Exhibit 10.19
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
among
SUNTRUST BANK,
as the Trustee,
HYATT GAMING MANAGEMENT, INC.,
as Hyatt Gaming
NORWEST BANK MINNESOTA, N.A.,
as the Disbursement Agent,
FIRST AMERICAN HERITAGE TITLE COMPANY,
as the Construction Escrow Agent,
RE TECH+, INC.,
as the Independent Construction Consultant,
and
WINDSOR WOODMONT BLACK HAWK RESORT CORP.,
as the Company
Dated as of March 14, 2000
CASH COLLATERAL AND DISBURSEMENT AGREEMENT
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THIS CASH COLLATERAL AND DISBURSEMENT AGREEMENT (as amended, supplemented
or otherwise modified from time to time, the "Agreement") is dated as of March
14, 2000, by and among SUNTRUST BANK, a Georgia bank, as trustee for the senior
lenders (the "Trustee") under the Indenture (as defined herein), HYATT GAMING
MANAGEMENT, INC., a Nevada corporation, as the subordinated lender ("Hyatt
Gaming"), NORWEST BANK MINNESOTA, N.A., a national association, as disbursement
agent for the Trustee and Hyatt Gaming (the "Disbursement Agent"), FIRST
AMERICAN HERITAGE TITLE COMPANY, a Colorado corporation, as the construction
escrow agent (the "Construction Escrow Agent"), RE TECH+, INC., a Colorado
corporation, as independent construction consultant under the Indenture (the
"Independent Construction Consultant"), and WINDSOR WOODMONT BLACK HAWK RESORT
CORP., a Colorado corporation (the "Company"). (Each of the foregoing are
referred to herein individually as a "Party" and collectively as the "Parties".)
RECITALS
A. Senior Notes. On the date hereof, the Trustee and the Company are
entering into that certain Indenture dated as of the date hereof (as the same
may be amended, restated, supplemented or modified from time to time, the
"Indenture") pursuant to which the Company (i) is issuing its 13% Series A First
Mortgage Notes due 2005 (such notes, together with any notes issued in
replacement thereof or in exchange therefor, the "Series A Notes"), and (ii)
will issue its 13% Series B First Mortgage Notes due 2005 (such notes, together
with any notes issued in replacement thereof or in exchange therefor, the
"Series B Notes", and together with the Series A Notes, the "Original Senior
Notes"), in the original aggregate principal amount of One Hundred Million
Dollars ($100,000,000), and pursuant to which the Company may issue additional
notes in the same series as the Original Notes up to an aggregate principal
amount of Thirty Five Million Dollars ($35,000,000) (such notes, together with
any notes issued in replacement thereof or in exchanges therefor, the
"Additional Senior Notes", and together with the Original Senior Notes, the
"Senior Notes"). The Trustee will make available to the Company the proceeds
from the issuance of the Original Senior Notes in the aggregate principal amount
of $100,000,000.
B. Subordinated Notes. On the date hereof, Hyatt Gaming will make available
to the Company a subordinated loan in the aggregate principal amount of Seven
Million Five Hundred Thousand Dollars ($7,500,000) as evidenced by that certain
Subordinated Promissory Note (the "Subordinated Note"), and made pursuant to the
provisions of a Subordinated Loan Agreement (as amended, supplemented or
otherwise modified from time to time, the "Subordinated Loan Agreement") dated
the date hereof, between the Company and Hyatt Gaming.
C. Proceeds from the Notes. A portion of the proceeds from the Senior Notes
and the Subordinated Note (collectively, the "Notes") shall be deposited in the
following accounts:
1. Proceeds from the issuance of the Original Senior Notes in the
amount of Twenty Four Million One Hundred Forty One Thousand and no/100
Dollars ($24,141,000.00) (the "Interest Reserve Proceeds"), will be
deposited into an account held at the offices of the Trustee in the name of
the Trustee (said account, or any substitute account selected in accordance
with the terms of this Agreement, is referred to herein as the "Interest
Reserve Account"), in accordance with this Agreement, to be maintained by
the Trustee pursuant to Section 2 of this Agreement.
2. Proceeds from the issuance of the Original Senior Notes in the
amount of Fifty Three Million Three Hundred Fifty One Thousand Three
Hundred Seventy Two and 88/100 Dollars ($53,351,372.88) (the "Trustee
Construction Proceeds") will be deposited into an account held at the
offices of the Disbursement Agent in the name of the Trustee (said account,
or any substitute account selected in accordance with the terms of this
Agreement, is referred to herein as the "Trustee Construction Disbursement
Account"), in accordance with this Agreement, to be maintained by the
Disbursement Agent pursuant to Section 2 of this Agreement.
3. Proceeds from the issuance of the Original Senior Notes in the
amount of Six Million Four Hundred Fifty Seven Thousand Three Hundred Sixty
and no/100 Dollars ($6,457,360.00) (the "Trustee Completion Reserve
Proceeds" which, together with the Trustee Construction Proceeds and the
Trustee Interest Reserve Proceeds, shall be referred to herein as the
"Senior Notes Proceeds"), will be deposited into an account held at the
offices of the Disbursement Agent in the name of the Trustee (said account,
or any substitute account selected in accordance with the terms of this
Agreement, is referred to herein as the "Trustee Completion Reserve
Account"), in accordance with this Agreement, to be maintained by the
Disbursement Agent pursuant to Section 2 of this Agreement.
4. Proceeds from the issuance of the Subordinated Notes in the amount
of Five Million Two Hundred Seventy Six Thousand Five Hundred Nine and
41/100 Dollars ($5,276,509.41) (the "Hyatt Gaming Construction Proceeds"),
will be deposited into an account held at the offices of the Disbursement
Agent in the name of Hyatt Gaming (said account, or any substitute account
selected in accordance with the terms of this Agreement, is referred to
herein as the "Hyatt Gaming Construction Disbursement Account"), in
accordance with this Agreement, to be maintained by the Disbursement Agent
pursuant to Section 2 of this Agreement.
5. Proceeds from the issuance of the Subordinated Notes in the amount
of Six Hundred Thirty Eight Thousand Six Hundred Forty and no/100 Dollars
($638,640.00) (the "Hyatt Gaming Completion Reserve Proceeds" which,
together with the Hyatt Gaming Construction Proceeds, shall be referred to
herein as the "Hyatt Gaming Proceeds"), will be deposited into an account
held at the offices of the Disbursement Agent in the name of Hyatt Gaming
(said account, or any substitute account selected in accordance with the
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terms of this Agreement, is referred to herein as the "Hyatt Gaming
Completion Reserve Account"), in accordance with this Agreement, to be
maintained by the Disbursement Agent pursuant to Section 2 of this
Agreement.
D. Collateral and Collateral Assignment. As security for its obligations
under the Notes, the Company has granted the following collateral:
1. The Company has granted senior security interests to the Trustee,
on behalf of itself and the holders of Senior Notes, in certain assets and
has collaterally assigned certain contracts to the Trustee. As further
security for its obligations under the Senior Notes and the Indenture, the
Company also has granted to the Trustee, on behalf of itself and the
holders of the Senior Notes, pursuant to that certain Pledge and Assignment
Agreement, dated as of even date herewith, between the Company and the
Trustee (the "Senior Pledge and Assignment Agreement") (i) a senior
security interest in all of the Company's right, title and interest in the
Trustee Accounts and any Proceeds or other amounts held in any such Trustee
Accounts, and (ii) a subordinated security interest in all of the Company's
right, title and interest in the Hyatt Gaming Accounts and any Proceeds or
other amounts held in any such Hyatt Gaming Accounts.
2. The Company has granted subordinated security interests to Hyatt
Gaming in certain assets and has collaterally assigned certain contracts to
Hyatt Gaming. As further security for its obligations under the
Subordinated Note and the Subordinated Loan Agreement, the Company also has
granted to Hyatt Gaming pursuant to that certain Hyatt Gaming Pledge and
Assignment Agreement, dated as of even date herewith, between the Company
and Hyatt Gaming (the "Hyatt Gaming Pledge and Assignment Agreement") (i) a
senior security interest in all of the Company's right, title and interest
in the Hyatt Gaming Accounts and any Proceeds or other amounts held in any
such Hyatt Gaming Accounts, and (ii) a subordinated security interest in
all of the Company's right, title and interest in the Trustee Accounts and
any Proceeds or other amounts held in any such Trustee Accounts.
E. Purpose. The parties intend that portions of the Proceeds and the other
amounts deposited from time to time in (i) the Interest Reserve Account be used
to pay interest on the Senior Notes on each Interest Payment Date, and (ii) the
Accounts (other then the Interest Reserve Account) be used to develop, design,
construct and equip the Project (as defined herein) and provide for working
capital and operating funds for the Company, all in accordance with the
Indenture and the Subordinated Loan Agreement. The parties have entered into
this Agreement in order to set forth the conditions upon which, and the manner
in which, funds will be disbursed in order to permit the Company to develop,
design, construct and equip the Project, and to permit the Company to conduct
its operations.
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AGREEMENT
NOW, THEREFORE, for the mutual covenants set forth herein and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto agree as follows:
1. Definitions.
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1.1 Defined Terms. In addition to the parties defined in the
introduction, the following terms shall have the meanings set forth in this
Section for the purposes of this Agreement:
"Account Agreements" means, collectively, the Interest Reserve Account
Agreement, the Trustee Account Agreement, the Hyatt Gaming Account Agreement,
and the Advance Account Agreement.
"Accounts" means, collectively, the Interest Reserve Account, the Trustee
Construction Disbursement Account, the Trustee Completion Reserve Account, the
Hyatt Gaming Construction Disbursement Account, the Hyatt Gaming Completion
Reserve Account and the Advance Disbursement Account.
"Additional Debt" means any additional indebtedness incurred by the Company
pursuant to the Additional Senior Notes.
"Additional Revenue" means as of any date of determination all revenue
(including, without limitation, investment income (loss), less any losses or
costs associated therewith, earned on amounts in the Construction Disbursement
Accounts and the Completion Reserve Accounts) generated by, or other funds of,
the Company (other than from disposition of its assets) as of such date, but
only to the extent that such revenue is held by the Company, free and clear of
any claims of any other Person whatsoever, other than claims of the Trustee and
holders of the Senior Notes and/or Hyatt Gaming; provided, however, that as of
any date of determination, Additional Revenue also shall include investment
income (loss), less any losses or costs associated therewith, which the Company
reasonably determines (with the reasonable concurrence of the Disbursement Agent
(acting in its sole discretion exercised in good faith)) will be earned on funds
in the Construction Disbursement Accounts and the Completion Reserve Accounts
through the anticipated date that the Project becomes Operating, taking into
account the current and future anticipated rates of return on the Investment
Grade Securities in the Construction Disbursement Accounts and the Completion
Reserve Accounts and the anticipated times and amounts of draws therefrom for
the payment of Construction Expenses or in connection with permitted amendments
to the Construction Disbursement Budget (as applicable).
"Additional Senior Notes" has the meaning set forth in the Recital A.
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"Advance Account Agreement" means that certain Account Agreement, dated of
even date herewith, by and among the company, the Trustee, Hyatt Gaming and the
Investment Agent.
"Advance Disbursement" means a disbursement from the Construction
Disbursement Accounts to the Company pursuant to an Advance Disbursement
Request.
"Advance Disbursement Account" means the account established at the offices
of the Disbursement Agent in the name of the Company (or any substitute account
selected in accordance with this Agreement) to be maintained for the purpose of
disbursements of any Advance Disbursement, together with any substitute account
selected in accordance with the terms of this Agreement.
"Advance Disbursement Request" has the meaning set forth in Section 7.1.
"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"
(including, with correlative meanings, the terms "controlling," "controlled by,"
and "under common control with") 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 that
beneficial ownership of 10% or more of the Voting Stock of a Person shall be
deemed to be control.
"Applicable Law" means all applicable statutes, laws, rules, regulations,
ordinances, codes and other legal requirements or any Governmental Agency or
quasi-Governmental Agency having jurisdiction over the Company or the Project,
including, without limitation, all applicable building codes and the American
With Disabilities Act of 1990, and environmental laws, and any judgment,
injunction, order or other judicial or regulatory requirement of any court or
Governmental Agency having competent jurisdiction with respect to the Person or
property in question.
"Architect" means ▇▇▇▇▇▇▇▇ Ltd. and its successors identified by notice
from the Company to the Disbursement Agent and the Construction Escrow Agent.
"Architect Agreement" means that certain (i) Standard Form of Agreement
Between Owner and Architect with Standard Form of Architect's Services (AIA
Document B141-1997, 1997 Edition Electronic Format), dated January 31, 2000, by
and between WWLLC and the Architect, and (ii) Settlement Agreement, dated as of
even date herewith, by and among, inter alia, WWLLC and Architect, as assigned
pursuant to that certain General Assignment, dated as of even date herewith,
from WWLLC to the Company, and as amended, modified or supplemented from time to
time.
"Available Funds" means, at any given time, the sum of: (a) the Proceeds
held in or credited to the Construction Disbursement Accounts and the Completion
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Reserve Accounts, (b) Additional Revenue (so long as there is no Default or
Event of Default), (c) actual or anticipated FF&E Financing (to the extent
permitted under the Indenture), (d) City Improvement Bonds (to the extent
permitted under the Indenture), and (e) any Additional Debt (to the extent funds
from such indebtedness are then available to the Company).
"Board of Directors" means: (i) with respect to a corporation, the board of
directors of the corporation; (ii) with respect to a partnership, the Board of
Directors of the general partner of the partnership; and (iii) with respect to
any other Person, the board or committee of such Person serving a similar
function.
"Business Day" means any day other than Saturday, Sunday or any day on
which banking institutions in New York, New York, are authorized or required by
law or other government action to close.
"Capital Lease Obligation" means, at the time any determination thereof is
to be made, the amount of the liability in respect of a capital lease that would
at such time be required to be capitalized on a balance sheet in accordance with
GAAP.
"Capital Stock" means (i) in the case of a corporation, corporate stock;
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock; (iii) in the case of a partnership, partnership interests
(whether general or limited); (iv) in the case of a limited liability company,
membership interests; and (v) 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.
"City Improvement Bonds" means Indebtedness issued pursuant to or in
accordance with authority of the Special Improvement District number 1998-2 of
▇▇▇▇▇▇ County, Colorado for the purpose of financing public improvements to
Richmond Street.
"Closing Date" means the date of the closing of the transactions
contemplated in the Indenture and the Subordinated Loan Agreement.
"Collateral" means all property, assets, rights and interests which are
subject to the Collateral Documents.
"Collateral Document" means, collectively, the following agreements each
dated as of even date herewith: (i) the Deed of Trust to Public Trustee,
Security Agreement, Fixture Filing and Assignment of Leases and Rents and
Leasehold Interests from the Company to the Public Trustee of the County of
▇▇▇▇▇▇, Colorado for the benefit of Trustee, together with Uniform Commercial
Code financing statements and fixture filings in connection therewith; (ii) the
Security Agreement by the Company in favor of the Trustee, together with Uniform
Commercial Code financing statements and fixture filings in connection
therewith; (iii) the Collateral Assignment by the Company in favor of the
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Trustee; (iv) this Agreement; (v) the Pledge Agreement by the DPR 1992 Trust in
favor of the Trustee; (vi) the Pledge Agreement by APR 21st Century Trust in
favor of the Trustee; (vii) the Pledge Agreement by AMR 21st Century Trust in
favor of the Trustee; (viii) the Trustee Pledge and Assignment Agreement; (ix)
the Trustee Account Agreement; (x) the Subordination, Nondisturbance and
Attornment Agreement, between the Company and Hyatt Gaming; and (xi) any other
agreements, instruments, documents, pledges or filings that evidence, set forth
or limit the Lien of the Trustee in the Collateral, together with the
Subordinated Loan Documents other than the Subordinated Loan Agreement.
"Completion Reserve Accounts" means, collectively, the Trustee Completion
Reserve Account and the Hyatt Gaming Completion Reserve Account.
"Completion Reserve Disbursement Request" has the meaning set forth in
Section 7.1.
"Construction Contract" means that certain Standard Form of Agreement
Between Owner and Contractor, dated January 25, 2000, by and between WWLLC, as
owner, and General Contractor, as contractor, as assigned pursuant to that
certain General Assignment, dated as of even date herewith, from WWLLC to the
Company, together with all exhibits and other attachments thereto and all plans
and other documents incorporated by reference therein and Changes Order No. 1,
and as amended, modified or supplemented from time to time after the date
hereof.
"Construction Disbursement Accounts" means, collectively, the Trustee
Construction Disbursement Account and the Hyatt Gaming Construction Disbursement
Account.
"Construction Disbursement Budget" means the Initial Construction
Disbursement Budget, as the same may be amended from time to time pursuant to
this Agreement.
"Construction Disbursement Request" has the meaning set forth in Section
7.1.
"Construction Documents" means the Excavation Contract, Construction
Contract, the Architect Agreement, and any other Contract entered into on, prior
to or after the Closing Date (other than the Financing Agreements), as the same
may be amended from time to time as permitted thereunder and in accordance with
this Agreement.
"Construction Escrow Agent Indemnified Parties" has the meaning set forth
in Section 15.2.
"Construction Escrow Agent's Issuance Letter" has the meaning set forth in
Section 7.2(c).
"Construction Expenses" means expenses incurred in connection with the
design, development, engineering, construction, installation, equipping,
commencement of operations and operating of the Project in accordance with the
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Construction Disbursement Budget, excluding, however (a) any such expenses paid
on or prior to the Closing Date, (b) any Debt Financing Costs and (c) any
Issuance Fees and Expenses.
"Construction Schedules" mean, collectively, schedules describing the
sequencing of the components of work to be undertaken in connection with the
Project, which schedules (as the same may be amended to the extent permitted
herein) demonstrate that the Project will be Operating prior to the Operating
Deadline.
"Contract" means a contract pertaining to the design, development,
engineering, installation or construction of the Project to which the Company is
a party, including, without limitation, any contract, license and performance
and payment bond or guarantee, if any.
"Contractor" means a party to a Contract other than the Company and any
other Person contractor, subcontractor, vendor, supplier, materialman or other
Person who would have the right to file a mechanics or similar lien or claim
against the Property in respect of any work performed or goods or services
provided in connection with the Project, including, without limitation, the
General Contractor or any other Contractor, the Architect and the Excavator.
"Debt Financing Costs" means all principal, interest, premium fees and
other amounts payable or accrued from time to time under the Senior Notes.
"Default" means any event, omission or failure of a condition that is, or
with the passage of time or the giving of notice or both could be, an Event of
Default herein.
"De Minimis Construction Expenses" means Construction Expenses not in
excess of $50,000.
"Disbursement Accounts" means, collectively, the Construction Disbursement
Accounts, the Completion Reserve Accounts and the Advance Disbursement Account.
"Disbursement Agent Indemnified Parties" has the meaning set forth in
Section 15.1.
"Disbursement Request" means any Initial Disbursement Request, Interest
Disbursement Request, Construction Disbursement Request, Advance Disbursement
Request, Completion Reserve Disbursement Request and any other request for
disbursement from the Accounts made pursuant to this Agreement.
"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).
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"Event of Loss" means, with respect to any property or asset (tangible or
intangible, real or personal), any of the following: (i) any loss, destruction
or damage of such property or asset; (ii) any institution of any proceedings for
the condemnation or seizure of such property or asset or for the exercise of any
right of eminent domain; (iii) 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 (iv) any settlement in lieu of clauses (ii) or (iii)
above.
"Excavation Contract" means that certain (i) Standard Form of Agreement
Between Owner and Contractor (AIA Document A101/CMa), dated May 14, 1998, by and
between WWLLC, as owner, and Excavator, as contractor, (ii) Supplement to AIA
Document A101/CMa Standard Form of Agreement Between Owner and Contractor, dated
May 14, 1998, by and between WWLLC and Excavator, (iii) Amendment, dated June
15, 1998, by and between WWLLC and Excavator, and (iv) Second Amendment to
Standard Form of Agreement Between Owner and Contractor, dated December 31,
1999, by and between WWLLC and Excavator, as assigned pursuant to that certain
General Assignment, dated as of even date herewith, from WWLLC to the Company,
as amended, modified or supplemented from time to time.
"Excavator" means ▇. ▇. ▇▇▇▇▇▇▇▇ & Sons, Inc., and its successors
identified by notice from the Company to the Disbursement Agent and the
Construction Escrow Agent.
"FF&E" means furniture, fixtures or equipment used in the ordinary course
of the business of the Company and its Subsidiaries.
"FF&E Financing" means the incurrence of Indebtedness, the proceeds of
which are utilized solely to finance the acquisition of (or entry into a capital
lease by the Company or a Subsidiary with respect to) FF&E.
"Final Accounts Disbursement" has the meaning set forth in Section 11.1.
"Final Accounts Disbursement Request" has the meaning set forth in Section
7.1.
"Final Construction Escrow Deposit" has the meaning set forth in Section
11.1.
"Final Plans" means Plans which (i) have received final approval from all
Governmental Agencies required to approve such Plans prior to completion of the
work or improvements and (ii) contain sufficient specificity to permit the
completion of the Project.
"Financing Agreements" means, collectively, this Agreement, the Notes, the
Indenture, the Subordinated Loan Agreement, the Collateral Documents and any
other loan or security agreement entered into on, prior to or after the Closing
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Date with or for the benefit of any of the Lender Parties to finance the
Project, as each of the same may be amended from time to time as permitted
thereunder and in accordance with the terms and conditions of this Agreement.
"Foundation Endorsement" means the form of foundation endorsement to the
Title Policies attached hereto as Exhibit L-4.
"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.
"Gaming Authority" means any agency, authority, board, bureau, commission,
department, office or instrumentality of any nature whatsoever of the United
States federal or foreign government, any state, province or any city or other
political subdivision or otherwise, and whether now or hereafter in existence,
or any officer or official thereof, including the Colorado Limited Gaming
Control Commission and any other applicable gaming regulatory authority with
authority to regulate any gaming operation (or proposed gaming operation) owned
by the Company or any of its Subsidiaries and managed or operated by Hyatt
Gaming.
"Gaming Business" means the gaming business and includes all businesses
either licensed or unlicensed by a Gaming Authority necessary for, incident to
or connected with or arising out of the operation of a gaming establishment or
facility (including developing and operating lodging, retail and restaurant
facilities, sports or entertainment facilities, transportation services or other
related activities or enterprises and any additions or improvements thereto) and
any businesses incident and useful to the gaming business, including, without
limitation, food and beverage distribution operations to the extent that they
are operated in connection with a gaming business.
"Gaming License" means any license, permit, franchise or other
authorization from any Gaming Authority required on the Closing Date or at any
time thereafter to own, lease, operate or otherwise conduct the Gaming Business
of the Company, including all licenses granted under the Gaming Laws of any
jurisdiction to which the Company or any of its Subsidiaries is, or may at any
time after the Closing Date, be subject.
"General Contractor" means PCL Construction Services, Inc., and its
successors identified by notice from the Company to the Disbursement Agent and
the Construction Escrow Agent.
"Government Securities" means the securities purchased by the Company upon
consummation of the offering and deposited in the Interest Reserve Account and
in which the Trustee has a first priority perfected security interest which are
comprised of (i) direct obligations of the United States of America for the
timely payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
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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 shall also include 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.
"Governmental Agency" means any national, state or local government
(whether domestic or foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory instrumentality,
authority, body, agency, bureau or entity (including any Gaming Authority, any
zoning authority, the FDIC, the Comptroller of the Currency or the Federal
Reserve Board, any central bank or any comparable authority) or any arbitrator
with authority to bind a party at law.
"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, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
"Hard Costs" means the costs and expenses in respect of supplying goods,
materials and labor for the construction of improvements relating to the Project
or other amounts payable pursuant to the Construction Contract and the
Excavation Contract.
"Hedging Obligations" means, with respect to any specified Person, the
obligations of such Person under: (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Hyatt Gaming Completion Reserve Account" has the meaning set forth in the
Recital C.5.
"Hyatt Gaming Completion Reserve Proceeds" has the meaning set forth in the
Recital C.5.
"Hyatt Gaming Construction Disbursement Account" has the meaning set forth
in the Recital C.4.
"Hyatt Gaming Construction Proceeds" has the meaning set forth in the
Recital C.4.
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"Hyatt Gaming Account Agreement" means that certain Hyatt Gaming Account
Agreement, dated as of even date herewith, by and among the Company, the
Disbursement Agent and Hyatt Gaming.
"Hyatt Gaming Accounts" means, collectively, the Hyatt Gaming Construction
Disbursement Account, the Hyatt Gaming Completion Reserve Account and the
Advance Disbursement Account (to the extent of its interest therein).
"Hyatt Gaming Pledge and Assignment Agreement" has the meaning set forth in
the Recital D.2.
"Hyatt Gaming Proceeds" has the meaning set forth in the Recital C.5.
"Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property except any such balance that constitutes an
accrued expense or trade payable or representing any Hedging Obligations, if and
to the extent any of the foregoing indebtedness (other than letters of credit,
performance or other surety bonds and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP,
as well as all indebtedness secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the extent
not otherwise included, the Guarantee by such Person of any indebtedness or
other obligation of any other Person. The amount of any Indebtedness outstanding
as of any date shall be: (i) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and (ii) the principal amount
thereof, together with any interest thereon that is more than 30 days past due,
in the case of any other Indebtedness.
"Indenture" has the meaning set forth in the Recital A.
"Independent Construction Consultant Indemnified Parties" has the meaning
set forth in Section 15.3.
"Independent Construction Consultant's Disbursement Approval" has the
meaning set forth in Section 7.2(b).
"Initial Construction Disbursement Budget" means, collectively, the
itemized schedule setting forth on a line item-basis all of the costs which the
Company anticipates to expend from and after the Closing Date in connection with
the design, development, engineering, construction, installation, equipping and
commencement of operations of the Project and the conduct of the business of the
Company, attached as Schedule A to the Company's Closing Certificate in the form
- 12 -
of Exhibit A-1 attached hereto, which costs in the aggregate, to the extent they
are anticipated to be funded from the Accounts (other than the Interest Reserve
Account), shall not exceed the sum of (i) the Proceeds in the Construction
Disbursement Accounts, (ii) the proceeds of all actual or anticipated FF&E
Financing (to the extent permitted under the Indenture, the Subordinated Loan
Agreement and the Collateral Documents), and (iii) the proceeds of all actual or
anticipated City Improvement Bonds to the extent permitted under the Indenture
and the Subordinated Loan Agreement.
"Initial Disbursement Request" has the meaning set forth in Section 7.1.
"Initial Disbursements" means any disbursements made pursuant to the
Initial Disbursement Request.
"Interest Disbursement Request" has the meaning set forth in Section 7.1.
"Interest Payment" means the amount required to be paid to the Trustee for
payment to the holders of the Senior Notes in respect of the Senior Notes on the
Interest Payment Date in question.
"Interest Payment Date" means each of September 15, 2000, March 15, 2001,
September 15, 2001 and March 15, 2002.
"Interest Reserve Account" has the meaning set forth in the Recital C.1.
"Interest Reserve Account Agreement" means that certain Account Agreement,
dated as of even date herewith, by and among the Company and the Trustee.
"Interest Reserve Proceeds" has the meaning set forth in the Recital C.1.
"Issuance Fees and Expenses" means fees and expenses incurred on or before
the Closing Date by the Company or for which the Company is liable in connection
with the offering of the Notes.
"Investment Agent" means Norwest Investment Securities, Inc.
"Investment Grade Securities" means any Investment in (i) marketable direct
obligations issued or unconditionally guaranteed by the United States Government
or issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof, (ii) marketable direct obligations issued by any state of
the United States of America maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from both Standard & Poor's Rating Service and
▇▇▇▇▇'▇ Investors Service, Inc. (or any successor to either of their rating
agency businesses), (iii) commercial paper maturing no more than one year from
the date of creation thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from both Standard & Poor's Rating Service and
- 13 -
▇▇▇▇▇'▇ Investors Service, Inc. (or any successor to either of their rating
agency businesses), (iv) certificates of deposit maturing within one year from
the date of acquisition thereof issued by, or bank accounts maintained with,
commercial banks organized under the laws of the United States of America or any
state thereof or the District of Columbia, each having combined capital and
surplus of not less than $500 million and having a rating of "A1" or better from
Standard & Poor's Rating Service or "P1" or better from ▇▇▇▇▇'▇ Investors
Service, Inc. (or any successor to either of their rating agency businesses), or
(v) money market funds organized under the laws of the United States or any
state thereof that invest solely in any of the types of investments permitted
under this definition; provided that (a) any such Investment Grade Securities
which are purchased with a portion of the net proceeds from the sale of the
Series A Notes are deposited in either the Trustee Construction Disbursement
Account or the Trustee Completion Reserve Account and the Trustee has a first
priority perfected security interest in such Investment Grade Securities, and
(b) any such Investment Grade Securities which are purchased with a portion of
the Subordinated Notes are deposited in either the Hyatt Gaming Construction
Disbursement Account or the Hyatt Gaming Completion Reserve Account and Hyatt
Gaming has a first priority perfected security interest in such Investment Grade
Security.
"Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including guarantees or Indebtedness or other
obligations), advances (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), capital
contributions, 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; provided that an acquisition of assets, Equity Interests
or other securities by the Company for consideration consisting of common Equity
Interests of the Company will not be deemed to be an Investment. If the Company
or any Restricted Subsidiary of the Company sells or otherwise disposes of any
Equity Interests of any direct or indirect Restricted Subsidiary of the Company
such that, after giving effect to any such sale or disposition, such Person is
no longer a Restricted Subsidiary of the Company, the Company shall be deemed to
have made an Investment on the date of any such sale or disposition equal to the
fair market value of the Equity Interests of such Restricted Subsidiary not sold
or disposed of in an amount determined as provided in the final paragraph of
Section 4.07 hereof. The acquisition by the Company or any Restricted Subsidiary
of the Company of a Person that holds an Investment in a third Person shall be
deemed to be an Investment by the Company or such Restricted Subsidiary in such
third Person in an amount equal to the fair market value of the Investment held
by the acquired Person in such third Person in an amount equal to the fair
market value as determined by the Board of Directors. For the purposes of this
definition, the Board of Directors' determination must be based upon an opinion
or appraisal issued by an accounting, appraisal or investment banking firm of
national standing if such fair market value exceeds $5.0 million, and not later
than the date of making any investments in Investment Grade Securities, the
Company shall deliver to the Trustee an Officers' Certificate setting forth the
basis upon which the calculations required were computed, together with a copy
of any fairness opinion or appraisal under the Indenture.
- 14 -
"Lender Parties" means, collectively, the Trustee, the holders of the
Senior Notes and Hyatt Gaming, and their respective successors and assigns.
"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 or 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).
"Material Construction Document" means any of the Excavation Contract,
Construction Contract, the Architect Agreement, and without duplication, any
other Construction Document with a total contract amount in excess of $100,000.
"Mechanics Lien Endorsement" means the form of endorsement to Title
Policies attached hereto as Exhibit L-3.
"Minimum Facilities" means, with respect to the Project, a casino which has
in operation at least 1,200 slot machines and related amenities (including a
restaurant, a bar and an entertainment area) and has parking for at least 800
vehicles.
"Net Loss Proceeds" means the aggregate cash proceeds received by the
Company or any of its Restricted Subsidiaries in respect of any 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), 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 Event of
Loss, and any taxes paid or payable as a result thereof.
"Notes" has the meaning set forth in the Recital C.
"Obligations" means (a) all loans, advances, debts, liabilities and
obligations, howsoever arising, owed by the Company and its Affiliates under the
Indenture or otherwise to the Trustee or any holder of the Senior Notes or under
the Subordinated Loan Agreement or otherwise to Hyatt Gaming of every kind and
description (whether or not evidenced by any note or instrument and whether or
not for the payment of money), direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, pursuant to the terms of
this Agreement or any of the other Financing Agreements, including all interest,
fees, charges, expenses, attorney's fees and accountants fees chargeable to the
Company in connection with its dealings with the Company and payable by the
Company hereunder or thereunder; (b) any and all amounts advanced by the
Disbursement Agent at the direction of the Trustee or Hyatt Gaming (as the case
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may be) in order to preserve the Collateral or preserve the Trustee's or Hyatt
Gaming's security interest in the Collateral, including all advances pursuant to
Section 9.11 of this Agreement; and (c) in the event of any proceeding for the
collection or enforcement of the Obligations after an Event of Default shall
have occurred and be continuing, the reasonable expenses of retaking, holding,
preparing for sale or lease, selling or otherwise disposing of or realizing on
the Collateral, or of any exercise by the Trustee or Hyatt Gaming of its
respective rights under the Collateral Documents, together with reasonable
attorney's fees and court costs.
"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 Executive Vice President or Vice President of such Person.
"Officer's Certificate" means a certificate signed by one of the following
Officers of the Company on whose behalf or for whose benefit the certificate is
being executed or delivered: the Chairman of the Board, Chief Executive Officer,
President, Chief Financial Officer, Executive Vice President, Vice President,
Treasurer or Assistant Treasurer.
"Operating" means, with respect to the Project, the first time that: (i)
all Gaming Licenses have been granted and have not been revoked or suspended;
(ii) 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 Project have been discharged or, if payment is not
yet due or if such payment is contested in good faith by the Company, sufficient
funds remain in the Construction Disbursement Accounts or Completion Reserve
Accounts to discharge such Liens and the Company has taken any action (including
the institution of legal proceedings) necessary to prevent the sale of any or
all of the Project or the real property on which the Project shall be
constructed; (iii) the Independent Construction Consultant shall deliver a
certificate to the Trustee and Hyatt Gaming certifying that the Project is
substantially complete in all material respects in accordance with the Final
Plans with respect to the Minimum Facilities; (iv) the Project is in a condition
(including installation of furnishings, fixtures and equipment) to receive
customers in the ordinary course of business; (v) the Minimum Facilities are
open to the general public and operating in accordance with applicable law; and
(vi) a permanent or temporary certificate of occupancy has been issued for the
Project by the appropriate Governmental Authorities.
"Operating Deadline" means December 31, 2001.
"Operative Documents" means the Financing Agreements and the Construction
Documents.
"Ordinary Course Repairs" has the meaning set forth in Section 11.1.
"Original Senior Notes" has the meaning set forth in the Recital A.
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"Permits" means all permits, licenses, authorizations, consents, decrees,
waivers, privileges, approvals from and filings with all Governmental Agencies
necessary for the construction and operation of the Project in accordance with
the Operative Documents.
"Permitted Debt" shall have the meaning set forth in Section 4.09 of the
Indenture.
"Permitted Liens" means (i) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Company or any
Restricted Subsidiary of the Company; provided that such Liens were not created
in contemplation of such merger or consolidation and do not extend to any assets
other than those of the Person merged into or consolidated with the Company;
(ii) Liens on property existing at the time of acquisition thereof by the
Company or any Restricted Subsidiary of the Company (other than materials,
supplies or FF&E acquired in connection with developing, constructing or
equipping of, or commencing operations at, the Project), provided that such
Liens were in existence prior to the contemplation of such acquisition; (iii)
Liens existing on the Closing Date and previously disclosed to the Trustee in
writing or disclosed in Title Commitment for the Deed of Trust; (iv) 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 shall be required in conformity with GAAP shall have
been made therefor; (v) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like Liens arising in the
ordinary course of business and with respect to amounts not yet delinquent or
being contested in good faith by an appropriate process of law, and for which a
reserve or other appropriate provision, if any, as shall be required by GAAP
shall have been made, and, with respect to such Liens arising in connection with
the construction of the Project, there is no Default of Event of Default under
this Agreement; (vi) Liens on property pursuant to the terms of the Subordinated
Note or pursuant to any Permitted Refinancing Indebtedness incurred in
accordance with the Indenture to extend, refinance, renew, replace, defease or
refund the Subordinated Note, so long as such Liens do not extend to property
that was not covered by the Subordinated Note; (vii) Liens on FF&E to secure
Indebtedness which fall under the definition of Permitted Debt; (viii) liens
securing obligations the Indenture or the notes; (ix) pledges or deposits in the
ordinary course of business to secure lease obligations or nondelinquent
obligations under workers' compensation, unemployment insurance or similar
legislation; (x) zoning, easements, rights-of-way, restrictions, minor defects
or irregularities in title and other similar charges or encumbrances not
interfering in any material respect with the business or assets of the Company
or any Subsidiary incurred in the ordinary course of business; (xi) Liens
securing Indebtedness incurred pursuant to clause (vi) or clause (xv) of the
definition of Permitted Debt; (xii) leases or subleases granted to their Persons
not materially interfering with the ordinary course of business of the Company
or any of its Restricted Subsidiaries; (xiii) Liens securing Hedging
Obligations; (xiv) attachment or judgment Liens not giving rise to a default or
an Event of Default; and (xv) Liens on Capital Stock of an Unrestricted
Subsidiary owned directly by another Unrestricted Subsidiary to secure
Indebtedness of such Unrestricted Subsidiary the Capital Stock of which is being
- 17 -
provided as a security; provided that any such Lien may not extend to any
property or assets of the Company or any of its Restricted Subsidiaries other
than such Capital Stock.
"Permitted Refinancing Indebtedness" means any Indebtedness of the Company
or any of its Restricted Subsidiaries issued in exchange for, or the net
proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Company or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed the lesser of (a) the original principal amount of (or accreted
value, if applicable) the Indebtedness so extended, refinanced, renewed,
replaced, defeased or refunded (plus all accrued interest thereon, the amount of
reasonable expenses incurred in connection therewith and premiums incurred in
connection therewith pursuant to the original loan documents governing such
indebtedness) and (b) to the extent such Indebtedness is secured by a Lien
described in clause (vii) of the definition of Permitted Liens above, the then
current fair market value of the asset so encumbered; (ii) such Permitted
Refinancing Indebtedness has a final maturity date no earlier 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; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
is subordinated in right of payment to the Senior Notes, such Permitted
Refinancing Indebtedness has a final maturity date no earlier than the final
maturity date of and is subordinated in right of payment to, the Senior Notes on
terms at least as favorable to the holders of the Senior Notes as those
contained in the documentation governing the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded; and (iv) such Indebtedness
is incurred by the Company 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, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity, whether in its own or a representative capacity.
"Plans" means the plans, specifications, working drawings, design
documents, change orders, correspondence and related items, which may be amended
by the Company as necessary or appropriate, that collectively: (a) provide for
and detail the manner of construction of improvements for the Project; (b)
provide for construction which will permit the Project to be Operating on or
prior to the Operating Deadline; (c) provide for construction which will cause
the Project to be completed for a total cost consistent with the Construction
Disbursement Budget and the line items set forth therein, taking into
consideration the availability of Available Funds, including Realized Savings;
and (d) to the extent such Plans are amended, such Plans continue to represent a
logical evolution consistent with previous Plans, as the same may be amended or
supplemented from time to time.
- 18 -
"Pledge and Assignment Agreements" means, collectively, the Trustee Pledge
and Assignment Agreement and the Hyatt Gaming Pledge and Assignment Agreement.
"Post-Advance Disbursement Requirements" has the meaning set forth in
Section 10.
"Proceeds" means, collectively, the Senior Notes Proceeds and the Hyatt
Gaming Proceeds.
"Project" means the pending project to develop, construct, equip and
operate that certain casino and related amenities as described in the Indenture
and Subordinated Loan Agreement, to be known as the "Black Hawk Casino by
Hyatt."
"Project Cost Schedule" means an itemized schedule of costs and expenses
for the Project in the form of Schedule A attached to a Disbursement Request.
"Property" means the real property located in Black Hawk, Colorado, on
which the Company will construct the Project.
"Property Documents" means each of the Subdivision Agreement and each other
easement or material agreement affecting the Property or the Company's use
thereof.
"Punch List Items" has the meaning set forth in Section 11.1.
"Realized Savings" means the excess of the amount budgeted in the
Construction Disbursement Budget for a line item over the amount of funds
expended or owed by the Company to complete the tasks set forth in such line
item and for the materials and services used to complete such tasks, so long as
the terms for such tasks are final and unconditional (other than the
satisfactory completion of such tasks), including, without limitation, the
execution of fixed price purchase orders to acquire the materials that are the
subject of such line item (as applicable); provided, however, that Realized
Savings for any line item shall be (i) deemed to be zero if such savings are
obtained in a manner that materially detracts from the overall value, quality
and amenities of the Project and (ii) reduced to the extent previously
reallocated in the Construction Disbursement Budget.
"Reserved Construction Amount" means the amount (exclusive of any Retainage
Amounts) necessary as of the date of the Final Construction Disbursement Account
Disbursement to complete the Project in accordance with the Final Plans,
including punch list items.
"Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
"Retainage Amounts" means, at any given time, amounts which have accrued
and are owing under the terms of a Contract for work or services already
provided, but which at such time (and in accordance with the terms of the
- 19 -
Contract) are being withheld from payment to the respective Contractor until
certain subsequent events (e.g., completion benchmarks) have been achieved under
the Contract.
"Senior Deed of Trust" means the Deed of Trust to Public Trustee, Security
Agreement, Fixture Filing and Assignment of Rents, Leases and Leasehold
Interests and Assignment of Leases and Rents, dated as of even date herewith,
made by the Company in favor of the Trustee, on behalf of itself and the holders
of the Senior Notes.
"Senior Notes" has the meaning set forth in the Recital A.
"Senior Notes Proceeds" has the meaning set forth in the Recital C.3.
"Series A Notes" has the meaning set forth in the Recital A.
"Series B Notes" has the meaning set forth in the Recital B.
"Soft Costs" means all costs and expenses (other than Hard Costs, but
including Working Capital Expenses) set forth in the Construction Disbursement
Budget, including without limitation, pre-opening costs.
"Subdivision Agreement" means that certain Subdivision Agreement dated as
of December 29, 1997, by and between the City of Black Hawk, Colorado and the
Company, as recorded on July 7, 1998, at Book 645, Page 357 in the recorder's
office of ▇▇▇▇▇▇ County, Colorado, as amended by that certain First Addendum to
Subdivision Agreement, dated March 25, 1998, as recorded on July 7, 1998, at
Book 645, Page 373 in such recorder's office, and Second Addendum to Subdivision
Agreement, dated May 27, 1998, and recorded on July 7, 1998, at Book 645, Page
377, in such recorder's office, and as amended, supplemented or otherwise
modified from time to time.
"Subordinated Deed of Trust" means the Hyatt Gaming Deed of Trust to Public
Trustee, Security Agreement, Fixture Filing and Assignment of Rents, Leases and
Leasehold Interests and Assignment of Leases and Rents, dated as of even date
herewith, made by the Company in favor of Hyatt Gaming.
"Subordinated Loan Agreement" has the meaning set forth in the Recital B.
"Subordinated Loan Documents" means this means, collectively, the following
agreements each dated as of even date herewith: (i) the Hyatt Gaming Deed of
Trust to Public Trustee, Security Agreement, Fixture Filing and Assignment of
Leases and Rents and Leasehold Interests from the Company to the Public Trustee
of the County of ▇▇▇▇▇▇, Colorado for the benefit of Hyatt Gaming, together with
Uniform Commercial Code financing statements and fixture filings in connection
therewith; (ii) the Hyatt Gaming Security Agreement by the Company in favor of
Hyatt Gaming, together with Uniform Commercial Code financing statements and
- 20 -
fixture filings in connection therewith; (iii) the Hyatt Gaming Collateral
Assignment by the Company in favor of Hyatt Gaming; (iv) this Agreement, (v) the
Hyatt Gaming Pledge and Assignment Agreement; (vi) the Hyatt Gaming Account
Agreement; (vii) the Subordination, Nondisturbance and Attornment Agreement,
between the Company and Hyatt Gaming; and (viii) any other agreements,
instruments, documents, pledges or filings that evidence, set forth or limit the
Lien of Hyatt Gaming in the Collateral.
"Subordinated Note" has the meaning set forth in the Recital B.
"Subsidiary" means with respect to any Person, (i) 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) to vote in the election of directors, managers or trustees
thereof is at the time owned or controlled, directly or indirectly, by such
Person or one or more of the other Subsidiaries of that Person (or a combination
thereof) and (ii) 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 such Person or one or more Subsidiaries
of such Person (or any combination thereof).
"Title Insurer" means Clear Creek-▇▇▇▇▇▇ Abstract and Title Corporation.
"Title Policies" means, collectively, those certain lender's policies of
title insurance to be provided by the Title Insurer to (i) the Trustee insuring
the Trustee and its successors and assigns as to the lien priority of the Senior
Deed of Trust, together with all endorsements thereto, in the form attached as
Exhibit L-1, and (ii) Hyatt Gaming insuring Hyatt Gaming and its successors and
assigns as to the lien priority of the Subordinated Deed of Trust, together with
all endorsements thereto, in the form attached as Exhibit L-2.
"Trustee Account Agreement" means that certain Account Agreement, dated as
of even date herewith, by and among the Company, the Disbursement Agent and the
Trustee.
"Trustee Accounts" means, collectively, the Interest Reserve Account, the
Trustee Construction Disbursement Account, the Trustee Completion Reserve
Account and the Advance Disbursement Account.
"Trustee Completion Disbursement Account" has the meaning set forth in the
Recital C.3.
"Trustee Completion Proceeds" has the meaning set forth in the Recital C.3.
"Trustee Construction Disbursement Account" has the meaning set forth in
the Recital C.2.
"Trustee Construction Proceeds" has the meaning set forth in the Recital
C.2.
"Trustee Pledge and Assignment Agreement" has the meaning set forth in the
Recital D.1.
- 21 -
"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.
"Working Capital Expenses" means operating expenses and other working
capital requirements of the Company in connection with the Project, limited,
prior to when the Project is first Operating, as contemplated in and to the
extent permitted by the Construction Disbursement Budget.
"WWLLC" means Windsor Woodmont, L.L.C., a Colorado limited liability
company.
1.2 Rules of Interpretation. The following rules of interpretation
shall apply herein.
(a) The singular includes the plural and the plural includes the
singular.
(b) The word "or" is not exclusive.
(c) A reference to a Person includes its permitted successors and
permitted assigns.
(d) Accounting terms have the meanings assigned to them by U.S.
GAAP (as defined in the Indenture), as applied by the accounting entity to
which they refer.
(e) The words "include," "includes" and "including" are not
limiting.
(f) A reference in a document to an Article, Section, Exhibit,
Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule,
Annex or Appendix of such document unless otherwise indicated. Exhibits,
Schedules, Annexes or Appendices to any document shall be deemed
incorporated by reference in such document.
(g) References to any document, instrument or agreement (i) shall
include all exhibits, schedules and other attachments thereto, (ii) shall
include all documents, instruments or agreements issued or executed in
replacement thereof, and (iii) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time.
(h) The words "hereof," "herein" and "hereunder" and words of
similar import when used in any document shall refer to such document as a
whole and not to any particular provision of such document.
(i) References to "days" shall mean calendar days, unless the
term "Business Days" shall be used.
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2. Establishment of Accounts.
-------------------------
2.1 Appointment of Disbursement Agent. The Company, the Trustee and
Hyatt Gaming hereby appoint the Disbursement Agent, and the Disbursement Agent
hereby accepts appointment, as disbursement agent hereunder with respect to the
Disbursement Accounts upon the terms and conditions set forth in this Agreement.
The Disbursement Agent agrees to act in good faith at all times in the
performance of its covenants and obligations pursuant to this Agreement.
2.2 Establishment of Disbursement Accounts. Concurrently with the
execution and delivery hereof, the Disbursement Agent shall establish the
Disbursement Accounts at the offices of the Disbursement Agent and the Proceeds
(other than the Interest Reserve Proceeds) shall be deposited in the
Disbursement Accounts in accordance with the provisions of Recital C. All funds
in the Disbursement Accounts shall be held for the benefit of the Lender Parties
and not commingled with any deposit or commercial bank account. The Disbursement
Agent hereby waives any and all liens, encumbrances and claims, which it may
have in the Disbursement Accounts, including, without limitation, all rights of
offset and deductions, whether statutory or otherwise afforded by law, agreement
or otherwise set forth herein. All funds accepted by the Disbursement Agent
pursuant to this Agreement shall be held in the appropriate Disbursement Account
for the benefit of the Lender Parties, subject to the terms and conditions of
this Agreement and the Pledge and Assignment Agreements. The Disbursement Agent
may, upon the request of the Company, establish sub-accounts for accounting
purposes within the Disbursement Accounts, it being understood and agreed that
the creation of such sub-accounts shall in no way affect the pledge in favor of
the Trustee or Hyatt Gaming (as the case may be) in the Disbursement Accounts or
such sub-accounts.
2.3 Pledge and Assignment Agreements. Pursuant to the Pledge and
Assignment Agreements, the Company has granted to (i) the Trustee, for the
benefit of the holders of the Senior Notes, a first priority security interest
in the Trustee Accounts, and all funds and assets from time to time deposited
therein, and all products and proceeds thereof, and a subordinated security
interest in the Hyatt Gaming Accounts, and all funds and assets from time to
time deposited therein, and all products and proceeds thereof, and (ii) Hyatt
Gaming, a first priority security interest in the Hyatt Gaming Accounts, and all
funds and assets from time to time deposited therein, and all products and
proceeds thereof, and a subordinated security interest in the Trustee Accounts,
and all funds and assets from time to time deposited therein, and all products
and proceeds thereof. The Disbursement Agent shall note in its records that all
funds and other assets in the Accounts have been pledged to the Trustee and
Hyatt Gaming, and that the Disbursement Agent is holding such items as agent for
the Trustee and Hyatt Gaming, as a secured party. The Disbursement Agent shall
maintain dominion and control over the Accounts and the funds and assets therein
solely for the benefit of the Trustee and Hyatt Gaming (as the case may be), as
a secured party, and for no other Parties or Persons; provided, however, that
the Company shall be able to obtain disbursements from the Accounts in
accordance with the terms hereof. Accordingly, it is the intention of the
Parties that all such funds and assets shall not be within the bankruptcy
"estate" (as such term is used in 11 U.S.C. ss. 541, as amended) of the
Disbursement Agent. All such funds and all earnings accruing from time to time
- 23 -
thereon shall be held in the applicable Account until disbursed or transferred
in accordance with the terms hereof or until transferred to such other account
as the Trustee or Hyatt Gaming and the Company may direct the Disbursement Agent
to establish in accordance with this Agreement.
2.4 Agency. The Disbursement Agent shall act solely as the agent for
the Trustee and Hyatt Gaming in connection with its duties under this Agreement,
without any authority to obligate any of the Lender Parties or to compromise or
pledge its security interest hereunder; provided, however, that the Disbursement
Agent is authorized to make disbursements from the Accounts on behalf of the
Trustee and Hyatt Gaming pursuant to the terms of this Agreement. The Company
acknowledges and agrees that in no event shall any of the Lender Parties be
liable for, nor shall the obligations of the Company under the Indenture, the
Subordinated Loan Agreement, the Notes, the Collateral Documents or any other
Operative Documents be affected or diminished as a consequence of, any action or
inaction of the Disbursement Agent with respect to the Accounts or any funds or
other assets credited thereto or deposited herein. Notwithstanding any principal
or agency law, neither the Trustee nor Hyatt Gaming shall be liable for any
negligence or willful misconduct by the Disbursement Agent.
2.5 Waiver of Setoff Rights. The Disbursement Agent hereby
acknowledges the Trustee's and Hyatt Gaming's security interest as set forth
herein and waives any security interest or other lien in the Accounts or any
funds or other assets credited thereto or deposited therein and further waives
any right to set off said funds, assets or investments now or in the future
against any indebtedness of the Company to the Disbursement Agent. The waivers
set forth in this Section are of rights which may exist now or hereafter in
favor of the Disbursement Agent in its individual capacity, and not of any such
rights which may exist now or hereafter in favor of the Disbursement Agent in
its capacity as agent for the Trustee and Hyatt Gaming. Nothing in this Section
shall be construed as waiving, limiting or diminishing any rights of the Trustee
or Hyatt Gaming against the Company.
3. Appointment of Trustee and Establishment of Interest Reserve Account
--------------------------------------------------------------------
3.1 Appointment of Trustee. The Company and the Trustee (in its
capacity as Trustee under the Indenture) hereby appoint the Trustee, and the
Trustee hereby accepts appointment, as a disbursement agent hereunder with
respect to the Interest Reserve Account upon the terms and conditions set forth
in this Agreement. The Trustee, in its capacity as disbursement agent with
respect to the Interest Reserve Account, agrees to act in good faith at all
times in the performance of its covenants and obligations pursuant to this
Agreement.
3.2 Establishment of Interest Reserve Account. Concurrently with the
execution and delivery hereof, the Trustee shall establish the Interest Reserve
Account at the offices of the Trustee and the Interest Reserve Proceeds shall be
deposited in the Interest Account in accordance with the provisions of Recital
C. All funds in the Interest Reserve Account shall be held for the benefit of
the Trustee, in its capacity as Trustee under the Indenture for the holders of
- 24 -
the Senior Notes, and not commingled with any deposit or commercial bank
account. Subject to Section 7.07 of the Indenture, the Trustee hereby waives any
and all liens, encumbrances and claims, which it may have in the Interest
Reserve Account, including, without limitation, all rights of offset and
deductions, whether statutory or otherwise afforded by law, agreement or
otherwise set forth herein. All funds accepted by the Trustee pursuant to this
Agreement shall be held in the Interest Reserve Account for the benefit of the
holders of the Senior Notes, subject to the terms and conditions of this
Agreement and the Trustee Pledge and Assignment Agreement. The Trustee may, upon
the request of the Company, establish sub-accounts for accounting purposes
within the Interest Reserve Account, it being understood and agreed that the
creation of such sub-accounts shall in no way affect the pledge in favor of the
Trustee or Hyatt Gaming (as the case may be) in the Interest Reserve Account or
such sub-accounts.
4. Appointment of Construction Escrow Agent and Establishment of
Construction Escrow.
---------------------------------------------------------------------
4.1 Appointment of Construction Escrow Agent. The Company, the Trustee
and Hyatt Gaming hereby appoint the Construction Escrow Agent, and the
Construction Escrow Agent hereby accepts appointment, as escrow agent hereunder
upon the terms and conditions set forth in this Agreement. The Construction
Escrow Agent agrees to act in good faith at all times in the performance of its
covenants and obligations pursuant to this Agreement.
4.2 Establishment of Construction Escrow. Concurrently with the
execution and delivery hereof, the Construction Escrow Agent shall establish a
construction escrow to hold the funds disbursed by the Disbursement Agent to the
Construction Escrow Agent for payment to Contractors in respect of Construction
Expenses. The Construction Escrow Agent shall cause the Construction Expenses to
be paid to the appropriate Contractors and the Construction Escrow Agent shall
cause the Title Insurer to issue the Mechanics Lien Endorsements and the
Foundation Endorsements (upon completion upon any foundation), all in accordance
with the terms and conditions of this Agreement. All funds delivered to the
Construction Escrow Agent pursuant to this Agreement shall be held in trust and
not commingled with any deposit or commercial bank account. The Construction
Escrow Agent hereby waives any and all liens, encumbrances and claims, which it
may have in any funds, including, without limitation, all rights of offset and
deductions, whether statutory or otherwise afforded by law, agreement or
otherwise set forth herein. All funds accepted by the Construction Escrow Agent
pursuant to this Agreement shall be held in an appropriate account for the
benefit of the Company, the Trustee and Hyatt Gaming, subject to the terms and
conditions of this Agreement.
4.3 Agency. The Construction Escrow Agent shall act solely as the
agent for the Trustee and Hyatt Gaming in connection with its duties under this
Agreement, without any authority to obligate any of the Lender Parties to
compromise or pledge its security interest hereunder; provided, however, that
the Construction Escrow Agent is authorized to make disbursements on behalf of
the Trustee and Hyatt Gaming pursuant to the terms of this Agreement. The
- 25 -
Company acknowledges and agrees that in no event shall any of the Lender Parties
be liable for, nor shall the obligations of the Company under the Indenture, the
Subordinated Loan Agreement, the Notes, the Collateral Documents or the other
Operative Documents be affected or diminished as a consequence of, any action or
inaction of the Construction Escrow Agent with respect to any funds disbursed to
the Construction Escrow Agent. Notwithstanding any principal or agency law,
neither the Trustee nor Hyatt Gaming shall be liable for any negligence or
willful misconduct by the Construction Escrow Agent.
4.4 Waiver of Setoff Rights. The Construction Escrow Agent hereby
acknowledges the Trustee's and Hyatt Gaming's security interest as set forth
herein and waives any security interest or other lien in any funds disbursed to
the Construction Escrow Agent and further waives any right to set off said funds
now or in the future against any indebtedness of the Company to the Construction
Escrow Agent. The waivers set forth in this Section are of rights which may
exist now or hereafter in favor of the Construction Escrow Agent in its
individual capacity, and not of any such rights which may exist now or hereafter
in favor of the Construction Escrow Agent in its capacity as agent for the
Trustee and Hyatt Gaming. Nothing in this Section shall be construed as waiving,
limiting or diminishing any rights of the Trustee or Hyatt Gaming against the
Company.
5. Appointment of Independent Construction Consultant
--------------------------------------------------
5.1 Appointment of Independent Construction Consultant. The Trustee
and Hyatt Gaming hereby appoint the Independent Construction Consultant, and the
Company hereby ratifies such appointment, and the Independent Construction
Consultant hereby accepts appointment, as the independent construction
consultant hereunder upon the terms and conditions set forth in this Agreement
and that certain Consulting Agreement between the Trustee, Hyatt Gaming, and the
Independent Construction Consultant of even date herewith. The Independent
Construction Consultant agrees to act in good faith at all times in the
performance of its covenants and obligations pursuant to this Agreement.
5.2 Agency. The Independent Construction Consultant shall act solely
as the agent for the Trustee and Hyatt Gaming in connection with its duties
under this Agreement, without any authority to obligate any of the Lender
Parties to compromise or pledge its security interest hereunder; provided,
however, that the Independent Construction Consultant is authorized to approve
disbursements on behalf of the Trustee and Hyatt Gaming pursuant to the terms of
this Agreement. The Company acknowledges and agrees that in no event shall any
of the Lender Parties be liable for, nor shall the obligations of the Company
under the Indenture, the Subordinated Loan Agreement, the Notes, the Collateral
Documents or the other Operative Documents be affected or diminished as a
consequence of, any action or inaction of the Independent Construction
Consultant with respect to any funds disbursed to the Construction Escrow Agent.
Notwithstanding any principal or agency law, neither the Trustee nor Hyatt
Gaming shall be liable for any negligence or willful misconduct by the
Independent Construction Consultant.
- 26 -
5.3 Waiver of Setoff Rights. The Independent Construction Consultant
hereby acknowledges the Trustee's and Hyatt Gaming's security interest as set
forth herein and waives any security interest or other lien in any funds
disbursed to the Independent Construction Consultant and further waives any
right to set off said funds now or in the future against any indebtedness of the
Company to the Independent Construction Consultant. The waivers set forth in
this Section are of rights which may exist now or hereafter in favor of the
Independent Construction Consultant in its individual capacity, and not of any
such rights which may exist now or hereafter in favor of the Independent
Construction Consultant in its capacity as agent for the Trustee and Hyatt
Gaming. Nothing in this Section shall be construed as waiving, limiting or
diminishing any rights of the Trustee or Hyatt Gaming against the Company.
6. Funding of Accounts.
-------------------
6.1 Conditions Precedent to Funding the Accounts. The Trustee shall
deposit the Interest Reserve Proceeds in the Interest Reserve Account and shall
deposit the Senior Notes Proceeds (other than the Interest Reserve Proceeds)
with the Disbursement Agent, and the Disbursement Agent shall deposit such
Senior Notes Proceeds into the respective Trustee Accounts, and Hyatt Gaming
shall deposit the Hyatt Gaming Proceeds with the Disbursement Agent, and the
Disbursement Agent shall deposit such Hyatt Gaming Proceeds into the respective
Hyatt Gaming Accounts upon satisfaction of the following conditions:
(a) The Trustee and Hyatt Gaming shall have received each of the
following closing certificates, in each case completed as to all
information required therein, together with all required exhibits and
attachments, if any, attached thereto:
(i) the Closing Certificate from the Company in the form of
Exhibit A-1 attached hereto;
(ii) the Closing Certificate from the General Contractor in
the form of Exhibit A-2 attached hereto;
(iii) the Closing Certificate from the Architect in the form
of Exhibit A-3 attached hereto;
(iv) the Closing Certificate from the Excavator in the form
of Exhibit A-4 attached hereto;
(v) the Closing Certificate from the Independent
Construction Consultant in the form of Exhibit A-5 attached hereto;
(vi) the Closing Certificate from the Disbursement Agent in
the form of Exhibit A-6 attached hereto; and
- 27 -
(b) The Trustee shall have received the Senior Notes Proceeds
from the holders of the Original Senior Notes; and
(c) All other closing conditions under the Indenture, the
Subordinated Loan Agreement and the other Financing Agreements have been
satisfied.
6.2 Investment of Funds in Accounts.
--------------------------------
(a) All funds held in and credited to each of the Accounts from
time to time shall be invested in Investment Grade Securities (other than
funds in the Interest Reserve Account which shall be invested in Government
Securities) by the Disbursement Agent in reliance upon the investment
advice of the Investment Agent pursuant to written instructions by the
Company in accordance with the Indenture delivered to the Disbursement
Agent, pending disbursement of such funds pursuant to this Agreement. All
interest and other distributions in respect of such Investment Grade
Securities or Government Securities (as the case may be) shall be added to
the funds in the respective Accounts, subject to disbursement thereof in
accordance with this Agreement. The Investment Grade Securities in which
the Proceeds are invested shall have maturity dates which reasonably
approximate the time when such funds will be required for disbursement
under this Agreement, and in no event shall have a maturity date later than
six (6) months after the Operating Deadline. The Government Securities in
which the Proceeds are invested by the Trustee shall have maturity dates
which reasonably approximate the time when such funds will be required for
disbursement on each Interest Payment Date under this Agreement and the
Indenture.
(b) Notwithstanding the foregoing, the Disbursement Agent shall
not act on direction from the Company to invest any such funds under this
Section, unless (i) the Company directs the funds to be invested in any one
or more of the investments set forth in Schedule 6.2(b), or (ii)(A) the
Investment Agent shall have concluded that such investments are Investment
Grade Securities or Government Securities (as the case may be) conform with
the requirements of the Indenture and the Pledge and Assignment Agreements,
and (B) the Disbursement Agent has received written confirmation from
counsel that appropriate steps have been taken with respect to each such
investment so as to assure the continuing perfection of the Trustee's or
Hyatt Gaming's (as the case may be) first priority security interest in
such investment. For purposes of determining the steps to be taken in order
to achieve and maintain such perfection, the Disbursement Agent shall have
the right to require the delivery of, and to rely upon, an opinion of
counsel to the Company or the Disbursement Agent (the expense of which
shall be paid by the Company) specifying (i) that the counsel is familiar
with the laws applicable to the perfection of security interests in said
investments, and (ii) the steps required to perfect and maintain a first
priority security interest in favor of the Trustee or Hyatt Gaming (as the
case may be) in such investments. If no such investment instructions are
received by the Disbursement Agent after request or after the occurrence of
- 28 -
a Default or Event of Default, such funds shall be invested in Government
Securities set forth in Schedule 6.2(c) or as selected by the Investment
Agent pursuant to this Section and in conformity with the requirements of
the Indenture and the Pledge and Assignment Agreements. Subject to Section
11.1, neither the Disbursement Agent nor the Investment Agent shall be
liable for any investment or similar losses or for the availability or
liquidity of funds in the Accounts as a result of any investments made or
reduced to cash in accordance with this Agreement, and the Disbursement
Agent is hereby authorized to (i) purchase Investment Grade Securities and
Government Securities (as the case may be) as directed by the Company or
determined by the Investment Agent in accordance herewith and (ii) reduce
to cash any Investment Grade Securities or Government Securities (as the
case may be), without regard to maturity, in any Account in order to make
any application or disbursement required hereunder.
6.3 Insufficient Available Funds. The Company shall promptly, and in
no event later than two (2) Business Days following knowledge thereof, notify
the Trustee, Hyatt Gaming, the Disbursement Agent, the Construction Escrow Agent
and the Independent Construction Consultant in writing if at any time the
Company reasonably believes that there are insufficient Available Funds (a) to
permit the Project to be Operating on or before the Operating Deadline or (b) to
complete construction of the Project in accordance with the Plans and/or the
Construction Disbursement Budget (as in effect at such time). Such notice shall
specify in reasonable detail (i) the amount of such deficiency and (ii) the
steps which the Company intends to take to cure such deficiency and the
anticipated timing thereof.
7. Disbursement Requests.
----------------------
7.1 Form of Disbursement Requests. Any requests for disbursement of
the Proceeds from any of the Accounts shall be made to the Disbursement Agent as
follows:
(a) The Company shall concurrently with the execution and
delivery of this Agreement submit to the Disbursement Agent with a copy to
the Trustee, Hyatt Gaming, the Construction Escrow Agent and the
Independent Construction Consultant, an Officer's Certificate in the form
of Exhibit B attached hereto requesting the disbursement of funds from the
Construction Disbursement Accounts for the Initial Disbursements to be made
as of the date hereof, together with all exhibits, schedules and other
documents required thereunder (an "Initial Disbursement Request").
(b) The Company shall have the right to submit to the Trustee, an
Officer's Certificate in the form of Exhibit C attached hereto requesting
the disbursement of funds from the Interest Reserve Account to pay the
interest due on the Notes (an "Interest Disbursement Request").
- 29 -
(c) The Company shall have the right from time to time during the
course of this Agreement (but no more often than monthly, unless otherwise
permitted by the Disbursement Agent), to submit to the Disbursement Agent,
the Construction Escrow Agent and the Independent Construction Consultant,
with a copy to the Trustee and Hyatt Gaming, an Officer's Certificate in
the form of Exhibit D-1 attached hereto requesting the disbursement of
funds from the Construction Disbursement Accounts to the Construction
Escrow Agent for payment to the Contractors and other Persons as otherwise
directed in such Disbursement Request, together with the exhibits,
schedules and other documents required thereunder (a "Construction
Disbursement Request").
(d) Subject to the conditions of Section 10, the Company shall
have the right from time to time during the course of this Agreement (but
no more often than monthly, unless otherwise permitted by the Disbursement
Agent), to submit to the Disbursement Agent, the Construction Escrow Agent
and the Independent Construction Consultant, with a copy to the Trustee and
Hyatt Gaming, an Officer's Certificate in the form of Exhibit E-1 attached
hereto requesting the disbursement of funds from the Construction
Disbursement Accounts to the Advance Disbursement Account as an Advance
Disbursement for payment to the Contractors and other Persons as set forth
in such Disbursement Request, together with the exhibits, schedules and
other documents required thereunder (an "Advance Disbursement Request").
(e) The Company shall have the right from time to time during the
course of this Agreement (but no more often than monthly, unless otherwise
permitted by the Disbursement Agent), to submit to the Disbursement Agent,
the Construction Escrow Agent and the Independent Construction Consultant,
with a copy to the Trustee and Hyatt Gaming, an Officer's Certificate in
the form of Exhibit F-1 attached hereto requesting the disbursement of
funds from the Completion Reserve Accounts to the Construction Disbursement
Accounts, together with all exhibits, schedules and other documents
required thereunder (a "Completion Reserve Disbursement Request").
(f) The Company shall have the right, upon the satisfaction of
the requirements in Section 11.1, to submit to the Disbursement Agent, the
Construction Escrow Agent and the Independent Construction Consultant, with
a copy to the Trustee and Hyatt Gaming, an Officer's Certificate in the
form of Exhibit G-1 attached hereto requesting the disbursement of all
remaining funds from the Construction Disbursements Accounts and the
Completion Reserve Accounts to the Company, together with all exhibits,
schedules and other documents required thereunder (a "Final Accounts
Disbursement Request").
- 30 -
7.2 Review of Disbursement Requests.
--------------------------------
(a) The Disbursement Agent shall (i) review each Disbursement
Request submitted pursuant to Section 7.1 to determine that it conforms in
form to the requirements of ▇▇▇▇▇▇▇▇ ▇, ▇-▇, ▇-▇, F-1 or G-1 (as the case
may be), including all exhibits, schedules and documents delivered
therewith (as the case may be), and (ii) have no actual knowledge of any
material error, inaccuracy, misstatement or omission of fact in such
Disbursement Request or any exhibit, schedule or document delivered
therewith or any other information provided by the Company to the
Disbursement Agent. The Disbursement Agent shall notify the Company, with a
copy to the other Parties, as soon as reasonably possible if any
Disbursement Request, or any portion thereof, is determined not to comply
with the requirements in this Section and the reason(s) therefor.
(b) The Independent Construction Consultant shall review each
Disbursement Request (other than the Initial Disbursement Request)
submitted pursuant to Section 7.1 promptly after receipt of such
Disbursement Request to determine whether it can make the certifications
required in the Officer's Certificate in the form of Exhibit D-2 attached
hereto (in the case of a Construction Disbursement Request), Exhibit F-2
attached hereto (in the case of a Completion Reserve Request) or Exhibit
G-2 attached hereto (in the case of a Final Accounts Disbursement Request)
(each, the "Independent Construction Consultant's Disbursement Approval").
If the Independent Construction Consultant determines that it (i) can make
such certifications, it shall deliver the Independent Construction
Consultant's Disbursement Approval promptly after making such
determination, or (ii) cannot make such certifications, it shall provide
notice to the Company, with a copy to the other Parties, as soon as
reasonably possible after making such determination, together with the
reason(s) therefor.
(c) The Construction Escrow Agent shall review each Disbursement
Request (other than the Initial Disbursement Request) submitted pursuant to
Section 7.1 promptly after receipt of such Disbursement Request to
determine whether it can deliver the letter in the form of Exhibit D-3
attached hereto (in the case of a Construction Disbursement Request) or
Exhibit G-3 attached hereto (in the case of a Final Accounts Disbursement
Request) (the "Construction Escrow Agent's Issuance Letter"). If the
Construction Escrow Agent determines that it (i) can deliver such letter,
it shall deliver such letter promptly after making such determination, or
(ii) cannot deliver such letter, it shall provide notice to the Company,
with a copy to the other Parties, as soon as reasonably possible after
making such determination, together with the reason(s) therefor.
7.3 Amended Disbursement Request. If the Independent Construction
Consultant determines that it cannot provide the Independent Construction
Consultant's Disbursement Approval or the Construction Escrow Agent determines
that it cannot provide the Construction Escrow Agent's Issuance Letter, with
respect to all or any amount of the requested disbursement, the Company shall
- 31 -
have the right to withdraw such Disbursement Request, and notwithstanding
Section 7.1(c) submit an amended Disbursement Request hereunder.
7.4 Periodic Review of Project.
---------------------------
(a) Subject to the limitations in Sections 13.1 and 13.2,
respectively, the Disbursement Agent and the Construction Escrow Agent
shall exercise commercially reasonable efforts and use commercially prudent
practices in the performance of its duties hereunder consistent with those
of similar institutions holding similar collateral, administering similar
construction loans and controlling the disbursement of construction funds.
Commencing upon execution and delivery hereof, the Construction Escrow
Agent shall have the right, but shall have no obligation, to meet
periodically at reasonable times upon reasonable advance notice with
representatives of the Company, the Independent Construction Consultant and
such other employees, consultants or agents as the Construction Escrow
Agent shall reasonably request to be present for such meetings. In
addition, the Construction Escrow Agent shall have the right, but shall
have no obligation, at reasonable times during customary business hours and
at reasonable intervals upon prior notice to review, to the extent it deems
reasonably necessary or appropriate to permit it to perform its duties
hereunder, all information (including Contracts) supporting the
Disbursement Requests and any certificates in support of any of the
foregoing. The Construction Escrow Agent shall be entitled to examine, copy
and make extracts of the books, records, accounting data and other
documents of the Company which are reasonably necessary or appropriate to
permit it to perform its duties hereunder, including, without limitation,
bills of sale, statements, receipts, contracts or agreements, which relate
to any materials, fixtures or articles incorporated into the Project. The
Construction Escrow Agent shall keep all such information confidential and
shall not disclose such information to any Person other than the Parties
without the prior written consent of the Company, except to the extent
disclosure of such information is (i) required under Applicable Law, or
(ii) necessary or appropriate to perform its obligations under this
Agreement. The rights of the Construction Escrow Agent under this Section
to inspect the Project shall not be construed as an obligation, it being
understood that the duty of the Construction Escrow Agent is limited to act
upon certificates and draw requests submitted by the Company and the
Trustee hereunder.
(b) Subject to the limitations in Section 13.3, the Independent
Construction Consultant shall exercise commercially reasonable efforts and
use commercially prudent practices in the performance of its duties
hereunder consistent with those of similar institutions reviewing the
progress of construction and controlling the disbursement of construction
funds. Commencing upon execution and delivery hereof, the Independent
Construction Consultant shall meet periodically at reasonable times during
customary business hours and at reasonable intervals, however no less
frequently than monthly, with representatives of the Company, the General
Contractor, the Architect, the Excavator and such other employees,
consultants or agents as the Independent Construction Consultant shall
- 32 -
reasonably request to be present for such meetings. The Independent
Construction Consultant shall perform such inspections of the Property then
owned by the Company and the Project as it deems reasonably necessary or
appropriate in the performance of its duties hereunder, however no less
frequently than monthly. In addition, the Independent Construction
Consultant shall have the right to review, at reasonable times during
customary business hours, to the extent it deems reasonably necessary or
appropriate to permit it to perform its duties hereunder, all information
(including Contracts) supporting the amendments to the Construction
Disbursement Budget, amendments to any Contracts, the Disbursement Requests
and any certificates in support of any of the foregoing, to inspect
materials stored on the Property then owned by the Company and at off-site
facilities where materials designated for use in the Project are stored, to
review the insurance required pursuant to the terms of the Indenture, and
to examine the Plans and all shop drawings relating to the Project. Upon
and during the continuance of a Default or an Event of Default, or
otherwise the Independent Construction Consultant is authorized to contact
any payee for purposes of confirming receipt of progress payments. The
Independent Construction Consultant shall be entitled to examine, copy and
make extracts of the books, records, accounting data and other documents of
the Company relating to the construction of the Project, including, without
limitation, bills of sale, statements, receipts, conditional and
unconditional lien releases, contracts or agreements, which relate to any
materials, fixtures or articles incorporated into the Project. From time to
time, at the request of the Independent Construction Consultant, the
Company shall make available to the Independent Construction Consultant a
Project Cost Schedule and/or a Construction Schedule for the Project. The
Independent Construction Consultant shall keep all such information
confidential and shall not disclose such information to any Person other
than the Parties without the prior written consent of the Company, except
to the extent disclosure of such information is (i) required under
Applicable Law, or (ii) necessary or appropriate to perform its obligations
under this Agreement. The Company agrees to fully cooperate with the
Independent Construction Consultant in assisting the Independent
Construction Consultant to perform its duties hereunder and to take such
further steps as the Independent Construction Consultant reasonably may
request in order to facilitate the Independent Construction Consultant's
performance of its obligations hereunder.
8. Disbursements from Interest Reserve Account.
--------------------------------------------
8.1 Procedure for Disbursements. Ten (10) days prior to each Interest
Payment Date, the Company shall deliver an Interest Disbursement Request to the
Trustee specifying the amount required to be paid upon and the Interest Payment
Date for which such amount is due and payable. Upon receipt of the Interest
Disbursement Request, on or prior to the Interest Payment Date, the Trustee
shall liquidate a sufficient number of the Government Securities held in the
Interest Reserve Account to realize the amount required to be paid to the
holders of the Senior Notes specified in the Interest Disbursement Request as
due and payable on such Interest Payment Date. On the Interest Payment Date, the
- 33 -
Trustee shall disburse funds from the Interest Reserve Account in the amount
specified in the Interest Reserve Request and pay the same to the holders of the
Senior Notes.
8.2 Insufficient Funds in Interest Reserve Account. If there are
insufficient funds in the Interest Reserve Account to pay any amount specified
in an Interest Disbursement Request, the Trustee shall notify the Company as
soon as practicable but in no event later than six (6) Business Days prior to
the applicable Interest Payment Date, and the Company shall, not less than five
(5) Business Days prior to the applicable Interest Payment Date, deposit in cash
into the Interest Reserve Account an amount equal to such deficiency; provided,
however, if the Company fails to deposit the amount of such deficiency at least
two (2) Business Day prior to the Interest Payment Date, the Trustee shall have
the right to make demand upon the Disbursement Agent for the transfer from the
Trustee Completion Reserve Account to the Interest Reserve Account of an amount
equal to such deficiency on the date which is one (1) Business Day prior to the
Interest Payment Date by providing written notice to the Disbursement Agent
setting forth the amount of such deficiency. The Company acknowledges that the
Company's failure to provide notice or deposit funds referenced in this Section
shall not in any way exonerate or diminish the Company's obligation to make all
payments under the Senior Notes as and when due and to replenish the amount of
such deficiency which was transferred from the Trustee Completion Reserve
Account to the Interest Reserve Account.
8.3 Excess Funds in Interest Reserve Account. Upon payment in full of
all interest payments due on the Senior Notes on the final Interest Payment
Date, the Trustee shall transfer any remaining funds and/or Government
Securities in the Interest Reserve Account to (i) the Disbursement Agent for
deposit in the Trustee Construction Disbursement Account if the Final Accounts
Disbursements has not yet occurred, and such funds and/or Government Securities
shall be deemed Additional Revenue, or (ii) to the Company if the Final Accounts
Disbursement has occurred.
9. Disbursements from Construction Disbursement Accounts and Completion
Reserve Accounts.
----------------------------------------------------------------------------
9.1 Conditions Precedent to Initial Disbursement from Construction
Disbursement Accounts. The Disbursement Agent shall make the disbursements
specified in the Initial Disbursement Request on the Closing Date upon
satisfaction of the following conditions and otherwise in accordance with this
Agreement:
(a) The Company shall have submitted the Initial Disbursement
Request in accordance with Section 7.1;
(b) The Trustee and Hyatt Gaming each shall have approved the
Initial Disbursement Request;
- 34 -
(c) The Disbursement Agent shall have received all documents
required in connection with the Initial Disbursement Request in accordance
with Section 7.2;
(d) The Disbursement Agent shall have received the Proceeds.
9.2 Conditions to Disbursements from Construction Disbursement
Accounts (Other Than Initial Disbursement, Advance Disbursements and Final
Accounts Disbursement). The Disbursement Agent shall make the disbursements
specified in the Construction Disbursement Request upon satisfaction of the
following conditions and otherwise in accordance with this Agreement:
(a) The Company shall have submitted the Construction
Disbursement Request in accordance with Section 7.1;
(b) The Disbursement Agent shall have received all documents
required in connection with the Construction Disbursement Request in
accordance with Section 7.2(a);
(c) The Independent Construction Consultant shall have delivered
the Independent Construction Consultant's Disbursement Approval with
respect to such Construction Disbursement Request to the Disbursement Agent
in accordance with Section 7.2(b);
(d) The Construction Escrow Agent shall have delivered the
Construction Escrow Agent's Issuance Letter with respect to such
Construction Disbursement Request to the Disbursement Agent in accordance
with Section 7.2(c); and
(e) The Disbursement Agent shall not have received written notice
from any Party hereto that a Default or Event of Default exists.
9.3 Conditions Precedent to Advance Disbursements. The Disbursement
Agent shall make the disbursements specified in the Advance Disbursement Request
upon satisfaction of the following conditions and otherwise in accordance with
this Agreement:
(a) The Company shall have submitted the Advance Disbursement
Request in accordance with Section 7.1;
(b) The Disbursement Agent shall have received all documents
required in connection with the Advance Disbursement Request in accordance
with Section 7.2(a); and
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(c) The Disbursement Agent shall not have received written notice
from any Party hereto that a Default or Event of Default exists.
9.4 Conditions Precedent to Disbursements from Completion Reserve
Disbursement (Other Than Final Accounts Disbursement). The Disbursement Agent
shall make the disbursements specified in the Completion Reserve Disbursement
Request upon satisfaction of the following conditions and otherwise in
accordance with this Agreement:
(a) The Company shall have submitted the Completion Reserve
Disbursement Request in accordance with Section 7.1;
(b) The Disbursement Agent shall have received all documents
required in connection with the Completion Reserve Disbursement Request in
accordance with Section 7.2(a);
(c) The Independent Construction Consultant shall have delivered
the Independent Construction Consultant's Disbursement Approval with
respect to such Completion Reserve Disbursement Request to the Disbursement
Agent in accordance with Section 7.2(b); and
(d) The Disbursement Agent shall not have received written notice
from any Party hereto that a Default or Event of Default exists.
9.5 Conditions Precedent to Final Accounts Disbursement. The
Disbursement Agent shall make the disbursements specified in the Construction
Disbursement Request upon satisfaction of the following conditions and otherwise
in accordance with this Agreement:
(a) The Company shall have submitted the Final Accounts
Disbursement Request in accordance with Section 7.1;
(b) The Disbursement Agent shall have received all documents
required in connection with the Final Accounts Disbursement Request in
accordance with Section 7.2(a);
(c) The Independent Construction Consultant shall have delivered
the Independent Construction Consultant's Disbursement Approval with
respect to such Final Accounts Disbursement Request to the Disbursement
Agent in accordance with Section 7.2(b);
(d) The Construction Escrow Agent shall have delivered the
Construction Escrow Agent's Issuance Letter with respect to such Final
Accounts Disbursement Request to the Disbursement Agent in accordance with
Section 7.2(c); and
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(e) The Disbursement Agent shall not have received written notice
from any Party hereto that a Default or Event of Default exists.
9.6 Failure to Satisfy Conditions Precedent.
----------------------------------------
(a) If the Independent Construction Consultant's Disbursement
Approval or the Construction Escrow Agent's Issuance Letter (as the case
may be) delivered to the Disbursement Agent includes any amendments,
deletions or other modifications to the respective forms for such
Independent Construction Consultant's Disbursement Approval or the
Construction Escrow Agent's Issuance Letter attached hereto, or is
otherwise inconsistent with the respective Disbursement Request, or the
Disbursement Agent determines that any one or more of the conditions
precedent in Section 9.1, 9.2, 9.3, 9.4 or 9.5 (as the case may be) have
not been satisfied, the Disbursement Agent promptly shall notify the
Company, Hyatt Gaming and the Trustee, and the Company shall have the right
to obtain the written approval of the Trustee and Hyatt Gaming with respect
to such Disbursement Request, and the Disbursement Agent shall make such
requested disbursements upon receipt of such written approval without
regard to the requirements of Sections 9.1, 9.2, 9.3, 9.4 or 9.5 (as the
case may be).
(b) If the Independent Construction Consultant's Disbursement
Approval approves an amount for disbursement which is less than amount
requested by the Company in the applicable Disbursement Request, but
otherwise conforms to the form of the Independent Construction Consultant's
Disbursement Approval attached hereto and/or the Construction Escrow
Agent's Issuance Letter attached hereto (as the case may be), the
Disbursement Agent shall disburse the amount approved in the Independent
Construction Consultant's Disbursement Approval.
9.7 Disbursements from Construction Disbursement Accounts. Except for
Advance Disbursements to be made directly to the Company, all disbursements
requested from the Construction Disbursement Accounts in any Disbursement
Request to be used for payment to any Contractors shall be made to the
Construction Escrow Agent. The Construction Escrow Agent shall pay the amounts
specified in the applicable Disbursements Request to the appropriate Contractors
promptly after receipt of such funds from the Disbursement Agent. All such
disbursements for payment to any Persons other than any Contractors shall be
made as specified in the applicable Disbursement Request.
9.8 Disbursements from Completion Reserve Accounts. Except for the
Final Accounts Disbursement to be made directly to the Company, all
disbursements requested from the Completion Reserve Accounts pursuant to any
Disbursement Request shall be made by transferring such funds from (i) the
Trustee Completion Reserve Account to the Trustee Construction Disbursement
Account, and (ii) the Hyatt Gaming Completion Reserve Account to the Hyatt
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Gaming Construction Disbursement Account, respectively, and such funds
thereafter shall be subject to the conditions for disbursement from the
Construction Disbursement Accounts set forth in this Agreement.
9.9 Pro-Rata Disbursements. All disbursements from the Construction
Disbursement Accounts shall be made pro rata based on the proportionate amounts
(or, in the case of any securities held in such Accounts, the fair market value
of such securities) held in the Trustee Construction Disbursement Account and
Hyatt Gaming Construction Disbursement Account, respectively, on the date
immediately prior to such disbursement. All disbursements from the Completion
Reserve Accounts shall be made pro rata based on the proportionate amounts (or,
in the case of any securities held in such Accounts, the fair market value of
such securities) held in the Trustee Completion Reserve Account and Hyatt Gaming
Trustee Completion Reserve Account, respectively, on the date immediately prior
to such disbursement.
9.10 Compensation to Disbursement Agent, Construction Agent and
Independent Construction Consultant.
-------------------------------------------------------------------------
(a) The Company covenants and agrees to pay to the Disbursement
Agent from time to time, and the Disbursement Agent shall be entitled to,
the fees and reimbursements set forth in that certain letter agreement by
the Company to the Disbursement Agent, dated as of March 14, 2000, such
amounts to be paid in accordance with and at the times set forth in such
letter, together with reimbursement for its reasonable expenses (including,
without limitation, the reasonable fees and expenses of the Disbursement
Agent's counsel) as compensation for services to be performed under this
Agreement; provided, however, the Disbursement Agent shall provide written
itemization of requested reimbursement of such expenses at least ten (10)
days prior to the date payment is to be made within thirty (30) days of
receiving a written request therefor from the Company. The Disbursement
Agent is hereby authorized to disburse to itself such fees and
reimbursements from the Construction Disbursement Accounts for each
calendar month on the first day of the subsequent calendar month. All
amounts disbursed pursuant to Section 9.10(a) shall be deducted from the
applicable working capital line item in the Construction Disbursement
Budget.
(b) The Company covenants and agrees to pay to the Independent
Construction Consultant from time to time, and the Independent Construction
Consultant shall be entitled to, the fees and reimbursements set forth in
that certain Consulting Agreement between the Independent Construction
Consultant, the Trustee, and Hyatt Gaming, dated of even date herewith
(pursuant to which the Independent Construction Consultant shall look
solely to the Company for the payment of its fees and expenses, and neither
the Trustee nor Hyatt Gaming shall be responsible for such fees or expenses
or have any indemnification obligation to the Independent Construction
Consultant thereunder). The Disbursement Agent is hereby authorized to
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disburse to the Independent Construction Consultant such amounts to be paid
in accordance with and at the times set forth in such Consulting Agreement.
All amounts disbursed pursuant to Section 9.10(b) shall be deducted from
the applicable working capital line item in the Construction Disbursement
Budget.
(c) The Company covenants and agrees to pay to the Construction
Escrow Agent from time to time, and the Construction Escrow Agent shall be
entitled to, the fees and reimbursements set forth in each Construction
Escrow Agent's Issuance Letter. The Disbursement Agent is hereby authorized
to disburse to the Construction Escrow Agent such amounts set forth in the
Construction Escrow Agent's Issuance Letter. All amounts disbursed pursuant
to Section 9.10(c) shall be deducted from the applicable working capital
line item in the Construction Disbursement Budget.
9.11 Disbursements after an Event of Default. In the event that the
Disbursement Agent receives notice from any Party hereto (which notice has not
been revoked or cancelled by the Trustee or Hyatt Gaming, as the case may be)
that a Default or Event of Default exists and is continuing, the Disbursement
Agent shall not approve any disbursement of funds for the Project from the
Construction Disbursement Accounts or the Completion Reserve Accounts; provided,
however, that, the Disbursement Agent shall make disbursements from (i) the
Trustee Accounts with the prior written consent of the Trustee, and (ii) the
Hyatt Gaming Accounts with the prior written consent of Hyatt Gaming if:
(a) the Company has submitted a Disbursement Request and the
Independent Construction Consultant certifies in writing that such
Disbursement Request is for work completed or materials purchased on or
prior to the date that such Default or Event of Default first occurred;
(b) the Independent Construction Consultant determines and
certifies in writing that such disbursements are reasonably necessary to
prevent the condition of the Project from deteriorating or to preserve any
work completed on the Project;
(c) the Trustee or Hyatt Gaming (as the case may be) certifies in
writing that such Default or Event of Default has continued for at least
three (3) consecutive months, and the Independent Construction Consultant
certifies in writing that such disbursements are for payments of Retainage
Amounts for work completed, and the conditions for such disbursements
(other than that the Project will be Operating) have been satisfied;
(d) the Trustee or Hyatt Gaming (as the case may be) certifies in
writing that such disbursements are necessary to comply with Applicable
Law; or
(e) the Trustee certifies in writing that such disbursements are
required pursuant to Section 8.2.
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9.12 Transfer of Funds upon Event of Default. Upon the receipt of
written notice executed by the Trustee, which certifies that an Event of Default
hereunder has occurred and is continuing and that the Trustee is entitled to the
funds in the Trustee Accounts, the Disbursement Agent shall, without need for
further authorization or notice to the Company, deliver to the Trustee all funds
in the Trustee Accounts, other than amounts then permitted to be disbursed under
Section 9.11. Upon the receipt of written notice executed by Hyatt Gaming, which
certifies that an Event of Default hereunder has occurred and is continuing and
that Hyatt Gaming is entitled to the funds in the Hyatt Gaming Accounts, the
Disbursement Agent shall, without need for further authorization or notice to
the Company, upon written notice to the Trustee, deliver to Hyatt Gaming all
funds in the Hyatt Gaming Accounts, other than amounts then permitted to be
disbursed under Section 9.11.
9.13 Notice of Depletion. The Parties hereto irrevocably instruct the
Disbursement Agent to deliver written notice to the Trustee, Hyatt Gaming, the
Construction Escrow Agent, the Independent Construction Consultant and the
Company that no funds remain in any one or more of the Construction Disbursement
Accounts or Completion Reserve Accounts on the first date upon which the balance
in such Account(s) is reduced to zero.
10. Advance Disbursements. Notwithstanding anything to the contrary in this
Agreement, if any Advance Disbursement is made to the Company pursuant to this
Agreement, then the Company shall, with respect to each such Advance
Disbursement, within thirty (30) days after such Advance Disbursement is made
(or, if earlier, within ten (10) days after the occurrence of a Default or Event
of Default), (i) provide a Construction Disbursement Request Certificate
(including all exhibits, schedules or documents required thereunder) in the form
of Exhibit D-1 with respect to such Advance Disbursement, (ii) obtain the
Independent Construction Consultant's Approval for such Advance Disbursement in
the form of Exhibit D-2, (iii) obtain the Construction Escrow Agent's Issuance
Letter for such Advance Disbursement in the form of Exhibit D-3 (the
"Post-Advance Disbursement Requirements"). Notwithstanding the foregoing or
anything else to the contrary in this Agreement, the aggregate amount of any
Advance Disbursements outstanding at any given time for which the Post-Advance
Disbursement Requirements have not yet been satisfied at such time shall not
exceed One Million Dollars ($1,000,000).
11. Final Disbursement of Funds After Operating Date.
------------------------------------------------
11.1 Disbursements After Operating Date. If any funds remain in the
Disbursement Accounts and (a) the Project is Operating and has been Operating
for at least the preceding ninety (90) days uninterrupted, (b) there is no
ongoing construction in connection with the Project, other than (i) maintenance
and repairs in the ordinary course of business not otherwise related to the
construction of the Project ("Ordinary Course Repairs"), and (ii) punch list
items related to the construction of the project not in excess of $100,000
("Punch List Items"), (c) the Post-Advance Disbursement Requirements for all
Advance Disbursements have been satisfied, (d) there are no amounts due to any
Contractors other than for Ordinary Course Repairs, Punch List Items and
Retainage Amounts, and (e) there exists no Default or Event of Default, then the
- 40 -
Company shall have the right to request that the Disbursement Agent disburse to
the Company all remaining funds in the Construction Disbursement Accounts and
Completion Reserve Accounts by executing and delivering to the Disbursement
Agent the Final Disbursement Request pursuant to Section 7.1. Upon satisfaction
of the conditions precedent for the Final Accounts Disbursement pursuant to
Section 9.5, the Disbursement Agent shall:
(i) first, disburse to the Construction Escrow Agent such amount
required to pay all Retainage Amounts due to all Contractors as of the date
of such disbursement;
(ii) second, disburse to the Construction Escrow Agent such
amount required by the Title Company as set forth in the Construction
Escrow Agent's Issuance Letter, as determined in its own discretion, to
issue a Mechanics Lien Endorsement to the Title Policies insuring against
all mechanic liens claims for which the Construction Escrow Agent has not
received final unconditional waivers of lien or releases from a Contractor
(the "Final Construction Escrow Deposit");
(iii) third, disburse to the Disbursement Agent, the Independent
Construction Consultant and the Construction Escrow Agent such final
amounts due and payable to such Person pursuant to Section 9.10; and
(iv) fourth, disburse any remaining funds to the Company (the
"Final Accounts Disbursement").
11.2 Use of Final Accounts Disbursement. With respect to the
Construction Escrow Final Deposit, the Construction Escrow Agent shall deliver
such amounts (or portion thereof) directly to the Company upon its receipt of
such lien waivers and release in form and substance reasonably required by the
Title Company as a condition of releasing such funds (or portion thereof), and
the Company acknowledges and agrees that neither the Disbursement Agent nor any
other Party (other than the Construction Escrow Agent) shall be responsible for
the final release and disbursement of the Final Construction Escrow Deposit to
the Company. With respect to the Final Accounts Disbursement, the Company agrees
to use such portion of the Final Accounts Disbursement to pay for the Punch List
Items and otherwise use the funds disbursed pursuant to the Final Accounts
Disbursement in accordance with the Indenture and this Agreement.
12. Construction Disbursement Budget.
--------------------------------
12.1 Construction Disbursement Budget Amendment Process. The
Construction Disbursement Budget may be amended from time to time in the manner
set forth herein. Subject to Section 12.2, the Company shall have the right from
time to time to amend the Construction Disbursement Budget to change the amounts
allocated for specific line item components of the work required to complete the
Project, including Soft Costs, and to reallocate Realized Savings from one line
item to another. Any such amendment shall be in writing and shall identify with
- 41 -
specificity the line items to be changed and the amount of such change, and
shall be submitted to the Disbursement Agent and the Independent Construction
Consultant by an Officers' Certificate in the form of Exhibit H-1 attached
hereto, together with all exhibits, schedules and documents required thereunder
(the "Construction Disbursement Budget Amendment Certificate"). The proposed
amendment in the Construction Disbursement Budget Amendment Certificate shall
become effective upon the execution and delivery by the Independent Construction
Consultant to the Disbursement Agent of an Officer's Certificate in the form of
Exhibit H-2 attached hereto. Notwithstanding the foregoing or anything else to
the contrary in this Agreement, the Company shall not have the right to amend
the Construction Disbursement Budget without the prior written consent of the
Trustee and Hyatt Gaming (copies of which shall be delivered to the Disbursement
Agent), which consent may be withheld in their sole and absolute discretion, if
such amended Construction Disbursement Budget would require funds in excess of
the Available Funds at any time.
12.2 Contract Amendment Process. The Company shall have the right from
time to time to amend any Contract to which it is a party to change the scope of
the work and the Company's payment obligations thereunder. Any such amendment
that (i) results in a cost increase in excess of Twenty-Five Thousand Dollars
($25,000) in a Material Construction Document (or, with respect to the
Construction Contract only, in excess of Seventy-Five Thousand Dollars
($75,000)), (ii) results in a material lessening of the scope or quality of the
work constituting the design or construction of the Project, the value of which
is in excess of Twenty-Five Thousand Dollars ($25,000) in a Material
Construction Document (or, with respect to the Construction Contract only, in
excess of Seventy-Five Thousand Dollars ($75,000)), or (iii) results in the
likely addition of no less than one (1) week of construction (or such
amendments, in the aggregate, result in the likely addition of no less than four
(4) weeks of construction), shall be in writing and shall identify with
specificity all changes being made thereto. The Company shall deliver to the
Disbursement Agent (a) an executed copy of the Contract amendment (the
effectiveness of which will be subject only to satisfaction of the conditions in
this Section); and (b) an Officers' Certificate in the form attached hereto as
Exhibit I-1, together with all exhibits, schedules and attachments thereto (the
"Construction Contract Amendment Certificate"). The proposed amendment in the
Construction Contract Amendment Certificate shall become effective upon the
execution and delivery by the Independent Construction Consultant to the
Disbursement Agent of an Officer's Certificate in the form of Exhibit I-2
attached hereto. Notwithstanding the foregoing or anything else to the contrary
in this Agreement, the Company shall not have the right to amend any
Construction Contract without the prior written consent of the Trustee and Hyatt
Gaming (copies of which shall be delivered to the Disbursement Agent), which
consent may be withheld in their sole and absolute discretion, if such amended
Construction Contract would (i) require funds in excess of the Available Funds
at any time, or (ii) would invalidate or otherwise affect any coverage under any
surety performance or payment bond then in effect.
12.3 Contracts Entered into after the Closing Date. The Company may
from time to time enter into Contracts constituting Construction Documents
consistent with the Plans and the Construction Disbursement Budget, as each is
in effect from time to time. Each such Contract shall be in writing and, if a
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Material Construction Document, shall become effective when and only when: (i)
the Company and the Contractor have executed and delivered the Contract (with
the effectiveness thereof subject only to satisfaction of the conditions in this
Section); (ii) the Company has submitted to the Disbursement Agent an Officer's
Certificate in the form of Exhibit J-1 attached hereto, together with all
exhibits, schedules and documents required thereunder; (iii) if entering into
such Contract will result in an amendment to the Construction Disbursement
Budget, the Company has complied with the requirements of Section 12.1; (iv) if
entering into such Contract will cause the Available Funds to be less than the
amount required to cause the Project to become Operating on or before the
Operating Deadline, the Company, treating such difference as a cost overrun, has
complied with the requirements of Section 12.4; and (v) the Company has
delivered a Consent to Collateral Assignment from the Contractor in the form of
Exhibit K attached hereto. The proposed additional Construction Contract
Amendment Certificate shall become effective upon the execution and delivery by
the Independent Construction Consultant to the Disbursement Agent of an
Officer's Certificate in the form of Exhibit J-2 attached hereto.
Notwithstanding the foregoing or anything else to the contrary in this
Agreement, the Company shall not have the right to enter into any Construction
Contract without the prior written consent of the Trustee and Hyatt Gaming,
which consent may be withheld in their sole and absolute discretion, if such
additional Construction Contract would require funds in excess of the Available
Funds at any time.
12.4 Cost Overruns. The Company covenants to cure promptly (and in any
event within ten (10) days of notice or knowledge thereof) any cost overrun for
any line item (taking into account any applicable reserves in such line item) by
(i) providing sufficient funds to cover in full such cost overrun from (A)
previously unallocated Available Funds or other Additional Revenue as permitted
in this Agreement (but in each case only to the extent that the same have not
previously been expended or dedicated (including Retainage Amounts) to the
payment of line items contained in the Construction Disbursement Budget) or (B)
if the conditions precedent to a disbursement from the Completion Reserve
Accounts are satisfied, from funds in the Completion Reserve Accounts; and/or
(ii) effecting a Construction Disbursement Budget Amendment pursuant to Section
9.1.
12.5 Project Cost Schedules. Each Project Cost Schedule shall set
forth (i) the actual investment income (loss), less any losses or costs
associated therewith, earned on the Construction Disbursement Accounts and the
Completion Reserve Accounts through the date of such Project Cost Schedule, and
(ii) the additional amount of investment income which the Company reasonably
anticipates will be earned in the Construction Disbursement Accounts and the
Completion Reserve Accounts from such date through the earlier of the Operating
Deadline and the anticipated date on which the Project first will be Operating.
If at any time the Company submits a Project Cost Schedule pursuant to this
Section and the Company can no longer reasonably anticipate that the Additional
Revenue earned (and anticipated to be earned as determined above) from
investments of funds in the Construction Disbursement Accounts and the
Completion Reserve Accounts will equal the amount of such Additional Revenue
anticipated as set forth in the Construction Disbursement Budget then in effect,
then, so long as the Disbursement Agent has no actual knowledge that a Default
or Event of Default exists and is continuing:
- 43 -
(a) if the total amount of such Additional Revenue at such date
earned or anticipated to be earned is less than the total amount of such
Additional Revenue anticipated as of the date of the most recent
disbursement from the Construction Disbursement Accounts, then the
Available Funds shall be deemed reduced by the amount of such deficiency
and the Company (as a condition to the next Construction Disbursement
Request) shall provide or allocate additional Available Funds or, if
necessary, disburse funds from the Completion Reserve Accounts (so long as
the conditions precedent are satisfied), and/or otherwise amend the
Construction Disbursement Budget, if necessary, so that the total costs to
cause the Project to be Operating prior to the Operating Deadline do not
exceed the total Available Funds; or
(b) if the total amount of such Additional Revenue at such date
earned or anticipated to be earned is greater than the total amount of such
Additional Revenue anticipated as of the date of the most recent
disbursement from the Construction Disbursement Accounts, then the
Available Funds shall be deemed increased by the amount of such excess.
13. Events of Default. The occurrence of any of the following specified
events shall be an "Event of Default" hereunder:
13.1 Financing Agreements. A "default" or an "event of default" under
the Indenture, the Subordinated Loan Agreement or any of the other Financing
Agreements (as such terms are defined therein) has occurred and is continuing.
13.2 Failure to Make Disbursement Request. Subject to Section 7.3, the
Disbursement Agent, the Independent Construction Consultant or the Construction
Escrow Agent, after appropriate consultation with the Company, is unable to make
a disbursement requested pursuant to any Disbursement Request in excess of
$50,000 or an amendment to the Construction Disbursement Budget where the
aggregate amount that is the subject of such amendment exceeds $50,000 due to
the failure of the Company to satisfy the conditions precedent thereto set forth
herein, including, without limitation, the condition precedent that the
Independent Construction Consultant, the General Contractor, the Architect
and/or the Excavator (in each case after appropriate consultation with the
Company) deliver the respective certificates required under this Agreement, and
such failure continues for thirty (30) days.
13.3 Representation, Warranties and Certifications. Any
representation, warranty, certification or statement by the Company in this
Agreement or any Officer's Certificate required to be delivered in this
Agreement is untrue in any material respect on the date given or made, and such
untruthfulness continues for a period of ten (10) Business Days after notice
thereof.
13.4 Insufficient Funds. Any time that the amount of Available Funds
is less than the amount required in the Construction Disbursement Budget to
- 44 -
cause the Project to become Operating on or before the Operating Deadline, and
such deficiency continues for a period of thirty (30) days after notice to the
Company of such deficiency.
13.5 Failure to Deliver Collateral Documents. The failure of the
Company to deliver any documents as and when required by the Pledge and
Assignment Agreements and such failure continues for a period of ten (10) days.
13.6 Cessation of Ownership. Except as and to the extent permitted
under the Indenture, the Subordinated Loan Agreement or any other Financing
Agreements, the Company shall cease to own the Property and all parcels and
subdivisions comprising any portion thereof or located thereon or the buildings,
fixtures and other improvements to be situated on the Property for the purpose
of owning, constructing, maintaining and operating the Project in the manner
contemplated by the Operative Documents.
13.7 Abandonment of Project. Except as and to the extent permitted
under the Indenture, the Subordinated Loan Agreement or any other Financing
Agreements, the Company shall abandon the Project or otherwise cease to pursue
the operations of the Project in accordance with standard industry practice or
shall sell or otherwise dispose of its interest in the Project.
13.8 Termination or Invalidity of Construction Documents. Any of the
Material Construction Documents shall have terminated, become invalid or
illegal, or otherwise ceased to be in full force and effect (except in
accordance with its terms upon completion of the respective work or delivery of
the respective materials); provided that with respect to any Material
Construction Document other than the General Construction Contract, the
Excavation Contract Construction Contract and the Architect Agreement, no Event
of Default shall be deemed to have occurred as a result of such termination so
long as (a) the Company provides written notice to the Disbursement Agent and
the Independent Construction Consultant (immediately upon, but in no event more
than two (2) Business Days after, the Company's becoming aware of such
Construction Document's ceasing to be in full force or effect) that the Company
intends to replace such Construction Document (or that replacement is not
necessary), and (b) if, in the reasonable judgment of the Independent
Construction Consultant, a replacement is necessary, the Company (i) obtains a
replacement obligor or obligors reasonably acceptable to the Independent
Construction Consultant, the Trustee and Hyatt Gaming, and (ii) enters into a
amended Construction Document or a new Construction Document in accordance with
Section 12.2 or 12.3 as applicable, on terms no less beneficial to the Company,
the Trustee and Hyatt Gaming than then current market terms, within sixty (60)
days of such termination.
13.9 Schedule of Operations. The Independent Construction Consultant,
if it becomes so aware, reasonably determines (based on its experience,
familiarity and review of the Project and the information and schedule provided
by the Company and the General Contractor) that the Project is likely to first
be Operating no earlier than sixty (60) days after the Operating Deadline,
- 45 -
which determination the Independent Construction Consultant may make at any time
after the date hereof.
14. Limitation of Liability.
------------------------
14.1 Disbursement Agent's Limitation of Liability. The Disbursement
Agent shall have no duties or obligations hereunder except as expressly set
forth herein, shall be responsible only for the performance of such duties and
obligations, shall not be required to take any action other than in accordance
with this Agreement. In performing its obligations hereunder, the Disbursement
Agent shall have the right to rely (so long as such reliance is reasonable and
in good faith) on certificates received from the Company, the General
Contractor, the Architect, the Excavator, the Construction Escrow Agent and the
Independent Construction Consultant, and shall not be liable or responsible for
any liability, loss, damage, cost or expense incurred by any of the other
Parties that may occur by reason of forgery, false representations, the exercise
of its discretion, or any other reason, except for the gross negligence or
willful misconduct of the Disbursement Agent, its officers, employees or agents;
provided, however, that the Disbursement Agent shall not be liable for any
consequential or punitive damages. Without limiting the generality of the
foregoing, the other Parties acknowledge and agree that: (a) the Disbursement
Agent does not represent, warrant or guaranty to any of the Lender Parties the
performance of the Company, the Independent Construction Consultant, the
Construction Escrow Agent, the General Contractor, the Architect, the Excavator
or any Contractor in connection with construction of the Project; (b) the
Company shall remain solely responsible for the proper application of all
disbursements made to the Company; (c) the Disbursement Agent is not obligated
to supervise, inspect or inform the Company or any of the Lender Parties of any
aspect of the construction of the Project; and (d) the Disbursement Agent owes
no duty of care to the Company, to protect against, or to inform the Company of,
any negligent, faulty, inadequate or defective design or construction of the
Project or otherwise.
14.2 Construction Escrow Agent's Limitation of Liability. The
Construction Escrow Agent shall have no duties or obligations hereunder except
as expressly set forth herein, shall be responsible only for the performance of
such duties and obligations, shall not be required to take any action other than
in accordance with this Agreement. In performing its obligations hereunder, the
Construction Escrow Agent shall have the right to rely (so long as such reliance
is reasonable and in good faith) on certificates received from the Company, the
General Contractor, the Architect and the Excavator, and shall not be liable or
responsible for any liability, loss, damage, cost or expense incurred by any of
the other Parties that may occur by reason of forgery, false representations,
the exercise of its discretion, or any other reason, except for the negligence
or willful misconduct of the Construction Escrow Agent, its officers, employees
or agents; provided, however, that the Construction Escrow Agent shall not be
liable for any consequential or punitive damages. Without limiting the
generality of the foregoing, the other Parties acknowledge and agree that: (a)
the Construction Escrow Agent does not represent, warrant or guaranty to any of
the other Parties the performance of the Company, the Disbursement Agent, the
General Contractor, the Architect, the Excavator or any Contractor in connection
with construction of the Project; (b) the Company shall remain solely
- 46 -
responsible for the proper application of all disbursements made to the Company;
(c) the Construction Escrow Agent is not obligated to supervise, inspect or
inform the Company or any of the other Parties of any aspect of the construction
of the Project, except as expressly provided herein; and (d) the Construction
Escrow Agent owes no duty of care to the Company, to protect against, or to
inform the Company of, any negligent, faulty, inadequate or defective design or
construction of the Project or otherwise.
14.3 Independent Construction Consultant's Limitation of Liability.
The Independent Construction Consultant shall have no duties or obligations
hereunder except as expressly set forth herein, shall be responsible only for
the performance of such duties and obligations, shall not be required to take
any action other than in accordance with this Agreement. In performing its
obligations hereunder, the Independent Construction Consultant shall have the
right to rely (so long as such reliance is reasonable and in good faith) on
certificates received from the Company, the General Contractor, the Architect
and the Excavator, and shall not be liable or responsible for any liability,
loss, damage, cost or expense incurred by any of the other Parties that may
occur by reason of forgery, false representations, the exercise of its
discretion, or any other reason, except for the negligence or willful misconduct
of the Independent Construction Consultant, its officers, employees or agents;
provided, however, that the Independent Construction Consultant shall not be
liable for any consequential or punitive damages. Without limiting the
generality of the foregoing, the other Parties acknowledge and agree that: (a)
the Independent Construction Consultant does not represent, warrant or guaranty
to any of the other Parties the performance of the Company, the Disbursement
Agent, the General Contractor, the Architect, the Excavator or any Contractor in
connection with construction of the Project; (b) the Company shall remain solely
responsible for the proper application of all disbursements made to the Company;
(c) the Independent Construction Consultant is not obligated to supervise,
inspect or inform the Company or any of the other Parties of any aspect of the
construction of the Project, except as expressly provided herein; (d) except to
the extent the Independent Construction Consultant has actual knowledge, the
Independent Construction Consultant shall not be responsible for, and shall not
be obligated to make any specific inquiry with respect to, matters pertaining
to: historical architecture review, Gaming Authorities, Gaming Licenses and
Liens against the Project (except in connection with the responsibilities of the
Independent Construction Consultant set forth herein); and (e) the Independent
Construction Consultant owes no duty of care to the Company, the Trustee, or to
Hyatt Gaming to protect against, or to inform such Parties of, any negligent,
faulty, inadequate or defective design or construction of the Project or
otherwise.
15. Indemnity and Insurance.
-----------------------
15.1 Indemnification of Disbursement Agent. The Company shall
indemnify, protect, hold harmless and defend the Disbursement Agent, and each of
its directors, officers, employees and agents (the "Disbursement Agent
Indemnified Parties"), from and against any and all claims, actions,
obligations, liabilities, damages, losses, costs and expenses, including,
without limitation, reasonable attorneys fees and court, arising from the
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performance by any of the Disbursement Agent Indemnified Parties, under this
Agreement, except to the extent resulting from the gross negligence or willful
misconduct of any of the Disbursement Agent Indemnified Parties.
15.2 Indemnification of Construction Escrow Agent. The Company shall
indemnify, protect, hold harmless and defend each of the Construction Escrow
Agent, and each of its directors, officers, employees and agents (the
"Construction Escrow Agent Indemnified Parties"), from and against any and all
claims, actions, obligations, liabilities, damages, losses, costs and expenses,
including, without limitation, reasonable attorneys fees and court, arising from
the performance by any of the Construction Escrow Agent Indemnified Parties
under this Agreement, except to the extent resulting from the negligence or
willful misconduct of any of the Construction Escrow Agent Indemnified Parties.
15.3 Indemnification of Independent Construction Consultant. The
Company shall indemnify, protect, hold harmless and defend each of the
Independent Construction Consultant, and each of its directors, officers,
employees and agents (the "Independent Construction Consultant Indemnified
Parties" and collectively with the Disbursement Agent Indemnified Parties, the
Construction Escrow Agent Indemnified Parties, the "Indemnified Parties"), from
and against any and all claims, actions, obligations, liabilities, damages,
losses, costs and expenses, including, without limitation, reasonable attorneys
fees and court costs, arising from the performance by any of the Independent
Construction Consultant Indemnified Parties under this Agreement, except to the
extent resulting from the negligence or willful misconduct of any of the
Independent Construction Consultant Indemnified Parties.
15.4 Indemnification Procedure. In case any action shall be commenced
involving any person in respect of which indemnity may be sought pursuant to
Section 15.1, 15.2 or 15.3 or the Trustee pursuant to Section 7.07 of the
Indenture (the "Indemnified Party"), the Indemnified Party shall promptly notify
the person against whom such indemnity may be sought (the "Indemnifying Party")
in writing and the Indemnifying Party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses of such counsel, as incurred. Any
Indemnified Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of the Indemnified Party, unless (i) the
employment of such counsel shall have been specifically authorized in writing by
the Indemnifying Party, (ii) the Indemnifying Party shall have failed to assume
the defense of such action or employ counsel reasonably satisfactory to the
Indemnified Party, or (iii) the named parties to any such action (including any
impleaded parties) include both the Indemnified Party and the Indemnifying Party
, and the Indemnified Party shall have been advised by such counsel in writing
that there may be one or more legal defenses available to it which are different
from or additional to those available to the Indemnified Party (in which case
the Indemnifying Party shall not have the right to assume the defense of such
action on behalf of the Indemnified Party). In any such case, the Indemnifying
Party shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
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more than one separate firm of attorneys (in addition to one local counsel) for
all Indemnified Parties and all such fees and expenses shall be reimbursed as
they are incurred. Such firm shall be designated in writing by the Indemnified
Party. The Indemnifying Party shall indemnify and hold harmless the Indemnified
Party from and against any and all losses, claims, damages, liabilities and
judgments by reason of any settlement of any action (i) effected with its
written consent, or (ii) effected without its written consent if the settlement
is entered into more than twenty (20) Business Days after the Indemnifying Party
shall have received a request from the Indemnified Party for reimbursement for
the fees and expenses of counsel (in any case where such fees and expenses are
at the expense of the Indemnifying Party) and, prior to the date of such
settlement, the Indemnifying Party shall have failed to comply with such
reimbursement request. No Indemnifying Party shall, without the prior written
consent of the Indemnified Party, effect any settlement or compromise of, or
consent to the entry of judgment with respect to, any pending or threatened
action in respect of which the Indemnified Party is or could have been a party
and indemnity or contribution may be or could have been sought hereunder by the
Indemnified Party, unless such settlement, compromise or judgment (i) includes
an unconditional release of the Indemnified Party from all liability on claims
that are or could have been the subject matter of such action and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of the Indemnified Party.
15.5 Insurance. The Disbursement Agent, at its sole cost and expense,
shall purchase and maintain throughout the term of this Agreement, the following
insurance policies:
(a) Comprehensive general liability insurance, with minimum
limits of Five Million Dollars ($5,000,000) combined single limit per
occurrence, covering all property damage arising out of its operation under
this Agreement.
(b) Workers' compensation insurance covering all of its employees
and volunteers.
If any of such insurance is written on a claims made form, following
termination of this Agreement, coverage shall survive for the maximum reporting
period available at each anniversary date of such insurance, or not less than
five (5) years, whichever is greater. The limits of coverage required under
subparagraph (a) above shall not in any way limit the liability of the Company
under this Agreement.
16. Termination. This Agreement shall terminate automatically thirty (30)
days following such time as all amounts in the Accounts have been distributed
pursuant to and in accordance with the terms hereof and the Project is
Operating; provided, however, that (a) the obligations of the Company under
Section 15.1 of this Agreement shall survive termination of this Agreement, and
(b) if, following a Event of Loss, there exist Net Loss Proceeds that (in
accordance with the Indenture) are deliverable to the Trustee and are eligible
for distribution to the Company for rebuilding, repair, replacement or
construction, then the Company, the Disbursement Agent, the Construction Escrow
- 49 -
Agent and the Independent Construction Consultant shall execute and deliver to
the Trustee such documentation as the Trustee reasonably deems appropriate in
order to cause (i) the Trustee to possess a first priority perfected security
interest in said funds, and (ii) the Disbursement Agent, the Construction Escrow
Agent and the Independent Construction Consultant to administer the disbursement
of said funds for such rebuilding, repair, replacement or construction pursuant
to disbursement control procedures substantially akin to those set forth herein.
17. Substitution or Resignation.
---------------------------
17.1 Substitution and Resignation of Disbursement Agent. The Trustee
shall have the right to replace the Person then appointed as the "Disbursement
Agent" by appointing another Person as the "Disbursement Agent" under this
Agreement and providing thirty (30) days written notice to the Parties to this
Agreement; provided, however, that such replacement shall become effective only
after the Person appointed as the substitute "Disbursement Agent" enters into a
written agreement with the other Parties accepting such appointment and assuming
all of the obligations of the Disbursement Agent hereunder. The Disbursement
Agent may resign at any time upon at least thirty (30) days written notice to
all Parties hereto in which case the Trustee shall use commercially reasonable
efforts to appoint a substitute "Disbursement Agent" promptly thereafter;
provided, however, that such resignation shall take effect only after the Person
appointed as the substitute "Disbursement Agent" enters into a written agreement
with the other Parties accepting such appointment and assuming all of the
obligations of the Disbursement Agent hereunder. Upon the effectiveness of such
substitution or resignation, then the Person who is replaced or resigns as the
"Disbursement Agent" shall be relieved of its duties and obligations to perform
hereunder, except that such Person (i) shall remain liable for all obligations
which expressly survive such substitution or resignation hereunder, and (ii) at
its cost and expense, shall transfer to the substitute "Disbursement Agent"
originals of all books, records, and other documents in its possession relating
to this Agreement.
17.2 Substitution and Resignation of Construction Escrow Agent. The
Trustee shall have the right to replace the Person then appointed as the
"Construction Escrow Agent" by appointing another Person as the "Construction
Escrow Agent" under this Agreement and providing thirty (30) days written notice
to the Parties to this Agreement; provided, however, that such replacement shall
become effective only after the Person appointed as the substitute "Construction
Escrow Agent" enters into a written agreement with the other Parties accepting
such appointment and assuming all of the obligations of the Disbursement Agent
hereunder. The Construction Escrow Agent may resign at any time upon at least
thirty (30) days written notice to all Parties hereto in which case the Trustee
shall use commercially reasonable efforts to appoint a substitute "Construction
Escrow Agent" promptly thereafter; provided, however, that such resignation
shall take effect only after the Person appointed as the substitute
"Construction Escrow Agent" enters into a written agreement with the other
Parties accepting such appointment and assuming all of the obligations of the
Construction Escrow Agent hereunder. Upon the effectiveness of such substitution
or resignation, then the Person who is replaced or resigns as the "Construction
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Escrow Agent" shall be relieved of its duties and obligations to perform
hereunder, except that such Person (i) shall remain liable for all obligations
which expressly survive such substitution or resignation hereunder, and (ii) at
its cost and expense, shall transfer to the substitute "Construction Escrow
Agent" originals of all books, records, and other documents in its possession
relating to this Agreement.
17.3 Substitution and Resignation of Independent Construction
Consultant. The Trustee shall have the right to replace the Person then
appointed as the "Independent Construction Consultant" by appointing another
Person as the "Independent Construction Consultant" under this Agreement and
providing thirty (30) days written notice to the Parties to this Agreement;
provided, however, that such replacement shall become effective only after the
Person appointed as the substitute "Independent Construction Consultant" enters
into a written agreement with the other Parties accepting such appointment and
assuming all of the obligations of the Independent Construction Consultant
hereunder. The Independent Construction Consultant Agent may resign at any time
upon at least thirty (30) days written notice to all Parties hereto in which
case the Trustee shall use commercially reasonable efforts to appoint a
substitute "Independent Construction Consultant" promptly thereafter; provided,
however, that such resignation shall take effect only after the Person appointed
as the substitute "Independent Construction Consultant" enters into a written
agreement with the other Parties accepting such appointment and assuming all of
the obligations of the Independent Construction Consultant hereunder. The
substitute Independent Construction Consultant selected by the Trustee shall be
recognized nationally or in Colorado as an expert in connection with the
oversight of construction practices and construction disbursement procedures for
construction projects of similar size and scope. Upon the effectiveness of such
substitution or resignation, then the Person who is replaced or resigns as the
"Independent Construction Consultant" shall have no further rights or
obligations hereunder, except that such Person (i) shall remain liable for all
obligations which expressly survive such substitution or resignation hereunder,
and (ii) at its cost and expense, shall transfer to the substitute "Independent
Construction Consultant" originals of all books, records, and other documents in
its possession relating to this Agreement.
18. Account Statement. Upon the request of any of the Parties, the
Disbursement Agent shall deliver to the Parties a statement prepared by the
Disbursement Agent in a form reasonably satisfactory to such Parties setting
forth with reasonable specificity the balance of funds then in each of the
Accounts and the investments held in each of such Accounts; provided, however,
that the Disbursement Agent shall not be required to provide such statements
more often than weekly.
19. Arbitration
-----------
19.1 Election of Arbitration. Any disagreement with respect to the
release of funds from the Construction Disbursement Accounts or the Completion
Reserve Accounts, or any related disagreement with respect to the construction,
meaning or effect of this Agreement, or any other controversy between the
Company and any other Party relating to this Agreement, or involving the rights
or obligations of the Parties hereunder (including matters relating to any
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certificates required to be delivered under this Agreement) shall be submitted
to arbitration by one Party providing written notice to the other Party electing
such arbitration (the "Arbitration Notice").
19.2 Arbitration Procedure.
(a) Upon delivery of the Arbitration Notice, the Company shall
appoint one (1) arbitrator, the Trustee (or if the Trustee is not involved
in such arbitration, the other Party) shall appoint one (1) arbitrator, and
such appointed arbitrators shall appoint a third arbitrator. The
arbitrators shall (i) not be related to, affiliated with or otherwise have
any economic benefit in, the Party appointing such arbitrator, or any
Person who is related to, affiliated to or has an economic benefit in, such
Party, and otherwise shall be impartial, and (ii) be an active or retired
Person with at least ten (10) years experience in construction, development
and/or construction lending. If either Party fails to choose an arbitrator
within fifteen (15) days after the delivery of the Arbitration Notice, the
requesting Party may choose two (2) arbitrators who shall, in turn, choose
the third arbitrator. If the first two arbitrators have not chosen a third
arbitrator within fifteen (15) days after the last day of the selection of
the first two (2) arbitrators, each of the first two (2) arbitrators shall
name three (3) candidates, of whom the other arbitrator shall eliminate one
candidate, and the determination of the third arbitrator shall be made from
the remaining two (2) candidates by drawing lots.
(b) The arbitration shall be conducted pursuant to the fast track
procedures specified in the American Arbitration Association's Construction
Industry Arbitration Rules, and the Parties shall use their best efforts to
resolve the dispute as soon as practicable. Each Party shall present its
case to the arbitrators within fifteen (15) days following the date of the
appointment of the third arbitrator. The decision of a majority of the
three arbitrators shall be final and binding upon the Parties. A judgment
may be entered upon the arbitration award in any court having jurisdiction.
Any such arbitration shall take place in New York, New York, unless some
other location is mutually agreed upon by the Parties. The arbitrators
shall resolve any dispute arising hereunder in a manner consistent with the
intent of the Parties as expressed in this Agreement. The arbitrators shall
not award any punitive, consequential or exemplary damages or any amount in
excess of the amount to be released from the relevant Account(s).
19.3 No Limitation of Remedies. Notwithstanding the foregoing or
anything to the contrary in this Agreement, the provisions in this Section shall
not prohibit the Trustee or Hyatt Gaming from exercising any of its rights or
remedies under the Indenture, the Subordinated Loan Agreement, the Notes, the
other Collateral Documents or any other Financing Agreement.
20. Miscellaneous.
-------------
20.1 Notices. All notices and other communications required or
permitted to be given or made under this Agreement shall be in writing and shall
be deemed to have been duly given and received, regardless of when and whether
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received, either (a) on the day of hand delivery; (b) on the date of
confirmation of receipt of electronic facsimile transmission; or (c) on the
third day after sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as follows:
To the Trustee:
--------------
SunTrust Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Hyatt Gaming:
---------------
Hyatt Gaming Management, Inc.
Madison Plaza, 39th Floor
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Disbursement Agent:
-------------------------
Norwest Bank Minnesota, N.A.
Master Trust & Custody
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Construction Escrow Agent:
--------------------------------
First American Heritage Title Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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To the Independent Construction Consultant:
Re Tech+, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ Von Tongeln
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To the Company:
--------------
Windsor Woodmont Black Hawk Resort Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as the specified entity most recently may have
designated in writing in accordance with this paragraph to the others. Any
notice to the Disbursement Agent or the Trustee under this Agreement shall be
deemed effective only upon receipt.
20.2 Time of the Essence. Time is of the essence of each provision of
this Agreement.
20.3 Waiver. Any Party hereto may specifically waive any breach of
this Agreement by any other Party, but no such waiver shall be deemed to have
been given unless such waiver is in writing, signed by the waiving Party and
specifically designates the breach waived, nor shall any such waiver constitute
a continuing waiver of similar or other breaches.
20.4 Trustee's Obligations. Notwithstanding anything to the contrary
in this Agreement, with respect to all matters in this Agreement which involve
the Trustee's action or discretion, reference is hereby made to the Indenture
for the Trustee's rights and protections with respect to such action and
discretion, including, without limitation, the right of Trustee to seek
direction and indemnity from the holders of the Senior Notes.
20.5 Assignment. This Agreement is personal to the Parties hereto, and
the rights and duties of any Party hereunder shall not be assignable except with
the prior written consent of the other Parties. In any event, this Agreement
shall inure to and be binding upon the Parties and their successors and
permitted assigns.
20.6 Severability. If, for any reason whatsoever, any one or more of
the provisions of this Agreement shall be held or deemed to be inoperative,
unenforceable or invalid in a particular case or in all cases, such
circumstances shall not have the effect of rendering any of the other
- 54 -
provisions of this Agreement inoperative, unenforceable or invalid, and the
inoperative, unenforceable or invalid provision shall be construed as if it were
written so as to effectuate, to the maximum extent possible, the Parties'
intent.
20.7 Choice of Law. The existence, validity, construction, operation
and effect of any and all terms and provisions of this Agreement shall be
determined in accordance with and governed by the substantive laws of the State
of New York, without giving effect to its conflicts of law principles.
20.8 Captions. Captions in this Agreement are for convenience only and
shall not be considered or referred to in resolving questions of interpretation
of this Agreement.
20.9 Entire Agreement; Amendments. This Agreement and the agreements
referenced herein contains the entire agreement among the Parties with respect
to the subject matter hereof and supersedes any and all prior agreements,
understandings and commitments, whether oral or written. This Agreement may be
amended only by a writing signed by duly authorized representatives of all
Parties.
20.10 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
[Remainder of page intentionally left blank;
Signatures on following page]
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IN WITNESS WHEREOF, the Parties have executed and delivered this Agreement
as of the day first above written.
SUNTRUST BANK, AS TRUSTEE
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
HYATT GAMING MANAGEMENT, INC.
By:
----------------------------------------------
Name:
----------------------------------------------
Title:
---------------------------------------------
NORWEST BANK MINNESOTA, N.A.
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
----------------------------------------------
FIRST AMERICAN HERITAGE TITLE
COMPANY
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
----------------------------------------------
RE TECH+, INC.
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
----------------------------------------------
WINDSOR WOODMONT BLACK HAWK
RESORT CORP.
By:
------------------------------------------------
Name:
----------------------------------------------
Title:
----------------------------------------------
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INVESTMENT AGENT
----------------
NORWEST INVESTMENT SERVICES, INC., acting in its capacity as the investment
agent pursuant to the Cash Collateral and Disbursement Agreement attached
hereto, for and in consideration of good and valuable consideration, hereby
agrees to be bound by the provisions of Section 6.2 of the Cash Collateral and
Disbursement Agreement, and to perform the obligations of the Investment Agent
(as such term is defined therein) as set forth therein.
NORWEST INVESTMENT SERVICES, INC.
By:
--------------------------------------------
Name:
--------------------------------------------
Title:
--------------------------------------------
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