<Page>
Exhibit 4.1
--------------------------------------------------------------------------------
PREMIER ENTERTAINMENT BILOXI LLC
(d/b/a HARD ROCK HOTEL & CASINO BILOXI)
PREMIER FINANCE BILOXI CORP.
SERIES A AND SERIES B
10 3/4% FIRST MORTGAGE NOTES DUE 2012
---------------
INDENTURE
Dated as of January 23, 2004
---------------
U.S. BANK NATIONAL ASSOCIATION
Trustee
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CROSS-REFERENCE TABLE*
<Table>
<Caption>
TRUST
INDENTURE
ACT SECTION
INDENTURE SECTION
<S>
<C>
310(a)(1).....................................................
7.10
(a)(2)...................................................
7.10
(a)(3)...................................................
N.A.
(a)(4)...................................................
N.A.
(a)(5)...................................................
7.10
(b)......................................................
7.10
(c)......................................................
N.A.
311(a)......................................................
7.11
(b)......................................................
7.11
(c)......................................................
N.A.
312(a)......................................................
2.05
(b)......................................................
14.04
(c)......................................................
14.04
313(a)......................................................
7.06
(b)(1)...................................................
10.04
(b)(2)...................................................
7.06; 7.07
(c)......................................................
7.06; 10.04;
14.03
(d)......................................................
7.06
314(a)......................................................
4.03; 14.03;
14.05
(b)......................................................
10.03
(c)(1)...................................................
14.05
(c)(2)...................................................
14.05
(c)(3)...................................................
N.A.
(d)......................................................
10.04, 10.05,
10.06
(e)......................................................
14.05;
14.06
(f)......................................................
N.A.
315(a)......................................................
7.01
(b)......................................................
7.05,
14.03
(c)......................................................
7.01
(d)......................................................
7.01
(e)......................................................
6.11
316(a)(last sentence).......................................
2.09
(a)(1)(A)................................................
6.05
(a)(1)(B)................................................
6.04
(a)(2)...................................................
N.A.
(b)......................................................
6.07
(c)......................................................
2.12
317(a)(1)...................................................
6.08
(a)(2)...................................................
6.09
(b)......................................................
2.04
318(a)......................................................
14.01
(b)......................................................
N.A.
(c)......................................................
14.01
</Table>
N.A. means not applicable.
* This Cross Reference Table is not part of
the Indenture.
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TABLE OF CONTENTS
<Table>
<Caption>
PAGE
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ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01
Definitions.................................................................................1
Section 1.02 Other
Definitions..........................................................................28
Section 1.03 Incorporation by
Reference of Trust Indenture
Act..........................................29
Section 1.04 Rules of
Construction......................................................................29
ARTICLE 2.
THE NOTES
Section 2.01 Form and
Dating............................................................................29
Section 2.02 Execution and
Authentication...............................................................31
Section 2.03 Registrar and Paying
Agent.................................................................31
Section 2.04 Paying Agent to Hold
Money in
Trust........................................................31
Section 2.05 Holder
Lists...............................................................................32
Section 2.06 Transfer and
Exchange......................................................................32
Section 2.07 Replacement
Notes..........................................................................44
Section 2.08 Outstanding
Notes..........................................................................44
Section 2.09 Treasury
Notes.............................................................................45
Section 2.10 Temporary
Notes............................................................................45
Section 2.11
Cancellation...............................................................................45
Section 2.12 Defaulted
Interest.........................................................................45
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 Notices to
Trustee.........................................................................46
Section 3.02 Selection of Notes to
Be Redeemed or
Purchased.............................................46
Section 3.03 Notice of
Redemption.......................................................................47
Section 3.04 Effect of Notice of
Redemption.............................................................47
Section 3.05 Deposit of Redemption
or Purchase
Price....................................................47
Section 3.06 Notes Redeemed or
Purchased in
Part........................................................48
Section 3.07 Optional
Redemption........................................................................48
Section 3.08 Mandatory
Redemption.......................................................................49
Section 3.09 Mandatory Disposition
Pursuant to Gaming
Laws..............................................49
Section 3.10 Repurchase
Offers..........................................................................50
ARTICLE 4.
COVENANTS
Section 4.01 Payment of
Notes...........................................................................51
Section 4.02 Maintenance of Office
or
Agency............................................................52
Section 4.03
Reports....................................................................................52
Section 4.04 Compliance
Certificate.....................................................................53
Section 4.05
Taxes......................................................................................54
Section 4.06 Stay, Extension and
Usury
Laws.............................................................54
Section 4.07 Restricted
Payments........................................................................54
Section 4.08 Dividend and Other
Payment Restrictions Affecting
Subsidiaries.............................56
Section 4.09 Incurrence of
Indebtedness and Issuance of Preferred
Equity................................57
</Table>
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Section 4.10 Asset
Sales................................................................................60
Section 4.11 Events of
Loss.............................................................................61
Section 4.12 Transactions with
Affiliates...............................................................62
Section 4.13
Liens......................................................................................63
Section 4.14 Line of
Business...........................................................................63
Section 4.15
Construction...............................................................................63
Section 4.16 Offer to Repurchase
Upon Change of
Control.................................................63
Section 4.17 Use of
Proceeds............................................................................64
Section 4.18 Additional Subsidiary
Guarantees...........................................................64
Section 4.19 Limitation on Status
as Investment
Company.................................................65
Section 4.20 Designation of
Restricted and Unrestricted
Subsidiaries....................................66
Section 4.21 Sale and Leaseback
Transactions............................................................66
Section 4.22
Insurance..................................................................................66
Section 4.23 Amendments to Certain
Agreements...........................................................67
Section 4.24 Requirements of Ship
Construction Contract; Execution and Delivery of Preferred
Ship Mortgage and Documents to Register
Vessel.............................................67
Section 4.25 Additional Collateral;
Acquisition of Assets or Property; Increase Limits on Real
Estate Title
Policy........................................................................68
Section 4.26 Corporate
Existence........................................................................68
Section 4.27 Further
Assurances.........................................................................69
Section 4.28 Restrictions on
Activities of Premier Finance Biloxi
Corp..................................69
Section 4.29 Payments for
Consent.......................................................................69
ARTICLE 5.
SUCCESSORS
Section 5.01 Merger, Consolidation
or Sale of
Assets....................................................70
Section 5.02 Successor Corporation
Substituted..........................................................70
ARTICLE 6.
DEFAULTS AND REMEDIES
Section 6.01 Events of
Default..........................................................................71
Section 6.02
Acceleration...............................................................................73
Section 6.03 Other
Remedies.............................................................................74
Section 6.04 Waiver of Past
Defaults....................................................................74
Section 6.05 Control by
Majority........................................................................74
Section 6.06 Limitation on
Suits........................................................................75
Section 6.07 Rights of Holders of
Notes to Receive
Payment..............................................75
Section 6.08 Collection Suit by
Trustee.................................................................75
Section 6.09 Trustee May File
Proofs of
Claim...........................................................75
Section 6.10
Priorities.................................................................................76
Section 6.11 Undertaking for
Costs......................................................................76
Section 6.12 Hard Rock Approval of
a
Receiver...........................................................76
ARTICLE 7.
TRUSTEE
Section 7.01 Duties of
Trustee..........................................................................77
Section 7.02 Rights of
Trustee..........................................................................78
Section 7.03 Individual Rights of
Trustee...............................................................78
Section 7.04 Trustee's
Disclaimer.......................................................................78
Section 7.05 Notice of
Defaults.........................................................................79
Section 7.06 Reports by Trustee to
Holders of the
Notes.................................................79
</Table>
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Section 7.07 Compensation and
Indemnity.................................................................79
Section 7.08 Replacement of
Trustee.....................................................................80
Section 7.09 Successor Trustee by
Merger,
etc...........................................................81
Section 7.10 Eligibility;
Disqualification..............................................................81
Section 7.11 Preferential
Collection of Claims Against
Issuers..........................................81
Section 7.12 Authorization of
Trustee to Take Other
Action..............................................81
ARTICLE 8.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.01 Option to Effect Legal
Defeasance or Covenant
Defeasance...................................82
Section 8.02 Legal Defeasance and
Discharge.............................................................82
Section 8.03 Covenant
Defeasance........................................................................83
Section 8.04 Conditions to Legal or
Covenant
Defeasance.................................................83
Section 8.05 Deposited Money and
Government Securities to be Held in Trust; Other Miscellaneous
Provisions.................................................................................84
Section 8.06 Repayment to
Premier.......................................................................85
Section 8.07
Reinstatement..............................................................................85
ARTICLE 9.
AMENDMENT, SUPPLEMENT AND WAIVER
Section 9.01 Without Consent of
Holders of
Notes........................................................85
Section 9.02 With Consent of
Holders of
Notes...........................................................86
Section 9.03 Compliance with Trust
Indenture
Act........................................................88
Section 9.04 Revocation and Effect
of
Consents..........................................................88
Section 9.05 Notation on or
Exchange of
Notes...........................................................88
Section 9.06 Trustee to Sign
Amendments,
etc............................................................88
ARTICLE 10.
COLLATERAL AND SECURITY
Section 10.01
Security...................................................................................89
Section 10.02 Security Interest During an
Event of
Default...............................................89
Section 10.03 Recording and
Opinions.....................................................................90
Section 10.04 Release of
Collateral......................................................................91
Section 10.05 Certificates of the
Issuers................................................................91
Section 10.06 Certificates of the
Trustee................................................................91
Section 10.07 Protection of the Trust
Estate.............................................................92
Section 10.08 Authorization of Actions to
Be Taken by the Trustee Under the Collateral
Documents.........92
Section 10.09 Trustee's
Duties...........................................................................92
Section 10.10 Authorization of Receipt of
Funds by the Trustee Under the Collateral
Documents............93
Section 10.11 Termination of Security
Interest...........................................................93
Section 10.12 Cooperation of
Trustee.....................................................................93
ARTICLE 11.
SUBSIDIARY GUARANTEES
Section 11.01
Guarantee..................................................................................94
Section 11.02 Limitation on Guarantor
Liability..........................................................95
Section 11.03 Execution and Delivery of
Subsidiary
Guarantee.............................................95
Section 11.04 Guarantors May Consolidate,
etc., on Certain
Terms.........................................96
Section 11.05
Releases...................................................................................96
</Table>
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ARTICLE 12.
SATISFACTION AND DISCHARGE
Section 12.01 Satisfaction and
Discharge.................................................................97
Section 12.02 Application of Trust
Money.................................................................98
ARTICLE 13.
JOINT AND SEVERAL LIABILITY
Section 13.01 Joint and Several
Liability................................................................99
ARTICLE 14.
MISCELLANEOUS
Section 14.01 Trust Indenture Act
Controls..............................................................100
Section 14.02 Hard Rock License Agreement
Acknowledgement...............................................100
Section 14.03
Notices...................................................................................100
Section 14.04 Communication by Holders of
Notes with Other Holders of
Notes.............................101
Section 14.05 Certificate and Opinion as
to Conditions
Precedent........................................102
Section 14.06 Statements Required in
Certificate or
Opinion.............................................102
Section 14.07 Rules by Trustee and
Agents...............................................................102
Section 14.08 No Personal Liability of
Directors, Officers, Employees and
Equityholders.................102
Section 14.09 Governing
Law.............................................................................103
Section 14.10 No Adverse Interpretation of
Other
Agreements.............................................103
Section 14.11
Successors................................................................................103
Section 14.12
Severability..............................................................................103
Section 14.13 Counterpart
Originals.....................................................................103
Section 14.14 Benefit of
Indenture......................................................................103
Section 14.15 Mississippi Gaming Control
Act............................................................103
Section 14.16 Table of Contents, Headings,
etc..........................................................104
</Table>
EXHIBITS
Exhibit A-1 FORM OF 144A GLOBAL NOTE
Exhibit A-2 FORM OF REGULATION S TEMPORARY
GLOBAL NOTE
Exhibit B FORM OF CERTIFICATE OF
TRANSFER
Exhibit C FORM OF CERTIFICATE OF
EXCHANGE
Exhibit D FORM OF CERTIFICATE OF
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Exhibit E FORM OF SUBSIDIARY
GUARANTEE
Exhibit F FORM OF SUPPLEMENTAL INDENTURE
Exhibit G FORM OF FF&E
INTERCREDITOR AGREEMENT
Exhibit H FORM OF MISSISSIPPI
BOND INDENTURE
Exhibit I FORM OF MISSISSIPPI
BOND LOAN AGREEMENT
Exhibit J FORM OF MISSISSIPPI
BOND PURCHASE CONTRACT
Exhibit K FORM OF PREFERRED SHIP
MORTGAGE
Exhibit L FORM OF CASINO VESSEL
TITLE POLICY COMMITMENT
Exhibit M FORM OF OPINION OF
COUNSEL RE: PREFERRED SHIP MORTGAGE
iv
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INDENTURE dated
as of January 23, 2004, among Premier Entertainment Biloxi
LLC (d/b/a Hard Rock Hotel & Casino
Biloxi), a Delaware limited liability
company ("PREMIER"), Premier Finance Biloxi
Corp., a Delaware corporation
("PREMIER FINANCE") and U.S. Bank National
Association, as trustee.
Premier, Premier
Finance and the Trustee agree as follows for the benefit
of each other and for the equal and ratable
benefit of the Holders (as defined
below) of the 10 3/4% First Mortgage Notes
due 2012 (the "NOTES"):
ARTICLE 1.
DEFINITIONS AND INCORPORATION
BY REFERENCE
Section 1.01 DEFINITIONS.
"144A GLOBAL
NOTE" means a Global Note substantially in the form of EXHIBIT
A-1 hereto bearing the Global Note Legend
and the Private Placement Legend and
deposited with or on behalf of, and
registered in the name of, the Depositary or
its nominee that will be issued in a
denomination equal to the outstanding
principal amount of the Notes sold in
reliance on Rule 144A.
"AA CAPITAL"
means AA Capital Equity Fund, L.P., a Delaware limited
partnership and AA Capital Biloxi
Co-Investment Fund, L.P., a Delaware limited
partnership.
"ACQUIRED DEBT"
means, with respect to any specified Person:
(1) Indebtedness of any other Person
existing at the time such other
Person is merged with or into or became a Restricted Subsidiary
of
such specified Person, whether or not such Indebtedness is incurred
in
connection with, or in contemplation of, such other Person
merging
with or into, or becoming a Restricted Subsidiary of, such
specified
Person; and
(2) Indebtedness secured by a Lien
encumbering any asset acquired by such
specified Person.
"ADDITIONAL
NOTES" means up to $30.0 million aggregate principal amount of
additional Notes (other than the Initial
Notes) issued under this Indenture in
accordance with Sections 2.02 and 4.09
hereof, as part of the same series as the
Initial Notes; PROVIDED that the incurrence
of such Indebtedness represented by
the such additional Notes is incurred
pursuant to Section 4.09(b)(3) hereof.
"AFFILIATE" of
any specified Person means any other Person directly or
indirectly controlling or controlled by or
under direct or indirect common
control with such specified Person. For
purposes of this definition, "control,"
as used with respect to any Person, shall
mean the possession, directly or
indirectly, of the power to direct or cause
the direction of the management or
policies of such Person, whether through
the ownership of voting securities, by
agreement or otherwise; PROVIDED, HOWEVER,
that beneficial ownership of 10% or
more of the Voting Stock of a Person shall
be deemed to be control. For purposes
of this definition, the terms
"controlling," "controlled by" and "under common
control with" have correlative
meanings.
"AGENT" means
any Registrar, co-registrar, Paying Agent or additional
paying agent.
1
<Page>
"APPLICABLE PROCEDURES" means,
with respect to any transfer or exchange of
or for beneficial interests in any Global
Note, the rules and procedures of the
Depositary, Euroclear and Clearstream that
apply to such transfer or exchange.
"ARCHITECT"
means Paul Steelman, Ltd., a Nevada corporation.
"ARCHITECT
AGREEMENT" means the Abbreviated Standard Form of Agreement
Between Owner and Architect, dated as of
November 21, 2003, between Premier and
the Architect, as in effect on the date of
this Indenture or as amended in
accordance with Section 4.23 hereof.
"ASSET SALE"
means:
(1) the sale, lease, conveyance or
other disposition of any assets or
rights; PROVIDED that the sale, conveyance or other disposition of
all
or substantially all of the assets of Premier and its
Restricted
Subsidiaries taken as a whole will be governed by Section 4.16
hereof
and Section 5.01 hereof and not by the provisions of Section
4.10
hereof; and
(2) the issuance of Equity Interests
by any of Premier's Restricted
Subsidiaries or the sale of Equity Interests by Premier in any of
its
Subsidiaries.
Notwithstanding
the preceding, none of the following items will be deemed
to be an Asset
Sale:
(1) any single transaction or series
of related transactions that involves
assets having a Fair Market Value of less than $1.0 million;
(2) a transfer of assets between or
among Premier and its Restricted
Subsidiaries;
(3) an issuance of Equity Interests by
a Restricted Subsidiary of Premier
to Premier or to another Restricted Subsidiary;
(4) the sale, lease or other
disposition of products, equipment,
inventory, accounts receivable or other assets in the ordinary
course
of business and any sale or other disposition of damaged, worn-out
or
obsolete assets in the ordinary course of business;
(5) the sale or other disposition of
cash or Cash Equivalents; and
(6) a Restricted Payment that is
permitted under Section 4.07 hereof or a
Permitted Investment.
"ATTRIBUTABLE
DEBT" in respect of a sale and leaseback transaction means,
at the time of determination, the present
value of the obligation of the lessee
for net rental payments during the
remaining term of the lease included in such
sale and leaseback transaction including
any period for which such lease has
been extended or may, at the option of the
lessor, be extended. Such present
value shall be calculated using a discount
rate equal to the rate of interest
implicit in such transaction, determined in
accordance with GAAP; PROVIDED,
HOWEVER, that if such sale and leaseback
transaction results in a Capital Lease
Obligation, the amount of Indebtedness
represented thereby will be determined in
accordance with the definition of "Capital
Lease Obligation."
"BANKRUPTCY LAW"
means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
2
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"BENEFICIAL
OWNER" has the meaning assigned to such term in Rule 13d-3 and
Rule 13d-5 under the Exchange Act, except
that in calculating the beneficial
ownership of any particular "person" (as
that term is used in Section 13(d)(3)
of the Exchange Act), such "person" will be
deemed to have beneficial ownership
of all securities that such "person" has
the right to acquire by conversion or
exercise of other securities, whether such
right is currently exercisable or is
exercisable only after the passage of time.
The terms "Beneficially Owns" and
"Beneficially Owned" have a corresponding
meaning.
"BILOXI GAMING
LICENSE" means any license, permit, franchise or other
authorization from any Gaming Authority
necessary at any time to own, lease,
operate or otherwise conduct the business
of the Hard Rock Hotel & Casino
Biloxi.
"BOARD OF
DIRECTORS" means:
(1) with respect to a corporation, the
board of directors of the
corporation or any committee thereof duly authorized to act on
behalf
of such board;
(2) with respect to a partnership, the
board of directors of the general
partner of the partnership;
(3) with respect to a limited
liability company, the managing member or
members,
any controlling committee of managing members or the board of
managers thereof; and
(4) with respect to any other Person,
the board or committee of such
Person serving a similar function.
"BROKER-DEALER"
has the meaning set forth in the Registration Rights
Agreement.
"BUSINESS DAY"
means any day other than a Legal Holiday.
"CAPITAL LEASE
OBLIGATION" means, at the time any determination is to be
made, the amount of the liability in
respect of a capital lease that would at
that time be required to be capitalized on
a balance sheet in accordance with
GAAP, and the Stated Maturity thereof shall
be the date of the last payment of
rent or any other amount due under such
lease prior to the first date upon which
such lease may be prepaid by the lessee
without payment of a penalty.
"CAPITAL STOCK"
means:
(1) in the case of a corporation,
corporate stock;
(2) in the case of an association or
business entity, any and all shares,
interests, participations, rights or other equivalents (however
designated) of corporate stock;
(3) in the case of a partnership or
limited liability company, partnership
interests (whether general or limited) or membership interests;
and
(4) any other interest or
participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions
of
assets of, the issuing Person;
but excluding from all of the foregoing any
debt securities convertible into
Capital Stock, whether or not such debt
securities include any right of
participation with Capital Stock.
3
<Page>
"CASH
EQUIVALENTS" means:
(1) United States dollars;
(2) securities issued or directly and
fully guaranteed or insured by the
United States government or any agency or instrumentality
thereof
(PROVIDED that the full faith and credit of the United States
is
pledged in support of those securities) having maturities of not
more
than six months from the date of acquisition;
(3) certificates of deposit and
eurodollar time deposits with maturities
of six months or less from the date of acquisition, bankers'
acceptances with maturities not exceeding six months and
overnight
bank deposits, in each case, with any domestic commercial bank
having
capital and surplus in excess of $500.0 million and a Thomson
Bank
Watch Rating of "B" or better;
(4) repurchase obligations with a term
of not more than seven days for
underlying securities of the types described in clauses (2) and
(3)
above entered into with any financial institution meeting the
qualifications specified in clause (3) above;
(5) commercial paper having one of the
two highest ratings obtainable from
Moody's Investors Service, Inc. or Standard & Poor's Rating
Services
and in each case maturing within six months after the date of
acquisition; and
(6) money market funds at least 95% of
the assets of which constitute Cash
Equivalents of the kinds described in clauses (1) through (5) of
this
definition.
"CASINO VESSEL"
means the water-based gaming platform or platforms on which
the casino portion of the Hard Rock Hotel
& Casino Biloxi is located.
"CASINO VESSEL
TITLE POLICY" means the title policy covering the Casino
Vessel issued upon the recording of the
Preferred Ship Mortgage (or, if the
Casino Vessel is constructed as two
distinct vessels, two Preferred Ship
Mortgages) by First American Title
Insurance Company, naming the trustee as
additional insured.
"CHANGE OF
CONTROL" means the occurrence of any of the following:
(1) the direct or indirect sale,
lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one
or
a series of related transactions, of all or substantially all of
the
properties or assets of Premier and its Restricted Subsidiaries
taken
as a whole to any "person" (as that term is used in Section 13(d)
of
the Exchange Act) other than (i) AA Capital or its Related Parties
or
(ii) GAR, LLC;
(2) the liquidation or dissolution of,
or the adoption of a plan relating
to the liquidation or dissolution of, either of the Issuers or
any
successor thereto;
(3) the consummation of any
transaction (including, without limitation,
any merger or consolidation) the result of which is that any
"person"
(as defined above), other than (i) AA Capital and its Related
Parties
or (ii) GAR, LLC, becomes the Beneficial Owner, directly or
indirectly, of more than 50% of the Voting Stock of Premier,
measured
by voting power rather than by number of shares;
4
<Page>
(4) after an initial public offering
of the common stock of Premier or any
Person that, directly or indirectly, Beneficially Owns more than
50%
of the Voting Stock of Premier, measured by voting power rather
than
by number of shares, the first day on which a majority of the
members
of the Board of Directors of Premier are not Continuing Directors;
or
(5) the sale, transfer or other
disposition by AA Capital to a third party
who is not an Affiliate of AA Capital, other than to GAR, LLC, of
(i)
more than 75% of the Class A Preferred Units held by AA Capital as
of
the date hereof (which units shall represent 100% of the Class
A
Preferred Units issued and outstanding as of the date hereof) or
(ii)
more than 75% of the Class B Common Units held by AA Capital as of
the
date hereof (which units shall represent 100% of the Class B
Preferred
Units issued and outstanding as of the date hereof).
"CITY OF BILOXI
LEASE" means the Lease and Air Rights Agreement, dated
November 18, 2003, between the City of
Biloxi, a municipal corporation organized
and existing under the laws of the State of
Mississippi and Premier, as in
effect on the date of this Indenture or as
amended in accordance with Section
4.23 hereof.
"CLASS A
PREFERRED UNITS" means the Class A Preferred Units of Premier
issued and outstanding as of the date of
this Indenture.
"CLASS B COMMON
UNITS" means the Class B Common Units of Premier issued and
outstanding as of the date of this
Indenture.
"CLEARSTREAM"
means Clearstream Banking, S.A.
"CODE" means the
Internal Revenue Code of 1986, as amended.
"COLLATERAL"
means all assets and properties pledged or assigned, purported
to be pledged or assigned or required to be
pledged or assigned to the Trustee
on behalf of Holders of Notes under this
Indenture and the Collateral Documents.
"COLLATERAL
DOCUMENTS" means, collectively, the Disbursement Agreement; the
Pledge and Security Agreement; the
Membership Interest Pledge Agreement; the
Deed of Trust; the Preferred Ship
Mortgages; the Subordination, Non-Disturbance
and Attornment Agreement (Cafe Lease); the
Subordination, Non-Disturbance and
Attornment Agreement (Retail Store Lease);
the Consent and Agreement (Owner
Contractor Agreement); the Consent and
Agreement (Architectural Services
Agreement); the Consent and Acknowledgement
Agreement; the Tenant Estoppel
Certificate (Cafe Lease); the Tenant
Estoppel Certificate (Retail Store Lease);
all UCC filings related to the security
interests granted by any of the
foregoing documents and any other document
or instrument providing for a lien on
or security interest in any real or
personal tangible or intangible property as
security for any or all of the Obligations
of the Issuers under this Indenture
and the Notes or any of the foregoing
documents.
"CONSENT AND
ACKNOWLEDGEMENT AGREEMENT" means the Consent and
Acknowledgement Agreement, dated as of the
date of this Indenture, among Hard
Rock Licensing, Hard Rock (STP), the
Issuers, the Trustee for the benefit of the
Holders of the Notes, GAR, LLC and AA
Capital, as in effect on the date of this
Indenture or as amended in accordance with
Article 9 hereof.
"CONSENT AND
AGREEMENT (ARCHITECTURAL SERVICES AGREEMENT)" means the
Consent and Agreement (Architectural
Services Agreement), dated as of the date
of this Indenture, among the Architect,
the
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Issuers and the Trustee for the benefit of
the Holders of the Notes, as in
effect on the date of this Indenture or as
amended in accordance with Article 9
hereof.
"CONSENT AND
AGREEMENT (OWNER CONTRACTOR AGREEMENT)" means the Consent and
Agreement (Owner Contractor Agreement),
dated as of the date of this Indenture,
among the Construction Manager, the Issuers
and the Trustee for the benefit of
the Holders of the Notes, as in effect on
the date of this Indenture or as
amended in accordance with Article 9
hereof.
"CONSOLIDATED
CASH FLOW" means, with respect to any specified Person for
any period, the Consolidated Net Income of
such Person for such period PLUS,
without duplication:
(1) an amount equal to any
extraordinary loss plus any net loss realized
by such Person or any of its Restricted Subsidiaries in
connection
with
an Asset Sale, to the extent such losses were deducted in
computing such Consolidated Net Income; PLUS
(2) provision for taxes based on
income or profits or the Tax Amount of
such Person and its Restricted Subsidiaries for such period, to
the
extent that such provision for taxes or Tax Amount was included
in
computing such Consolidated Net Income; PLUS
(3) the Fixed Charges of such Person
and its Restricted Subsidiaries for
such period, to the extent that such Fixed Charges were deducted
in
computing Consolidated Net Income; PLUS
(4) depreciation, amortization
(including amortization of intangibles but
excluding amortization of prepaid cash expenses that were paid in
a
prior period) and other non-cash expenses (excluding any such
non-cash
expense to the extent that it represents an accrual of or reserve
for
cash expenses in any future period or amortization of a prepaid
cash
expense that was paid in a prior period) of such Person and its
Restricted Subsidiaries for such period to the extent that such
depreciation, amortization and other non-cash expenses were
deducted
in computing such Consolidated Net Income; PLUS
(5) any pre-opening expenses that were
deducted in computing Consolidated
Net Income on a consolidated basis and determined in accordance
with
GAAP; MINUS
(6) non-cash items increasing such
Consolidated Net Income for such
period, other than the accrual of revenue in the ordinary course
of
business;
in each case, on a consolidated basis and
determined in accordance with GAAP.
Notwithstanding
the preceding, the provision for taxes based on the income
or profits of, and the depreciation and
amortization and other non-cash expenses
of, a Restricted Subsidiary of Premier will
be added to Consolidated Net Income
to compute Consolidated Cash Flow of
Premier only to the extent that a
corresponding amount would be permitted at
the date of determination to be
dividended to Premier by such Restricted
Subsidiary without prior governmental
approval (that has not been obtained), and
without direct or indirect
restriction pursuant to the terms of its
charter and all agreements,
instruments, judgments, decrees, orders,
statutes, rules and governmental
regulations applicable to that Restricted
Subsidiary or its equityholders.
"CONSOLIDATED
NET INCOME" means, with respect to any specified Person for
any period, the aggregate of the Net Income
of such Person and its Restricted
Subsidiaries for such period, on a
consolidated basis, determined in accordance
with GAAP; PROVIDED, HOWEVER, that:
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(1) subject to clause (4) below, the
Net Income (but not loss) of any
Person that is not a Restricted Subsidiary or that is accounted for
by
the equity method of accounting shall be included only to the
extent
of the amount of dividends or similar distributions paid in cash
to
the specified Person or a Restricted Subsidiary of the Person;
(2) the Net Income of any Restricted
Subsidiary shall be excluded to the
extent that the declaration or payment of dividends or similar
distributions by that Restricted Subsidiary of that Net Income is
not
at the date of determination permitted without any prior
governmental
approval (that has not been obtained) or, directly or indirectly,
by
operation of the terms of its charter or any agreement,
instrument,
judgment, decree, order, statute, rule or governmental
regulation
applicable to that Restricted Subsidiary or its equityholders;
(3) the cumulative effect of a change
in accounting principles shall be
excluded; and
(4) the Net Income (but not loss) of
any Unrestricted Subsidiary shall be
excluded, whether or not distributed to the specified Person or one
of
its Restricted
Subsidiaries.
"CONSTRUCTION
DISBURSEMENT ACCOUNT" means the Construction Disbursement
Account (as defined in the Disbursement
Agreement) to be maintained by the
Disbursement Agent and pledged to the
Trustee pursuant to the terms of the
Disbursement Agreement.
"CONSTRUCTION
MANAGER" means Roy Anderson Corp., a Mississippi corporation.
"CONTINUING
DIRECTORS" means, as of any date of determination, any member
of the Board of Directors of Premier
who:
(1) was a member of such Board of
Directors on the date of this Indenture;
or
(2) was nominated for election or
elected to such Board of Directors with
the approval of a majority of the Continuing Directors who were
members of such Board at the time of such nomination or
election.
"CORPORATE TRUST
OFFICE OF THE TRUSTEE" will be at the address of the
Trustee specified in Section 14.03 hereof
or such other address as to which the
Trustee may give notice to Premier.
"DEED OF TRUST"
means the Construction Deed of Trust, Leasehold Deed of
Trust and Fixture Filing, with Assignment
of Leases and Rents, dated as of the
date of this Indenture, by Premier in favor
of Stratton Bull, as real estate
trustee, for the benefit of the Trustee for
the benefit of the Holders of the
Notes, as in effect on the date of this
Indenture or as amended in accordance
with Article 9 hereof.
"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.
"DEFINITIVE
NOTE" means a certificated Note registered in the name of the
Holder thereof and issued in accordance
with Section 2.06 hereof, substantially
in the form of EXHIBIT A-1 hereto except
that such Note shall not bear the
Global Note Legend and shall not have the
"Schedule of Exchanges of Interests in
the Global Note" attached thereto.
"DEPOSITARY"
means, with respect to the Notes issuable or issued in whole
or in part in global form, the Person
specified in Section 2.03 hereof as the
Depositary with respect to the Notes, and
any and
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all successors thereto appointed as
depositary hereunder and having become such
pursuant to the applicable provision of
this Indenture.
"DISBURSEMENT
AGENT" means the Disbursement Agent as defined in the
Disbursement Agreement.
"DISBURSEMENT
AGREEMENT" means the Cash Collateral and Disbursement
Agreements dated as of the date of this
Indenture, among the Issuers, the
Trustee, the Independent Construction
Consultant and the Disbursement Agent, as
in effect on the date of this Indenture or
as amended in accordance with Article
9 hereof.
"DISQUALIFIED
STOCK" means any Capital Stock that, by its terms (or by the
terms of any security into which it is
convertible, or for which it is
exchangeable, in each case at the option of
the holder thereof), or upon the
happening of any event, matures or is
mandatorily redeemable, pursuant to a
sinking fund obligation or otherwise, or
redeemable at the option of the holder
of the Capital Stock, in whole or in part,
on or prior to the date that is 91
days after the date on which the notes
mature. Notwithstanding the preceding
sentence, any Capital Stock that would
constitute Disqualified Stock solely
because the holders thereof have the right
to require Premier to repurchase such
Capital Stock upon the occurrence of a
change of control, an asset sale or an
event of loss will not constitute
Disqualified Stock if the terms of such
Capital Stock provide that Premier may not
repurchase or redeem any such Capital
Stock pursuant to such provisions unless
such repurchase or redemption complies
with Section 4.07 hereof. The amount of
Disqualified Stock deemed to be
outstanding at any time for purposes of the
indenture will be the maximum amount
that Premier and its Restricted
Subsidiaries may become obligated to pay upon
the maturity of, or pursuant to any
mandatory redemption provisions of, such
Disqualified Stock, exclusive of accrued
dividends.
"EQUITY
INTERESTS" means Capital Stock and all warrants, options or
other
rights to acquire Capital Stock (but
excluding any debt security that is
convertible into, or exchangeable for,
Capital Stock).
"EUROCLEAR"
means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear
system.
"EVENT OF LOSS"
means, with respect to any property or asset (tangible or
intangible, real or personal), any of the
following: (1) any loss, destruction
or damage of such property or asset; (2)
any actual condemnation, seizure or
taking by exercise of the power of eminent
domain or otherwise of such property
or asset, or confiscation of such property
or asset or the requisition of the
use of such property or asset; or (3) any
settlement in lieu of clause (2)
above.
"EXCHANGE OFFER"
has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER
REGISTRATION STATEMENT" has the meaning ascribed thereto in
the Registration Rights Agreement.
"EXCHANGE NOTE"
means the Notes issued in the Exchange Offer pursuant to
Section 2.06(f) hereof.
"FAIR MARKET
VALUE" means the value that would be paid by a willing buyer
to an unaffiliated willing seller in a
transaction not involving distress or
necessity of either party, determined in
good faith by the Board of Directors of
Premier (unless otherwise provided in the
Indenture).
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"FF&E" means
furniture, fixtures and equipment used in the ordinary course
of business of Premier and its Restricted
Subsidiaries.
"FF&E
FINANCING" means Indebtedness the proceeds of which are used
solely
to finance the acquisition by Premier of,
or the entry into a capital lease by
Premier with respect to, FF&E, PROVIDED
that neither such acquisition nor any
such capital lease for such FF&E shall
be required to be completed or entered
into, respectively, at the time of
incurrence of such Indebtedness.
"FF&E
INTERCREDITOR AGREEMENT" means the FF&E Intercreditor Agreement
in
the form attached as EXHIBIT G hereto, to
be executed by Premier, the Trustee
and a lender of Indebtedness pursuant to
clause (6) of the definition of
"Permitted Liens" or as amended in
accordance with Article 9 hereof.
"FINAL PLANS"
with respect to any particular work or improvement means
Plans which (1) have received all approvals
from all governmental authorities
necessary to commence construction of such
work or improvements and (2) contain
sufficient specificity to permit the
completion of the work or improvement.
"FIXED CHARGE
COVERAGE RATIO" means with respect to any specified Person
for any period, the ratio of the
Consolidated Cash Flow of such Person for such
period to the Fixed Charges of such Person
for such period. In the event that
the specified Person or any of its
Restricted Subsidiaries incurs, assumes,
Guarantees, repays, repurchases, redeems,
defeases, retires or otherwise
discharges any Indebtedness (other than
ordinary working capital borrowings) or
issues, repurchases or redeems preferred
stock or equity subsequent to the
commencement of the period for which the
Fixed Charge Coverage Ratio is being
calculated and on or prior to the date on
which the event for which the
calculation of the Fixed Charge Coverage
Ratio is made (the "CALCULATION DATE"),
then the Fixed Charge Coverage Ratio will
be calculated giving pro forma effect
to such incurrence, assumption, Guarantee,
repayment, repurchase, redemption,
defeasance, retirement or other discharge
of Indebtedness, or such issuance,
repurchase or redemption of preferred stock
or equity, and the use of the
proceeds therefrom as if the same had
occurred at the beginning of the
applicable four-quarter reference
period.
In addition, for
purposes of calculating the Fixed Charge Coverage Ratio:
(1) acquisitions that have been made
by the specified Person or any of its
Restricted Subsidiaries, including through mergers or
consolidations,
or any Person or any of its Restricted Subsidiaries acquired by
the
specified Person or any of its Restricted Subsidiaries, and
including
any related financing transactions and including increases in
ownership of Restricted Subsidiaries, during the four-quarter
reference period or subsequent to such reference period and on
or
prior to the Calculation Date will be given pro forma effect
(in
accordance with Regulation S-X under the Securities Act) as if
they
had occurred on the first day of the four-quarter reference
period;
(2) the Consolidated Cash Flow
attributable to discontinued operations, as
determined in accordance with GAAP, and operations or businesses
(and
ownership interests therein) disposed of prior to the
Calculation
Date, shall be excluded;
(3) the Fixed Charges attributable to
discontinued operations, as
determined in accordance with GAAP, and operations or businesses
(and
ownership interests therein) disposed of prior to the
Calculation
Date, will be excluded, but only to the extent that the
obligations
giving rise to such Fixed Charges will not be obligations of
the
specified Person or any of its Restricted Subsidiaries following
the
Calculation Date;
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(4) any Person that is a Restricted
Subsidiary on the Calculation Date
will be deemed to have been a Restricted Subsidiary at all
times
during such four-quarter period;
(5) any Person that is not a
Restricted Subsidiary on the Calculation Date
will be deemed not to have been a Restricted Subsidiary at any
time
during such four-quarter period; and
(6) if any Indebtedness bears a
floating rate of interest, the interest
expense on such Indebtedness will be calculated as if the rate
in
effect on the Calculation Date had been the applicable rate for
the
entire period (taking into account any Hedging Obligation
applicable
to such Indebtedness if such Hedging Obligation has a remaining
term
as at the Calculation Date in excess of 12 months).
"FIXED CHARGES"
means, with respect to any specified Person for any period,
the sum, without duplication, of:
(1) the consolidated interest expense
of such Person and its Restricted
Subsidiaries for such period, whether paid or accrued,
including,
without limitation, amortization of debt issuance costs and
original
issue discount, non-cash interest payments, the interest component
of
any deferred payment obligations, the interest component of all
payments associated with Capital Lease Obligations, imputed
interest
with respect to Attributable Debt, commissions, discounts and
other
fees and charges incurred in respect of letter of credit or
bankers'
acceptance financings, and net of the effect of all payments made
or
received pursuant to Hedging Obligations in respect of interest
rates;
PLUS
(2) the consolidated interest of such
Person and its Restricted
Subsidiaries that was capitalized during such period; PLUS
(3) any interest accruing on
Indebtedness of another Person that is
Guaranteed by such Person or one of its Restricted Subsidiaries
or
secured by a Lien on assets of such Person or one of its
Restricted
Subsidiaries, whether or not such Guarantee or Lien is called
upon;
PLUS
(4) the product of (a) all dividends
and other distributions, whether paid
or accrued and whether or not in cash, on any series of
preferred
equity of such Person or any of its Restricted Subsidiaries,
other
than (i) non-cash dividends and other non-cash distributions on
the
Class A Preferred Units issued on the date of this Indenture and
(ii)
dividends and other distributions on Equity Interests payable
solely
in Equity Interests of Premier (other than Disqualified Stock) or
to
Premier or a Restricted Subsidiary of Premier, times (b) a
fraction,
the numerator of which is one and the denominator of which is
one
minus the then current combined federal, state and local statutory
tax
rate of such Person (or, in the case of a Person that is a
partnership
or limited liability company, the combined federal, state and
local
income tax rate that was or would have been used to calculate the
Tax
Amount of such Person), expressed as a decimal, in each case, on
a
consolidated basis and in accordance with GAAP.
"GAAP" means
generally accepted accounting principles set forth in the
opinions and pronouncements of the
Accounting Principles Board of the American
Institute of Certified Public Accountants
and statements and pronouncements of
the Financial Accounting Standards Board or
in such other statements by such
other entity as have been approved by a
significant segment of the accounting
profession, which are in effect from time
to time.
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"GAMING
AUTHORITY" means any agency, authority, board, bureau,
commission,
department, office or instrumentality of
any nature whatsoever of the United
States federal government, any foreign
government, any state, province or city
or other political subdivision or
otherwise, whether now or hereafter in
existence, including, without limitation,
the Mississippi Gaming Commission,
with authority to regulate any gaming
operation (or proposed gaming operation)
owned, managed or operated by Premier or
any of its Subsidiaries.
"GAMING LAW"
means any gaming law or regulation, including the
interpretations thereof by and the policies
of any Gaming Authority, of any
jurisdiction or jurisdictions to which
Premier or any of its Subsidiaries is, or
may at any time after the date of the
indenture, be subject.
"GAMING LICENSE"
means any license, permit, franchise or other
authorization from any Gaming Authority
necessary at any time to own, lease,
operate or otherwise conduct the business
of Premier or any of its Restricted
Subsidiaries.
"GAR, LLC" means
GAR, LLC, a Mississippi limited liability company with the
membership as set forth on EXHIBIT A to the
Amended and Restated Limited
Liability Company Operating Agreement of
GAR, LLC, dated as of May 12, 2003,
among Roy Anderson III, David Scott Ross,
Gregg Giuffria and James Keith
Wallace.
"GLOBAL NOTE
LEGEND" means the legend set forth in Section 2.06(g)(2)
hereof, which is required to be placed on
all Global Notes issued under this
Indenture.
"GLOBAL NOTES"
means, individually and collectively, each of the Restricted
Global Notes and the Unrestricted Global
Notes deposited with or on behalf of
and registered in the name of the
Depository or its nominee, substantially in
the form of Exhibit A1 hereto and that
bears the Global Note Legend and that has
the "Schedule of Exchanges of Interests in
the Global Note" attached thereto,
issued in accordance with Section 2.01,
2.06(b)(3), 2.06(b)(4), 2.06(d)(2) or
2.06(f) hereof.
"GOVERNMENT
SECURITIES" means securities that are:
(1) direct obligations of the United
States of America for the timely
payment of which its full faith and credit is pledged; or
(2) obligations of a Person controlled
or supervised by and acting as an
agency or instrumentality of the United States of America the
timely
payment of which is unconditionally guaranteed as a full faith
and
credit obligation by the United States of America;
which, in either case, are not callable or
redeemable at the option of the
issuer thereof, and also includes a
depository receipt issued by a bank (as
defined in Section 3(a)(2) of the
Securities Act of 1933, as amended), as
custodian with respect to any such
Government Security or a specific payment of
principal of or interest on any such
Government Security held by such custodian
for the account of the holder of such
depository receipt; PROVIDED that (except
as required by law) such custodian is not
authorized to make any deduction from
the amount payable to the holder of such
depository receipt from any amount
received by the custodian in respect of the
Government Security or the specific
payment of principal of or interest on the
Government Security evidenced by such
depository receipt.
"GUARANTEE"
means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary
course of business, direct or
indirect, in any manner including, without
limitation, by way of a pledge of
assets or through letters of credit or
reimbursement agreements in
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respect thereof, of all or any part of any
Indebtedness (whether arising by
virtue of partnership arrangements, or by
agreements to keep-well, to purchase
assets, goods, securities or services, to
take or pay or to maintain financial
statement conditions or otherwise).
"GUARANTOR"
means any Restricted Subsidiary acquired or created by Premier
or any of its Restricted Subsidiaries after
the date of this Indenture that
executes a Subsidiary Guarantee in
accordance with the provisions of this
Indenture, and such Restricted
Subsidiaries' respective successors and assigns
"HARD ROCK CAFE LEASE"
means the Lease Agreement (Cafe), dated as of
December 31, 2003 between Hard Rock (STP)
and Premier, as in effect on the date
of this Indenture or as amended in
accordance with Section 4.23 hereof.
"HARD ROCK HOTEL
& CASINO BILOXI" means the project to design, develop,
construct, equip and operate a casino
hotel, land based pavilion, parking
structure and other amenities in Biloxi,
Mississippi, as described in the
Offering Memorandum.
"HARD ROCK
LICENSE AGREEMENT" means the License Agreement, dated as of
May 15, 2003, between Hard Rock Licensing
and Premier, as in effect on the date
of this Indenture or as amended in
accordance with Section 4.23 hereof.
"HARD ROCK
LICENSING" means Hard Rock Hotel Licensing, Inc., a Florida
corporation.
"HARD ROCK
MEMORABILIA LEASE" means the Memorabilia Lease attached as
EXHIBIT C to the Hard Rock License
Agreement as in effect on the date of this
Indenture to be entered into between Hard
Rock (STP) and Premier prior to the
Initial Operating Date, as amended in
accordance with Section 4.23 hereof.
"HARD ROCK
RETAIL STORE LEASE" means the Lease Agreement (Retail Store),
dated as of December 31, 2003 between Hard
Rock (STP) and Premier, as in effect
on the date of this Indenture or as amended
in accordance with Section 4.23
hereof.
"HARD ROCK
(STP)" means Hard Rock Cafe International (STP), Inc., a New
York corporation.
"HEDGING
OBLIGATIONS" means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements,
interest rate cap agreements and
interest rate collar agreements; and
(2) other agreements or arrangements
designed to protect such Person
against fluctuations in interest rates.
"HOLDER" means a
Person in whose name a Note is registered.
"HRC COMPETITOR"
means (1) Planet Hollywood, Motown Cafe, House of Blues,
Rainforest Cafe, Country Star, Harley
Davidson Cafe, ESPNZone, TGI Fridays,
Chili's, Applebee's, Houlihans or
Bennigans; (2) a restaurant chain (a)
operating under the same name in six or
more Metropolitan Statistical Areas, (b)
with theme-related icons or memorabilia
displayed throughout the premises in a
museum or collection type manner and (c)
which derives greater than 10% of its
gross revenues from the sale of merchandise
or (3) any American dining
theme-restaurant whose primary business is
the sale of hamburgers or bar-b-que.
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"INDEBTEDNESS"
means, with respect to any specified Person, any
indebtedness of such Person, whether or not
contingent:
(1) in respect of borrowed money;
(2) evidenced by bonds, notes,
debentures or similar instruments or
letters of credit (or reimbursement agreements in respect
thereof);
(3) in respect of banker's
acceptances;
(4) representing Capital Lease
Obligations or Attributable Debt in respect
of sale and leaseback transactions;
(5) representing the balance deferred
and unpaid of the purchase price of
any property or services due more than six months after such
property
is acquired or such services are completed; or
(6) representing any Hedging
Obligations,
if and to the extent any of the preceding
items (other than letters of credit,
Attributable Debt and Hedging Obligations)
would appear as a liability upon a
balance sheet of the specified Person
prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes
all Indebtedness of others secured by
a Lien on any asset of the specified Person
(whether or not such Indebtedness is
assumed by the specified Person) and, to
the extent not otherwise included, the
Guarantee by the specified Person of any
Indebtedness of any other Person.
"INDENTURE"
means this Indenture, as amended or supplemented from time to
time.
"INDEPENDENT
CONSTRUCTION CONSULTANT" means the independent construction
consultant retained in connection with the
construction of the Hard Rock Hotel &
Casino Biloxi as set forth in the
Disbursement Agreement, or any successor
independent construction consultant
appointed by the Trustee pursuant to the
terms of the Disbursement Agreement.
"INDIRECT
PARTICIPANT" means a Person who holds a beneficial interest in
a
Global Note through a Participant.
"INITIAL NOTES"
means the first $160.0 million aggregate principal amount
of Notes issued under this Indenture on the
date of this Indenture.
"INITIAL
OPERATING DATE" means the first time that:
(1) all Biloxi Gaming Licenses have
been granted and have not been revoked
or suspended;
(2) all Liens (other than Permitted
Liens), if any, related to the
development, construction and equipping of, and beginning
operations
at,
the Hard Rock Hotel & Casino Biloxi have been discharged or,
if
payment is not yet due or if such payment is contested in good
faith
by Premier, sufficient funds remain in the Construction
Disbursement
Account to discharge such Liens and Premier has taken any
action
(including the institution of legal proceedings) necessary to
prevent
the sale of any or all of the Hard Rock Hotel & Casino Biloxi
or the
real property on which the Hard Rock Hotel & Casino Biloxi will
be
constructed;
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(3) the Independent Construction
Consultant shall deliver a certificate to
the Trustee certifying that the Hard Rock Hotel & Casino Biloxi
is
substantially complete in all material respects in accordance with
the
Final Plans and all applicable laws, ordinances and
regulations;
(4) the Hard Rock Hotel & Casino
Biloxi is in a condition (including
installation of furnishings, fixtures and equipment) to receive
customers in the ordinary course of business;
(5) the Hard Rock Hotel & Casino
Biloxi is open to the public and
operating with the Minimum Facilities;
(6) the Hard Rock Hotel & Casino
Biloxi is open to the public and
operating in accordance with applicable law in all material
respects;
and
(7) a permanent or temporary
certificate of occupancy has been issued for
the Hard Rock Hotel & Casino Biloxi by the appropriate
governmental
authorities.
"INITIAL
PURCHASERS" means Banc of America Securities LLC, Citigroup
Global
Markets Inc. and Merrill Lynch, Pierce
Fenner and Smith Incorporated.
"INTEREST
RESERVE ACCOUNT" means the Interest Reserve Account (as defined
in the Disbursement Agreement) to be
maintained by the Disbursement Agent and
pledged to the Trustee pursuant to the
terms of the Disbursement Agreement.
"INVESTMENTS"
means, with respect to any Person, all direct or indirect
investments by such Person in other Persons
(including Affiliates) in the forms
of loans (including Guarantees or other
obligations), advances or capital
contributions (excluding commission, travel
and similar advances to officers and
employees made in the ordinary course of
business), purchases or other
acquisitions for consideration of
Indebtedness, Equity Interests or other
securities, together with all items that
are or would be classified as
investments on a balance sheet prepared in
accordance with GAAP. If Premier or
any Subsidiary of Premier sells or
otherwise disposes of any Equity Interests of
any direct or indirect Subsidiary of
Premier such that, after giving effect to
any such sale or disposition, such Person
is no longer a Subsidiary of Premier,
Premier will be deemed to have made an
Investment on the date of any such sale
or disposition equal to the Fair Market
Value of Premier's Investments in such
Subsidiary that were not sold or disposed
of in an amount determined as provided
in Section 4.07(c) hereof. The acquisition
by Premier or any Subsidiary of
Premier of a Person that holds an
Investment in a third Person will be deemed to
be an Investment by Premier or such
Subsidiary in such third Person in an amount
equal to the Fair Market Value of the
Investments held by the acquired Person in
such third Person in an amount determined
as provided in Section 4.07(c) hereof.
Except as otherwise provided in the
indenture, the amount of an Investment will
be determined at the time the Investment is
made and without giving effect to
subsequent changes in value.
"ISSUERS" means
Premier, Premier Finance and any all successors to either
of them.
"KEY PROJECT
ASSETS" means (1) any land underlying, or necessary for access
to or operation of, the Hard Rock Hotel
& Casino Biloxi, (2) any improvements on
any land underlying, or necessary for
access to or operation of, the Hard Rock
Hotel & Casino Biloxi, (3) the parking
garage described as a part of the Hard
Rock Hotel & Casino Biloxi in the
Offering Memorandum and (4) the Casino Vessel.
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"LEGAL HOLIDAY"
means a Saturday, a Sunday or a day on which banking
institutions in the City of New York or at
a place of payment are authorized by
law, regulation or executive order to
remain closed. If a payment date is a
Legal Holiday at a place of payment,
payment may be made at that place on the
next succeeding day that is not a Legal
Holiday, and no interest shall accrue on
such payment for the intervening
period.
"LETTER OF
TRANSMITTAL" means the letter of transmittal to be prepared by
the Company and sent to all Holders of the
Notes for use by such Holders in
connection with the Exchange Offer.
"LIEN" means,
with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of
any kind in respect of such asset,
whether or not filed, recorded or otherwise
perfected under applicable law,
including any conditional sale or other
title retention agreement, any lease in
the nature thereof, any option or other
agreement to sell give a security
interest in and any filing of or agreement
to give any financing statement under
the Uniform Commercial Code (or equivalent
statutes) of any jurisdiction.
"LIQUIDATED
DAMAGES" means all Liquidated Damages then owing pursuant to
the Registration Rights Agreement.
"MEMBERSHIP
INTEREST PLEDGE AGREEMENT" means the Premier Entertainment
Biloxi LLC Pledge and Security Agreement
(Pledged Equity Interests) dated as of
the date of this Indenture, by GAR, LLC, AA
Capital and Premier in favor of the
Trustee for the benefit of the Holders of
the Notes, as in effect on the date of
this Indenture or as amended in accordance
with Article 9 hereof.
"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 top floor lounge),
a 900 person capacity Hard Rock Live!
branded entertainment venue and a parking
structure for at least 1440 vehicles.
"MISSISSIPPI
BOND INDENTURE" means the Trust Indenture, substantially in
the form attached hereto as EXHIBIT H,
between the Mississippi Business Finance
Corporation and U.S. Bank National
Association, as amended in accordance with
Section 4.23 hereof.
"MISSISSIPPI
BOND FINANCING DOCUMENTS" means, collectively the Mississippi
Bond Indenture, the Mississippi Bond Loan
Agreement, the Mississippi Bond
Purchase Contract, the Series 2004 Bonds
and the Series 2004 Note.
"MISSISSIPPI
BOND LOAN AGREEMENT" means the Loan Agreement, substantially
in the form attached hereto as EXHIBIT I,
between the Mississippi Business
Finance Corporation and Premier, as amended
in accordance with the Section 4.23
hereof.
"MISSISSIPPI
BOND PURCHASE CONTRACT" means the Bond Purchase Contract,
substantially in the form attached hereto
as EXHIBIT J, between the Mississippi
Business Finance Corporation and Premier
Finance Biloxi Corp., as amended in
accordance with Section 4.23 hereof.
"MISSISSIPPI
BUSINESS FINANCE CORPORATION" means the Mississippi Business
Finance Corporation, a public corporation
organized and existing under the laws
of the State of Mississippi.
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"MUSIC-THEMED
FACILITY" means a facility (including a hotel) that includes
in its name, is licenses or endorsed by, or
has a substantial portion of its
design based on, or is otherwise identified
with, music, any genre of music, any
musician, musical personality or musical
group.
"NET INCOME"
means, with respect to any Person for any period, the net
income (loss) of such Person, determined in
accordance with GAAP and before any
reduction in respect of dividends or
distributions on preferred interests,
excluding, however:
(1) any gain (but not loss), together
with any related provision for taxes
or Tax Distributions on such gain (but not loss), realized in
connection with: (a) any Asset Sale; or (b) the disposition of
any
securities by such Person or any of its Restricted Subsidiaries or
the
extinguishment of any Indebtedness of such Person or any of its
Restricted Subsidiaries; and
(2) any extraordinary gain (but not
loss), together with any related
provision for taxes or Tax Distributions on such extraordinary
gain
(but not
loss),
less, in each case of any Person that is a
partnership or a limited liability
company, the Tax Amount of such Person for
such period.
"NET LOSS
PROCEEDS" means the aggregate cash proceeds received by Premier
or any of its Restricted Subsidiaries in
respect of an Event of Loss, including,
without limitation, insurance proceeds from
condemnation awards or damages
awarded by any judgment, net of the direct
costs in recovery of such Net Loss
Proceeds (including, without limitation,
legal, accounting, appraisal and
insurance adjuster fees and any relocation
expenses incurred as a result thereof
and taxes or Tax Distributions attributable
to such Net Loss) and amounts
required to be applied and that are applied
to the repayment of Indebtedness
secured by a Permitted Lien on the asset or
assets that were the subject of such
Event of Loss.
"NET PROCEEDS"
means the aggregate cash proceeds received by Premier or any
of its Restricted Subsidiaries in respect
of any Asset Sale (including, without
limitation, any cash received upon the sale
or other disposition of any non-cash
consideration received in any Asset Sale),
net of the direct costs relating to
such Asset Sale, including, without
limitation, legal, accounting and investment
banking fees, and sales commissions, and
any relocation expenses incurred as a
result of the Asset Sale, and taxes or Tax
Distributions attributable to such
Asset Sale paid or payable as a result of
the Asset Sale, in each case, after
taking into account any available tax
credits or deductions and any tax sharing
arrangements, and amounts required to be
applied to the repayment of
Indebtedness secured by a Lien on the asset
or assets that were the subject of
such Asset Sale and any reserve for
adjustment in respect of the sale price of
such asset or assets established in
accordance with GAAP.
"NON-RECOURSE
DEBT" means Indebtedness:
(1) as to which neither Premier nor
any of its Restricted Subsidiaries (a)
provides credit support of any kind (including any undertaking,
agreement or instrument that would constitute Indebtedness), (b)
is
directly or indirectly liable as a guarantor or otherwise or
(c)
constitutes the lender;
(2) no default with respect to which
(including any rights that the
holders of the Indebtedness may have to take enforcement action
against an Unrestricted Subsidiary) would permit upon notice, lapse
of
time or both any holder of any other Indebtedness (other than
the
notes) of Premier or any of its Restricted Subsidiaries to declare
a
default on such other
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Indebtedness or cause the payment of the Indebtedness to be
accelerated or payable prior to its Stated Maturity; and
(3) as to which the lenders have been
notified in writing that they will
not have any recourse to the stock or assets of Premier or any of
its
Restricted Subsidiaries.
"NOTES" has the
meaning assigned to it in the preamble to this Indenture.
The Initial Notes and the Additional Notes
shall be treated as a single class
for all purposes under this Indenture, and
unless the context otherwise
requires, all references to the Notes shall
include the Initial Notes and any
Additional Notes.
"NON-U.S.
PERSON" means a Person who is not a U.S. Person.
"OBLIGATIONS"
means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages
and other liabilities payable under
the documentation governing any
Indebtedness.
"OFFERING" means
the issuance and sale of the Notes on the date of this
Indenture.
"OFFERING
MEMORANDUM" means the Offering Memorandum, dated January 15,
2004, related to the Offering, as amended
or supplemented.
"OFFICER" means,
with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the
Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any
Assistant Treasurer, the Controller, the
Secretary or any Vice-President of such
Person.
"OFFICERS'
CERTIFICATE" means a certificate signed on behalf of each of
the
Issuers (i) prior to the Initial Operating
Date by one Officer of each of the
Issuers, whom must be the principal
executive officer of such Issuer and (ii)
after the Initial Operating Date, two
Officers of each of the Issuers, one of
whom must be the principal executive
officer, the principal financial officer,
the treasurer or the principal accounting
officer of each of the Issuer, in each
case that meet the requirements of Section
14.06 hereof.
"OPERATING"
means:
(1) no Biloxi Gaming License has been
revoked or suspended;
(2) all Liens (other than Liens
created by the Collateral Documents or
Permitted Liens) related to the development, construction and
equipping of, and beginning operations at, the Hard Rock Hotel
&
Casino Biloxi have been discharged or, if payment is not yet due or
if
such payment is contested in good faith by Premier, sufficient
funds
remain in the Construction Disbursement Account to discharge
such
Liens;
(3) the Hard Rock Hotel & Casino
Biloxi is in a condition (including
installation of furnishings, fixtures and equipment) to receive
customers in the ordinary course of business; and
(4) the Hard Rock Hotel & Casino
Biloxi is open to the public, operating
with the Minimum Facilities and operating in accordance with
applicable law in all material respects.
"OPERATING
DEADLINE" means December 31, 2005.
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"OPINION OF
COUNSEL" means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the
requirements of Section 14.06 hereof.
The counsel may be an employee of or
counsel to the Issuers, any Subsidiary of
the Issuers or the Trustee.
"OWNER
CONTRACTOR AGREEMENT" means the Agreement Between Owner and
Contractor, dated as of December 24, 2003,
between Premier and the Construction
Manager, as in effect on the date of this
Indenture or as amended in accordance
with Section 4.23 hereof.
"PARTICIPANT"
means, with respect to the Depositary, Euroclear or
Clearstream, a Person who has an account
with the Depositary, Euroclear or
Clearstream, respectively (and, with
respect to DTC, shall include Euroclear and
Clearstream).
"PERMITTED
BUSINESS" means the gaming business and other businesses
necessary for, incident to, connected with,
arising out of, or developed or
operated to permit or facilitate the
conduct or pursuit of the gaming business
(including developing and operating lodging
facilities, retail and restaurant
facilities, entertainment facilities, food
and beverage distribution operations,
transportation services or other activities
or enterprises related to the
foregoing and any additions or improvements
thereto) and any business that is a
reasonable extension, development or
expansion of any of the foregoing.
"PERMITTED
C-CORP. REORGANIZATION" means a transaction resulting in
Premier
or any of its Restricted Subsidiaries
becoming a subchapter "C" corporation
under the Code; PROVIDED that, in
connection with such transaction:
(1) the entity resulting from such
transaction is organized and existing
under the laws of any state of the United States or the District
of
Columbia;
(2) the entity resulting from such
transaction assumes in writing all of
the obligations of Premier or any of its Restricted Subsidiaries
under
this Indenture, the Notes, the Collateral Documents and any
FF&E
Intercreditor Agreement and all other documents and instruments
to
which Premier or the Restricted Subsidiary is a party (other than
any
documents and instruments that, individually or in the aggregate,
are
not material to Premier or the Restricted Subsidiary);
(3) the Trustee is given not less than
15 days' advance written notice of
such transaction and evidence satisfactory to the Trustee
(including,
without limitation, title insurance and a satisfactory opinion
of
counsel) regarding the maintenance of the perfection and priority
of
liens granted, or intended to be granted, in favor of the Trustee
in
the Collateral following such transaction;
(4) such transaction would not cause
or result in an Event of Default;
(5) such transaction would not result
in the loss or suspension or
material impairment of any Gaming Licenses, unless a comparable
Gaming
License is effective prior to or simultaneously with such loss,
suspension or material impairment;
(6) such transaction would not require
any Holder or Beneficial Owner of
the Notes to obtain a Gaming License or be qualified or found
suitable
under the laws of any applicable gaming jurisdiction; PROVIDED
that
such Holder or Beneficial Owner would not have been required to
obtain
a Gaming License or be qualified or found suitable under the laws
of
any applicable gaming jurisdiction in the absence of such
transaction;
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(7) Premier or the applicable
Restricted Subsidiary shall have delivered
to the Trustee an Opinion of Counsel in the United States
reasonably
acceptable to the Trustee confirming that none of Premier, any of
its
Restricted Subsidiaries or any of the Holders of the Notes will
recognize income, gain or loss for the U.S. federal or state
income
tax purposes as a result of such transaction; and
(8) Premier shall have delivered to
the Trustee a certificate of the chief
financial officer of Premier that the conditions in clauses (1)
through (7) have been satisfied.
"PERMITTED
INVESTMENTS" means:
(1) any Investment in Premier or in a
Restricted Subsidiary of Premier;
(2) any Investment in Cash Equivalents
or Government Securities;
(3) any Investment by Premier or any
Restricted Subsidiary of Premier in a
Person, if as a result of such Investment:
(a) such Person
becomes a Restricted Subsidiary of Premier; or
(b) such Person is
merged, consolidated or amalgamated with or into,
or transfers or conveys substantially all of its assets to, or
is
liquidated into, Premier or a Restricted Subsidiary of Premier;
(4) any Investment made as a result of
the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and
in
compliance with Section 4.10 hereof;
(5) any acquisition of assets or
Capital Stock solely in exchange for the
issuance of Equity Interests (other than Disqualified Stock) of
Premier;
(6) any Investments received in
compromise or resolution of (a)
obligations of trade creditors or customers that were incurred in
the
ordinary course of business of Premier or any of its Restricted
Subsidiaries, including pursuant to any plan of reorganization
or
similar arrangement upon the bankruptcy or insolvency of any
trade
creditor or customer, or (b) litigation, arbitration or other
disputes
with Persons who are not Affiliates of Premier or any of its
Restricted Subsidiaries;
(7) Investments represented by Hedging
Obligations;
(8) loans or advances to employees
made in the ordinary course of business
of Premier or a Restricted Subsidiary of Premier in an
aggregate
principal amount not to exceed $1.0 million at any one time
outstanding;
(9) any Investment made in settlement
of gambling debts incurred by
patrons of any casino owned or operated by Premier or any of
its
Restricted Subsidiaries which settlements have been entered into
in
the ordinary course of business;
(10) other
Investments in any Person other than an Affiliate of Premier or
any of its Restricted Subsidiaries having an aggregate Fair
Market
Value (measured on the date each such Investment was made and
without
giving effect to subsequent changes in value), when
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taken together with all other Investments made pursuant to this
clause
(10) that are at the time outstanding, not to exceed $1.0 million;
and
(11) Investments
represented by the Series 2004 Bonds.
"PERMITTED
LIENS" means:
(1) Liens on the assets of the Issuers
created by this Indenture and the
Collateral Documents;
(2) Liens in favor of the Issuers or
any Guarantor;
(3) Liens on property of a Person
existing at the time such Person is
merged with or into or consolidated with Premier or any
Restricted
Subsidiary of Premier; PROVIDED that such Liens were in
existence
prior to the contemplation of such merger or consolidation and do
not
extend to any assets other than those of the Person merged into
or
consolidated with Premier or any of its Restricted
Subsidiaries;
(4) Liens on property (including
Capital Stock) existing at the time of
acquisition of the property by Premier or any Restricted Subsidiary
of
Premier, PROVIDED that such Liens were in existence prior to, and
not
incurred in contemplation of, such acquisition;
(5) Liens to secure the performance of
statutory obligations, surety or
appeal bonds, performance bonds or other obligations of a like
nature
incurred in the ordinary course of business;
(6) Liens to secure FF&E Financing
permitted by clause (3) of Section
4.09(b) hereof covering only the FF&E acquired with such
FF&E
Financing, or, if the FF&E so acquired with such FF&E
Financing is to
be located on the Casino Vessel, a lien under a second ship
mortgage
on the Casino Vessel, PROVIDED, HOWEVER, that this clause (6)
shall
not apply to any FF&E Financing that is in the form of
Additional
Notes; PROVIDED, FURTHER, that if such lien is on the Casino
Vessel,
the holder of such lien must enter into an FF&E
Intercreditor
Agreement;
(7) Liens for taxes, assessments or
governmental charges or claims that
are not yet delinquent or that are being contested in good faith
by
appropriate proceedings promptly instituted and diligently
concluded,
PROVIDED that any reserve or other appropriate provision as is
required in conformity with GAAP has been made therefor;
(8) Liens imposed by law, such as
carriers', warehousemen's, landlord's
and mechanics' Liens, in each case, incurred in the ordinary course
of
business;
(9) survey exceptions, easements or
reservations of, or rights of others
for, licenses, rights-of-way, sewers, electric lines, telegraph
and
telephone lines and other similar purposes, or zoning or other
restrictions as to the use of real property that were not incurred
in
connection with Indebtedness and that do not in the aggregate
materially adversely affect the value of such properties or
materially
impair their use in the operation of the business of such
Person;
(10) Liens
created for the benefit of (or to secure) the Notes (or
Guarantees of the Notes);
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(11) Liens to
secure any Permitted Refinancing Indebtedness permitted to be
incurred under the indenture, but only to the extent such
Permitted
Refinancing Indebtedness is not in the form of Additional
Notes;
PROVIDED, HOWEVER, that:
(a) such Permitted
Refinancing Indebtedness is not exchanged for, and
the net proceeds thereof are not used to refund, refinance,
replace, defease or discharge any Notes;
(b) the new Lien shall
be limited to all or part of the same property
and assets that secured or, under the written agreements
pursuant
to which the original Lien arose, could secure the original
Lien
(plus improvements and accessions to, such property or proceeds
or distributions thereof); and
(c) the Indebtedness
secured by the new Lien is not increased to any
amount greater than the sum of (x) the outstanding principal
amount or, if greater, committed amount, of the Permitted
Referencing Indebtedness and (y) an amount necessary to pay any
fees and expenses, including premiums, related to such
refinancings, refunding, extension, renewal or replacement;
(12) Liens
imposed by operation of federal admiralty law incurred in the
ordinary course of business, and Liens on deposits made to obtain
the
release of such Liens, if (a) for charges or claims that are not
yet
delinquent or that are being contested in good faith by
appropriate
proceedings, properly instituted and diligently concluded,
PROVIDED
that any reserve or other appropriate provision as is required
in
conformity has been made therefore, and (b) Premier is otherwise
in
compliance with the terms and conditions of the Preferred Ship
Mortgage applicable to such Lien, including, without limitation,
(i)
Liens for the wages of a stevedore, (ii) Liens for general
average
contribution, (iii) Liens for unpaid crew wages and (iv) Liens
for
salvage costs;
(13) Liens on
assets or property of Premier or any its Restricted
Subsidiaries arising by reason of any attachment or judgment
not
constituting an Event of Default under this Indenture, so long
as:
(a) such Liens are
being contested in good faith by appropriate
proceedings, and
(b) such Liens are
adequately bonded or adequate reserves have been
established on the books of the applicable Person in accordance
with GAAP; and
(14) Liens
contemplated by the Mississippi Bond Financing Documents.
"PERMITTED RANK
PAYMENTS" means each of the following:
(1) payments of interest due to Rank as set forth in Section 3.1
of
the Rank
Note;
(2) payments of other fees and expenses due to Rank under
Section
9.6(a) of the
Rank Investment Agreement (excluding fees and expenses due
under such
Section 9.6(a) in connection with the enforcement or protection
of Rank's rights
in relation to the Rank Investment Agreement and the other
Investment
Documents (as defined in the Rank Investment Agreement) to the
extent incurred
in connection with an Exercise of Remedies (as defined in
the Rank
Intercreditor Agreement) by Rank that is not permitted under
the
terms of the
Rank Intercreditor Agreement, but including payments of
interest, fees
and expenses missed as a result of a Blocking Event (as
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defined in the
Rank Intercreditor Agreement) under the Rank Intercreditor
Agreement that
has occurred but is no longer continuing;
(3)
prepayments of amounts due to Rank under the Rank Note in the
place, time and
manner required pursuant to Section 2.7(a) of the Rank
Investment
Agreement upon the occurrence of a Change of Control on the
91st
day immediately
following the Change of Control Payment Date;
(4) prepayments of amounts due to Rank under the Rank Note in
the
place, time and
manner required pursuant to Section 2.7(a) of the Rank
Investment
Agreement upon the occurrence of the events described in
Section
2.7(a)(ii) of
the Rank Investment Agreement; and
(5) prepayments of amounts due to Rank under the Rank Note pursuant
to
Section 2,7(b)
of the Rank Investment Agreement; PROVIDED, that at the time
of any such
payment:
(a) Premier's long-term Indebtedness, after giving effect to
such
payment, will be
less than $165.0 million;
(b) the Hard Rock Hotel & Casino Biloxi shall have been
Operating
for at least
four fiscal quarters beginning after the Initial Operating
Date;
(c) Premier's Consolidated Cash Flow for the four most recent
full fiscal
quarters in which the Hard Rock Hotel & Casino Biloxi has
been
Operating is at
least $33.0 million;
(d) Premier shall have at least $10.0 million of cash on hand
after giving
effect to such payment; and
(e) the ratings on the Notes issued under this Indenture by
each
of Moody's
Investor Services, Inc. and Standard & Poor's Ratings
Group,
respectively,
are equal to or higher than the respective ratings by each of
Moody's Investor
Services, Inc. and Standard & Poor's Ratings Group when
the Notes were
issued on the date of this Indenture.
"PERMITTED
REFINANCING INDEBTEDNESS" means any Indebtedness of Premier or
any of its Restricted Subsidiaries issued
in exchange for, or the net proceeds
of which are used to refund, refinance,
replace, defease or discharge other
Indebtedness of Premier or any of its
Restricted Subsidiaries (other than
intercompany indebtedness); PROVIDED,
HOWEVER, that:
(1) the principal amount (or accreted
value, if applicable) of such
Permitted Refinancing Indebtedness does not exceed the
principal
amount (or accreted value, if applicable) of the Indebtedness
refunded, refinanced, replaced, defeased or discharged (plus
all
accrued interest on the Indebtedness and the amount of all
expenses
and premiums incurred in connection therewith);
(2) to the extent that such Permitted
Refinancing Indebtedness is not in
the form of Additional Notes, such Permitted Refinancing
Indebtedness
has a final maturity date later than the final maturity date of,
and
has a Weighted Average Life to Maturity equal to or greater than
the
Weighted Average Life to Maturity of, the Indebtedness being
extended,
refinanced, renewed, replaced, defeased or refunded;
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(3) if the Indebtedness being
extended, refinanced, renewed, replaced,
defeased or refunded is subordinated in right of payment to the
Notes,
such Permitted Refinancing Indebtedness has a final maturity
date
later than the final maturity date of, and is subordinated in right
of
payment to, the Notes on terms at least as favorable to the Holders
of
Notes as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced,
defeased
or refunded; and
(4) such Indebtedness is incurred
either by Premier or by the Restricted
Subsidiary who is the obligor on the Indebtedness being
extended,
refinanced, renewed, replaced, defeased or refunded.
"PERSON" means
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust,
unincorporated organization, limited
liability company or government or other
entity.
"PLANS" means
all drawings, plans and specifications prepared by or on
behalf of Premier as the same may be
amended or supplemented from time to time
as specified in the Disbursement Agreement
and, if required, submitted to and
approved by the appropriate regulatory
authorities, which describe and show the
Hard Rock Hotel & Casino Biloxi and the
labor and materials necessary for the
construction thereof.
"PLEDGE AND
SECURITY AGREEMENT" means the Pledge and Security Agreement
dated as of the date of this Indenture, by
the Issuers in favor of the Trustee
for the benefit of the Holders of the
Notes, as in effect on the date of this
Indenture or as amended in accordance with
Article 9 hereof.
"PREFERRED SHIP
MORTGAGES" means the First Preferred Ship Mortgage on each
barge comprising the Casino Vessel to be
executed by Premier in favor of the
Trustee for the benefit of the Holders of
the Notes pursuant to Section 4.24
hereof each in the form attached hereto as
EXHIBIT K, or as amended from to time
in accordance with Article 9 hereof.
"PREMIER" has
the meaning set forth in the preamble to this Indenture.
"PREMIER
FINANCE" has the meaning set forth in the preamble to this
Indenture.
"PRIVATE
PLACEMENT LEGEND" means the legend set forth in Section
2.06(g)(1)
to be placed on all Notes issued under this
Indenture except where otherwise
permitted by the provisions of this
Indenture.
"QIB" means a
"qualified institutional buyer" as defined in Rule 144A.
"RANK" means
Rank America, Inc. a Delaware corporation.
"RANK
AGREEMENTS" means collectively, the Rank Note and the Rank
Investment
Agreement, as in effect on the date of this
Indenture or as amended in
accordance with the Rank Intercreditor
Agreement.
"RANK
INTERCREDITOR AGREEMENT" means the Intercreditor Agreement, dated
as
of the date of this Indenture, among the
Issuers, the Trustee and Rank, as in
effect on the date of this Indenture or as
amended in accordance with Article 9
hereof.
"RANK INVESTMENT
AGREEMENT" means the Investment Agreement, dated as of the
date of this Indenture, between Rank and
the Issuers, as in effect on the date
of this Indenture or as amended in
accordance with the Rank Intercreditor
Agreement.
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"RANK NOTE"
means the $10.0 million 15.0% Junior Subordinated Promissory
Note due 2012 executed by Issuers in favor
of Rank, as in effect on the date of
the this Indenture or as amended in
accordance with the Rank Intercreditor
Agreement.
"REAL ESTATE
TITLE POLICY" means the title policy covering the owned and
leased real property comprising the Hard
Rock Hotel & Casino Biloxi to be issued
on the date of the Indenture by First
American Title Insurance Company, naming
the Trustee as additional insured.
"REGISTRATION RIGHTS
AGREEMENT" means the Registration Rights Agreement
dated the date of this Indenture, among the
Issuers and the Initial Purchasers.
"REGULATION S"
means Regulation S promulgated under the Securities Act.
"REGULATION S
GLOBAL NOTE" means a Regulatory S Temporary Global Note or
Regulation S Permanent Global Note, as
appropriate.
"REGULATION S
PERMANENT GLOBAL NOTE" means a permanent Global Note in the
form of EXHIBIT A-1 hereto bearing the
Global Note Legend and the Private
Placement Legend and deposited with or on
behalf of and registered in the name
of the Depositary or its nominee, issued in
a denomination equal to the
outstanding principal amount of the
Regulation S Temporary Global Note upon
expiration of the Restricted Period.
"REGULATION S
TEMPORARY GLOBAL NOTE" means a temporary Global Note in the
form of EXHIBIT A-2 hereto deposited with
or on behalf of and registered in the
name of the Depositary or its nominee,
issued in a denomination equal to the
outstanding principal amount of the Notes
initially sold in reliance on Rule 903
of Regulation S.
"RELATED PARTY"
means:
(1) any controlling stockholder or 80%
(or more) owned Subsidiary of AA
Capital; or
(2) any trust, corporation,
partnership or other entity, the
beneficiaries, stockholders, partners, owners or Persons
beneficially
holding an 80% or more controlling interest of which consist of
AA
Capital and/or such other Persons referred to in the
immediately
preceding clause (1).
"RESPONSIBLE
OFFICER" when used with respect to the Trustee, means any
officer within the Corporate Trust
Administration of the Trustee (or any
successor group of the Trustee) or any
other officer of the Trustee customarily
performing functions similar to those
performed by any of the above designated
officers and also means, with respect to a
particular corporate trust matter,
any other officer to whom such matter is
referred because of his knowledge of
and familiarity with the particular
subject.
"RESTRICTED
DEFINITIVE NOTE" means a Definitive Note bearing the Private
Placement Legend.
"RESTRICTED
GLOBAL NOTE" means a Global Note bearing the Private Placement
Legend.
"RESTRICTED
INVESTMENT" means an Investment other than a Permitted
Investment.
"RESTRICTED
PERIOD" means the 40-day distribution compliance period as
defined in Regulation S.
24
<Page>
"RESTRICTED
SUBSIDIARY" of a Person means any Subsidiary of the referent
Person that is not an Unrestricted
Subsidiary.
"RULE 144" means
Rule 144 promulgated under the Securities Act.
"RULE 144A"
means Rule 144A promulgated under the Securities Act.
"RULE 903" means
Rule 903 promulgated under the Securities Act.
"RULE 904" means
Rule 904 promulgated under the Securities Act.
"SEC" means the
Securities and Exchange Commission.
"SERIES 2004
BONDS" means the Mississippi Business Finance Corporation
Industrial Development Bonds, Series 2004
(Premier Entertainment Biloxi, LLC
Project) issued by the Mississippi Business
Finance Corporation to Premier
Finance Biloxi Corp. pursuant to the
Mississippi Bond Indenture and the
Mississippi Bond Purchase Contract in an
aggregate principal amount not to
exceed $60,000,000.
"SERIES 2004
NOTE" means the Promissory Note executed by Premier in favor
of the Mississippi Business Finance
Corporation pursuant to the Mississippi Bond
Loan Agreement in an aggregate principal
amount not to exceed $60,000,000.
"SECURITIES ACT"
means the Securities Act of 1933, as amended.
"SHELF
REGISTRATION STATEMENT" has the meaning ascribed thereto in the
Registration Rights Agreement.
"SIGNIFICANT
SUBSIDIARY" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule
1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such
Regulation is in effect on the date
hereof.
"STATED
MATURITY" means, with respect to any installment of interest or
principal on any series of Indebtedness,
the date on which the payment of
interest or principal was scheduled to be
paid in the documentation governing
such Indebtedness, and will not include any
contingent obligations to repay,
redeem or repurchase any such interest or
principal prior to the date originally
scheduled for the payment thereof.
"SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT (CAFE LEASE)"
means the Subordination, Non-Disturbance
and Attornment Agreement dated as of
the date of this Indenture, between the
Trustee and Hard Rock (STP), with
respect to the Hard Rock Cafe Lease, as in
effect on the date of this Indenture
or as amended in accordance with Article 9
hereof.
"SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT (RETAIL STORE
LEASE)" means the Subordination,
Non-Disturbance and Attornment Agreement dated
as of the date of this Indenture, between
the Trustee and Hard Rock (STP), with
respect to the Hard Rock Retail Store
Lease, as in effect on the date of this
Indenture or as amended in accordance with
Article 9 hereof.
"SUBSIDIARY"
means, with respect to any specified Person:
25
<Page>
(1) any corporation, association or
other business entity of which more
than 50% of the total voting power of shares of Capital Stock
entitled
(without regard to the occurrence of any contingency and after
giving
effect to any voting agreement or equityholders' agreement that
effectively transfers voting power) to vote in the election of
directors, managers or trustees of the corporation, association
or
other business entity is at the time owned or controlled, directly
or
indirectly, by that Person or one or more of the other Subsidiaries
of
that Person (or a combination thereof); and
(2) any partnership (a) the sole
general partner or the managing general
partner of which is such Person or a Subsidiary of such Person or
(b)
the only general partners of which are that Person or one or
more
Subsidiaries of that Person (or any combination thereof).
"SUBSIDIARY
GUARANTEE" means the Guarantee of the Issuers payment
obligations under this Indenture and on the
Notes by each Guarantor, if and when
acquired or created, executed pursuant to
the provisions of Section 4.18 and
Article 11 of this Indenture.
"TAX AMOUNT"
means, with respect to any Person for any period, the combined
federal, state and local income taxes that
would be paid by such Person if it
were a Delaware corporation filing separate
tax returns with respect to its
Taxable Income for such period; PROVIDED,
HOWEVER, that in determining the Tax
Amount, the effect thereon of any net
operating loss carryforwards or other
carryforwards or tax attributes, such as
alternative minimum tax carryforwards,
that would have arisen if such Person were
a Delaware corporation shall be taken
into account. Notwithstanding anything to
the contrary, Tax Amount shall not
include taxes resulting from such Person's
reorganization as or change in the
status of a corporation.
"TAX
DISTRIBUTIONS" means a distribution in respect of taxes to the
members
of Premier pursuant to Section 4.07(b)(4)
hereof.
"TAXABLE INCOME"
means, with respect to any Person for any period, the
taxable income or loss of such Person for
such period for federal income tax
purposes; PROVIDED, that (1) all items of
income, gain, loss or deduction
required to be stated separately pursuant
to Section 703(a)(1) of the Code shall
be included in taxable income or loss, (2)
any basis adjustment made in
connection with an election under Section
754 of the Code shall be disregarded
and (3) such taxable income shall be
increased or such taxable loss shall be
decreased by the amount of any interest
expense incurred by such Person that is
not treated as deductible for federal
income tax purposes by a partner or member
of such Person.
"TENANT ESTOPPEL
CERTIFICATE (CAFE)" means the Tenant Estoppel Certificate
(Cafe), dated as of the date of this
Indenture, between Premier, as landlord,
and Hard Rock (STP), as tenant, with
respect to the Hard Rock Cafe Lease, as in
effect on the date of this Indenture or as
amended in accordance with Article 9
hereof.
"TENANT ESTOPPEL
CERTIFICATE (RETAIL STORE)" means the Tenant Estoppel
Certificate (Retail Store), dated as of the
date of this Indenture, between
Premier, as landlord, and Hard Rock (STP),
as tenant, with respect to the Hard
Rock Retail Store Lease, as in effect on
the date of this Indenture or as
amended in accordance with Article 9
hereof.
"TIA" means the
Trust Indenture Act of 1939 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on the date on
which this Indenture is qualified
thereunder.
"TIDELANDS
LEASE" means the Public Trust Tidelands Lease, dated as of
October 27, 2003, between the Secretary of
State, with the approval of the
Governor, for and on behalf of the State
of
26
<Page>
Mississippi, as lessor, and Premier, as
lessee, with respect to the tidelands on
which the Casino Vessel is to be located,
as in effect on the date of this
Indenture or as amended in accordance with
Section 4.23 hereof.
"TIDELANDS LEASE
RESERVE ACCOUNT" means the escrow account established to
pay annual rental amounts due under the
Tidelands Lease, which amounts are to be
deposited with the Trustee at least 60 days
before each annual payment of rent
under the Tidelands Lease is due pursuant
to the Disbursement Agreement.
"TRUSTEE" means
Standard Federal - Corporate and Institutional Trust, a
division of LaSalle Bank National
Association, until a successor replaces it in
accordance with the applicable provisions
of this Indenture and thereafter means
the successor serving hereunder.
"UNRESTRICTED
DEFINITIVE NOTE" means a Definitive Note that does not bear
and is not required to bear the Private
Placement Legend.
"UNRESTRICTED
GLOBAL NOTE" means Global Note that does not bear and is not
required to bear the Private Placement
Legend.
"UNRESTRICTED
SUBSIDIARY" means any Subsidiary of Premier (other than
Premier Finance Biloxi Corp.) that is
designated by the Board of Directors as an
Unrestricted Subsidiary pursuant to a Board
Resolution, but only to the extent
that such Subsidiary:
(1) has no Indebtedness other than
Non-Recourse Debt;
(2) except as permitted by the
covenant described above under Section 4.12
hereof, is not party to any agreement, contract, arrangement or
understanding with Premier or any of its Restricted
Subsidiaries
unless the terms of any such agreement, contract, arrangement
or
understanding are no less favorable to Premier or such
Restricted
Subsidiary than those that might be obtained at the time from
Persons
who are not Affiliates of Premier;
(3) is a Person with respect to which
neither Premier nor any of its
Restricted Subsidiaries has any direct or indirect obligation (a)
to
subscribe
for additional Equity Interests or (b) to maintain or
preserve such Person's financial condition or to cause such Person
to
achieve any specified levels of operating results; and
(4) has not guaranteed or otherwise
directly or indirectly provided credit
support for any Indebtedness of Premier or any of its
Restricted
Subsidiaries.
Any designation
of a Subsidiary of Premier as an Unrestricted Subsidiary
shall be evidenced to the Trustee by filing
with the Trustee a certified copy of
the Board Resolution giving effect to such
designation and an Officers'
Certificate certifying that such
designation complied with the preceding
conditions and was permitted by Section
4.07 hereof. If, at any time, any
Unrestricted Subsidiary would fail to meet
the preceding requirements as an
Unrestricted Subsidiary, it will thereafter
cease to be an Unrestricted
Subsidiary for purposes of this Indenture
and any Indebtedness of such
Subsidiary will be deemed to be incurred by
a Restricted Subsidiary of Premier
as of such date and, if such Indebtedness
is not permitted to be incurred as of
such date under Section 4.09 hereof,
Premier shall be in default of such
covenant. The Board of Directors of Premier
may at any time designate any
Unrestricted Subsidiary to be a Restricted
Subsidiary; PROVIDED that such
designation will be deemed to be an
incurrence of Indebtedness by a Restricted
Subsidiary of Premier of any outstanding
Indebtedness of such Unrestricted
Subsidiary and such designation will only
be permitted if (1) such Indebtedness
is permitted under
27
<Page>
Section 4.09 hereof, calculated on a pro
forma basis as if such designation had
occurred at the beginning of the
four-quarter reference period and (2) no
Default or Event of Default would be in
existence following such designation.
"U.S. PERSON"
means a U.S. Person as defined in Rule 902(k) promulgated
under the Securities Act.
"VOTING STOCK"
of any Person as of any date means the Capital Stock of such
Person that is at the time entitled to vote
in the election of the Board of
Directors of such Person.
"WEIGHTED
AVERAGE LIFE TO MATURITY" means, when applied to any
Indebtedness
at any date, the number of years obtained
by dividing:
(1) the sum of the products obtained
by multiplying (a) the amount of each
then remaining installment, sinking fund, serial maturity or
other
required payments of principal, including payment at final
maturity,
in respect of the Indebtedness, by (b) the number of years
(calculated
to the nearest one-twelfth) that will elapse between such date and
the
making of such payment; by
(2) the then outstanding principal
amount of such Indebtedness.
Section 1.02 OTHER DEFINITIONS.
<Table>
<Caption>
Defined in
Term
Section
----
-------
<S>
<C>
"AFFILIATE
TRANSACTION".................................................
4.12
"ASSET SALE
OFFER"......................................................
4.10
"AUTHENTICATION
ORDER"..................................................
2.02
"BENEFICIARY"...........................................................
13.01(b)
"CHANGE OF
CONTROL OFFER"...............................................
4.16
"CHANGE OF
CONTROL PAYMENT".............................................
4.16
"CHANGE OF
CONTROL PAYMENT DATE"........................................
4.16
"COVENANT
DEFEASANCE"...................................................
8.03
"DTC"...................................................................
2.03
"EVENT OF
DEFAULT"......................................................
6.01
"EVENT OF LOSS
OFFER"...................................................
4.11
"EXCESS LOSS
PROCEEDS"..................................................
4.11
"EXCESS
PROCEEDS".......................................................
4.10
"INCUR".................................................................
4.09
"LEGAL
DEFEASANCE"......................................................
8.02
"NOTE
OBLIGATIONS"......................................................
13.01(b)
"OFFER
AMOUNT"..........................................................
3.10
"OFFER
PERIOD"..........................................................
3.10
"PAYING
AGENT"..........................................................
2.03
"PERMITTED
DEBT"........................................................
4.09
"PAYMENT
DEFAULT".......................................................
6.01
"PURCHASE
DATE".........................................................
3.10
"REGISTRAR".............................................................
2.03
"REPURCHASE
OFFER"......................................................
3.10
"RESTRICTED
PAYMENTS"...................................................
4.07
</Table>
28
<Page>
Section 1.03 INCORPORATION BY REFERENCE
OF TRUST INDENTURE ACT.
Whenever this
Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a
part of this Indenture.
The following
TIA terms used in this Indenture have the following meanings:
"INDENTURE
SECURITIES" means the Notes;
"INDENTURE SECURITY HOLDER"
means a Holder of a Note;
"INDENTURE TO BE
QUALIFIED" means this Indenture;
"INDENTURE
TRUSTEE" or "INSTITUTIONAL TRUSTEE" means the Trustee; and
"OBLIGOR" on the
Notes and the Note Guarantees means the Issuers and the
Guarantors, respectively, and any successor
obligor upon the Notes and the Note
Guarantees, respectively.
All other terms
used in this Indenture that are defined by the TIA, defined
by TIA reference to another statute or
defined by SEC rule under the TIA have
the meanings so assigned to them.
Section 1.04 RULES OF CONSTRUCTION.
Unless the
context otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it
in accordance with GAAP;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and in the plural
include the
singular;
(5) "will" shall be interpreted to express a command;
(6) provisions apply to successive events and transactions; and
(7) references to sections of or rules under the Securities Act
will be deemed
to include substitute, replacement of successor sections or
rules adopted by
the SEC from time to time.
ARTICLE 2.
THE NOTES
Section 2.01 FORM AND DATING.
(a) GENERAL. The
Notes and the Trustee's certificate of authentication will
be substantially in the form of EXHIBITS
A-1 or A-2 hereto. The Notes may have
notations, legends or endorsements required
by law, stock exchange rule or
usage. Each Note will be dated the date of
its authentication. The Notes shall
be in denominations of $1,000 and integral
multiples thereof.
29
<Page>
The terms and
provisions contained in the Notes will constitute, and are
hereby expressly made, a part of this
Indenture and the Issuers and the Trustee,
by their execution and delivery of this
Indenture, expressly agree to such terms
and provisions and to be bound thereby.
However, to the extent any provision of
any Note conflicts with the express
provisions of this Indenture, the provisions
of this Indenture shall govern and be
controlling.
(b) GLOBAL
NOTES. Notes issued in global form will be substantially in the
form of EXHIBITS A-1 or A-2 attached hereto
(including the Global Note Legend
thereon and the "Schedule of Exchanges of
Interests in the Global Note" attached
thereto). Notes issued in definitive form
will be substantially in the form of
EXHIBIT A-1 attached hereto (but without
the Global Note Legend thereon and
without the "Schedule of Exchanges of
Interests in the Global Note" attached
thereto). Each Global Note will represent
such of the outstanding Notes as will
be specified therein and each shall provide
that it represents the aggregate
principal amount of outstanding Notes from
time to time endorsed thereon and
that the aggregate principal amount of
outstanding Notes represented thereby may
from time to time be reduced or increased,
as appropriate, to reflect exchanges
and redemptions. Any endorsement of a
Global Note to reflect the amount of any
increase or decrease in the aggregate
principal amount of outstanding Notes
represented thereby will be made by the
Trustee or the Custodian, at the
direction of the Trustee, in accordance
with instructions given by the Holder
thereof as required by Section 2.06
hereof.
(c) TEMPORARY
GLOBAL NOTES. Notes offered and sold in reliance on
Regulation S will be issued initially in
the form of the Regulation S Temporary
Global Note, which will be deposited on
behalf of the purchasers of the Notes
represented thereby with the Trustee, at
its New York office, as custodian for
the Depositary, and registered in the name
of the Depositary or the nominee of
the Depositary for the accounts of
designated agents holding on behalf of
Euroclear or Clearstream, duly executed by
the Issuers and authenticated by the
Trustee as hereinafter provided. The
Restricted Period will be terminated upon
the receipt by the Trustee of:
(1) a written certificate from the Depositary, together with
copies of
certificates from Euroclear and Clearstream certifying that
they
have received
certification of non-United States beneficial ownership of
100% of the
aggregate principal amount of the Regulation S Temporary Global
Note (except to
the extent of any beneficial owners thereof who acquired an
interest therein
during the Restricted Period pursuant to another exemption
from
registration under the Securities Act and who will take delivery of
a
beneficial
ownership interest in a 144A Global Note bearing a Private
Placement
Legend, all as contemplated by Section 2.06(b) hereof); and
(2) an Officers' Certificate from the Issuers.
Following the
termination of the Restricted Period, beneficial interests in
the Regulation S Temporary Global Note will
be exchanged for beneficial
interests in Regulation S Permanent Global
Note pursuant to the Applicable
Procedures. Simultaneously with the
authentication of Regulation S Permanent
Global Note, the Trustee will cancel the
Regulation S Temporary Global Note. The
aggregate principal amount of the
Regulation S Temporary Global Note and the
Regulation S Permanent Global Note may from
time to time be increased or
decreased by adjustments made on the
records of the Trustee and the Depositary
or its nominee, as the case may be, in
connection with transfers of interest as
hereinafter provided.
(3) EUROCLEAR AND CLEARSTREAM PROCEDURES APPLICABLE. The
provisions of
the "Operating Procedures of the Euroclear System" and "Terms
and Conditions
Governing Use of Euroclear" and the "General Terms and
Conditions of
Clearstream Banking" and "Customer Handbook" of Clearstream
will be
applicable to transfers of beneficial interests in the Regulation
S
Temporary
30
<Page>
Global Note and
the Regulation S Permanent Global Note that are held by
Participants
through Euroclear or Clearsteam.
Section 2.02 EXECUTION AND
AUTHENTICATION.
At least one
Officer must sign the Notes for the Issuers by manual or
facsimile signature.
If an Officer
whose signature is on a Note no longer holds that office at
the time a Note is authenticated, the Note
will nevertheless be valid.
A Note will not
be valid until authenticated by the manual signature of the
Trustee. The signature will be conclusive
evidence that the Note has been
authenticated under this Indenture.
The Trustee
will, upon receipt of a written order of the Issuers signed by
an Officer (an "AUTHENTICATION ORDER"),
authenticate Notes for original issue up
to the aggregate principal amount stated in
paragraph 4 of the Notes. The
aggregate principal amount of Notes
outstanding at any time may not exceed such
amount except as provided in Section 2.07
hereof.
The Trustee may
appoint an authenticating agent acceptable to the Issuers
to authenticate Notes. An authenticating
agent may authenticate Notes whenever
the Trustee may do so. Each reference in
this Indenture to authentication by the
Trustee includes authentication by such
agent. An authenticating agent has the
same rights as an Agent to deal with
Holders or an Affiliate of the Issuers.
Section 2.03 REGISTRAR AND PAYING
AGENT.
The Issuers will
maintain an office or agency where Notes may be presented
for registration of transfer or for
exchange ("REGISTRAR") and an office or
agency where Notes may be presented for
payment ("PAYING AGENT"). The Registrar
will keep a register of the Notes and of
their transfer and exchange. The
Issuers may appoint one or more
co-registrars and one or more additional paying
agents. The term "Registrar" includes any
co-registrar and the term "Paying
Agent" includes any additional paying
agent. The Issuers may change any Paying
Agent or Registrar without notice to any
Holder. The Issuers will notify the
Trustee in writing of the name and address
of any Agent not a party to this
Indenture. If the Issuers fails to appoint
or maintain another entity as
Registrar or Paying Agent, the Trustee
shall act as such. The Issuers or any of
their Subsidiaries may act as Paying Agent
or Registrar.
The Issuers
initially appoint The Depository Trust Issuers ("DTC") to act
as Depositary with respect to the Global
Notes.
The Issuers
initially appoint the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with
respect to the Global Notes.
Section 2.04 PAYING AGENT TO HOLD MONEY
IN TRUST.
The Issuers will
require each Paying Agent other than the Trustee to agree
in writing that the Paying Agent will hold
in trust for the benefit of Holders
or the Trustee all money held by the Paying
Agent for the payment of principal,
premium or Liquidated Damages, if any, or
interest on the Notes, and will notify
the Trustee of any default by the Issuers
in making any such payment. While any
such default continues, the Trustee may
require a Paying Agent to pay all money
held by it to the Trustee. The Issuers at
any time may require a Paying Agent to
pay all money held by it to the Trustee.
Upon payment over to the Trustee, the
Paying Agent (if other than the Issuers or
a Subsidiary) will have no further
liability for the money. If the Issuers or
a Subsidiary acts as Paying Agent, it
will segregate and hold in a separate
31
<Page>
trust fund for the benefit of the Holders
all money held by it as Paying Agent.
Upon any bankruptcy or reorganization
proceedings relating to the Issuers, the
Trustee will serve as Paying Agent for the
Notes.
Section 2.05 HOLDER LISTS.
The Trustee will
preserve in as current a form as is reasonably practicable
the most recent list available to it of the
names and addresses of all Holders
and shall otherwise comply with TIA Section
312(a). If the Trustee is not the
Registrar, the Issuers will furnish to the
Trustee at least seven Business Days
before each interest payment date and at
such other times as the Trustee may
request in writing, a list in such form and
as of such date as the Trustee may
reasonably require of the names and
addresses of the Holders of Notes and the
Issuers shall otherwise comply with TIA
Section 312(a).
Section 2.06 TRANSFER AND EXCHANGE.
(a) TRANSFER AND
EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the
Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the
Depositary or to another nominee of the
Depositary, or by the Depositary or any
such nominee to a successor Depositary
or a nominee of such successor Depositary.
All Global Notes will be exchanged by
the Issuers for Definitive Notes if:
(1) the Issuers deliver to the Trustee notice from the
Depositary
that it is
unwilling or unable to continue to act as Depositary or that it
is no longer a
clearing agency registered under the Exchange Act and, in
either case, a
successor Depositary is not appointed by the Issuers within
120 days after
the date of such notice from the Depositary; or
(2) the Issuers in their sole discretion determine that the
Global Notes (in
whole but not in part) should be exchanged for Definitive
Notes and
deliver a written notice to such effect to the Trustee;
PROVIDED
that in no event
shall the Regulation S Temporary Global Note be exchanged
by the Issuers
for Definitive Notes prior to (x) the expiration of the
Restricted
Period and (y) the receipt by the Registrar of any certificates
required
pursuant to Rule 903(b)(3)(ii)(B) under the Securities Act.
Upon the
occurrence of either of the preceding events in (1) or (2)
above,
Definitive Notes shall be issued in such
names as the Depositary shall instruct
the Trustee. Global Notes also may be
exchanged or replaced, in whole or in
part, as provided in Sections 2.07 and 2.10
hereof. Every Note authenticated and
delivered in exchange for, or in lieu of, a
Global Note or any portion thereof,
pursuant to this Section 2.06 or Section
2.07 or 2.10 hereof, shall be
authenticated and delivered in the form of,
and shall be, a Global Note. A
Global Note may not be exchanged for
another Note other than as provided in this
Section 2.06(a), HOWEVER, beneficial
interests in a Global Note may be
transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) TRANSFER AND
EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL NOTES. The
transfer and exchange of beneficial
interests in the Global Notes will be
effected through the Depositary, in
accordance with the provisions of this
Indenture and the Applicable Procedures.
Beneficial interests in the Restricted
Global Notes will be subject to
restrictions on transfer comparable to those set
forth herein to the extent required by the
Securities Act. Transfers of
beneficial interests in the Global Notes
also will require compliance with
either subparagraph (1) or (2) below, as
applicable, as well as one or more of
the other following subparagraphs, as
applicable:
(1) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial
interests in any Restricted Global Note may be transferred to
Persons who take
delivery thereof in the form of a
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beneficial
interest in the same Restricted Global Note in accordance with
the transfer
restrictions set forth in the Private Placement Legend;
PROVIDED,
HOWEVER, that prior to the expiration of the Restricted Period,
transfers of
beneficial interests in the Regulation S Temporary Global Note
may not be made
to a U.S. Person or for the account or benefit of a U.S.
Person (other
than an Initial Purchaser). Beneficial interests in any
Unrestricted
Global Note may be transferred to Persons who take delivery
thereof in the
form of a beneficial interest in an Unrestricted Global
Note. No written
orders or instructions shall be required to be delivered
to the Registrar
to effect the transfers described in this Section
2.06(b)(1).
(2) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS
IN
GLOBAL NOTES. In
connection with all transfers and exchanges of beneficial
interests that
are not subject to Section 2.06(b)(1) above, the transferor
of such
beneficial interest must deliver to the Registrar either:
(A) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to credit or cause to be credited a
beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or
exchanged; and
(ii) instructions given in accordance with the
Applicable Procedures containing information regarding
the Participant account to be credited with such
increase; or
(B) both:
(i) a written order from a Participant or an
Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in
an amount equal to the beneficial interest to be
transferred or exchanged; and
(ii) instructions given by the Depositary to the
Registrar containing information regarding the Person
in whose name such Definitive Note shall be registered
to effect the transfer or exchange referred to in (1)
above; PROVIDED that in no event shall Definitive Notes
be issued upon the transfer or exchange of beneficial
interests in the Regulation S Temporary Global Note
prior to (A) the expiration of the Restricted Period
and (B) the receipt by the Registrar of any
certificates required pursuant to Rule 903 under the
Securities Act. Upon consummation of an Exchange Offer
by the Issuers in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(2)
shall be deemed to have been satisfied upon receipt by
the
Registrar of the instructions contained in the
Letter of Transmittal delivered by the Holder of such
beneficial interests in the Restricted Global Notes.
Upon satisfaction of all of the requirements for
transfer or exchange of beneficial interests in Global
Notes contained in this Indenture and the Notes or
otherwise applicable under the Securities Act, the
Trustee shall adjust the principal amount of the
relevant Global Note(s) pursuant to Section 2.06(h)
hereof.
(3) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED
GLOBAL
NOTE. A
beneficial interest in any Restricted Global Note may be
transferred to a
Person who takes delivery thereof
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in the form of a
beneficial interest in another Restricted Global Note if
the transfer
complies with the requirements of Section 2.06(b)(2) above and
the Registrar
receives the following:
(A) if the transferee will take delivery in the form of
a beneficial interest in the 144A Global Note, then the
transferor must deliver a certificate in the form of EXHIBIT B
hereto, including the certifications in item (1) thereof; and
(B) if the transferee will take delivery in the form of
a beneficial interest in the Regulation S Temporary Global Note
or the Regulation S Global Note, then the transferor must
deliver
a certificate in the form of EXHIBIT B hereto, including the
certifications in item (2) thereof.
(4) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A
RESTRICTED
GLOBAL NOTE FOR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE. A
beneficial
interest in any Restricted Global Note may be exchanged by any
holder thereof
for a beneficial interest in an Unrestricted Global Note or
transferred to a
Person who takes delivery thereof in the form of a
beneficial
interest in an Unrestricted Global Note if the exchange or
transfer
complies with the requirements of Section 2.06(b)(2) above and:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in
the case of a transfer, certifies in the applicable Letter of
Transmittal that it is not (i) a Broker-Dealer, (ii) a Person
participating in the distribution of the Exchange Notes or
(iii)
a Person who is an affiliate (as defined in Rule 144) of the
Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of EXHIBIT C hereto, including the
certifications in item (1)(a) thereof; or
(ii) if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of a beneficial interest in an
Unrestricted Global Note, a certificate from such
holder in the form of EXHIBIT B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so
require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are
no longer required in order to maintain compliance with the
Securities Act.
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If any such
transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note
has not yet been issued, the Issuers
shall issue and, upon receipt of an
Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall
authenticate one or more Unrestricted
Global Notes in an aggregate principal
amount equal to the aggregate principal
amount of beneficial interests transferred
pursuant to subparagraph (B) or (D)
above.
Beneficial
interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take
delivery thereof in the form of, a
beneficial interest in a Restricted Global
Note.
(c) TRANSFER OR
EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE NOTES.
(1) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
RESTRICTED
DEFINITIVE
NOTES. If any holder of a beneficial interest in a Restricted
Global Note
proposes to exchange such beneficial interest for a Restricted
Definitive Note
or to transfer such beneficial interest to a Person who
takes delivery
thereof in the form of a Restricted Definitive Note, then,
upon receipt by
the Registrar of the following documentation:
(A) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such beneficial
interest for a Restricted Definitive Note, a certificate from
such holder in the form of EXHIBIT C hereto, including the
certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to
a QIB in accordance with Rule 144A, a certificate to the effect
set forth in EXHIBIT B hereto, including the certifications in
item (1) thereof;
(C) if such beneficial interest is being transferred to
a Non-U.S. Person in an offshore transaction in accordance with
Rule 903 or Rule 904, a certificate to the effect set forth in
EXHIBIT B hereto, including the certifications in item (2)
thereof;
(D) if such beneficial interest is being transferred
pursuant to an exemption from the registration requirements of
the Securities Act in accordance with Rule 144, a certificate
to
the effect set forth in EXHIBIT B hereto, including the
certifications in item (3)(a) thereof;
(E)
if such beneficial interest is being transferred to
an Institutional Accredited Investor in reliance on an
exemption
from the registration requirements of the Securities Act other
than those listed in subparagraphs (B) through (D) above, a
certificate to the effect set forth in EXHIBIT B hereto,
including the certifications, certificates and Opinion of
Counsel
required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to
the Issuers or any of their Subsidiaries, a certificate to the
effect set forth in EXHIBIT B hereto, including the
certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred
pursuant to an effective registration statement under the
Securities Act, a certificate to the effect set forth in
EXHIBIT
B hereto, including the certifications in item (3)(c) thereof,
the Trustee shall cause the aggregate
principal amount of the applicable Global
Note to be reduced accordingly pursuant to
Section 2.06(h) hereof, and the
Issuers shall execute and the Trustee
shall
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authenticate and deliver to the Person
designated in the instructions a
Definitive Note in the appropriate
principal amount. Any Definitive Note issued
in exchange for a beneficial interest in a
Restricted Global Note pursuant to
this Section 2.06(c) shall be registered in
such name or names and in such
authorized denomination or denominations as
the holder of such beneficial
interest shall instruct the Registrar
through instructions from the Depositary
and the Participant or Indirect
Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose
names such Notes are so registered. Any
Definitive Note issued in exchange for a
beneficial interest in a Restricted
Global Note pursuant to this Section
2.06(c)(1) shall bear the Private Placement
Legend and shall be subject to all
restrictions on transfer contained therein.
(2) BENEFICIAL INTERESTS IN REGULATION S TEMPORARY
GLOBAL NOTE TO DEFINITIVE NOTES. Notwithstanding Sections
2.06(c)(1)(A) and (C) hereof, a beneficial interest in the
Regulation S Temporary Global Note may not be exchanged for a
Definitive Note or transferred to a Person who takes delivery
thereof in the form of a Definitive Note prior to (A) the
expiration of the Restricted Period and (B) the receipt by the
Registrar of any certificates required pursuant to Rule
903(b)(3)(ii)(B)
under the Securities Act, except in the case of
a transfer pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 903 or Rule
904.
(2) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO
UNRESTRICTED
DEFINITIVE NOTES. A holder of a beneficial interest in a
Restricted
Global Note may exchange such beneficial interest for an
Unrestricted
Definitive Note or may transfer such beneficial interest to a
Person who takes
delivery thereof in the form of an Unrestricted Definitive
Note only
if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the holder of such beneficial interest, in the
case
of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is
not
(i) a Broker-Dealer, (ii) a Person participating in the
distribution of the Exchange Notes or (iii) a Person who is an
affiliate (as defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the holder of such beneficial interest in a
Restricted Global Note proposes to exchange such
beneficial interest for an Unrestricted Definitive
Note, a certificate from such holder in the form of
EXHIBIT C
hereto, including the certifications in item
(1)(b) thereof; or
(ii) if the holder of such beneficial interest in
a Restricted Global Note proposes to transfer such
beneficial interest to a Person who shall take delivery
thereof in the form of an Unrestricted Definitive Note,
a certificate from such holder in the form of EXHIBIT B
hereto, including the certifications in item (4)
thereof;
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and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so
require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the Private Placement Legend
are
no longer required in order to maintain compliance with the
Securities Act.
(3) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO
UNRESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in an
Unrestricted
Global Note proposes to exchange such beneficial interest for
a Definitive
Note or to transfer such beneficial interest to a Person who
takes delivery
thereof in the form of a Definitive Note, then, upon
satisfaction of
the conditions set forth in Section 2.06(b)(2) hereof, the
Trustee will
cause the aggregate principal amount of the applicable Global
Note to be
reduced accordingly pursuant to Section 2.06(h) hereof, and the
Issuers will
execute and the Trustee will authenticate and deliver to the
Person
designated in the instructions a Definitive Note in the
appropriate
principal
amount. Any Definitive Note issued in exchange for a beneficial
interest
pursuant to this Section 2.06(c)(3) will be registered in such
name or names
and in such authorized denomination or denominations as the
holder of such
beneficial interest requests through instructions to the
Registrar from
or through the Depositary and the Participant or Indirect
Participant. The
Trustee will deliver such Definitive Notes to the Persons
in whose names
such Notes are so registered. Any Definitive Note issued in
exchange for a
beneficial interest pursuant to this Section 2.06(c)(3) will
not bear the
Private Placement Legend.
(d) TRANSFER AND
EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL INTERESTS.
(1) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
RESTRICTED
GLOBAL NOTES. If any Holder of a Restricted Definitive Note
proposes to
exchange such Note for a beneficial interest in a Restricted
Global Note or
to transfer such Restricted Definitive Notes to a Person who
takes delivery
thereof in the form of a beneficial interest in a Restricted
Global Note,
then, upon receipt by the Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Note
proposes to exchange such Note for a beneficial interest in a
Restricted Global Note, a certificate from such Holder in the
form of EXHIBIT C hereto, including the certifications in item
(2)(b) thereof;
(B) if such Restricted Definitive Note is being
transferred to a QIB in accordance with Rule 144A, a
certificate
to the effect set forth in EXHIBIT B hereto, including the
certifications in item (1) thereof;
(C) if such Restricted Definitive Note is being
transferred to a Non-U.S. Person in an offshore transaction in
accordance with Rule 903 or Rule 904, a certificate to the
effect
set forth in EXHIBIT B hereto, including the certifications in
item (2) thereof;
(D) if such Restricted Definitive Note is being
transferred pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144,
a
certificate to the effect set forth in EXHIBIT B hereto,
including the certifications in item (3)(a) thereof;
(E) if such Restricted Definitive Note is being
transferred to an Institutional Accredited Investor in reliance
on an exemption from the registration requirements of the
Securities Act other than those listed in subparagraphs (B)
through (D) above, a
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certificate to the effect set forth in EXHIBIT B hereto,
including the certifications, certificates and Opinion of
Counsel
required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being
transferred to the Issuers or any of their Subsidiaries, a
certificate to the effect set forth in EXHIBIT B hereto,
including the certifications in item (3)(b) thereof; or
(G) if such Restricted Definitive Note is being
transferred pursuant to an effective registration statement
under
the Securities Act, a certificate to the effect set forth in
EXHIBIT B hereto, including the certifications in item (3)(c)
thereof,
the Trustee will cancel the Restricted Definitive Note,
increase
or cause to be increased the aggregate principal amount of, in
the case of clause (A) above, the appropriate Restricted Global
Note, in the case of clause (B) above, the 144A Global Note,
and
in the
case of clause (C) above, the Regulation S Global Note.
(2) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED
GLOBAL NOTES. A Holder of a Restricted Definitive Note may
exchange such
Note for a beneficial interest in an Unrestricted Global Note
or transfer such
Restricted Definitive Note to a Person who takes delivery
thereof in the
form of a beneficial interest in an Unrestricted Global Note
only if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
Broker-Dealer, (ii) a Person participating in the distribution
of
the Exchange Notes or (iii) a Person who is an affiliate (as
defined in Rule 144) of the Issuers;
(B) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Definitive Notes
proposes to exchange such Notes for a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of EXHIBIT C hereto,
including the certifications in item (1)(c) thereof; or
(ii) if the Holder of such Definitive Notes
proposes to transfer such Notes to a Person who shall
take delivery thereof in the form of a beneficial
interest in the Unrestricted Global Note, a certificate
from such Holder in the form of EXHIBIT B hereto,
including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests or if the Applicable Procedures so
require,
an Opinion of Counsel in form reasonably acceptable to the
Registrar to the effect that such exchange or transfer is in
compliance with the Securities Act and that the restrictions on
transfer contained herein and in the
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Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs
in this Section
2.06(d)(2), the Trustee will cancel the Definitive Notes
and increase or
cause to be increased the aggregate principal amount of the
Unrestricted
Global Note.
(3) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED
GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such
Note for a beneficial interest in an Unrestricted Global Note
or transfer such
Definitive Notes to a Person who takes delivery thereof in
the form of a
beneficial interest in an Unrestricted Global Note at any
time. Upon
receipt of a request for such an exchange or transfer, the
Trustee will
cancel the applicable Unrestricted Definitive Note and
increase or
cause to be increased the aggregate principal amount of one of
the Unrestricted
Global Notes.
If any such exchange or transfer from a Definitive Note to a
beneficial
interest is effected pursuant to subparagraphs (2)(B), (2)(D)
or
(3) above at a
time when an Unrestricted Global Note has not yet been
issued, the
Issuers will issue and, upon receipt of an Authentication Order
in accordance
with Section 2.02 hereof, the Trustee will authenticate one
or more
Unrestricted Global Notes in an aggregate principal amount equal
to
the principal
amount of Definitive Notes so transferred.
(e) TRANSFER AND
EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE NOTES. Upon
request by a Holder of Definitive Notes and
such Holder's compliance with the
provisions of this Section 2.06(e), the
Registrar will register the transfer or
exchange of Definitive Notes. Prior to such
registration of transfer or
exchange, the requesting Holder must
present or surrender to the Registrar the
Definitive Notes duly endorsed or
accompanied by a written instruction of
transfer in form satisfactory to the
Registrar duly executed by such Holder or
by its attorney, duly authorized in
writing. In addition, the requesting Holder
must provide any additional certifications,
documents and information, as
applicable, required pursuant to the
following provisions of this Section
2.06(e).
(1) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES.
Any Restricted
Definitive Note may be transferred to and registered in the
name of Persons
who take delivery thereof in the form of a Restricted
Definitive Note
if the Registrar receives the following:
(A) if the transfer will be made pursuant to Rule 144A,
then the transferor must deliver a certificate in the form of
EXHIBIT B hereto, including the certifications in item (1)
thereof;
(B) if the transfer will be made pursuant to Rule 903
or Rule 904, then the transferor must deliver a certificate in
the form of EXHIBIT B hereto, including the certifications in
item (2) thereof; and
(C) if the transfer will be made pursuant to any other
exemption from the registration requirements of the Securities
Act, then the transferor must deliver a certificate in the form
of EXHIBIT B hereto, including the certifications, certificates
and
Opinion of Counsel required by item (3) thereof, if
applicable.
(2) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES.
Any Restricted
Definitive Note may be exchanged by the Holder thereof for
an Unrestricted
Definitive Note or
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transferred to a
Person or Persons who take delivery thereof in the form of
an Unrestricted
Definitive Note if:
(A) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights
Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (i) a
broker-dealer, (ii) a Person participating in the distribution
of
the Exchange Notes or (iii) a Person who is an affiliate (as
defined in Rule 144) of the Issuers;
(B) any such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration
Rights
Agreement;
(C) any such transfer is effected by a Broker-Dealer
pursuant to the Exchange Offer Registration Statement in
accordance with the Registration Rights Agreement; or
(D) the Registrar receives the following:
(i) if the Holder of such Restricted Definitive
Notes proposes to exchange such Notes for an
Unrestricted Definitive Note, a certificate from such
Holder in the form of EXHIBIT C hereto, including the
certifications in item (1)(d) thereof; or
(ii) if the Holder of such Restricted Definitive
Notes proposes to transfer such Notes to a Person who
shall take delivery thereof in the form of an
Unrestricted Definitive Note, a certificate from such
Holder in the form of EXHIBIT B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if
the
Registrar so requests, an Opinion of Counsel in form reasonably
acceptable to the Registrar to the effect that such exchange or
transfer is in compliance with the Securities Act and that the
restrictions on transfer contained herein and in the Private
Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(3) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE
NOTES. A Holder
of Unrestricted Definitive Notes may transfer such Notes to
a Person who
takes delivery thereof in the form of an Unrestricted
Definitive Note.
Upon receipt of a request to register such a transfer, the
Registrar shall
register the Unrestricted Definitive Notes pursuant to the
instructions
from the Holder thereof.
(f) EXCHANGE
OFFER. Upon the occurrence of the Exchange Offer in accordance
with the Registration Rights Agreement, the
Issuers will issue and, upon receipt
of an Authentication Order in accordance
with Section 2.02 hereof, the Trustee
will authenticate:
(1) one or more Unrestricted Global Notes in an aggregate
principal amount
equal to the principal amount of the beneficial interests
in the
Restricted Global Notes accepted for exchange in the Exchange
Offer
by Persons that
certify in the applicable Letters of Transmittal that (A)
they are not
Broker-Dealers, (B) they are not participating in a
distribution of
the Exchange Notes and (C) they are not affiliates (as
defined in Rule
144) of the Issuers; and
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(2) Unrestricted Definitive Notes in an aggregate principal
amount equal to
the principal amount of the Restricted Definitive Notes
accepted for
exchange in the Exchange Offer by Persons that certify in the
applicable
Letters of Transmittal that (A) they are not Broker-Dealers,
(B)
they are not
participating in a distribution of the Exchange Notes and (C)
they are not
affiliates (as defined in Rule 144) of the Issuers.
Concurrently
with the issuance of such Notes, the Trustee will cause the
aggregate principal amount of the
applicable Restricted Global Notes to be
reduced accordingly, and the Issuers will
execute and the Trustee will
authenticate and deliver to the Persons
designated by the Holders of Definitive
Notes so accepted Unrestricted Definitive
Notes in the appropriate principal
amount.
(g) LEGENDS. The
following legends will appear on the face of all Global
Notes and Definitive Notes issued under
this Indenture unless specifically
stated otherwise in the applicable
provisions of this Indenture.
(1) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below, each
Global Note and each Definitive Note (and all Notes issued in
exchange therefor or substitution thereof) shall bear the
legend
in substantially the following form
"THE SECURITY (OR ITS PREDECESSOR)
EVIDENCED HEREBY WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER
SECTION 5 OF THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THE SECURITY
EVIDENCED HEREBY MAY NOT BE OFFERED, SOLD
OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THE SECURITY EVIDENCED HEREBY
IS HEREBY NOTIFIED THAT THE SELLER
MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER. ACCORDINGLY, NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE OFFERED, SOLD, PLEDGED
OR OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR
BENEFIT OF, U.S. PERSONS, EXCEPT AS SET
FORTH IN THE NEXT SENTENCE. BY ITS
ACQUISITION HEREOF OR A BENEFICIAL INTEREST
HEREIN, THE HOLDER OF THE SECURITY
EVIDENCED HEREBY AGREES FOR THE BENEFIT OF
THE ISSUERS OF THE SECURITY THAT (A)
SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1)(a) IN THE
UNITED STATES TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT)
PURCHASING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (b) OUTSIDE THE
UNITED STATES IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OR
REGULATIONS UNDER THE SECURITIES ACT, (c)
IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, OR (d) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT
PROVIDED THAT THE ISSUERS SHALL HAVE THE
RIGHT PRIOR TO ANY SUCH OFFER, RESALE,
ASSIGNMENT, PLEDGE OR
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TRANSFER PURSUANT TO CLAUSES (c) OR (d)
ABOVE TO REQUIRE THE DELIVERY OF AN
OPINION (IN FORM AND SUBSTANCE SATISFACTORY
TO THE ISSUERS) OF COUNSEL
SATISFACTORY TO THE ISSUERS, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY
TO THE ISSUERS, (2) TO THE ISSUERS OR (3)
PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT AND, IN
EACH CASE, IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES OR ANY OTHER
APPLICABLE JURISDICTION; AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF
THE SECURITY EVIDENCED HEREBY OF THE
RESALE RESTRICTIONS SET FORTH IN CLAUSE (A)
ABOVE. NO REPRESENTATION CAN BE MADE
AS TO THE AVAILABILITY OF THE EXEMPTION
PROVIDED BY RULE 144 FOR RESALE OF THE
SECURITY EVIDENCED HEREBY. THE SALE,
ASSIGNMENT, TRANSFER, PLEDGE OR OTHER
DISPOSITION OF THIS SECURITY IS INEFFECTIVE
UNLESS APPROVED IN ADVANCE BY THE
MISSISSIPPI GAMING COMMISSION. IF AT ANY
TIME SUCH COMMISSION FINDS THAT AN
OWNER OF THIS SECURITY IS UNSUITABLE TO
CONTINUE TO HAVE AN INVOLVEMENT IN
GAMING IN SUCH STATE, SUCH OWNER MUST
DISPOSE OF SUCH SECURITY AS PROVIDED BY
THE LAWS OF THE STATE OF MISSISSIPPI
THEREUNDER. SUCH LAWS AND REGULATIONS
RESTRICT THE RIGHT UNDER CERTAIN
CIRCUMSTANCES: (A) TO PAY OR RECEIVE ANY
DIVIDEND OR INTEREST UPON SUCH SECURITY;
(B) TO EXERCISE, DIRECTLY OR THROUGH
ANY TRUSTEE OR NOMINEE, ANY VOTING RIGHT
CONFERRED BY SUCH SECURITY; OR (C) TO
RECEIVE ANY REMUNERATION IN ANY FORM FROM
THE ISSUERS, FOR SERVICES RENDERED OR
OTHERWISE."
(B) Notwithstanding the foregoing, any Global Note or
Definitive Note issued pursuant to subparagraphs (b)(4),
(c)(3),
(c)(4), (d)(2), (d)(3), (e)(2), (e)(3) or (f) of this Section
2.06 (and all Notes issued in exchange therefor or substitution
thereof) will not bear the Private Placement Legend.
(2) GLOBAL NOTE LEGEND. Each Global Note will bear a legend in
substantially
the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY
(AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN
CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO
ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (1) THE TRUSTEE MAY MAKE SUCH
NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 2.06 OF THE INDENTURE,
(2) THIS GLOBAL NOTE MAY BE EXCHANGED
IN WHOLE BUT NOT IN PART PURSUANT TO
SECTION 2.06(a) OF THE INDENTURE, (3) THIS
GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE
FOR CANCELLATION PURSUANT TO SECTION
2.11 OF THE INDENTURE AND (4) THIS GLOBAL
NOTE MAY BE TRANSFERRED TO A SUCCESSOR
DEPOSITARY WITH THE PRIOR WRITTEN CONSENT
OF THE ISSUERS.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE
OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE
OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A
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NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST ISSUERS (55 WATER STREET, NEW
YORK, NEW YORK) ("DTC"), TO THE COMPANY OR
ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR SUCH OTHER NAME
AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC (AND ANY PAYMENT IS
MADE TO CEDE & CO. OR SUCH OTHER
ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN."
(3) REGULATION S TEMPORARY GLOBAL NOTE LEGEND.
"PRIOR TO EXPIRATION OF THE 40-DAY
DISTRIBUTION COMPLIANCE PERIOD (AS DEFINED IN
REGULATION S ("REGULATION S") UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT")), THIS SECURITY MAY NOT
BE OFFERED, SOLD, ASSIGNED,
TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE TRANSFERRED WITHIN THE UNITED
STATES (AS DEFINED IN REGULATION S), OR FOR
THE ACCOUNT OR BENEFIT OF, A U.S.
PERSON (AS DEFINED IN REGULATION S), EXCEPT
TO A PERSON REASONABLY BELIEVED TO
BE A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A ("RULE 144A")
UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A
AND THE INDENTURE REFERRED TO HEREIN."
(h) CANCELLATION
AND/OR ADJUSTMENT OF GLOBAL NOTES. At such time as all
beneficial interests in a particular Global
Note have been exchanged for
Definitive Notes or a particular Global
Note has been redeemed, repurchased or
canceled in whole and not in part, each
such Global Note will be returned to or
retained and canceled by the Trustee in
accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any
beneficial interest in a Global Note
is exchanged for or transferred to a Person
who will take delivery thereof in
the form of a beneficial interest in
another Global Note or for Definitive
Notes, the principal amount of Notes
represented by such Global Note will be
reduced accordingly and an endorsement will
be made on such Global Note by the
Trustee or by the Depositary at the
direction of the Trustee to reflect such
reduction; and if the beneficial interest
is being exchanged for or transferred
to a Person who will take delivery thereof
in the form of a beneficial interest
in another Global Note, such other Global
Note will be increased accordingly and
an endorsement will be made on such Global
Note by the Trustee or by the
Depositary at the direction of the Trustee
to reflect such increase.
(i) GENERAL
PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(1) To permit registrations of transfers and exchanges, the
Issuers will
execute and the Trustee will authenticate Global Notes and
Definitive Notes
upon receipt of an Authentication Order in accordance with
Section 2.02 or
at the Registrar's request.
(2) No service charge will be made to a Holder of a beneficial
interest in a
Global Note or to a Holder of a Definitive Note for any
registration of
transfer or exchange, but the Issuers may require payment
of a sum
sufficient to cover any transfer tax or similar governmental
charge payable
in connection therewith (other than any such transfer taxes
or similar
governmental charge payable upon exchange or transfer pursuant
to Sections
2.10, 3.06, 3.10, 4.10, 4.16 and 9.05 hereof).
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(3) The Registrar will not be required to register the transfer
of or exchange
of any Note selected for redemption in whole or in part,
except the
unredeemed portion of any Note being redeemed in part.
(4) All Global Notes and Definitive Notes issued upon any
registration of
transfer or exchange of Global Notes or Definitive Notes
will be the
valid obligations of the Issuers, evidencing the same debt, and
entitled to the
same benefits under this Indenture, as the Global Notes or
Definitive Notes
surrendered upon such registration of transfer or
exchange.
(5) Neither the Registrar nor the Issuers will be required:
(A) to issue, to register the transfer of or to
exchange any Notes during a period beginning at the opening of
business 15 days before the day of any selection of Notes for
redemption under Section 3.02 hereof and ending at the close of
business on the day of selection;
(B) to register the transfer of or to exchange any Note
selected for redemption in whole or in part, except the
unredeemed portion of any Note being redeemed in part; or
(C) to register the transfer of or to exchange a Note
between a record date and the next succeeding interest payment
date.
(6) Prior to due presentment for the registration of a transfer
of any Note, the
Trustee, any Agent and the Issuers may deem and treat the
Person in whose
name any Note is registered as the absolute owner of such
Note for the
purpose of receiving payment of principal of and interest on
such Notes and
for all other purposes, and none of the Trustee, any Agent
or the Issuers
shall be affected by notice to the contrary.
(7) The Trustee will authenticate Global Notes and Definitive
Notes in
accordance with the provisions of Section 2.02 hereof.
(8) All certifications, certificates and Opinions of Counsel
required to be
submitted to the Registrar pursuant to this Section 2.06 to
effect a
registration of transfer or exchange may be submitted by
facsimile.
Section 2.07 REPLACEMENT NOTES.
If any mutilated
Note is surrendered to the Trustee or the Issuers and the
Trustee receives evidence to its
satisfaction of the destruction, loss or theft
of any Note, the Issuers will issue and the
Trustee, upon receipt of an
Authentication Order, will authenticate a
replacement Note if the Trustee's
requirements are met. If required by the
Trustee or the Issuers, an indemnity
bond must be supplied by the Holder that is
sufficient in the judgment of the
Trustee and the Issuers to protect the
Issuers, the Trustee, any Agent and any
authenticating agent from any loss that any
of them may suffer if a Note is
replaced. The Issuers may charge for their
expenses in replacing a Note.
Every
replacement Note is an additional obligation of the Issuers and
will
be entitled to all of the benefits of this
Indenture equally and proportionately
with all other Notes duly issued
hereunder.
Section 2.08 OUTSTANDING NOTES.
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The Notes
outstanding at any time are all the Notes authenticated by the
Trustee except for those canceled by it,
those delivered to it for cancellation,
those reductions in the interest in a
Global Note effected by the Trustee in
accordance with the provisions hereof, and
those described in this Section as
not outstanding. Except as set forth in
Section 2.09 hereof, a Note does not
cease to be outstanding because the Issuers
or an Affiliate of the Issuers holds
the Note; HOWEVER, Notes held by Premier or
a Subsidiary of Premier shall not be
deemed to be outstanding for purposes of
Section 3.07(a) hereof.
If a Note is
replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives
proof satisfactory to it that the
replaced Note is held by a protected
purchaser.
If the principal
amount of any Note is considered paid under Section 4.01
hereof, it ceases to be outstanding and
interest on it ceases to accrue.
If the Paying
Agent (other than the Issuers, a Subsidiary or an Affiliate
of any thereof) holds, on a redemption date
or maturity date, money sufficient
to pay Notes payable on that date, then on
and after that date such Notes will
be deemed to be no longer outstanding and
will cease to accrue interest.
Section 2.09 TREASURY NOTES.
In determining
whether the Holders of the required principal amount of
Notes have concurred in any direction,
waiver or consent, Notes owned by the
Issuers, or by any Person directly or
indirectly controlling or controlled by or
under direct or indirect common control
with the Issuers, will be considered as
though not outstanding, except that for the
purposes of determining whether the
Trustee will be protected in relying on any
such direction, waiver or consent,
only Notes that the Trustee knows are so
owned will be so disregarded.
Section 2.10 TEMPORARY NOTES.
Until
certificates representing Notes are ready for delivery, the
Issuers
may prepare and the Trustee, upon receipt
of an Authentication Order, will
authenticate temporary Notes. Temporary
Notes will be substantially in the form
of certificated Notes but may have
variations that the Issuers consider
appropriate for temporary Notes and as may
be reasonably acceptable to the
Trustee. Without unreasonable delay, the
Issuers will prepare and the Trustee
will authenticate definitive Notes in
exchange for temporary Notes.
Holders of
temporary Notes will be entitled to all of the benefits of this
Indenture.
Section 2.11 CANCELLATION.
The Issuers at
any time may deliver Notes to the Trustee for cancellation.
The Registrar and Paying Agent will forward
to the Trustee any Notes surrendered
to them for registration of transfer,
exchange or payment. The Trustee and no
one else will cancel all Notes surrendered
for registration of transfer,
exchange, payment, replacement or
cancellation and will destroy canceled Notes
(subject to the record retention
requirement of the Exchange Act). Certification
of the destruction of all canceled Notes
will be delivered to the Issuers. The
Issuers may not issue new Notes to replace
Notes that they have paid or that
have been delivered to the Trustee for
cancellation.
Section 2.12 DEFAULTED INTEREST.
If the Issuers
default in a payment of interest on the Notes, they will pay
the defaulted interest in any lawful manner
plus, to the extent lawful, interest
payable on the defaulted interest, to the
Persons who
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are Holders on a subsequent special record
date, in each case at the rate
provided in the Notes and in Section 4.01
hereof. The Issuers will notify the
Trustee in writing of the amount of
defaulted interest proposed to be paid on
each Note and the date of the proposed
payment. The Issuers will fix or cause to
be fixed each such special record date and
payment date, PROVIDED that no such
special record date may be less than 10
days prior to the related payment date
for such defaulted interest. At least 15
days before the special record date,
the Issuers (or, upon the written request
of the Issuers, the Trustee in the
name and at the expense of the Issuers)
will mail or cause to be mailed to
Holders a notice that states the special
record date, the related payment date
and the amount of such interest to be
paid.
ARTICLE 3.
REDEMPTION AND PREPAYMENT
Section 3.01 NOTICES TO TRUSTEE.
If the Issuers
elect to redeem Notes pursuant to the optional redemption
provisions of Section 3.07 hereof, it must
furnish to the Trustee, at least 30
days but not more than 60 days before a
redemption date, an Officers'
Certificate setting forth:
(1) the clause of this Indenture pursuant to which the
redemption
shall occur;
(2) the redemption date;
(3) the principal amount of Notes to be redeemed; and
(4) the redemption price.
Section 3.02 SELECTION OF NOTES TO BE
REDEEMED OR PURCHASED.
If less than all
of the Notes are to be redeemed or purchased in an offer
to purchase at any time, the Trustee will
select Notes for redemption or
purchase as follows:
(1) if the Notes are listed on any national securities
exchange,
in compliance
with the requirements of the principal national securities
exchange on
which the Notes are listed; or
(2) if the Notes are not listed on any national securities
exchange, on a
PRO RATA basis, by lot or by such method as the Trustee
shall deem fair
and appropriate.
In the event of
partial redemption or purchase by lot, the particular Notes
to be redeemed or purchased will be
selected, unless otherwise provided herein,
not less than 30 nor more than 60 days
prior to the redemption or purchase date
by the Trustee from the outstanding Notes
not previously called for redemption
or purchase.
The Trustee will
promptly notify the Issuers in writing of the Notes
selected for redemption or purchase and, in
the case of any Note selected for
partial redemption or purchase, the
principal amount thereof to be redeemed or
purchased. Notes and portions of Notes
selected will be in amounts of $1,000 or
whole multiples of $1,000; except that if
all of the Notes of a Holder are to be
redeemed or purchased, the entire
outstanding amount of Notes held by such
Holder, even if not a multiple of $1,000,
shall be redeemed or purchased. Except
as provided in the preceding sentence,
provisions of this Indenture that apply
to Notes called for redemption or purchase
also apply to portions of Notes
called for redemption or purchase.
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Section 3.03 NOTICE OF REDEMPTION.
Subject to the
provisions of Section 3.10 hereof, at least 30 days but not
more than 60 days before a redemption date,
the Issuers will mail or cause to be
mailed, by first class mail, a notice of
redemption to each Holder whose Notes
are to be redeemed at its registered
address, except that redemption notices may
be mailed more than 60 days prior to a
redemption date if the notice is issued
in connection with a defeasance of the
Notes or a satisfaction and discharge of
this Indenture pursuant to Articles 8 or 12
of this Indenture.
The notice will
identify the Notes to be redeemed and will state:
(1) the redemption date;
(2) the redemption price;
(3) if any Note is being redeemed in part, the portion of the
principal amount
of such Note to be redeemed and that, after the redemption
date upon
surrender of such Note, a new Note or Notes in principal amount
equal to the
unredeemed portion will be issued upon cancellation of the
original
Note;
(4) the name and address of the Paying Agent;
(5) that Notes called for redemption must be surrendered to the
Paying Agent to
collect the redemption price;
(6) that, unless the Issuers default in making such redemption
payment,
interest on Notes called for redemption ceases to accrue on and
after the
redemption date;
(7) the paragraph of the Notes and/or Section of this Indenture
pursuant to
which the Notes called for redemption are being redeemed; and
(8) that no representation is made as to the correctness or
accuracy of the
CUSIP number, if any, listed in such notice or printed on
the Notes.
At the Issuers'
request, the Trustee will give the notice of redemption in
the Issuers' names and at their expense;
PROVIDED, HOWEVER, that the Issuers
have delivered to the Trustee, at least 45
days prior to the redemption date, an
Officers' Certificate requesting that the
Trustee give such notice and setting
forth the information to be stated in such
notice as provided in the preceding
paragraph.
Section 3.04 EFFECT OF NOTICE OF
REDEMPTION.
Once notice of
redemption is mailed in accordance with Section 3.03 hereof,
Notes called for redemption become
irrevocably due and payable on the redemption
date at the redemption price. A notice of
redemption may not be conditional.
Section 3.05 DEPOSIT OF REDEMPTION OR
PURCHASE PRICE.
One Business Day
prior to the redemption or purchase date, the Issuers will
deposit with the Trustee or with the Paying
Agent money sufficient to pay the
redemption or purchase price of and accrued
interest and Liquidated Damages, if
any, on all Notes to be redeemed or
purchased on that date. The Trustee or the
Paying Agent will promptly return to the
Issuers any money deposited with the
Trustee
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or the Paying Agent by the Issuers in
excess of the amounts necessary to pay the
redemption or purchase price of, and
accrued interest and Liquidated Damages, if
any, on, all Notes to be redeemed or
purchased.
If the Issuers
comply with the provisions of the preceding paragraph, on
and after the redemption or purchase date,
interest will cease to accrue on the
Notes or the portions of Notes called for
redemption or purchase. If a Note is
redeemed or purchased on or after an
interest record date but on or prior to the
related interest payment date, then any
accrued and unpaid interest shall be
paid to the Person in whose name such Note
was registered at the close of
business on such record date. If any Note
called for redemption or purchase is
not so paid upon surrender for redemption
or purchase because of the failure of
the Issuers to comply with the preceding
paragraph, interest shall be paid on
the unpaid principal, from the redemption
or purchase date until such principal
is paid, and to the extent lawful on any
interest not paid on such unpaid
principal, in each case at the rate
provided in the Notes and in Section 4.01
hereof.
Section 3.06 NOTES REDEEMED OR PURCHASED
IN PART.
Upon surrender
of a Note that is redeemed or purchased in part, the Issuers
will issue and, upon receipt of an
Authentication Order, the Trustee will
authenticate for the Holder at the expense
of the Issuers a new Note equal in
principal amount to the unredeemed or
unpurchased portion of the Note
surrendered.
Section 3.07 OPTIONAL REDEMPTION.
(a) At any time
on or prior to February 1, 2007, the Issuers may redeem up
to 35% of the aggregate principal amount of
Notes issued under this Indenture at
a redemption price of 110.750% of the
principal amount thereof, plus accrued and
unpaid interest and Liquidated Damages, if
any, to the redemption date, with the
net cash proceeds of an initial public
offering of common stock of Premier;
PROVIDED, that:
(1) at least 65% of the aggregate principal amount of the Notes
originally
issued under this Indenture (excluding Notes held by Premier
and
its
Subsidiaries) remains outstanding immediately after the occurrence
of
such redemption;
and
(2) the redemption occurs within 60 days of the date of the
closing of such
initial public offering.
Except pursuant
to the preceding paragraph, the Notes will not be
redeemable at the Issuers' option prior to
February 1, 2008. Unless the Issuers
default in the payment of the redemption
price, interest will cease to accrue on
the Notes or portions thereof called for
redemption on the applicable redemption
date.
(b) On or after
February 1, 2008, the Issuers may redeem all or a part of
the Notes upon not less than 30 nor more
than 60 days' notice, at the redemption
prices (expressed as percentages of
principal amount) set forth below plus
accrued and unpaid interest and Liquidated
Damages, if any, on the Notes
redeemed, to the applicable redemption
date, if redeemed during the twelve-month
period beginning on February 1 of the years
indicated below:
<Table>
<Caption>
Year
Percentage
----
----------
<S>
<C>
2008............................................ 105.375%
2009............................................ 102.688%
2010 and
thereafter............................. 100.000%
</Table>
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Unless the
Issuers default in the payment of the redemption price,
interest
will cease to accrue on the notes or
portions thereof called for redemption on
the applicable redemption date.
(c) Any
redemption pursuant to this Section 3.07 shall be made pursuant
to
the provisions of Section 3.01 through 3.06
hereof.
Section 3.08 MANDATORY REDEMPTION.
Except as
provided in Section 3.09 below, the Issuers are not required to
make mandatory redemption or sinking fund
payments with respect to the Notes.
Section 3.09 MANDATORY DISPOSITION
PURSUANT TO GAMING LAWS.
(a) If any
Gaming Authority requires that a Holder or Beneficial Owner of
Notes be licensed, qualified or found
suitable under any applicable Gaming Law
and such Holder or Beneficial owner (i)
fails to apply for a license,
qualification or finding of suitability
within 30 days (or such other period as
may be required by the Gaming Authority)
after being requested to do so by the
Gaming Authority; or (ii) is denied such
license or qualification or not found
suitable; the Issuers will have the right,
at their option, to:
(1) require the Holder or Beneficial Owner to dispose of its
Notes within 30
days (or such earlier date as may be required by the
applicable
Gaming Authority) following the earlier of:
(a) the termination of the period described above for
the Holder or
Beneficial Owner to apply for a license, qualification or
finding of
suitability; or
(b) the date of denial of such license, qualification
or finding of
suitability; or
(2) redeem the Notes of the Holder or Beneficial Owner at a
redemption price
equal to:
(a) the price determined by the Gaming Authority; or
(b) if the Gaming Authority does not determine a price,
the least
of:
(A) the principal amount of the Notes, together
with accrued and unpaid interest and Liquidated
Damages, if any, to the earlier of the date of
redemption or such earlier date as is required by the
Gaming Authority;
(B) the price at which such Holder or Beneficial
Owner acquired or paid for the Notes, together with
accrued and unpaid and Liquidated Damages, if any, to
the earlier of the date of redemption or as is required
by the Gaming Authority; and
(C) the Fair Market Value of the Notes on the date
of
redemption.
(b) Immediately
upon a determination by a Gaming Authority that a Holder or
Beneficial Owner of Notes will not be
licensed, qualified or found suitable, the
Holder or Beneficial Owner will, to the
extent required by applicable law, have
no further right to (i) exercise, directly
or indirectly, through any trustee or
nominee or any other Person or entity, any
right conferred by the Notes, or (ii)
receive any interest or any other
distributions or payments with respect to the
Notes or any remuneration in any form with
respect to the Notes, except the
redemption price of the Notes.
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(c) The Issuers
will notify the Trustee in writing of any such redemption
pursuant to this Section 3.09 as soon as is
practicable. Any Holder or
Beneficial Owner of Notes that is required
to apply for a license, qualification
or a finding of suitability must pay all
fees and costs of applying for and
obtaining the license, qualification or
finding of suitability and of any
investigation by the applicable Gaming
Authorities. The Issuers will not
required to pay or reimburse any Holder or
Beneficial Owner of Notes who is
required to apply for any such license,
qualification or finding of suitability.
Those expenses will the be the obligation
of such Holder or Beneficial Owner of
the Notes.
Section 3.10 REPURCHASE OFFERS.
In the event
that, pursuant to Section 4.10, 4.11 or 4.16 hereof, the
Issuers are required to commence an offer
to all Holders to purchase Notes (an
"REPURCHASE OFFER"), they will follow the
procedures specified below.
The Repurchase
Offer will remain open for a period of at least 20 Business
Days following its commencement and not
more than 30 Business Days, except to
the extent that a longer period is required
by applicable law (the "OFFER
PERIOD"). No later than three Business Days
after the termination of the Offer
Period (the "PURCHASE DATE"), the Issuers
will purchase at the Purchase Price
(as determined in accordance with Section
4.10, 4.11 and 4.16 hereof, as the
case may be) the principal amount of Notes
required to be purchased pursuant to
Section 4.10, 4.11 or 4.16 hereof, as the
case may be, (the "OFFER AMOUNT") or,
if less than the Offer Amount has been
tendered, all Notes tendered in response
to the Repurchase Offer. Payment for any
Notes so purchased will be made in the
same manner as interest payments are
made.
If the Purchase
Date is on or after an interest record date and on or
before the related interest payment date,
any accrued and unpaid interest and
Liquidated Damages, if any, will be paid to
the Person in whose name a Note is
registered at the close of business on such
record date, and no additional
interest will be payable to Holders who
tender Notes pursuant to the Repurchase
Offer.
Upon the
commencement of a Repurchase Offer, the Issuers will send, by
first class mail, a notice to the Trustee
and each of the Holders, with a copy
to the Trustee. The notice will contain all
instructions and materials necessary
to enable such Holders to tender Notes
pursuant to the Repurchase Offer. The
notice, which will govern the terms of the
Repurchase Offer, will state:
(1) that the Repurchase Offer is being made pursuant to this
Section 3.10,
and either Section 4.10, 4.11 or 4.16 hereof, as the case may
be, and the
length of time the Repurchase Offer will remain open;
(2) the Offer Amount, the purchase price and the Purchase Date;
(3) that any Note not tendered or accepted for payment will
continue to
accrue interest and Liquidated Damages, if any;
(4) that, unless the Issuers default in making such payment,
any
Note accepted
for payment pursuant to the Repurchase Offer will cease to
accrue interest
and Liquidated Damages, if any, after the Purchase Date;
(5) that Holders electing to have a Note purchased pursuant to
an
Repurchase Offer
may elect to have Notes purchased in integral multiples of
$1,000 only;
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(6) that Holders electing to have a Note purchased pursuant to
any Repurchase
Offer will be required to surrender the Note, with the form
entitled "Option
of Holder to Elect Purchase" attached to the Notes
completed, or
transfer by book-entry transfer, to the Issuers, a
Depositary, if
appointed by the Issuers, or a Paying Agent at the address
specified in the
notice at least three days before the Purchase Date;
(7) that Holders will be entitled to withdraw their election if
the Issuers, the
Depositary or the Paying Agent, as the case may be,
receives, not
later than the expiration of the Offer Period, a telegram,
telex, facsimile
transmission or letter setting forth the name of the
Holder, the
principal amount of the Note the Holder delivered for purchase
and a statement
that such Holder is withdrawing his election to have such
Note
purchased;
(8) that, if the aggregate principal amount of Notes and other
PARI PASSU
Indebtedness surrendered by holders thereof exceeds the Offer
Amount, the
Issuers will select the Notes and other PARI PASSU Indebtedness
to be purchased
pursuant to the terms of Section 3.02 hereof; and
(9) that Holders whose Notes were purchased only in part will
be
issued new Notes
equal in principal amount to the unpurchased portion of
the Notes
surrendered (or transferred by book-entry transfer).
On or before the
Purchase Date, the Issuers will, to the extent lawful,
accept for payment, pursuant to the terms
of Section 3.02, the Offer Amount of
Notes or portions thereof tendered pursuant
to the Repurchase Offer, or if less
than the Offer Amount has been tendered,
all Notes tendered, and will deliver or
cause to be delivered to the Trustee the
Notes properly accepted together with
an Officers' Certificate stating that such
Notes or portions thereof were
accepted for payment by the Issuers in
accordance with the terms of this Section
3.10. The Issuers, the Depositary or the
Paying Agent, as the case may be, will
promptly (but in any case not later than
five days after the Purchase Date) mail
or deliver to each tendering Holder an
amount equal to the purchase price of the
Notes tendered by such Holder and accepted
by the Issuers for purchase, and the
Issuers will promptly issue a new Note, and
the Trustee, upon written request
from the Issuers, will authenticate and
mail or deliver (or cause to be
transferred by book entry) such new Note to
such Holder, in a principal amount
equal to any unpurchased portion of the
Note surrendered. Any Note not so
accepted shall be promptly mailed or
delivered by the Issuers to the Holder
thereof. Premier will publicly announce the
results of the Repurchase Offer on
the Purchase Date.
The Issuers will
comply with the requirements of Rule 14e-1 under the
Exchange Act, and any other securities laws
and regulations thereunder to the
extent that such laws or regulations are
applicable in connection with the
repurchase of the Notes pursuant to the
Repurchase Offer. To the extent that the
provisions of Rule 14e-1 under the Exchange
Act or any securities laws or
regulations conflict with the provisions of
Section 3.10, 4.10, 4.11 or 4.16 of
this Indenture, the Issuers will comply
with the applicable securities laws and
regulations and will not be deemed to have
breached its obligations under those
sections of this Indenture.
Other than as
specifically provided in this Section 3.10, any purchase
pursuant to this Section 3.10 shall be made
pursuant to the provisions of
Sections 3.01 through 3.06 hereof.
ARTICLE 4.
COVENANTS
Section 4.01 PAYMENT OF NOTES.
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The Issuers will
pay or cause to be paid the principal of, premium, if any,
and interest and Liquidated Damages, if
any, on the Notes on the dates and in
the manner provided in the Notes.
Principal, premium, if any, and interest and
Liquidated Damages, if any will be
considered paid on the date due if the Paying
Agent, if other than the Issuers or a
Subsidiary thereof, holds as of 10:00 a.m.
Eastern Time on the due date money
deposited by the Issuers in immediately
available funds and designated for and
sufficient to pay all principal, premium,
if any, and interest then due. The Issuers
will pay all Liquidated Damages, if
any, in the same manner on the dates and in
the amounts set forth in the
Registration Rights Agreement.
The Issuers will
pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on
overdue principal at the rate equal to
1% per annum in excess of the then
applicable interest rate on the Notes to the
extent lawful; they will pay interest
(including post-petition interest in any
proceeding under any Bankruptcy Law) on
overdue installments of interest and
Liquidated Damages (without regard to any
applicable grace period) at the same
rate to the extent lawful.
Section 4.02 MAINTENANCE OF OFFICE OR
AGENCY.
The Issuers will
maintain in the Borough of Manhattan, the City of New
York, an office or agency (which may be an
office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar)
where Notes may be surrendered for
registration of transfer or for exchange
and where notices and demands to or
upon the Issuers in respect of the Notes
and this Indenture may be served. The
Issuers will give prompt written notice to
the Trustee of the location, and any
change in the location, of such office or
agency. If at any time the Issuers
fail to maintain any such required office
or agency or fail to furnish the
Trustee with the address thereof, such
presentations, surrenders, notices and
demands may be made or served at the
Corporate Trust Office of the Trustee.
The Issuers may
also from time to time designate one or more other offices
or agencies where the Notes may be
presented or surrendered for any or all such
purposes and may from time to time rescind
such designations; PROVIDED, HOWEVER,
that no such designation or rescission will
in any manner relieve the Issuers of
their obligation to maintain an office or
agency in the Borough of Manhattan,
the City of New York for such purposes. The
Issuers will give prompt written
notice to the Trustee of any such
designation or rescission and of any change in
the location of any such other office or
agency.
The Issuers
hereby designate the Corporate Trust Office of the Trustee as
one such office or agency of Premier in
accordance with Section 2.03 hereof.
Section 4.03 REPORTS.
(a) Whether or
not required by the Commission, so long as any Notes are
outstanding, the Issuers will furnish to
the Holders of Notes, within the time
periods specified in the Commission's rules
and regulations:
(1) all quarterly and annual financial information that would
be
required to be
contained in a filing with the Commission on Forms 10-Q and
10-K if the
Issuers were required to file such reports; and
(2) all current reports that would be required to be filed with
the Commission
on Form 8-K if the Issuers w
