Exhibit 10.22
INTEREST RESERVE
ACCOUNT AGREEMENT
-----------------
THIS ACCOUNT AGREEMENT, dated as of March 14, 2000 (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado
corporation ("Owner"), SUNTRUST BANK, a Georgia banking corporation
("SunTrust"), as trustee (SunTrust, in such capacity, together with its
successors and assigns, the "Trustee") for itself and for the benefit of the
Holders (as defined herein), pursuant to the Indenture (as defined herein), and
as securities intermediary (SunTrust, in such capacity, together with its
successors and assigns, the "Securities Intermediary"), upon the following terms
and conditions:
RECITALS
A. Owner and the Trustee are parties to that certain Pledge and Assignment
Agreement of even date herewith (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Pledge Agreement"),
which has been acknowledged by the Securities Intermediary.
B. Owner desires that the Securities Intermediary hold certain financial
assets and perform certain services with respect to such financial assets.
C. The Securities Intermediary is willing to hold such assets and to
perform such services, subject to the terms and conditions of this Agreement and
the Pledge 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. All capitalized terms used herein without definition shall
have the meanings given to them in the Pledge Agreement. Terms used but not
otherwise defined herein that are defined in the Uniform Commercial Code (as
defined in the Pledge Agreement) shall have the meanings given in the Uniform
Commercial Code.
2. Establishment of Securities Account. (a) The Securities Intermediary
hereby confirms and agrees that it has established Account No. 0000000, in the
name of Windsor Woodmont Black Hawk Resort Corp. Capitalized Interest Fund
("Securities Account"), subject to the terms and conditions of this Agreement,
the Cash Collateral and Disbursement Agreement among the Trustee, the Owner,
Hyatt Gaming Management, Inc., Norwest Bank Minnesota, N.A., as disbursement
agent, First American Heritage Title Company, as the construction escrow agent,
and RE TECH+, Inc., as the independent construction consultant (as the same may
be amended, restated, supplemented or otherwise modified from time to time, the
"Disbursement Agreement"), and the Pledge Agreement. The Securities Intermediary
agrees (i) to maintain the Securities Account at its office at 000 Xxxx
Xxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, (ii) not to change the name
or account number of the Securities Account without the prior written consent of
the Trustee and (iii) to close the Securities Account upon the occurrence of the
Final Accounts Disbursement pursuant to the Disbursement Agreement.
(b) The Securities Account is an account in which financial assets are or
may be credited and the Securities Intermediary shall hold such financial assets
in accordance with this Agreement and the Pledge Agreement. The term "hold"
shall include the deposit of any part of or all of the financial assets with the
Depositary Trust Company, the Federal Reserve Book Entry System or any other
centralized securities depositary system or financial intermediary, whether
presently or hereafter organized.
(c) Title to the financial assets held in the Securities Account shall be
registered in the name of the Securities Intermediary who shall credit on its
books and records such financial assets as being held for the account of the
Trustee and for the benefit of the Trustee (subject to the subordinated interest
of Hyatt Gaming as set forth in the Hyatt Gaming Pledge and Assignment Agreement
of even date herewith by the Owner in favor of Hyatt Gaming (as amended,
restated, supplemented or otherwise modified from time to the, the "Hyatt Gaming
Pledge Agreement")) in accordance with the provisions set forth in the Pledge
Agreement and the Securities Intermediary agrees that in no event shall any
financial asset held in the Securities Account be registered in the name of the
Owner or payable to the Owner.
(d) The Owner hereby authorizes the Securities Intermediary, and the
Securities Intermediary hereby agrees to comply with any order of the Trustee
from time to time directing transfer or redemption of any financial asset
relating to the Securities Account and shall comply with such entitlement order
without further consent by the Owner or any other party. The Trustee shall have
an exclusive interest in (subject to the subordinated interest of Hyatt Gaming
as set forth in the Hyatt Gaming Pledge Agreement) and sole dominion and control
of the Securities Account and except in accordance with and pursuant to the
Disbursement Agreement, the Securities Intermediary shall not comply with any
future request by the Owner in connection with the Securities Account, including
any request to close the Securities Account, unless consented to in writing by
the Trustee.
3. "Financial Asset" Election. The Securities Intermediary hereby agrees
that each item of property (whether investment property, financial asset,
security, instrument or cash) held in the Securities Account shall be treated as
a "financial asset" within the meaning of 8-102(a)(9) of the Uniform Commercial
Code.
4. Securities Intermediary's Duties Regarding Investments. The Securities
Intermediary shall have no responsibility for supervision or management of any
property at any time in the Securities Account, except as provided in this
Agreement, the Disbursement Agreement or the Pledge Agreement. The Securities
Intermediary's responsibility with regard to the sale, purchase or exchange of
investments shall be limited to the written orders of the Trustee, without the
need for further consent by Owner in accordance with the Disbursement Agreement,
provided that the Securities Intermediary may take direction from the Owner with
respect to investment as provided in the Disbursement Agreement.
- 2 -
5. Collection of Income and Principal. The Securities Intermediary shall
collect income and principal becoming due on the assets in the Securities
Account, but shall be under no responsibility or duty to undertake collection
efforts or to instigate or participate in any legal proceedings or to retain
counsel in an effort to accomplish such collection. The Securities Intermediary
shall advise the Owner and the Trustee within a reasonable time of any
non-payment of principal or income. Any income received shall be disposed of as
set forth in the Pledge Agreement and the Disbursement Agreement.
6. Instructions: Signatures. Except as provided in the Disbursement
Agreement, all instructions and directions for the Securities Account must be in
writing, signed by a person or persons duly authorized to sign on behalf of the
Trustee in such form as the Securities Intermediary may reasonably require.
Specimen signatures of all persons to whom authority has been delegated shall be
furnished. The Securities Intermediary shall provide copies of such instructions
to Owner. The following employees of the Trustee are authorized to deliver
instructions to the Securities Intermediary hereunder:
Name Title
---- -----
------------------------ -------------------------
Specimen Signature
------------------------ -------------------------
Specimen Signature
------------------------ -------------------------
Specimen Signature
7. Accounting. The Securities Intermediary shall keep complete and accurate
books of account showing all receipts, disbursements and transactions in the
Securities Account and shall prepare and deliver to Owner and the Trustee
monthly reports summarizing the activity in the Securities Account. The
Securities Intermediary shall provide reports more frequently upon the
reasonable request by the Owner or the Trustee. Owner agrees that it retains the
obligation to prepare and file all required federal, state and local tax reports
and returns and to pay any taxes related to its ownership of the assets in the
Securities Account.
8. Adverse Claims. Except for the claims and interests of the Trustee and
the Owner in the Securities Account (subject to the subordinated interest of
Hyatt Gaming as set forth in the Hyatt Gaming Pledge Agreement), the Securities
Intermediary does not have information pertaining to or current knowledge of any
claim to, or interest in, the Securities Account or in any "financial asset" (as
defined in Section 8-102(a) of the UCC) credited thereto. If any person asserts
any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the
Securities Account or in any financial asset carried therein, the Securities
- 3 -
Intermediary will promptly notify the Trustee and the Owner thereof. The
Securities Intermediary has not entered into any agreement with any other Person
relating to the Securities Account and/or any of the financial assets credited
thereto pursuant to which it agrees or has agreed to comply with entitlement
orders (as defined in Section 8-102(a)(8) of the Uniform Commercial Code) of
such Person.
9. Authority. Any person executing this agreement in a fiduciary or other
representative capacity represents that they have full power and authority to do
so and that any applicable or required court, corporate or other authority has
been duly and properly given and continues as of the date hereof.
10. Fees and Costs. Owner agrees to pay all reasonable costs incurred by
the Securities Intermediary in connection with the Securities Account. Such
costs will be paid by Owner directly to the Securities Intermediary upon demand.
11. Successors and Assigns; Third Party Beneficiaries. This Agreement shall
be binding upon and inure to the benefit of the parties, and their respective
permitted successors and permitted assigns. This Agreement shall not confer any
rights or remedies upon any third party.
12. Governing Law; Severability. THIS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF
LAWS THEREOF AND EACH OF THE PARTIES HERETO, TOGETHER WITH THE SECURITIES
INTERMEDIARY, EXPRESSLY AGREES THAT FOR PURPOSES OF SECTIONS 8-110 OF THE
UNIFORM COMMERCIAL CODE, THE SECURITIES INTERMEDIARY'S JURISDICTION IS NEW YORK.
If any term or provision of this Agreement is held to be or rendered invalid or
unenforceable at any time in any jurisdiction, such term or provision shall not
affect the validity or enforceability of any other terms or provisions of this
Agreement, or the validity or enforceability of such affected terms or
provisions at any other time or in any other jurisdiction.
13. Entire Agreement; . This Agreement, together with those other
agreements referenced herein, constitutes the entire understanding and agreement
of the Owner, the Trustee and the Securities Intermediary, and shall supersede
any other agreements and understandings (written or oral) among the Owner, the
Trustee and the Securities Intermediary on or prior to the date of this
Agreement with respect to the transaction contemplated in this Agreement. No
amendment or modification to any terms of this Agreement, or cancellation of
this Agreement, shall be valid unless in writing and executed and delivered by
all the parties hereto.
14. Facsimile; Counterparts. Each party hereto may deliver an executed
signature page to this Agreement by facsimile transmission to the other party,
which facsimile copy shall be deemed to be an original executed signature page;
provided, however, that such party shall deliver an original signature page to
the other party promptly thereafter. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which counterparts together shall constitute one agreement with the same effect
as if the parties hereto had signed the same signature page.
[Remainder of page intentionally left blank;
signatures on following page]
- 4 -
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
OWNER:
WINDSOR WOODMONT BLACK HAWK
RESORT, CORP., a Colorado corporation
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
TRUSTEE:
SUNTRUST BANK, a Georgia banking corporation
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
SECURITIES INTERMEDIARY:
SUNTRUST BANK, a Georgia banking corporation
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
