate principal amount of its
10 3/4% First Mortgage Notes due 2012 (together with all other notes issued
under the Indenture, including all notes issued in exchange or replacement
thereof, the "FIRST MORTGAGE NOTES"), pursuant to that certain Indenture dated
as of January 23, 2004, among the Issuer and the Trustee (as amended, modified
or supplemented from time to time, the "INDENTURE"), to finance Project Costs.
C. [CONTRACT]. The Undersigned and Premier have entered into that
certain Agreement Between Owner and Contractor dated as of [ ], 20 , pursuant to
which the Undersigned has agreed to [ ][DESCRIBE WORK OR SERVICES TO BE
PERFORMED UNDER THIS CONTRACT] in connection with the Facility (as amended,
supplemented or modified from time to time in accordance with its terms and the
terms hereof, the "CONTRACT").
D. SECURITY AGREEMENT. Pursuant to that certain Pledge and
Security Agreement dated as of January 23, 2004 (the "SECURITY AGREEMENT"), by
and between Premier, PFC, the Trustee and the other parties named therein,
Premier has collaterally assigned its interest under the contracts between
Premier and any person pertaining to the construction of the Facility, including
the Contract (the "CONSTRUCTION CONTRACTS") to the Trustee on behalf of the
Secured Parties.
NOW THEREFORE, the Parties hereby agree as follows:
1. The Undersigned consents to Premier's transfer, assignment, and
grant of a security interest in and to the Contract, as provided for in the
Security Agreement.
2. The Trustee shall be entitled (but not obligated) to cure any
defaults of Premier under the Contract. Upon receipt of notice from the Trustee,
the Undersigned agrees to accept such cure by the Trustee.
3. The Undersigned will not, without the prior written consent of
the Trustee, (i) cancel or terminate the Contract except as provided in the
Contract and in accordance with SECTION 4
Page 1 of 1
EXHIBIT H-2
hereof, or consent to or accept any cancellation, termination or suspension
thereof by Premier, (ii) sell or assign any part of its interest in the
Contract, or (iii) amend or modify the Contract in any material respect unless a
Construction Contract Amendment Certificate has been delivered by Premier
pursuant to SECTION 5.2 of the Cash Collateral and Disbursement Agreement
entered into among the Issuer, the Trustee, such construction consultant and a
disbursement agent thereunder).
4. The Undersigned will not terminate the Contract on account of
any default or breach of Premier thereunder without written notice to the
Trustee and first providing to the Trustee a reasonable opportunity, but not
fewer than one hundred twenty (120) days, to cure such breach or default if the
breach or default cannot be cured by the payment of money to the Undersigned. If
possession of the Facility is necessary to cure such breach or default and the
Trustee or its designee(s) or assignee(s) declare Premier in default and
commence foreclosure proceedings, the Trustee or its designee(s) or assignee(s),
will be allowed a reasonable period to complete such proceedings. If the Trustee
or its designee(s) or assignee(s) are prohibited by any court order or
bankruptcy or insolvency proceedings from curing the default or from commencing
or prosecuting foreclosure proceedings, the foregoing time periods shall be
extended by the period of such prohibition, but such extension shall not exceed
one hundred and fifty (150) days beyond the time frames set out in clause (ii)
of the first sentence of this SECTION 4.
5. The Undersigned consents to the transfer of Premier's interest
under the Contract to (i) the Secured Parties or any of them or (ii) a purchaser
or grantee at a foreclosure sale by judicial or nonjudicial foreclosure and sale
or by a conveyance by Premier in lieu of foreclosure. Upon such foreclosure,
sale or conveyance, the Undersigned shall recognize such party as the applicable
party under the Contract.
6. If the Trustee gives written notice to the Undersigned that an
event of default has occurred under any of the agreements with the Secured
Parties and requests that the Undersigned continue its performance under the
Contract, then the Undersigned shall thereafter perform for the Secured Parties
under the Contract in accordance with its terms so long as the Undersigned shall
be paid all amounts as and when required under the Contract.
7. In the event that the Contract is rejected by a trustee or
debtor-in possession in any bankruptcy or insolvency proceeding, and if, within
sixty (60) days after such rejection, the Secured Parties or their successors or
assigns shall so request, the Undersigned will execute and deliver to the
Secured Parties or their designee or assignee a new Construction Contract, which
Construction Contract shall be on the same terms and conditions as the original
Contract, subject to such extensions of time and additional compensation as may
be appropriate under the circumstances.
8. In the event the Secured Parties or their designee(s) or
assignee(s) elect to perform Premier's obligations under the Contract and cure
any default by Premier under the Contract, the Secured Parties, their
designee(s) and assignee(s), shall have no personal liability to the Undersigned
for the performance of such obligations, and the sole recourse of the
Undersigned in seeking the enforcement of such obligations shall be to such
parties' interest in the Facility. If the Secured Parties or their designee(s)
or assignee(s) (succeeding to Premier's interests under the Contract) assign all
or a pro rata interest in its rights and obligations under the Contract or new
Construction Contract to a person or entity to whom the Facility is transferred,
then the Trustee and the Secured Parties (including their agents and employees)
shall be released from all further liability thereunder.
9. The warranties provided by the Undersigned under the Contract
shall continue in full force and effect (until the expiration of the warranty
periods set forth in the Contract) in the event that
Page 2 of 4
EXHIBIT H-2
the Secured Parties or their designee(s) or assignee(s) succeed to Premier's
interest in the Contract (whether by foreclosure, sale or other assignment) and
upon the further assignment or sale of the Contract by the Secured Parties or
their designee(s) or assignee(s).
10. The Undersigned hereby assigns to Premier (and Premier's
assigns) all its interest in any subcontracts and purchase orders now existing
or hereinafter entered into by the Undersigned for performance of any part of
the Undersigned's obligations under the Contract (the "Subcontracts"). Such
assignment shall be effective only upon the termination of the Contract for the
default of the Undersigned, and then only as to those Subcontracts which Premier
(or its assigns) at such time accepts in writing. The Undersigned also grants a
security interest to Premier (and Premier's assigns) in all of its interest in
such Subcontracts as security for the Undersigned's obligations under the
Contract.
11. The Undersigned hereby represents, warrants and certifies that
the Undersigned has delivered to the Trustee a true and correct copy of the
Contract including all amendments and modifications thereto, up to the date
hereof. As of the date hereof, the Contract is in full force and effect and
constitutes the only agreement between the Undersigned and Premier with respect
to the matters and interest described therein.
12. This Consent shall be binding upon and inure to the benefit of
the Undersigned, the Trustee, Premier, PFC, the Secured Parties and their
respective successors, transferees and assigns (including without limitation,
any entity that refinances all or any portion of the Obligations). The
Undersigned agrees to confirm such continuing obligation in writing upon the
reasonable request of Premier, PFC, the Trustee, the Secured Parties or any of
their respective successors, transferees or assigns. No termination, amendment,
variation or waiver of any provisions of this Consent shall be effective unless
in writing and signed by the Undersigned, the Trustee, Premier and PFC. This
Consent shall be governed and construed in accordance by the internal laws of
the State of Mississippi. This Consent may be executed in one or more duplicate
counterparts, and when executed and delivered by all the parties listed below,
shall constitute a single binding agreement.
IN WITNESS WHEREOF, the Undersigned by its officer thereunto duly
authorized, has duly executed this Consent as of the date first set forth above.
[__________________________],
a [______________________]
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
PREMIER ENTERTAINMENT BILOXI LLC,
(d/b/a Hard Rock Hotel & Casino Biloxi),
a Delaware limited liability company
By:
-------------------------------------
Name:
-------------------------------------
Title:
-------------------------------------
Page 3 of 4
EXHIBIT H-2
ACKNOWLEDGED AND AGREED:
U.S. BANK NATIONAL ASSOCIATION,
a national banking association,
as Trustee
By:
-------------------------------
Name:
--------------------------
Title:
--------------------------
Page 4 of 4
EXHIBIT H-2
EXHIBIT I TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
INITIAL PROJECT BUDGET
Date: [________], 2004
[ISSUER TO PROVIDE]
Page 1 of __
EXHIBIT I
EXHIBIT J TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FINAL PLANS AMENDMENT CERTIFICATE
[DATE]
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Amendment of Final Plans
Ladies and Gentlemen:
The Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER"), requests
that the Final Plans for the Facility be amended to include the Plans described
on SCHEDULE 3 to this certificate. This certificate is delivered pursuant to
SECTION 5.6 of that certain Cash Collateral and Disbursement Agreement dated as
of January 23, 2004 (the "AGREEMENT"), to which the Disbursement Agent is a
party. Capitalized terms used in this certificate that are otherwise not defined
shall have the meaning assigned in the Agreement. In connection with the
requested Final Plans amendment, the Issuer hereby represents, warrants and
certifies as follows:
(a) The Preliminary Plans for the Facility as of the date hereof are
described on SCHEDULE 1 and the Final Plans for the Facility as of the date
hereof are described on SCHEDULE 2. The Plans set forth in SCHEDULE 3, with
respect to any particular work or improvement:
(i) have received all approvals from all governmental authorities
required to approve such Plans necessary to commence construction of such
work or improvements described therein;
Page 1 of 3
EXHIBIT J
(ii) contain sufficient specificity to permit completion of such
work or improvement described therein;
(iii) are consistent with constructing the Facility to include the
Minimum Facilities;
(iv) have been signed by an architect licensed to practice
architecture in the State of Mississippi;
(v) call for construction of the Facility in a manner consistent
with the Initial Operating Date occurring on or prior to the Operating
Deadline; and
(vi) have been delivered to the Independent Construction Consultant
and the Disbursement Agent.
(b) To the Issuer's Knowledge (but without any duty of inquiry), the
construction performed as of the date hereof is substantially in accordance with
the Final Plans. The Issuer reasonably believes that the Initial Operating Date
will occur on or prior to the Operating Deadline.
(c) After giving effect to this proposed amendment to the Final Plans and
any concurrent amendment to the Project Budget, the Project Budget accurately
sets forth in all material respects the anticipated Construction Expenses
through completion of the construction of the Facility, allocated among the
various line item components thereof identified on the Project Budget in effect
on the Issuance Date.
(d) As of the date hereof, no Event of Default exists, and this proposed
amendment to the Final Plans and any concurrent amendment to the Project Budget
will not constitute, result in, nor create an Event of Default.
The Disbursement Agent, the Trustee and the Independent Construction
Consultant are entitled to rely on the foregoing representations, warranties and
certifications.
The undersigned certifies that this Final Plans Amendment Certificate is
authorized hereby and is permitted pursuant to the Agreement and the Indenture
and all conditions precedent thereto have been met.
Attached to this Final Plans Amendment Certificate as EXHIBITS 1 to 3 are
certificates of the General Contractor (only to the extent the amendment to the
Final Plans relates to the GMP Contract), the Independent Construction
Consultant and the Architect (only to the extent the amendment to the Final
Plans affects that portion of the Facility constructed pursuant to Plans
prepared by it).
PREMIER ENTERTAINMENT BILOXI LLC,
Page 2 of 3
EXHIBIT J
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
--------------------------------------------
Name:
Title:
By:
--------------------------------------------
Name:
Title:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 3 of 3
EXHIBIT J
SCHEDULE 1 TO EXHIBIT J
DESCRIPTION OF PRELIMINARY PLANS
Page 1 of 1
SCHEDULE 1 TO EXHIBIT J
SCHEDULE 2 TO EXHIBIT J
DESCRIPTION OF FINAL PLANS
Page 1 of 1
SCHEDULE 2 TO EXHIBIT J
SCHEDULE 3 TO EXHIBIT J
Amendment No. __ to Final Plans.
I. The following describes new Final Plans for any work or improvements to be
included in the Facility and for which no Final Plans currently exist or in
replacement of Preliminary Plans:
Work or Improvement Architect Drawing Number
------------------- --------- --------------
1.
2.
3.
II. The following describes replacement Final Plans for any work or
improvements to be included in the Facility and for which Final Plans currently
exist:
Work or Drawing Number of Architect of Drawing Number of
Improvement Replaced Final Plans New Final Plans New Final Plans
----------- -------------------- --------------- -----------------
1.
2.
3.
Page 1 of 1
SCHEDULE 3 TO EXHIBIT J
EXHIBIT 1 TO EXHIBIT J
CERTIFICATE OF GENERAL CONTRACTOR
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Final Plans Amendment Certificate dated __________, 20__
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
▇▇▇ ▇▇▇▇▇▇▇▇ Corp (the "GENERAL CONTRACTOR") hereby certifies as follows:
(a) The General Contractor has reviewed the above referenced Final Plans
Amendment Certificate and the Cash Collateral and Disbursement Agreement dated
as of January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party, to the
extent necessary to understand the defined terms contained herein and in the
Final Plans Amendment Certificate that are incorporated by reference from the
Agreement and to provide the certification contained herein. Capitalized terms
used herein and not otherwise defined shall have the meanings ascribed to them
in the Agreement.
Page 1 of 2
EXHIBIT 1 TO EXHIBIT J
(b) The General Contractor hereby certifies and confirms the accuracy of
the certifications contained in (b) and (c) in the above-referenced Final Plans
Amendment Certificate as they apply to that portion of the Facility constructed
pursuant to the GMP Contract (including the "Direct Purchase Items" as defined
in the GMP Contract), provided that where any certification of the Issuer is
limited to the Issuer's Knowledge for the purposes of this certificate, such
certification shall instead be made to the General Contractor's Knowledge.
The Issuer, the Disbursement Agent, the Trustee and the Independent
Construction Consultant are entitled to rely on the foregoing representations,
warranties and certifications.
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT J
EXHIBIT 2 TO EXHIBIT J
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Final Plans Amendment Certificate dated __________, 20__
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp. ("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
Professional Associates Construction Services, Inc. (the "INDEPENDENT
CONSTRUCTION CONSULTANT") hereby certifies as follows:
(a) The Independent Construction Consultant has reviewed the above
referenced Final Plans Amendment Certificate and the Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which
the Issuer and the undersigned are a party, to the extent necessary to
understand the defined terms contained herein and in the Final Plans Amendment
Certificate that are incorporated by reference from the Agreement and to provide
the certification contained herein. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to them in the Agreement.
(b) The Independent Construction Consultant hereby certifies and confirms
the accuracy of the certifications contained in (a), (b) and (c) of the
above-referenced Final Plans Amendment Certificate; provided that where any
certification of the Issuer is limited to the Issuer's
Page 1 of 2
EXHIBIT 2 TO EXHIBIT J
Knowledge, for the purposes of this certificate, such certification shall
instead be made to the Independent Construction Consultant's Knowledge or
belief, as applicable.
(c) The Independent Construction Consultant last inspected the Facility
on _________.
The Disbursement Agent, the Trustee and the Issuer are entitled to rely on
the foregoing representations, warranties and certifications.
PROFESSIONAL ASSOCIATES
CONSTRUCTION SERVICES, INC.
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 2 TO EXHIBIT J
EXHIBIT 3 TO EXHIBIT J
CERTIFICATE OF ARCHITECT
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: Final Plans Amendment Certificate dated __________, 20__
Premier Entertainment Biloxi LLC ("PREMIER") and Premier Finance Biloxi
Corp.
("PFC", and jointly and severally with Premier, the "ISSUER")
Ladies and Gentlemen:
▇▇▇▇ ▇▇▇▇▇▇▇▇, Ltd. (the "ARCHITECT") hereby certifies as follows:
(a) The Architect has reviewed the above referenced Final Plans Amendment
Certificate and the Cash Collateral and Disbursement Agreement dated as of
January 23, 2004 (the "AGREEMENT"), to which the Issuer is a party, to the
extent necessary to understand the defined terms contained herein and in the
Final Plans Amendment Certificate that are incorporated by reference from the
Agreement and to provide the certification contained herein. Capitalized terms
used herein and not otherwise defined shall have the meaning ascribed to them in
the Agreement.
Page 1 of 3
EXHIBIT 3 TO EXHIBIT J
(b) The Architect hereby certifies and confirms the accuracy of the
certifications contained in (a), (b) and (c) of the above-referenced Final Plans
Amendment Certificate; provided that where any certification of the Issuer is
limited to the Issuer's Knowledge, for the purposes of this certificate, such
certification shall instead be made to the Architect's Knowledge or belief, as
applicable.
(c) The Architect last inspected the Facility on _________.
The Issuer, the Disbursement Agent, the Trustee and the Independent
Construction Consultant are entitled to rely on the foregoing representations,
warranties and certifications.
▇▇▇▇ ▇▇▇▇▇▇▇▇, LTD.
By:
------------------------------------
Name:
Title:
Page 2 of 3
EXHIBIT 3 TO EXHIBIT J
EXHIBIT K TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
ADDITIONAL CONSTRUCTION CONTRACT CERTIFICATE
[Date]
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Professional Associates Construction Services
as Independent Construction Consultant
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Re: [name of contract] dated ________ (the "CONSTRUCTION CONTRACT"),
between [______________"Contractor" and] Premier Entertainment Biloxi
LLC ("PREMIER")
Ladies and Gentlemen:
This certificate is delivered pursuant to SECTION 5.3 of that certain Cash
Collateral and Disbursement Agreement dated as of January 23, 2004 (the
"AGREEMENT"), to which the Disbursement Agent is a party. Capitalized terms used
and not otherwise defined herein shall have the meanings given in the Agreement.
Premier is entering into the above-referenced Construction Contract, a copy of
which is attached hereto as SCHEDULE 1 (together with a Consent duly executed by
the counterparty to such Construction Contract if and to the extent required
under SECTION 5.3 of the Agreement, a copy of which is attached hereto as
SCHEDULE 2).
In connection with entering into the Construction Contract, the Premier
hereby represents, warrants and certifies as follows:
(a) The work to be performed with respect to the Facility under the
Construction Contract relates to the following line item(s) under the Project
Budget presently in effect and consists of the following:
----------------------------------------------------
Page 1 of 2
EXHIBIT K
----------------------------------------------------
----------------------------------------------------
Such work shall conform to the Final Plans.
(b) The Construction Contract provides for the Contractor to complete the
work related to the Construction Contract: (i) in a timely manner so as to
permit the Initial Operating Date with respect to the Facility to occur on or
prior to the Operating Deadline; and (ii) within the aggregate amounts specified
for the applicable line item in the Project Budget presently in effect.
(c) As of the date hereof, no Event of Default exists, and entering into
the Construction Contract will not constitute, result in, nor create an Event of
Default.
(d) The entering into the Construction Contract and the performance of the
work thereunder [WILL/WILL NOT] require an amendment to the Project Budget. [IF
IT WILL, ADD: ATTACHED HERETO IS A DULY COMPLETED AND EXECUTED PROJECT BUDGET
AMENDMENT CERTIFICATE ACCURATELY DESCRIBING SUCH AMENDMENT.]
The undersigned certifies that this Additional Construction Contract
Certificate is authorized hereby and is permitted pursuant to the Agreement and
the Indenture, and all conditions precedent thereto have been met.
The Disbursement Agent , the Trustee and the Independent Construction
Consultant are entitled to rely on the foregoing representations, warranties and
certifications.
Attached to this Additional Construction Contract Certificate as EXHIBIT 1
is a certificate from the Independent Construction Consultant.
PREMIER ENTERTAINMENT BILOXI LLC,
on behalf of itself and Premier Finance Biloxi
Corp., as Issuer(1)
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
----------
(1) [After Initial Operating Date, this certificate must be signed by two
officers of Premier, one of whom must be the principal executive officer,
the principal financial officer, the treasurer or the principal accounting
officer of Premier.]
Page 2 of 2
EXHIBIT K
Title:
Page 3 of 2
EXHIBIT K
SCHEDULE 1 TO EXHIBIT K
COPY OF EXECUTED CONSTRUCTION CONTRACT
Page 1 of 1
SCHEDULE 1 TO EXHIBIT K
SCHEDULE 2 TO EXHIBIT K
COPY OF EXECUTED CONSENT TO COLLATERAL ASSIGNMENT OF CONSTRUCTION CONTRACT
Page 1 of 1
SCHEDULE 2 TO EXHIBIT K
EXHIBIT 1 TO EXHIBIT K
CERTIFICATE OF INDEPENDENT CONSTRUCTION CONSULTANT
ADDITIONAL CONSTRUCTION CONTRACT CERTIFICATE
[Date]
Premier Entertainment Biloxi, LLC
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Copies to:
U.S. Bank National Association,
as Disbursement Agent
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
U.S. Bank National Association,
as Trustee
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Re: Additional Construction Contract Certificate dated ________, 20__,
relating to [name of contract] dated __________, _____ (the
"CONSTRUCTION CONTRACT") between _________________("CONTRACTOR"),
Premier Entertainment Biloxi LLC ("PREMIER")
Ladies and Gentlemen:
The undersigned (the "INDEPENDENT CONSTRUCTION CONSULTANT"), hereby
certifies as follows:
(a) The Independent Construction Consultant has reviewed the
above-referenced Construction Contract, as well as the above-referenced
Additional Construction Contract Certificate and the Cash Collateral and
Disbursement Agreement dated as of January 23, 2004 (the "AGREEMENT"), to which
Premier and the undersigned are a party. Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Agreement.
(b) The Independent Construction Consultant hereby certifies and confirms
the accuracy of the certifications in Paragraphs (a), (b), and (d) of the
above-referenced Additional Construction Contract Certificate; provided that
where any certification of Premier Finance Biloxi Corp. ("PFC", and jointly and
severally with Premier, the "ISSUER") is limited to the Issuer's
Page 1 of 2
EXHIBIT 1 TO EXHIBIT K
Knowledge for the purpose of this certificate such certification shall instead
be made to the Independent Construction Consultant's Knowledge. The Independent
Construction Consultant is not aware of any material errors in the information
contained in any other paragraph of the Additional Construction Contract
Certificate.
(c) The Independent Construction Consultant last inspected the Facility on
_________.
The Disbursement Agent, the Trustee and the Issuer are entitled to rely on
the foregoing representations, warranties and certifications relative to
authorizing the Issuer to enter into the Construction Contract.
PROFESSIONAL ASSOCIATES
CONSTRUCTION SERVICES, INC.
By:
------------------------------------
Name:
Title:
Page 2 of 2
EXHIBIT 1 TO EXHIBIT K
EXHIBIT L TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
PERMITTED ENCUMBRANCES
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE B - SECTION 2
EXCEPTIONS
Issuing Office File No.: 2003-10-01
ANY POLICY WE ISSUE WILL HAVE THE FOLLOWING EXCEPTIONS UNLESS THEY ARE TAKEN
CARE OF TO OUR SATISFACTION.
1 [Intentionally deleted]
2 [Intentionally deleted]
3 [Intentionally deleted]
4 [Intentionally deleted]
5 [Intentionally deleted]
6 [Intentionally deleted]
7 Any lease, grant, exception or reservation of minerals or mineral rights on,
and under subject land.
8 Taxes and assessments for the year 2003, which are not yet due and payable.
9 Rights of way for highway or drainage purposes in favor of the State Highway
Commission to be relocated to the 20 foot easement as shown on the survey of
▇▇▇▇▇ ▇▇▇▇▇▇▇, P.L.S., resurveyed October 10, 2003, pursuant to the Drainage
Easement and Relocation Agreement with Premier Entertainment Biloxi LLC,
dated , 2003, and recorded in Deed Book at Page , but
reserving the right to continue to use the following vacated rights of way
on a temporary basis until the new easement improvements are constructed:
a. dated December 13, 1954, and recorded in Deed Book 390, Page 505 (Copy
Book 139, Page 119) (PARCEL 4); and
b. dated February 4, 1955, and recorded in Deed Book 392, Page 319 (Copy
Book 139, Page 559) (PARCEL 5).
10 Utility easements in favor of Mississippi Power Company as follows:
a. dated March 29, 1984, and recorded in Deed Book 144, Page 247 (PARCEL
1);
b. dated _________, 2003, and recorded in Deed Book ____ at Page ________
(PARCEL 2) as part of the Easement and Relocation Agreement with
Premier Entertainment Biloxi LLC, which also includes the right to
continue to use the electric distribution and communication facilities
constructed pursuant to the now vacated Easement in favor of
Mississippi Power Company dated March 27, 2001, and recorded in Deed
Book 368, Page 608 (PARCEL 1) on a temporary basis until the earlier
of (i) the date the new easement improvements are constructed or (ii)
________, 2003;
c. dated July 27, 1983, and recorded in Deed Book 135, Page 219 (PARCEL
3);
d. dated May 31, 1983, and recorded in Deed Book 135, Page 226 (PARCEL
4), which easement has been amended by Partial Release of Easement
dated ___________, 2003, and recorded in Deed Book ____ at Page
_________ to vacate the portion thereof running along the western
boundary of PARCEL 4 only but preserve the easement along the northern
boundary of said parcel;
e. dated July 20, 1983, and recorded in Deed Book 135, Page 222 (PARCEL
5); and
f. dated May 25, 1983, and recorded in Deed Book 135, Page 224 (PARCEL
6).
Page 1 of 4
EXHIBIT L
The utility easements described in Item 10.a., d., and f. above are subject
to the terms and conditions of the Encroachment Agreement between
Mississippi Power Company and Premier Entertainment Biloxi LLC dated
________ , 2003, and recorded in Deed Book ____ at Page _______.
11 Sewer easement as shown on Conditional Use Plat dated May 9, 1986, and filed
in Plat Book 11, Page 19 (PARCEL 6).
12 Storm drain easement in favor of the City of Biloxi, Mississippi, to be
relocated to the 20 foot easement as shown on the survey of ▇▇▇▇▇ ▇▇▇▇▇▇▇,
P.L.S., resurveyed October 10, 2003, pursuant to the Right of Entry and
Relocation Agreement with Premier Entertainment Biloxi LLC, dated ______,
2003, and recorded in Deed Book ______at Page ________, but reserving the
right to use the vacated easement dated July 13, 1976, and recorded in Deed
Book 77, Page 306, on a temporary basis until the earlier of (i) the date the
new easement improvements are constructed or (ii) _________, 2003 (PARCEL 5).
13 Sewer easement in favor of the City of Biloxi, Mississippi, dated June 1,
1983, and recorded in Deed Book 133, Page 228 (PARCEL 2).
14 [Intentionally deleted].
15 Easements or rights of way in favor of Mississippi Power Company for electric
distribution lines; the City of Biloxi, Mississippi, for sewer lines; and the
Mississippi State Highway Commission for highway or drainage purposes which
are or may have been located in Magnolia Street if extended south of Highway
90, which unopened street was vacated, subject to the preservation of such
easements, by Final Decree in the matter of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, et ▇▇ ▇.
Mississippi Power Company, et al, Cause No. 8612 in the Chancery Court of the
Second Judicial District of ▇▇▇▇▇▇▇▇ County, Mississippi, dated March 6,
1979, and recorded in Deed Book 92 at Page 373 (PARCEL 6).
16 General Covenant D prohibiting discrimination as set forth in that certain
Warranty Deed from the City of Biloxi, Mississippi, and the Biloxi Port
Commission to ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, Joint Venture (f/k/a Harbor View) dated
December 29, 1981, and recorded in Deed Book 116, Page 500. (PARCEL 2).
17 Easement for maintenance of subsurface bulkhead tie-backs and General
Covenant D prohibiting discrimination as set forth in that certain Warranty
Deed from the City of Biloxi, Mississippi, and the Biloxi Port Commission to
The Development Partnership, Ltd., and Mariner's Harbor Development dated
April 30, 1982, and recorded in Deed Book 120, Page 1, as corrected by
Corrected Special Warranty Deed recorded in Deed Book 136, Page 367 and 461.
(PARCELS 1 AND L4).
18 Easement for vehicular and pedestrian ingress and egress across Parcels L1,
L3, and L4 to the docking facility adjoining, the covenant requiring no less
than 47 parking spaces on Parcels L1, L2, L3, and L4 for the benefit of the
public using the adjoining docking facility, and the covenant restricting
portions of Parcels L3 and L4 for use as a facility for docking by commercial
fishing vessels and related activities as set forth in the following Deeds of
Conveyance:
a. from the City of Biloxi, Mississippi, to the City of Biloxi,
Mississippi, and the Biloxi Port Commission dated December 8, 1975,
and recorded in Deed Book 62, Page 355, and corrected by instrument
dated January 30, 1976, and recorded in Deed Book 63, Page 448; and
b. from the Biloxi Development Commission-Urban Renewal Agency of the
City of Biloxi, Mississippi, to the City of Biloxi, Mississippi, and
the Biloxi Port Commission dated December 11, 1975, and recorded in
Deed Book 62, Page 383, and corrected by instruments dated January 6,
1976, and recorded in Deed Book 63, Page 226, and dated January 19,
1976, and recorded in Deed Book 63, Page 400.
This policy affirmatively insures against loss resulting from a violation or
alleged violation of said covenants, provided that upon completion of
construction of the parking garage and elevated bridge on such parcels as
contemplated by the Lease and Air Rights Agreement described in Item 21
hereinbelow, such improvements are continuously available for public or
harbor patron use free of charge. For purposes of this Item 18, reasonable
restrictions on the access to and use of the parking
Page 2 of 4
EXHIBIT L
structure and the segregation of certain portions of the parking structure
for valet and other similar purposes will be consistent with the provision of
continuous access to the public or harbor patron free of charge, provided
these restrictions on access, use and segregation for valet and similar
purposes do not restrict the public from using any portion of the parking
structure located on Parcels L3 and L4.
19 Covenant requiring the use of a 96' (foot) wide portion of PARCEL L3 "for
public inner-harbor purposes" set forth in the conveyance from ▇▇▇▇ ▇. ▇▇▇▇▇▇
to the Biloxi Yacht Club, dated March 16, 1943, and recorded in Deed Book
254, at Page 249 and the related reversionary clause. This policy
affirmatively insures against loss resulting from a violation or alleged
violation of said covenant, provided that upon completion of construction of
the parking garage on such parcel as contemplated by the Lease and Air Rights
Agreement described in Item 21 hereinbelow, such improvements are
continuously available for public or harbor patron use free of charge. For
purposes of this Item 19, reasonable restrictions on the access to and use of
the parking structure and the segregation of certain portions of the parking
structure for valet and other similar purposes will be consistent with the
provision of continuous access to the public or harbor patron free of charge
provided these restrictions on access, use and segregation for valet and
similar purposes do not restrict the public from using any portion of the
parking structure located on Parcel L3
20 Terms and conditions of the Public Trust Tidelands Lease executed by the
State of Mississippi and Premier Entertainment, LLC, succeeded in interest by
merger with Premier Entertainment Biloxi LLC, dated ________ and recorded in
Deed Book _____ at Page _______ and any failure to comply with same (PARCEL
L9), and the lien against the adjacent uplands set forth in SECTION 26.5 of
such lease (PARCELS 2, 3, 4, 5, and 6).
21 Terms and conditions of the Lease and Air Rights Agreement dated as of
_____________, 2003, and executed by the City of Biloxi, Mississippi, and
Premier Entertainment Biloxi LLC and recorded in Deed Book _________ at Page
________ and any failure to comply with same (PARCELS L1, L2, L3, L4, and
L6).
22 Concurrent rights of others to the use of the ground space and public
roadways dedicated or to be dedicated on ▇▇▇▇▇▇▇ ▇▇, ▇▇, ▇▇, and L6 and to
the use of Parcel L2 by the public for parking prior to the commencement of
construction as set forth in that certain Lease and Air Rights Agreement
described in Item 21 hereinabove.
23 Public right of access to the open water portion of tidelands located on
Parcel L9.
24 Pending disbursement of the full proceeds of the loan secured by the Deed of
Trust insured, this policy insures only to the extent of the actual amount
disbursed in good faith and without knowledge of any intervening lien or
interest, but increases as each disbursement is made, up to the face amount
of the policy. Such disbursement shall not extend the date of the policy or
change any part thereof unless such change is specifically made by written
endorsement duly issued on behalf of the Company. At the time of each
disbursement of the proceeds of the loan and the issuance of endorsement, the
title must be continued down to the date of endorsement for possible liens,
including mechanics' liens and other objections intervening between the last
preceding disbursement and such endorsement, and evidence of satisfaction and
cancellation of same be furnished, together with the affidavit of owner and
contractors as to any known liens. As of the date of the policy, the policy
will insure the initial disbursement amount.
25 The following matters shown on the plat of survey of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
P.L.S., dated August 21, 1998, and resurveyed April 23, 2003 and October 10,
2003:
Setback lines as indicated for all parcels pursuant to the variances
obtained to the zoning ordinances of the City of Biloxi, Mississippi;
b. Fences, curbing and/or landscaping appurtenant to PARCEL 1 encroaching
along the North boundary of said parcel onto Highway 90, along the
West boundary of said parcel onto PARCEL L2, and on the Northwest
corner of said parcel onto the ground space of PARCEL L1;
c. 36" x 56" arch pipe crossing the east side of the ground space of
PARCEL L3;
Page 3 of 4
EXHIBIT L
d. Fences and curbing appurtenant to PARCEL 2 encroaching along the East
boundary of said parcel onto the ground space of PARCEL L1
e. Fence running off the property line between PARCELS 2 and 3;
f. Telephone lines outside the utility easement on PARCEL 3 leading from
the North boundary of said parcel onto PARCEL 2 and along the West
boundary thereof;
g. Water lines and sewer force main running along the East boundary of
PARCEL 3;
h. Water lines running along the North boundaries of PARCELS 2, 3, 4, 5,
and 6;
i. Water lines running along the West boundary of PARCEL 5 and crossing
said parcel near the South boundary, leading onto and across PARCELS
4, 3, and 2;
j. Drainage pipe or culvert outside the drainage easement on PARCEL 5
running across the Northeast corner of said parcel;
k. 4" pipe from drainage manhole in Highway 90 right of way running onto
PARCEL 6; and
l. Drain inlet crossing from PARCEL 5 onto PARCEL 6 in the Southwest
corner of PARCEL 5.
m. Concrete sewer vault, water and sewer lines, drain inlet, and sewer
manhole cover located on the ground space of PARCEL L1.
n. Electric meter and fuse box, sewer lift station, water valves, and
water and sewer lines located on PARCEL L2
o. Concrete bulkhead, water meters, water valves, gas meter, and water
and power lines located on the ground space of PARCEL L3.
p. Drain inlet, concrete bulkhead, grease trap, sewer manholes, sewer
lines, and parking spaces located on PARCEL L6.
26 Documents related to the insured loan and to be recorded in the land records
such as Assignment of Leases and Rents and UCC-1 Financing Statements as
Fixture Filings, if any. Any such documents which are recorded subsequent to
the insured Deed of Trust will be designated as subordinate liens on the
lender's policy.
27 Terms and conditions of the Lease Agreement (Cafe) executed by Premier
Entertainment Biloxi LLC in favor of Hard Rock Cafe International (STP),
Inc., dated December 30, 2003, a memorandum of which is recorded in Deed Book
_____ at Page __________ and any failure to comply with same, which lease has
been subordinated to the insured deed of trust pursuant to the Subordination,
Non-Disturbance and Attornment Agreement executed by Hard Rock Cafe
International (STP), Inc., and the Insured dated ____________, 2004, and
recorded in Deed of Trust Book ___ at Page __________. Such lease will be
designated as a subordinate matter on the lender's policy.
28 Terms and conditions of the Lease Agreement (Retail Store) executed by
Premier Entertainment Biloxi LLC in favor of Hard Rock Cafe International
(STP), Inc., dated December 30, 2003, a memorandum of which is recorded in
Deed Book ___at Page ________ and any failure to comply with same, which
lease has been subordinated to the insured deed of trust pursuant to the
Subordination, Non-Disturbance and Attornment Agreement executed by Hard Rock
Cafe International (STP), Inc., and the Insured dated _________, 2004, and
recorded in Deed of Trust Book ________ at _____ Page ____. Such lease will
be designated as a subordinate matter on the lender's policy.
Page 4 of 4
EXHIBIT L
EXHIBIT M-1 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
Affidavit and Agreement
FIRST AMERICAN TITLE INSURANCE COMPANY
AFFIDAVIT AND AGREEMENT
STATE OF MISSISSIPPI Issuing Office File No.: 2003-10-01
COUNTY OF ▇▇▇▇▇▇▇▇
(OWNERS)
(INTERIM)
PERSONALLY appeared before me, the undersigned authority in and for said
county and state, the duly authorized representative of the undersigned owner,
who after being first duly sworn states on oath:
The undersigned is the owner in connection with the improvements on the
real property situated in the County of ▇▇▇▇▇▇▇▇, State of Mississippi known as:
PARCELS 1, 2, 3, 4, 5, 6, L1, L2, L3, L4, L6 AND L9, 2ND JUDICIAL DISTRICT,
▇▇▇▇▇▇▇▇ COUNTY, MISSISSIPPI, more particularly described in the Deed of Trust,
Mortgage or other Security Instrument in favor of U.S. BANK NATIONAL
ASSOCIATION, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE ("TRUSTEE"), dated
_____________, securing the sum of $160,000,000.00 (that may be increased to
$190,000,000.00) and filed or to be filed for record in the office of the
recorder of the county in which the above land is located, which Deed of Trust,
Mortgage or other Security Instrument is a valid first lien on said premises to
the extent of all sums advanced to date; and,
That no contracts have been let or guarantees of payment made by the
undersigned owner to anyone other than: (List each contract let or guarantee
made and obtain affidavit and agreement for each)
▇▇▇ ▇▇▇▇▇▇▇▇ CORP AND ANY OTHER CONTRACTORS LISTED ON EXHIBIT "A" ATTACHED
HERETO
The owner has no interest or ownership in the contracting firm or firms and
the contractor has no interest in the real property described above, except:
NONE; HOWEVER, IN THE INTEREST OF FULL DISCLOSURE, NOTE THAT ▇▇▇ ▇▇▇▇▇▇▇▇
III IS BOTH A MEMBER OF A LIMITED LIABILITY COMPANY WHICH IS A MEMBER OF
OWNER AS WELL AS AN OFFICER OF CONTRACTOR.
The undersigned owner is in possession of the subject premises, unless
otherwise stated: (LIST POSSESSION OTHER THAN BY OWNER, SUCH AS LEASES, ETC.)
NONE OTHER (i) THAN CONCURRENT RIGHTS OF THE CITY OF BILOXI TO PARCELS L1,
L3, L4 AND L5 AND OF THE PUBLIC TO EXTENT A PUBLIC STREET HAS BEEN
DEDICATED ON SUCH PARCELS, AND (ii) [IF HARD ROCK INTERNATIONAL (STP), INC.
HAS TAKEN POSSESSION:] [____] IS IN POSSESSION OF THE LEASEHOLD ESTATE
DESCRIBED IN THE LEASE AGREEMENT (CAFE) AND LEASE AGREEMENT (RETAIL STORE)
[OR LIST OTHER TENANTS ON EXHIBIT "B" IF ANY HAVE TAKEN POSSESSION].
The owner has paid in full any and all amounts due architects, engineers,
surveyors, attorneys, subcontractors, materialmen and laborers with whom it has
contracted directly or in its name through an agent for work or services
performed and materials furnished to date to the undersigned in connection with
the construction of the improvements on the above property, except: (IF NONE,
STATE "NONE")
NONE OTHER THAN 1) RETAINAGE AMOUNTS IN THE AMOUNT OF $___________; 2)
PUNCHLIST AMOUNTS IN THE AMOUNT OF $_______; 3) THE AMOUNTS OF $_________
REQUESTED TO BE PAID TO [CONTRACTOR] IN THE
Page 1 of 2
EXHIBIT M-1
CURRENT MONTH'S DISBURSEMENT REQUEST; AND 4) $__________ REPRESENTING
AMOUNTS IN DISPUTE UNDER THE [CONTRACT]. [ATTACHED SEPARATE EXHIBIT, IF
NECESSARY]
(continued on Page 2)
The owner has received no written notice of any unpaid bills or claims for
labor or services performed or materials on the above project, except: (IF NONE,
STATE "NONE")
NONE
The owner states that, except as permitted in that certain indenture dated
January 23, 2004 entered into with the Trustee, it has given or executed no
chattel mortgages, conditional sales contracts, security agreements, financing
statements, retention of title agreements, personal property leases or the like
and none are now outstanding as to any materials, fixtures, appliances,
furnishings or equipment placed upon, installed in or upon the aforesaid
premises or the improvements thereon.
The owner hereby requests First American Title Insurance Company to issue
its policy or policies of title insurance, or endorsements thereto, upon said
real estate without exception therein as to any possible unfiled mechanics' or
materialmen's lien, and in consideration thereof, and as an inducement therefor,
the undersigned does hereby agree to indemnify and hold harmless the said First
American Title Insurance Company of and from any and all loss, cost, damage and
expense of every kind including attorney's fees, which said First American Title
Insurance Company shall suffer or may suffer or incur or become liable for under
its said policy or policies now to be issued or any reissue, renewal or
extension thereof, or a new policy anytime issued upon said real estate, part
thereof or interest therein arising, directly or indirectly, out of or on
account of any such mechanics' or materialmen's liens, claim or claims as a
result of the undersigned's unpaid bills or in connection with its enforcement
of its rights under this agreement.
OWNER:
PREMIER ENTERTAINMENT BILOXI LLC,
A Delaware limited liability company
By:
----------------------------------
Its Manager
By:
------------------------------------
Its:
-----------------------------------
STATE OF_________________
COUNTY OF________________
SWORN TO AND SUBSCRIBED before me, by the duly authorized member of Manager and
Owner on behalf of both Manager and Owner, whose signature appears above, this
the ________________ day of _________________, 200__.
-----------------------------------
NOTARY PUBLIC
My Commission Expires:
-----------------
Page 2 of 2
EXHIBIT M-1
EXHIBIT M-2 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FIRST AMERICAN TITLE INSURANCE COMPANY
AFFIDAVIT AND AGREEMENT
STATE OF MISSISSIPPI Issuing Office File No.: 2003-10-01
COUNTY OF ▇▇▇▇▇▇▇▇
(GENERAL CONTRACTORS)
(INTERIM)
PERSONALLY appeared before me, the undersigned authority in and for said
county and state, the duly authorized representative of the general contractor,
who after being first duly sworn states on oath:
The undersigned is the general contractor in connection with improvements
on the real property situated in the County of ▇▇▇▇▇▇▇▇, State of Mississippi
known as: PARCELS 1, 2, 3, 4, 5, 6, L1, L2, L3, L4, L6 AND L9, 2ND JUDICIAL
DISTRICT, ▇▇▇▇▇▇▇▇ COUNTY, MISSISSIPPI, more particularly described in the Deed
of Trust, Mortgage or other Security Instrument in favor of U.S. BANK NATIONAL
ASSOCIATION, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE, dated ___________,
securing the sum of $160,000,000 (that may be increased to $190,000,000.00), and
filed or to be filed for record in the office of the recorder of the county in
which the above land is located, which Deed of Trust, Mortgage or other Security
Instrument is a valid first lien on said premises to the extent of all sums
advanced to date; and,
The general contractor has been paid in full all sums due for work or
services performed and materials furnished on the above project and does hereby
waive, release and surrender any and all liens to the date for which payment is
made, for labor, services, and/or materials furnished by the undersigned upon
the premises described above, except:(IF NONE, STATE "NONE")
NONE OTHER THAN 1) RETAINAGE AMOUNTS IN THE AMOUNT OF $___________; 2)
PUNCHLIST AMOUNTS IN THE AMOUNT OF $_______; 3) THE AMOUNTS OF $_________
REQUESTED TO BE PAID TO [CONTRACTOR] IN THE CURRENT MONTH'S DISBURSEMENT
REQUEST; AND 4) $__________ REPRESENTING AMOUNTS IN DISPUTE UNDER THE
[CONTRACT]. [ATTACH SEPARATE EXHIBIT, IF NECESSARY.]
The general contractor has paid in full any and all amounts due architects,
engineers, surveyors, attorneys, subcontractors, materialmen and laborers for
work or services performed and materials furnished to date to the undersigned in
connection with the construction of the improvements on the above property,
except: (IF NONE, STATE "NONE")
NONE OTHER THAN:
1) RETAINAGE AMOUNTS IN THE AMOUNT OF $___________; 2) PUNCHLIST AMOUNTS IN
THE AMOUNT OF $________; 3) THE AMOUNTS OF $_________ REQUESTED TO BE PAID
TO [CONTRACTOR] IN THE CURRENT MONTH'S DISBURSEMENT REQUEST; AND 4)
$__________ REPRESENTING AMOUNTS IN DISPUTE UNDER THE [CONTRACT]. [ATTACH
SEPARATE EXHIBIT, IF NECESSARY.]
(continued on Page 2)
Page 1 of 2
EXHIBIT M-2
The general contractor states that it has given or executed no chattel
mortgages, conditional sales contracts, security agreements, financing
statements, retention of title agreements, personal property leases or the like
and none are now outstanding as to any materials, fixtures, appliances,
furnishings or equipment placed upon, installed in or upon the aforesaid
premises or the improvements thereon, and that to the extent that general
contractor has contracted for plumbing, heating, lighting, refrigerating and
other equipment and delivery of same has been made to general contractor or the
property, payment for such equipment has been made in full and,
The general contractor hereby request(s) First American Title Insurance
Company to issue its policy or policies of title insurance, or endorsements
thereto, upon said real estate without exception therein as to any possible
unfiled mechanics' or materialmen's lien as to general contractor, its
subcontractors and suppliers, and in consideration thereof, and as an inducement
therefor, the undersigned does hereby agree to indemnify and hold harmless the
said First American Title Insurance Company of and from any and all loss, cost,
damage and expense of every kind including attorney's fees, which said First
American Title Insurance Company shall suffer or may suffer or incur or become
liable for under its said policy or policies now to be issued or any reissue,
renewal or extension thereof, or a new policy anytime issued upon said real
estate, part thereof or interest therein arising, directly or indirectly, out of
or on account of any such mechanics' or materialmen's liens, claim or claims as
a result of the undersigned's unpaid bills or in connection with its enforcement
of its rights under this agreement.
GENERAL CONTRACTOR:
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
---------------------------------
Its:
------------------------
STATE OF_________________
COUNTY OF________________
SWORN TO AND SUBSCRIBED before me, by ____________________________, the duly
authorized representative of the Contractor whose signature appears above, this
the ________________ day of ___________________________, 200__.
---------------------------------
NOTARY PUBLIC
My Commission Expires:
--------------------
Page 2 of 2
EXHIBIT M-2
EXHIBIT M-3 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FIRST AMERICAN TITLE INSURANCE COMPANY
AFFIDAVIT AND AGREEMENT
STATE OF MISSISSIPPI Issuing Office File No.: 2003-10-01
COUNTY OF ▇▇▇▇▇▇▇▇
(CONTRACTORS)
(INTERIM)
PERSONALLY appeared before me, the undersigned authority in and for said
county and state, the duly authorized representative of the undersigned
contractor, who after being first duly sworn states on oath:
The undersigned is a contractor with Premier Entertainment Biloxi LLC in
connection with improvements on the real property situated in the County of
▇▇▇▇▇▇▇▇, State of Mississippi known as: PARCELS 1, 2, 3, 4, 5, 6, L1, L2, L3,
L4, L6 AND L9, 2ND JUDICIAL DISTRICT, ▇▇▇▇▇▇▇▇ COUNTY, MISSISSIPPI, more
particularly described in the Deed of Trust, Mortgage or other Security
Instrument in favor of U.S. BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION, AS TRUSTEE, dated ________________, securing the sum of
$160,000,000 (that may be increased to $190,000,000.00), and filed or to be
filed for record in the office of the recorder of the county in which the above
land is located, which Deed of Trust, Mortgage or other Security Instrument is a
valid first lien on said premises to the extent of all sums advanced to date;
and,
The contractor has been paid in full all sums due for work or services
performed and materials furnished on the above project and does hereby waive,
release and surrender any and all liens to the date for which payment is made,
for labor, services, and/or materials furnished by the undersigned upon the
premises described above, except:(IF NONE, STATE "NONE")
NONE OTHER THAN 1) RETAINAGE AMOUNTS IN THE AMOUNT OF $___________; 2)
PUNCHLIST AMOUNTS IN THE AMOUNT OF $__________; 3) THE AMOUNTS OF
$_________ REQUESTED TO BE PAID TO [CONTRACTOR] IN THE CURRENT MONTH'S
DISBURSEMENT REQUEST; AND 4) $__________ REPRESENTING AMOUNTS IN DISPUTE
UNDER THE [CONTRACT]. [ATTACHED SEPARATE EXHIBIT, IF NECESSARY.
The contractor has paid in full any and all amounts due subcontractors,
materialmen and laborers for work or services performed and materials furnished
to date to the undersigned in connection with the construction of the
improvements on the above property, except: (IF NONE, STATE "NONE")
NONE OTHER THAN 1) RETAINAGE AMOUNTS IN THE AMOUNT OF $___________; 2)
PUNCHLIST AMOUNTS IN THE AMOUNT OF $__________; 3) THE AMOUNTS OF
$_________ REQUESTED TO BE PAID TO [CONTRACTOR] IN THE CURRENT MONTH'S
DISBURSEMENT REQUEST; AND 4) $__________ REPRESENTING AMOUNTS IN DISPUTE
UNDER THE [CONTRACT]. [ATTACHED SEPARATE EXHIBIT, IF NECESSARY.
(continued on Page 2)
Page 1 of 2
EXHIBIT M-3
The contractor states that no chattel mortgages, conditional sales
contracts, security agreements, financing statements, retention of title
agreements, personal property leases or the like have been given or are now
outstanding as to any materials, fixtures, appliances, furnishings or equipment
contractor placed upon, installed in or upon the aforesaid premises or the
improvements thereon, and that all such equipment is fully paid for and,
The contractor hereby request(s) First American Title Insurance Company to
issue its policy or policies of title insurance, or endorsements thereto, upon
said real estate without exception therein as to any possible unfiled mechanics'
or materialmen's lien as to the contractor, its subcontractors and suppliers,
and in consideration thereof, and as an inducement therefor, the undersigned
does hereby agree to indemnify and hold harmless the said First American Title
Insurance Company of and from any and all loss, cost, damage and expense of
every kind including attorney's fees, which said First American Title Insurance
Company shall suffer or may suffer or incur or become liable for under its said
policy or policies now to be issued or any reissue, renewal or extension
thereof, or a new policy anytime issued upon said real estate, part thereof or
interest therein arising, directly or indirectly, out of or on account of any
such mechanics' or materialmen's liens, claim or claims as a result of the
undersigned's unpaid bills or in connection with its enforcement of its rights
under this agreement.
CONTRACTOR:
---------------------------------------
By:
------------------------------------
Its:
-----------------------------
STATE OF______________
COUNTY OF_____________
SWORN TO AND SUBSCRIBED before me, by _______________________, the duly
authorized representative of the Contractor whose signature appears above, this
the __________ day of _________________________, 200__.
-----------------------------------
NOTARY PUBLIC
My Commission Expires:
-------------------------
Page 2 of 2
EXHIBIT M-3
EXHIBIT M-4 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF FINAL LIEN AFFIDAVIT (OWNER)
FIRST AMERICAN TITLE INSURANCE COMPANY
AFFIDAVIT AND AGREEMENT
STATE OF MISSISSIPPI Issuing Office File No.: 2003-10-01
COUNTY OF ▇▇▇▇▇▇▇▇
(OWNER'S - FINAL)
PERSONALLY appeared before me, the undersigned authority in and for said
county and state, the duly authorized representative of the undersigned owner,
who after being first duly sworn states on oath:
The undersigned is the owner in connection with the improvements on the
real property situated in the County of ▇▇▇▇▇▇▇▇, State of Mississippi known as:
PARCELS 1, 2, 3, 4, 5, 6, L1, L2, L3, L4, L6 AND L9, BILOXI SECTION BLOCKS 100,
130, AND 130.5, 2ND JUDICIAL DISTRICT, ▇▇▇▇▇▇▇▇ COUNTY, MISSISSIPPI, more
particularly described in the Deed of Trust, Mortgage or other Security
Instrument in favor of U.S. BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION, AS TRUSTEE ("TRUSTEE"), dated__________ , 2004, securing the sum of
$160,000,000 (that may be increased to $190,000,000.00) and filed or to be filed
for record in the office of the recorder of the county in which the above land
is located, which Deed of Trust, Mortgage or other Security Instrument is a
valid first lien on said premises; and,
That no contracts have been let or guarantees of payment made by the
undersigned owner to anyone other than: (List each contract let or guarantee
made and obtain affidavit and agreement for each)
▇▇▇ ▇▇▇▇▇▇▇▇ CORP AND ANY OTHER CONTRACTORS LISTED ON EXHIBIT "A" ATTACHED
HERETO
The owner has no interest or ownership in the contracting firm or firms and
the contractor has no interest in the real property described above, except:
NONE; HOWEVER, IN THE INTEREST OF FULL DISCLOSURE, NOTE THAT ▇▇▇ ▇▇▇▇▇▇▇▇
III IS BOTH A MEMBER OF A LIMITED LIABILITY COMPANY WHICH IS A MEMBER OF
OWNER AS WELL AS AN OFFICER OF CONTRACTOR.
The undersigned owner is in possession of the subject premises, unless
otherwise stated: (LIST POSSESSION OTHER THAN BY OWNER, SUCH AS LEASES, ETC.).
NONE OTHER (I) THAN CONCURRENT RIGHTS OF THE CITY OF BILOXI TO PARCELS L1,
L3, L4 AND L5 AND OF THE PUBLIC TO EXTENT A PUBLIC STREET HAS BEEN
DEDICATED ON SUCH PARCELS, AND (II) [IF HARD ROCK INTERNATIONAL (STP), INC.
HAS TAKEN POSSESSION:] [____] IS IN POSSESSION OF THE LEASEHOLD ESTATE
DESCRIBED IN THE LEASE AGREEMENT (CAFE) AND LEASE AGREEMENT (RETAIL STORE)
[OR LIST OTHER TENANTS ON EXHIBIT "B" IF ANY HAVE TAKEN POSSESSION].
The owner has paid in full any and all amounts due architects, engineers,
surveyors, attorneys, subcontractors, materialmen and laborers with whom it has
contracted directly or in its name through an agent for work or services
performed and materials furnished to the undersigned in connection with the
construction of the improvements on the above property, except: (IF NONE, STATE
"NONE")
NONE OTHER THAN THE AMOUNTS OF $_________ REQUESTED TO BE PAID TO
[CONTRACTOR] IN THE FINAL DISBURSEMENT REQUEST.
Page 1 of 2
EXHIBIT M-4
(continued on Page 2)
The owner has received no written notice of any unpaid bills or claims for
labor or services performed or materials on the above project, except: (IF NONE,
STATE "NONE")
NONE
The owner states that, except as permitted in that certain indenture dated
January 23, 2004 entered into with the Trustee, it has given or executed no
chattel mortgages, conditional sales contracts, security agreements, financing
statements, retention of title agreements, personal property leases or the like
and none are now outstanding as to any materials, fixtures, appliances,
furnishings or equipment placed upon, installed in or upon the aforesaid
premises or the improvements thereon, and that to the extent that owner has
contracted directly or in its name through an agent for plumbing, heating,
lighting, refrigerating and other equipment and delivery of same has been made
to owner or the property, payment for such equipment has been made in full and,
The owner hereby requests First American Title Insurance Company to issue
its policy or policies of title insurance, or endorsements thereto, upon said
real estate without exception therein as to any possible unfiled mechanics' or
materialmen's lien, and in consideration thereof, and as an inducement therefor,
the undersigned does hereby agree to indemnify and hold harmless the said First
American Title Insurance Company of and from any and all loss, cost, damage and
expense of every kind including attorney's fees, which said First American Title
Insurance Company shall suffer or may suffer or incur or become liable for under
its said policy or policies now to be issued or any reissue, renewal or
extension thereof, or a new policy anytime issued upon said real estate, part
thereof or interest therein arising, directly or indirectly, out of or on
account of any such mechanics' or materialmen's liens, claim or claims as a
result of the undersigned's unpaid bills or in connection with its enforcement
of its rights under this agreement.
OWNER:
PREMIER ENTERTAINMENT BILOXI LLC,
A Delaware limited liability company
By: GAR, LLC, a Mississippi limited liability
company
Its Manager
By:
----------------------------------------------
Its:
--------------------------------------
STATE OF_______________
COUNTY OF______________
SWORN TO AND SUBSCRIBED before me, by the duly authorized member of Manager and
Owner on behalf of both Manager and Owner, whose signature appears above, this
the_________ day of_____________ , 200___.
--------------------------------------
NOTARY PUBLIC
My Commission Expires:
------------------
Page 2 of 2
EXHIBIT M-4
EXHIBIT M-5 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF FINAL LIEN AFFIDAVIT (GENERAL CONTRACTOR)
FIRST AMERICAN TITLE INSURANCE COMPANY
AFFIDAVIT AND AGREEMENT
STATE OF MISSISSIPPI Issuing Office File No.: 2003-10-01
COUNTY OF ▇▇▇▇▇▇▇▇
(GENERAL CONTRACTOR'S - FINAL)
PERSONALLY appeared before me, the undersigned authority in and for said
county and state, the duly authorized representative of the general contractor,
who after being first duly sworn states on oath:
The undersigned is the general contractor in connection with improvements
on the real property situated in the County of ▇▇▇▇▇▇▇▇, State of Mississippi
known as: PARCELS 1, 2, 3, 4, 5, 6, L1, L2, L3, L4, L6 AND L9, BILOXI SECTION
BLOCKS 100, 130, AND 130.5, 2ND JUDICIAL DISTRICT, ▇▇▇▇▇▇▇▇ COUNTY, MISSISSIPPI,
more particularly described in the Deed of Trust, Mortgage or other Security
Instrument in favor of U.S. BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION, AS TRUSTEE, dated________, 2004, securing the sum of $$160,000,000
(that may be increased to $190,000,000.00), and filed or to be filed for record
in the office of the recorder of the county in which the above land is located,
which Deed of Trust, Mortgage or other Security Instrument is a valid first lien
on said premises; and,
The general contractor has been paid in full all sums due for work or
services performed and materials furnished on the above project and does hereby
waive, release and surrender any and all liens or claims or rights to liens to
the date for which payment is made, for labor, services, and/or materials
furnished by the undersigned upon the premises described above, except:(IF NONE,
STATE "NONE")
NONE OTHER THAN 1) THE AMOUNTS OF $_________ REQUESTED TO BE PAID TO
[CONTRACTOR] IN THE FINAL DISBURSEMENT REQUEST.
The general contractor has paid in full any and all amounts due architects,
engineers, surveyors, attorneys, subcontractors, materialmen and laborers for
work or services performed and materials furnished to the undersigned in
connection with the construction of the improvements on the above property,
except: (IF NONE, STATE "NONE")
NONE OTHER THAN THE AMOUNTS OF $_________ REQUESTED TO BE PAID TO
[CONTRACTOR] IN THE FINAL DISBURSEMENT REQUEST.
(continued on Page 2)
Page 1 of 2
EXHIBIT M-5
The general contractor states that it has given or executed no chattel
mortgages, conditional sales contracts, security agreements, financing
statements, retention of title agreements, personal property leases or the like
and none are now outstanding as to any materials, fixtures, appliances,
furnishings or equipment placed upon, installed in or upon the aforesaid
premises or the improvements thereon, and that to the extent that general
contractor has contracted for plumbing, heating, lighting, refrigerating and
other equipment and delivery of same has been made to general contractor or the
property, payment for such equipment has been made in full and,
The general contractor hereby request(s) First American Title Insurance
Company to issue its policy or policies of title insurance, or endorsements
thereto, upon said real estate without exception therein as to any possible
unfiled mechanics' or materialmen's lien as to general contractor, its
subcontractors and suppliers, and in consideration thereof, and as an inducement
therefor, the undersigned does hereby agree to indemnify and hold harmless the
said First American Title Insurance Company of and from any and all loss, cost,
damage and expense of every kind including attorney's fees, which said First
American Title Insurance Company shall suffer or may suffer or incur or become
liable for under its said policy or policies now to be issued or any reissue,
renewal or extension thereof, or a new policy anytime issued upon said real
estate, part thereof or interest therein arising, directly or indirectly, out of
or on account of any such mechanics' or materialmen's liens, claim or claims as
a result of the undersigned's unpaid bills or in connection with its enforcement
of its rights under this agreement.
GENERAL CONTRACTOR:
▇▇▇ ▇▇▇▇▇▇▇▇ CORP
By:
--------------------------------
Its:
-------------------------
STATE OF______________
COUNTY OF_____________
SWORN TO AND SUBSCRIBED before me, by_______________ , the duly authorized
representative of the Contractor whose signature appears above, this the day
of______________, 200___.
------------------------------
NOTARY PUBLIC
My Commission Expires:
-------------------
Page 2 of 2
EXHIBIT M-5
EXHIBIT M-6 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF FINAL LIEN AFFIDAVIT (OTHER CONTRACTORS)
FIRST AMERICAN TITLE INSURANCE COMPANY
AFFIDAVIT AND AGREEMENT
STATE OF MISSISSIPPI Issuing Office File No.: 2003-10-01
COUNTY OF ▇▇▇▇▇▇▇▇
(CONTRACTOR'S - FINAL)
PERSONALLY appeared before me, the undersigned authority in and for said
county and state, the duly authorized representative of the undersigned
contractor, who after being first duly sworn states on oath:
The undersigned contractor has a contract with Premier Entertainment Biloxi
LLC in connection with improvements on the real property situated in the County
of ▇▇▇▇▇▇▇▇, State of Mississippi known as: PARCELS 1, 2, 3, 4, 5, 6, L1, L2,
L3, L4, L6 AND L9, BILOXI SECTION BLOCKS 100, 130, AND 130.5, 2ND JUDICIAL
DISTRICT, ▇▇▇▇▇▇▇▇ COUNTY, MISSISSIPPI, more particularly described in the Deed
of Trust, Mortgage or other Security Instrument in favor of U.S. BANK NATIONAL
ASSOCIATION, A NATIONAL BANKING ASSOCIATION, AS TRUSTEE, dated___________, 2004,
securing the sum of $$160,000,000 (that may be increased to $190,000,000.00),
and filed or to be filed for record in the office of the recorder of the county
in which the above land is located, which Deed of Trust, Mortgage or other
Security Instrument is a valid first lien on said premises; and,
The contractor has been paid in full all sums due for work or services
performed and materials furnished on the above project and does hereby waive,
release and surrender any and all liens or claims or rights to liens to the date
for which payment is made, for labor, services, and/or materials furnished by
the undersigned upon the premises described above, except:(IF NONE, STATE
"NONE")
NONE OTHER THAN 1) THE AMOUNTS OF $_________ REQUESTED TO BE PAID TO
[CONTRACTOR] IN THE FINAL DISBURSEMENT REQUEST.
The contractor has paid in full any and all amounts due subcontractors,
materialmen and laborers for work or services performed and materials furnished
to the undersigned in connection with the construction of the improvements on
the above property, except: (IF NONE, STATE "NONE")
NONE OTHER THAN 1) THE AMOUNTS OF $_________ REQUESTED TO BE PAID TO
[CONTRACTOR] IN THE FINAL DISBURSEMENT REQUEST.
(continued on Page 2)
Page 1 of 2
EXHIBIT M-6
The contractor states that no chattel mortgages, conditional sales
contracts, security agreements, financing statements, retention of title
agreements, personal property leases or the like have been given or are now
outstanding as to any materials, fixtures, appliances, furnishings or equipment
contractor placed upon, installed in or upon the aforesaid premises or the
improvements thereon, and that all such equipment is fully paid for and,
The contractor hereby request(s) First American Title Insurance Company to
issue its policy or policies of title insurance, or endorsements thereto, upon
said real estate without exception therein as to any possible unfiled mechanics'
or materialmen's lien as to the contractor, its subcontractors and suppliers,
and in consideration thereof, and as an inducement therefor, the undersigned
does hereby agree to indemnify and hold harmless the said First American Title
Insurance Company of and from any and all loss, cost, damage and expense of
every kind including attorney's fees, which said First American Title Insurance
Company shall suffer or may suffer or incur or become liable for under its said
policy or policies now to be issued or any reissue, renewal or extension
thereof, or a new policy anytime issued upon said real estate, part thereof or
interest therein arising, directly or indirectly, out of or on account of any
such mechanics' or materialmen's liens, claim or claims as a result of the
undersigned's unpaid bills or in connection with its enforcement of its rights
under this agreement.
CONTRACTOR:
--------------------------------
By:
-----------------------------
Its:
-----------------------
STATE OF______________
COUNTY OF_____________
SWORN TO AND SUBSCRIBED before me, by__________________, the duly authorized
representative of the Contractor whose signature appears above, this the
__________day of__________, 200_____.
------------------------
NOTARY PUBLIC
My Commission Expires:
-------------------
Page 2 of 2
EXHIBIT M-6
EXHIBIT N-1
FORM OF COMMITMENT TO ISSUE UPDATE ENDORSEMENT
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE A
Issuing Office File No.: 2003-10-01E
THIS IS A COMMITMENT TO ISSUE ENDORSEMENT FURNISHED TO OR ON BEHALF OF THE
PARTY TO BE INSURED.
THERE ARE ADDITIONAL REQUIREMENTS SET FORTH IN SECTION 1 OF SCHEDULE B
ATTACHED HERETO WHICH MUST BE MET BEFORE THE ENDORSEMENT CAN BE ISSUED IN THE
SAME FORM AS THIS COMMITMENT. THESE ADDITIONAL REQUIREMENTS INCLUDE THE
REQUIREMENT IN CLAUSE 2 OF SECTION 1 OF SCHEDULE B THAT THE DISBURSEMENT AGENT
NOTIFY THE ISSUING AGENT OF THE COMPANY, ▇▇▇▇▇ AND ▇▇▇▇▇▇▇, LLP, BY TELEPHONE OR
EMAIL ON THE DISBURSEMENT DATE PRIOR TO MAKING SUCH DISBURSEMENT (THE
"CONFIRMATION NOTICE"). THIS SIGNED COMMITMENT MAY BE RESCINDED BY THE ISSUING
AGENT ON BEHALF OF THE COMPANY DURING THE CONFIRMATION NOTICE ONLY AS A RESULT
OF ANY LIEN OR OTHER OBJECTION TO TITLE INTERVENING BETWEEN THE LAST PRECEDING
DISBURSEMENT AND SUCH CONFIRMATION NOTICE WHERE EVIDENCE OF SATISFACTION AND
CANCELLATION OF SAME HAS NOT BEEN FURNISHED TO THE COMPANY.
1. Commitment Date: [TBD IN CONJUNCTION WITH CONSTRUCTION DISBURSEMENT REQUEST]
2. Endorsement to be issued:
/X/ Construction Draw Endorsement to Loan Policy No. FA - [TBD WHEN ISSUED
PURSUANT TO COMMITMENT ▇▇. ▇▇▇▇-▇▇-▇▇]
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇: $[TBD BY AUTHORIZED DISBURSEMENT REQUEST]
Proposed Insured: U.S. BANK NATIONAL ASSOCIATION, A NATIONAL BANKING
ASSOCIATION, AS TRUSTEE UNDER THE INDENTURE DATED JANUARY 23, 2004, ITS
SUCCESSORS AND/OR ASSIGNS AS THEIR INTEREST MAY APPEAR
3. The property interests specified in the land insured hereby is vested in
PREMIER ENTERTAINMENT BILOXI LLC, A DELAWARE LIMITED LIABILITY COMPANY,
SUCCESSOR IN INTEREST BY MERGER WITH PREMIER ENTERTAINMENT, LLC, A MISSISSIPPI
LIMITED LIABILITY COMPANY, as follows:
FEE SIMPLE TITLE - PARCELS 1, 2, 3, 4, 5, AND 6
LEASEHOLD INTEREST - PARCELS L2 AND L9
LEASEHOLD INTEREST IN AIR SPACE WITH GROUND SUPPORT STRUCTURES AND
NON-EXCLUSIVE EASEMENT
- PARCELS L1, L3 AND L4
NON-EXCLUSIVE EASEMENT - PARCEL L6
4. The land referred to in this Commitment is described as follows:
Page 1 of 16
EXHIBIT N-1
SEE ATTACHED EXHIBIT "A" FOR LEGAL DESCRIPTION
NOTE THE TYPE OF PROPERTY INTEREST TO BE INSURED AS INDICATED FOR EACH
PARCEL.
Issue Date: ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Issuing Agent
------------------------
By:
---------------------------
Authorized Signatory
Page 2 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL 1
FEE SIMPLE INTEREST
BEGIN at the northwest corner of Mariner's Harbor Condominiums, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi as per the map or plat thereof on file
in the office of the Chancery Clerk at the Court House in Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi and run Easterly along the south right
of way line of West Beach Boulevard and along a curve to the left (having a
radius of 2323.00 feet, an internal angle of 9 degrees 20 minutes 27 seconds and
subtended by a chord of 378.30 feet along a bearing of South 88 degrees 53
minutes 47 seconds East) for 378.72 feet; thence run South 00 degrees 34 minutes
42 seconds East for 25.84 feet; thence run North 89 degrees 25 minutes 18
seconds East for 16.00 feet; thence run South 00 degrees 42 minutes 33 seconds
East for 143.27 feet; thence run West for 394.64 feet; thence run North 00
degrees 31 minutes 32 seconds West for 176.25 feet; back to the POINT OF
BEGINNING.
Said parcel of land is part of Biloxi Section Block 100.
Page 3 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL 2
FEE SIMPLE INTEREST
BEGIN at the northeast corner of Harbor View Condominiums, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi as per the map or plat thereof on file
in the office of the Chancery Clerk at the Court House in Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District and run South 00 degrees 31 minutes 32 seconds East
for 239.05 feet; thence run North 89 degrees 28 minutes 33 seconds East for 3.66
feet; thence run South 00 degrees 23 minutes 59 seconds East for 124.18 feet;
thence run South 83 degrees 11 minutes 02 seconds East for 1.20 feet; thence run
South 01 degree 44 minutes 55 seconds East for 16.59 feet; thence run South 89
degrees 00 minutes 06 seconds West for 101.78 feet; thence run North 07 degrees
17 minutes 25 seconds West for 5.98 feet; thence run North 00 degrees 32 minutes
09 seconds West for 387.04 feet to the south right of way line of West Beach
Boulevard; thence run South 83 degrees 25 minutes 27 seconds East along said
right of way line for 98.37 feet back to the POINT OF BEGINNING.
Said parcel of land is a part of Biloxi Section Block 130.5, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi.
Page 4 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL 3
FEE SIMPLE INTEREST
COMMENCE at the northeast corner of Harbor View Condominiums, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi as per the map or plat thereof on file
in the office of the Chancery Clerk at the Court House in Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District and run North 83 degrees 25 minutes 27 seconds West
along the south right of way line of U.S. Highway 90 (Beach Boulevard) for 98.37
feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING, run South 00 degrees 32 minutes 09 seconds East
for 387.04 feet; thence run North 49 degrees 17 minutes 42 seconds West for 9.81
feet; thence run South 89 degrees 20 minutes 48 seconds West for 92.63 feet;
thence run North 00 degrees 32 minutes 09 seconds West for 395.33 feet to the
south right of way line of U.S. Highway 90 (Beach Boulevard); thence run South
82 degrees 14 minutes 40 seconds East along said right of way line for 101.07
feet back to the POINT OF BEGINNING.
Said parcel of land is a part of Biloxi Section Block 130.5, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi
Page 5 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL 4
FEE SIMPLE INTEREST
COMMENCE at the northeast corner of Harbor View Condominiums, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi as per the map or plat thereof on file
in the office of the Chancery Clerk at the Court House in Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District and run North 83 degrees 25 minutes 27 seconds West
along the south right of way line of U.S. Highway 90 (Beach Boulevard) for 98.37
feet; thence run North 82 degrees 14 minutes 40 seconds West along said south
right of way line for 101.07 feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING, run South 00 degrees 32 minutes 09 seconds East
for 395.33 feet; thence run South 89 degrees 20 minutes 48 seconds West for
107.38 feet; thence run North 00 degrees 42 minutes 02 seconds West for 415.84
feet to the south right of way line of U.S. Highway 90 (Beach Boulevard); thence
run South 79 degrees 57 minutes 09 seconds East along said right of way line for
110.45 feet back to the POINT OF BEGINNING.
Said parcel of land is a part of Biloxi Section Block 130.5, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi.
Page 6 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL 5
FEE SIMPLE INTEREST
COMMENCE at an iron rod at the northeast corner of Harbor View Condominiums,
Biloxi, ▇▇▇▇▇▇▇▇ County Second Judicial District as per the map or plat thereof
on file in Plat Book 9 at Page 19 in the office of the Chancery Clerk at the
Court House in Biloxi, ▇▇▇▇▇▇▇▇ County Second Judicial District, Mississippi and
run North 83 degrees 25 minutes 27 seconds West along the south right of way
line of U.S. Highway 90 for 98.37 feet; thence run North 82 degrees 14 minutes
40 seconds West along the south right of way line of U.S. Highway 90 for 101.07
feet; thence run North 79 degrees 57 minutes 09 seconds West along the south
right of way line of U.S. Highway 90 for 110.45 feet to an "X" scribed in
concrete for the POINT OF BEGINNING.
From said POINT OF BEGINNING, run South 00 degrees 42 minutes 02 seconds East
for 415.84 feet to an "X" scribed in concrete; thence run South 89 degrees 20
minutes 48 seconds West for 20.98 feet to an "X" scribed in concrete; thence run
North 42 degrees 47 minutes 11 seconds West for 127.48 feet to a nail set in a
wooden bulkhead; thence run North 00 degrees 27 minutes 42 seconds West for
343.52 feet to an "X" scribed in concrete on the south right ▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇.▇.
▇▇▇▇▇▇▇ ▇▇; thence run South 78 degrees 42 minutes 32 seconds East along the
south right of way line of U.S. Highway 90 for 107.33 feet back to the POINT OF
BEGINNING.
Said parcel of land is part of Biloxi Section Block 130 in Fractional Section
▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Second Judicial
District, Mississippi.
Page 7 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL 6
FEE SIMPLE INTEREST
COMMENCE at an iron rod at the northeast corner of Harbor View Condominiums,
Biloxi, ▇▇▇▇▇▇▇▇ County Second Judicial District as per the map or plat thereof
on file in Plat Book 9 at Page 19 in the office of the Chancery Clerk at the
Court House in Biloxi, ▇▇▇▇▇▇▇▇ County Second Judicial District, Mississippi and
run North 83 degrees 25 minutes 27 seconds West along the south right of way
line of U.S. Highway 90 for 98.37 feet; thence run North 82 degrees 14 minutes
40 seconds West along the south right of way line of U.S. Highway 90 for 101.07
feet; thence run North 79 degrees 57 minutes 09 seconds West along the south
right of way line of U.S. Highway 90 for 110.45 feet to an "X" scribed in
concrete; thence run North 78 degrees 42 minutes 32 seconds West along said
south right of way line for 107.33 feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING, run South 00 degrees 27 minutes 42 seconds East
for 343.52 feet; thence run North 42 degrees 47 minutes 11 seconds West for 7.38
feet; thence run North 50 degrees 24 minutes 44 seconds West for 159.85 feet;
thence run North 38 degrees 12 minutes 35 seconds West for 27.81 feet; thence
run North 00 degrees 32 minutes 57 seconds West for 248.40 feet to a point on
the south right of way line of U.S. Highway 90 (Beach Boulevard); thence run
South 76 degrees 47 minutes 55 seconds East along the south right of way line of
U.S. Highway 90 for 148.95 feet back to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi Section Block 130 in Fractional Section
▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Second Judicial
District, Mississippi.
Page 8 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL L1
("Existing Lameuse Street")*
LEASEHOLD INTEREST IN AIRSPACE WITH GROUND SUPPORT STRUCTURES
AND NON-EXCLUSIVE EASEMENT
AIRSPACE:
LOWER BOUNDARY is the horizontal plane at an elevation of 14 feet above the
surface grade of the roadway as first constructed in conjunction with the
improvements contemplated by the Lease and Air Rights Agreements with the City
of Biloxi, Mississippi, more particularly described in SCHEDULE B hereof.
UPPER BOUNDARY is the horizontal plane at the maximum elevation permitted by
applicable law.
PERIMETRICAL BOUNDARIES projected vertically to intersect the Upper and Lower
Boundaries as follows:
BEGIN at an iron rod at the northeast corner of Harbor View Condominiums as per
the map or plat thereof on file in Plat Book 9 at Page 9 on file in the office
of the Chancery Clerk at the Court House in Biloxi, ▇▇▇▇▇▇▇▇ County Second
Judicial District, Mississippi and run South 00 degrees 31 minutes 32 seconds
East along the east line of said Harbor View Condominiums for 239.05 feet;
thence run North 89 degrees 28 minutes 33 seconds East for 3.66 feet; thence run
South 89 degrees 51 minutes 31 seconds East for 35.92 feet; thence run North 00
degrees 22 minutes 56 seconds West for 234.78 feet to a point on the south right
of way line of Beach Boulevard (U.S. Highway 90); thence run North 83 degrees 51
minutes 05 seconds West along said south right of way for 40.44 feet back to the
POINT OF BEGINNING.
Said parcel of land is part of Biloxi Section Blocks 100 and 130, Biloxi,
▇▇▇▇▇▇▇▇ County Second Judicial District, Mississippi
GROUND SPACE FOR SUPPORT STRUCTURES AND NON-EXCLUSIVE EASEMENT ONLY AS
CONTEMPLATED BY THE LEASE AND AIR RIGHTS AGREEMENTS WITH THE CITY OF BILOXI,
MISSISSIPPI, MORE PARTICULARLY DESCRIBED IN SCHEDULE B HEREOF:
See the survey description recited above as the basis for the perimetrical
boundaries of the Airspace.
*This label is provided for convenience of reference only as this parcel is so
identified in the Lease and Air Rights Agreement more particularly described in
Item 21 of SCHEDULE B - SECTION 2 of the policy and is not intended to alter or
limit the legal description.
Page 9 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL L2
("Lameuse Street Parking Area")*
LEASEHOLD INTEREST
BEGIN at the northwest corner of Mariner's Harbor Condominiums, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi as per the map or plat thereof on file
in the office of the Chancery Clerk at the Court House in Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi and run South 00 degrees 31 minutes 32
seconds East along the west line of said Mariner's Harbor Condominiums for
176.25 feet; thence run West for 21.29 feet to the east right of way line of
LAMEUSE Street; thence run North 00 degrees 22 minutes 56 seconds West along
said east right of way line for 178.50 to the south right of way line of Beach
Boulevard (U.S. Highway 90); thence run Easterly along said south right of way
line and along a non-tangential curve to the left (having a radius of 2323.00
feet, an internal angle of 00 degrees 31 minutes 03 seconds and being subtended
by a chord distance of 20.98 feet along a bearing of South 83 degrees 50 minutes
55 seconds East) for 20.98 feet back to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Second Judicial District, Mississippi.
*This label is provided for convenience of reference only as this parcel is so
identified in the Lease and Air Rights Agreement more particularly described in
Item 21 of SCHEDULE B - SECTION 2 of the policy and is not intended to alter or
limit the legal description.
Page 10 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL L3
("Existing East - West Service Road")*
LEASEHOLD INTEREST IN AIRSPACE WITH GROUND SUPPORT STRUCTURES
AND NON-EXCLUSIVE EASEMENT
AIRSPACE:
LOWER BOUNDARY is the horizontal plane at an elevation of 14 feet above the
surface grade of the roadway as first constructed in conjunction with the
improvements contemplated by the Lease and Air Rights Agreements with the City
of Biloxi, Mississippi, more particularly described in SCHEDULE B hereof.
UPPER BOUNDARY is the horizontal plane at the maximum elevation permitted by
applicable law.
PERIMETRICAL BOUNDARIES projected vertically to intersect the Upper and Lower
Boundaries as follows:
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
▇▇▇▇▇▇▇▇ County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, ▇▇▇▇▇▇▇▇ County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING run West for 21.29 feet; thence run South 00
degrees 22 minutes 56 seconds East for 56.28 feet; thence run South 89 degrees
56 minutes 41 seconds East for 420.11 feet; thence run South 49 degrees 00
minutes 58 seconds East for 15.62 feet; thence run North 88 degrees 36 minutes
21 seconds East for 14.73 feet; thence run North 00 degrees 33 minutes 17
seconds West for 55.93 feet; thence run South 89 degrees 46 minutes 41 seconds
West for 68.44 feet; thence run South 00 degrees 36 minutes 03 seconds East for
20.05 feet; thence run North 89 degrees 45 minutes 09 seconds West for 108.51
feet; thence run North 00 degrees 50 minutes 05 seconds West for 20.00 feet;
thence run South 89 degrees 37 minutes 04 seconds West for 140.06 feet; thence
run South 00 degrees 22 minutes 56 seconds East for 18.33 feet; thence run South
88 degrees 59 minutes 05 seconds West for 107.95 feet; thence run North 00
degrees 31 minutes 32 seconds West for 31.66 feet back to the POINT OF
BEGINNING.
Said parcel of land is part of Biloxi ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Second Judicial District, Mississippi.
GROUND SPACE FOR SUPPORT STRUCTURES AND NON-EXCLUSIVE EASEMENT ONLY AS
CONTEMPLATED BY THE LEASE AND AIR RIGHTS AGREEMENTS WITH THE CITY OF BILOXI,
MISSISSIPPI, MORE PARTICULARLY DESCRIBED IN SCHEDULE B HEREOF:
See the survey description recited above as the basis for the perimetrical
boundaries of the Airspace.
*This label is provided for convenience of reference only as this parcel is so
identified in the Lease and Air Rights Agreement more particularly described in
Item 21 of SCHEDULE B - SECTION 2 of the policy and is not intended to alter or
limit the legal description.
Page 11 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL L4
("East - West Service Road")*
LEASEHOLD INTEREST IN AIRSPACE WITH GROUND SUPPORT STRUCTURES
AND NON-EXCLUSIVE EASEMENT
AIRSPACE:
LOWER BOUNDARY is the horizontal plane at an elevation of 14 feet above the
surface grade of the roadway as first constructed in conjunction with the
improvements contemplated by the Lease and Air Rights Agreements with the City
of Biloxi, Mississippi, more particularly described in SCHEDULE B hereof.
UPPER BOUNDARY is the horizontal plane at the maximum elevation permitted by
applicable law.
PERIMETRICAL BOUNDARIES projected vertically to intersect the Upper and Lower
Boundaries as follows:
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
▇▇▇▇▇▇▇▇ County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, ▇▇▇▇▇▇▇▇ County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet to and for the POINT OF BEGINNING.
From said POINT OF BEGINNING run East for 394.64 feet; thence run South 00
degrees 42 minutes 33 seconds East for 10.75 feet; thence run South 89 degrees
46 minutes 41 seconds West for 38.03 feet; thence run South 00 degrees 36
minutes 03 seconds East for 20.05 feet; thence run North 89 degrees 45 minutes
09 seconds West for 108.51 feet; thence run North 00 degrees 50 minutes 05
seconds West for 20.00 feet; thence run South 89 degrees 37 minutes 04 seconds
West for 140.06 feet; thence run South 00 degrees 22 minutes 56 seconds East for
18.33 feet; thence run South 88 degrees 59 minutes 05 seconds West for 107.95
feet; thence run North 00 degrees 31 minutes 32 seconds West for 31.66 feet back
to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Second Judicial District, Mississippi.
GROUND SPACE FOR SUPPORT STRUCTURES AND NON-EXCLUSIVE EASEMENT ONLY AS
CONTEMPLATED BY THE LEASE AND AIR RIGHTS AGREEMENTS WITH THE CITY OF BILOXI,
MISSISSIPPI, MORE PARTICULARLY DESCRIBED IN SCHEDULE B HEREOF:
See the survey description recited above as the basis for the perimetrical
boundaries of the Airspace.
*This label is provided for convenience of reference only as this parcel is so
identified in the Lease and Air Rights Agreement more particularly described in
Item 21 of SCHEDULE B - SECTION 2 of the policy and is not intended to alter or
limit the legal description.
Page 12 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (CONTINUED)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL L6
("Lameuse Street Extension")*
NON-EXCLUSIVE EASEMENT
COMMENCE at the northwest corner of Mariner's Harbor Condominiums, Biloxi,
▇▇▇▇▇▇▇▇ County 2nd Judicial District, Mississippi as per the map or plat
thereof on file in the office of the Chancery Clerk at the Court House in
Biloxi, ▇▇▇▇▇▇▇▇ County 2nd Judicial District, Mississippi and run South 00
degrees 31 minutes 32 seconds East along the west line of said Mariner's Harbor
Condominiums for 176.25 feet; thence run West for 21.29 feet; thence run South
00 degrees 22 minutes 56 seconds East for 56.28 feet to and for the POINT OF
BEGINNING.
From said POINT OF BEGINNING run South 89 degrees 56 minutes 41 seconds East for
16.57 feet; thence run South 00 degrees 28 minutes 40 seconds East for 165.94
feet; thence run South 43 degrees 48 minutes 30 seconds East for 45.54 feet;
thence run South 00 degrees 22 minutes 16 seconds East for 80.74 feet; thence
run North 89 degrees 52 minutes 45 seconds West for 70.46 feet; thence run South
00 degrees 42 minutes 50 seconds East for 111.52 feet; thence run South 89
degrees 07 minutes 28 seconds West for 12.17 feet; thence run North 00 degrees
29 minutes 01 second West for 250.29 feet; thence run North 01 degree 44 minutes
55 seconds West for 16.59 feet; thence run North 83 degrees 11 minutes 02
seconds West for 1.20 feet; thence run North 00 degrees 23 minutes 59 seconds
West for 124.18 feet; thence run South 89 degrees 51 minutes 31 seconds East for
35.92 feet back to the POINT OF BEGINNING.
Said parcel of land is part of Biloxi Section Blocks 100 and 130, Biloxi,
▇▇▇▇▇▇▇▇ County Second Judicial District, Mississippi.
*This label is provided for convenience of reference only as this parcel is so
identified in the Lease and Air Rights Agreement more particularly described in
Item 21 of SCHEDULE B - SECTION 2 of the policy and is not intended to alter or
limit the legal description.
Page 13 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
EXHIBIT A (continued)
Issuing Office File No.: 2003-10-01E
LEGAL DESCRIPTION:
PARCEL L9
PUBLIC TRUST TIDELANDS LEASEHOLD INTEREST
COMMENCE at the northeast corner of Harbor View Condominiums, Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District, Mississippi as per the map or plat thereof on file
in the office of the Chancery Clerk at the Court House in Biloxi, ▇▇▇▇▇▇▇▇
County 2nd Judicial District and run South 00 degrees 31 minutes 32 seconds East
for 239.05 feet; thence run North 89 degrees 28 minutes 33 seconds East for 3.66
feet; thence run South 00 degrees 23 minutes 59 seconds East for 124.18 feet;
thence run South 83 degrees 11 minutes 02 seconds East for 1.20 feet; thence run
South 01 degree 44 minutes 55 seconds East for 16.59 feet; thence run South 89
degrees 00 minutes 06 seconds West for 1.16 feet to and for the POINT OF
BEGINNING.
From said POINT OF BEGINNING run South 89 degrees 00 minutes 06 seconds West for
100.62 feet; thence run North 07 degrees 17 minutes 25 seconds West for 5.98
feet; thence run North 49 degrees 17 minutes 42 seconds West for 9.81 feet;
thence run South 89 degrees 20 minutes 48 seconds West for 220.99 feet; thence
run North 42 degrees 47 minutes 11 seconds West for 134.86 feet; thence run
North 50 degrees 24 minutes 44 seconds West for 159.85 feet; thence run North 38
degrees 12 minutes 35 seconds West for 27.81 feet; thence run South 00 degrees
32 minutes 57 seconds East for 559.19 feet to the north line of the Biloxi
Channel; thence run South 88 degrees 06 minutes 44 seconds East along said north
line of the Biloxi Channel for 559.07 feet; thence run North 00 degrees 23
minutes 25 seconds West for 346.84 feet back to the POINT OF BEGINNING
Page 14 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE B - SECTION 1
REQUIREMENTS
Issuing Office File No.: 2003-10-01E
All references herein to Deed Book or Deed of Trust Book refer to those records
located in the Office of the Chancery Clerk of the Second Judicial District of
▇▇▇▇▇▇▇▇ County, Mississippi.
THE FOLLOWING REQUIREMENTS MUST BE MET:
1. Furnish satisfactory evidence of disbursement of $[___________] of the
proceeds of the notes to ________________ within 5 business days of the date of
this commitment.
2. Notice from the Disbursement Agent to the Issuing Agent for the Company,
▇▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, by telephone or by email on the disbursement date before
making such disbursement and the Issuing Agent on behalf of the Company does not
rescind this commitment in such telephone call or email, as the case may be. .
Page 15 of 16
EXHIBIT N-1
FIRST AMERICAN TITLE INSURANCE COMPANY
SCHEDULE B - SECTION 2
ENDORSEMENT
Issuing Office File No.: 2003-10-01E
THE ENDORSEMENT TO BE ISSUED WILL BE IN THE FOLLOWING FORM:
Based upon satisfactory evidence that the insured or its Disbursement Agent has
made an advance to __________________ in the sum of $ __________, which is a
portion of the indebtedness evidenced by the note or notes secured by the
insured deed of trust, the Company hereby insures the owner of the indebtedness
secured by the insured deed of trust against loss or damage which the insured
shall sustain by reason of:
The existence of any lien, encumbrance or other matter affecting the estate or
interest referred to in SCHEDULE A, recorded in the public records subsequent to
Date of Policy, except: NONE [OR LIST ANY NEW MATTERS OF RECORD WITH AFFIRMATIVE
COVERAGE FOR LOSS OR DAMAGE RESULTING FROM SAME]
The existence of any subsisting tax or assessment lien which is prior to the
insured deed of trust, except: NONE OTHER THAN AD VALOREM TAXES FOR THE CURRENT
YEAR WHICH ARE NOT YET DUE AND PAYABLE
Title to the estate or interest referred to in SCHEDULE A being vested other
than as shown in SCHEDULE A according to the public records;
The failure of the advance identified above to be secured by the insured deed of
trust;
Lack of priority of the insured deed of trust with respect to such advance, over
any liens, encumbrances and other matters shown by the public records, affecting
the estate or interest referred to in SCHEDULE A, other than those shown in
SCHEDULE B as prior to the insured deed of trust and in paragraph (2) herein,
except: NONE
Lack of priority of the lien of the insured deed of trust over any statutory
lien for services, labor or material arising out of the work of improvement
under construction or completed at the date hereof.
The coverage under the disbursement clause is hereby increased by $___________,
and the Company acknowledges that as of the effective date of this endorsement,
the amount of $_______________________ has been disbursed under the Cash
Collateral and Disbursement Agreement secured by the insured deed of trust.
This endorsement is made a part of the policy and is subject to all of the terms
and provisions thereof and of any prior endorsements thereto. Except to the
extent expressly stated, it neither modifies any of the terms and provisions of
the policy and any prior endorsements, nor does it extend the effective date of
the policy and any prior endorsements, nor does it increase the face amount
thereof.
Date:
----------------
First American Title Insurance Company
By: ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Issuing Agent
PRO FORMA
By:
----------------------------------------
Authorized Signatory
Page 16 of 16
EXHIBIT N-1
EXHIBIT N-2 TO CASH COLLATERAL AND DISBURSEMENT AGREEMENT
FORM OF SEPARATE TAX LOT ENDORSEMENT
Attached to Policy No. FA- PRO FORMA
Issued By
FIRST AMERICAN TITLE INSURANCE COMPANY
The Company hereby assures the Insured that Parcels 2, 3, 4, 5, and 6 of the
land referred to in SCHEDULE "A" consist of separate tax parcels and said
parcels do not include any property not included within said land.
Parcel L1 and portions of Parcels L3 and L6 are not currently assessed for tax
purposes.
Parcel 1 consists of a separate tax parcel except to the extent it includes land
to be conveyed to the City of Biloxi. Any remainder of the land described in
SCHEDULE "A" which is not assessed solely to Premier Entertainment Biloxi LLC or
its predecessor is currently assessed to the City of Biloxi, Mississippi, and is
exempt from taxation.
The Company insures the insured against loss or damage in the event the
assurances herein shall prove to be incorrect.
This endorsement is made a part of the policy and is subject to all the terms
and provisions thereof and of any prior endorsements thereto. Except to the
extent expressly stated, it neither modifies any of the terms and provisions of
the policy and prior endorsements, if any, nor does it extend the effective date
of the policy and prior endorsements or increase the face amount thereof.
First American Title Insurance Company
By: ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Issuing Agent
PRO FORMA
By:
----------------------------------------
Authorized Signatory
F.A. Form 64
Separate Tax Lot
Page 1 of 1
EXHIBIT N-2