Exhibit 10.10
PLEDGE AND ASSIGNMENT AGREEMENT
THIS PLEDGE AND ASSIGNMENT AGREEMENT, dated as of March 14, 2000 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Agreement"), is made by WINDSOR WOODMONT BLACK HAWK RESORT CORP.,
a Colorado corporation, as pledgor ("Pledgor"), in favor of SUNTRUST BANK, a
Georgia banking corporation ("SunTrust"), as trustee (SunTrust, in such
capacity, together with its successors and assigns, the "Trustee") for the
benefit of the Holders (as hereinafter defined).
RECITALS
WHEREAS, the Pledgor and the Trustee are, contemporaneously with the
execution and delivery of this Agreement, entering into that certain Indenture
of even date herewith (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which
Pledgor (a) 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 (b) 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 "Initial Notes"), in the original aggregate
principal amount of $100,000,000, and pursuant to which the Pledgor may issue up
to an additional $35,000,000 aggregate principal amount of notes in the same
series as the Initial Notes (such notes, together with any notes issued in
replacement thereof or in exchange therefor, the "Additional Notes" and,
together with the Initial Notes, the "Senior Notes").
WHEREAS, the Pledgor and Hyatt Gaming Management, Inc., a Nevada
corporation ("Hyatt Gaming"), are, contemporaneously with the execution and
delivery of this Agreement, entering into that certain Subordinated Loan
Agreement of even date herewith (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Subordinated Loan
Agreement"), pursuant to which Hyatt Gaming is loaning Pledgor the original
aggregate principal amount of $7,500,000, evidenced by that certain Subordinated
Promissory Note dated as of March 14, 2000 (such note, together with any notes
issued in replacement thereof or in exchange therefor, the "Second Mortgage
Notes"; together with the Senior Notes, collectively, the "Notes").
WHEREAS, the Pledgor, the Trustee, Hyatt Gaming, Norwest Bank
Minnesota, N.A., a national association ("Norwest"), as disbursement agent for
the Trustee (in such capacity, the "Disbursement Agent"), First American
Heritage Title Company, as the construction escrow agent, and RE TECH+, Inc., as
independent construction consultant, are, contemporaneously with the execution
and delivery of this Agreement, entering into that certain Cash Collateral and
Disbursement Agreement of even date herewith (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Disbursement Agreement") pursuant to which the net proceeds of the Senior Notes
(the "Senior Notes Proceeds") and the Second Mortgage Notes (the "Hyatt Gaming
Proceeds" which, together with the Senior Notes Proceeds shall be referred to
herein as the "Note Proceeds") will be administered and maintained, including
the investment of certain portions of such proceeds in Government Securities and
Investment Grade Securities in accordance with the Indenture and the
Disbursement Agreement and such other investments as provided in the Clearing
Account Letter Agreement.
WHEREAS, Pledgor is the legal and beneficial owner of the securities
listed in Schedule I hereto and will be the legal and beneficial owner of all
securities purchased by or on behalf of Pledgor from time to time with the Note
Proceeds and/or other amounts deposited or accruing in the Pledged Collateral
Accounts, as defined below (all of the foregoing securities, collectively, the
"Securities").
WHEREAS, it is a condition precedent to the purchase of the Initial
Notes that Pledgor shall have executed and delivered this Agreement to the
Trustee for itself and the ratable benefit of the holders from time to time of
the Senior Notes (the "Holders) to secure the payment and performance of the
Obligations (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and in order to induce the Holders
to purchase the Initial Notes, the Pledgor agrees as follows:
Section 1. Definitions. Terms used but not otherwise defined herein
that are defined in the Uniform Commercial Code (as defined herein) shall have
the meanings given in the Uniform Commercial Code. Capitalized terms used but
not otherwise defined herein shall have the meanings given in the Indenture. In
addition the following terms shall have the following meanings when used herein.
"Account Agreement" means that certain Account Agreement dated as of
even date herewith by and among Pledgor, the Trustee and the Securities
Intermediary (as amended, restated, supplemented or otherwise modified from time
to time).
"Advance Disbursement Account" shall have the meaning assigned to such
term under subsection 2(c).
"Advance Disbursement Account Agreement" means that certain Advance
Disbursement Account Agreement dated as of even date herewith by and among
Pledgor, the Trustee, Hyatt Gaming and Norwest.
"Book-Entry Securities" means securities issued by the United States
of America or any agency or instrumentality thereof maintained through
registration on the books of a Federal Reserve Bank pursuant to applicable
Federal book-entry regulations.
"Clearing Account" shall have the meaning assigned to such term under
subsection 2(c).
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"Clearing Account Letter Agreement" means that certain letter
agreement of even date herewith among the Company, the Trustee and Hyatt Gaming,
and acknowledged by the Disbursement Agent.
"Completion Reserve Account" shall have the meaning assigned to such
term under subsection 2(c).
"Construction Disbursement Account" shall have the meaning assigned to
such term under subsection 2(c).
"Governmental Authority" means any federal, state, local or foreign
court, agency, authority, board, bureau, commission, department, office or
instrumentality of any nature whatsoever or any governmental or
quasi-governmental unit, whether now or hereafter in existence, or any officer
or official thereof.
"Hyatt Gaming Accounts" means, collectively, the Hyatt Gaming
Completion Reserve Account and the Hyatt Gaming Construction Disbursement
Account.
"Hyatt Gaming Completion Reserve Account" shall have the meaning
assigned to such term under subsection 2(c).
"Hyatt Gaming Construction Disbursement Account" shall have the
meaning assigned to such term under subsection 2(c).
"Interim Interest Reserve Account" shall have the meaning assigned to
such term under subsection 2(c).
"Interim Interest Reserve Account Agreement" means that certain
Interest Reserve Account Agreement dated as of even date herewith by and among
Pledgor, the Trustee and the Securities Intermediary.
"Interest Reserve Account" shall have the meaning assigned to such
term under subsection 2(c).
"Interest Reserve Account Agreement" means that certain Interest
Reserve Account Agreement dated as of even date herewith by and among Pledgor,
the Trustee and the Interest Securities Intermediary.
"Interest Securities Intermediary" means SunTrust, together with its
successor and assigns, in its capacity as a "securities intermediary" within the
meaning of 31 C.F.R. Section 357.2 and Section 8-102 of the Uniform Commercial
Code.
"Liquor Laws" means the liquor laws of any jurisdiction or
jurisdictions to which the Pledgor or any of its Subsidiaries is, or may at any
time after the date of the Indenture, be subject.
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"Liquor License" means any license, permit, franchise or other
authorization from any Liquor Licensing Authority necessary or required on the
date of the Indenture or at any time thereafter to own, lease, operate or
otherwise conduct the lodging, retail, restaurant or other entertainment
facilities of the Pledgor, including all licenses granted under the Liquor Laws.
"Liquor Licensing Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of the United States federal or a 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 Liquor Enforcement Division and the city of Black Hawk Liquor Licensing
Authority and any other applicable liquor licensing regulatory authority with
authority to regulate any liquor licensed operation (or proposed liquor licensed
operation) owned by the Pledgor or any of its Subsidiaries and managed or
operated by Hyatt Gaming or any of its Subsidiaries.
"Obligations" means all obligations of the Pledgor to the Holders and
the Trustee howsoever created, arising or evidenced, whether direct or indirect,
absolute or contingent, now or hereafter existing, or due or to become due,
which arise out of or in connection with the Indenture, the Senior Notes, this
Agreement or any other Transaction Document.
"Obligor" means any and all Persons obligated to pay money or to
perform some other act under or in respect of the Pledged Collateral.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, estate, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof and any fiduciary acting in such capacity on behalf of any
of the foregoing.
"Securities Intermediary" means Norwest, together with its successor
and assigns, in its capacity as a "securities intermediary" within the meaning
of 31 C.F.R. Section 357.2 and Section 8-102 of the Uniform Commercial Code.
"Transaction Documents" means the Indenture, the Senior Notes, this
Agreement, the other Collateral Documents and all other documents, instruments,
financing statements and other agreements executed in connection herewith and
therewith from time to time, as each of the same may be amended, restated,
supplemented or modified from time to time.
"Uniform Commercial Code" means the Uniform Commercial Code as in
effect in the State of New York on the date of this Agreement; provided,
however, that if by reason of mandatory provisions of law, the perfection or
effect of perfection or non-perfection of the security interest granted
hereunder in any Pledged Collateral is governed by the Uniform Commercial Code
as in effect in a jurisdiction other than New York, Uniform Commercial Code
shall mean the Uniform Commercial Code as in effect in such other jurisdiction
for purposes of the provisions hereof relating to such perfection or effect of
perfection or non-perfection.
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"Unmatured Surviving Obligation" means, as of any date, an Obligation
which is contingent and unliquidated and not due and owing on such date and
which, pursuant to provisions of any Transaction Document, survives termination
of such Transaction Document and the indefeasible payment in full of the Senior
Notes.
Section 2. Pledge. As collateral security for the due and punctual
payment and performance in full when due (whether at stated maturity, upon
redemption or required repurchase, by acceleration or otherwise) of the Senior
Notes and all other Obligations, Pledgor hereby pledges, assigns, transfers and
grants to the Trustee for itself and on behalf of the Holders, a continuing
first priority lien on all of the right, title and interest of Pledgor in, to
and under the following property, whether now or hereafter existing, owned or
acquired (collectively, the "Pledged Collateral"):
(a) the Securities and the certificates, if any, evidencing the
Securities and any interest of Pledgor in the entries on the books of any
securities intermediary pertaining to the Securities;
(b) all Proceeds (as defined under the Uniform Commercial Code or
to the extent not defined therein, under other relevant law) of the
Securities, and in any event including, without limitation, any and all (i)
proceeds of any insurance (except payment made to a Person which is not a
party to this Agreement), indemnity, warranty or guarantee payable to
Pledgor from time to time with respect to any of the Securities, (ii)
payments (in any form whatsoever) made or due and payable to Pledgor from
time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Securities by
any Governmental Authority (or any person acting on behalf of a
Governmental Authority), and (iii) other amounts from time to time paid or
payable under or in connection with any of the Securities; and
(c) any and all (i) funds and assets, including without
limitation the Note Proceeds, now or hereafter deposited in Account Nos.:
13645-100 (the "Clearing Account")
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13645-102 (the "Construction Disbursement Account"),
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13645-104 (the "Hyatt Gaming Construction Disbursement Account"),
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13645-101 (the "Interim Interest Reserve Account"),
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13645-103 (the "Completion Reserve Account"),
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13645-105 (the "Hyatt Gaming Completion Reserve Account"), and
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0404017634 (the "Advance Disbursement Account")
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at the Disbursement Agent, and Account No. 0000000 (the "Interest
Reserve Account") at the Trustee, (each, a "Pledged Collateral
Account" and, collectively, the "Pledged Collateral Accounts"),
including interest that accrues either before or after the
commencement of any bankruptcy or insolvency proceeding by or against
Pledgor, (ii) present and future accounts, general intangibles,
chattel paper, contract rights, deposit accounts, instruments,
investment property, financial assets and documents now or hereafter
relating or arising with respect to the Pledged Collateral
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Accounts and/or the use thereof and all securities entitlements with
respect thereto, and (iii) cash and noncash proceeds and products of
the items described in subparagraphs (i) and (ii) above; provided,
however, that the Lien granted herein to the Hyatt Gaming Accounts and
any Hyatt Gaming Proceeds or other amounts held in any such Hyatt
Gaming Accounts shall be subordinated to the Lien of Hyatt Gaming in
such accounts to the extent, but only to the extent, set forth in the
Intercreditor Agreement; provided, further, that the lien granted
herein to the Advance Disbursement Account shall be subject to the
provisions of the Intercreditor Agreement.
Section 3. No Release. Nothing set forth in this Agreement shall
relieve Pledgor from the performance of any term, covenant, condition or
agreement on Pledgor's part to be performed or observed under or in respect of
any of the Pledged Collateral or from any liability to any Person under or in
respect of any of the Pledged Collateral or shall impose any obligation on the
Trustee to perform or observe any such term, covenant, condition or agreement on
Pledgor's part to be so performed or observed or shall impose any liability on
the Trustee for any act or omission on the part of Pledgor relating thereto or
for any breach of any representation or warranty on the part of Pledgor
contained in this Agreement, under or in respect of the Pledged Collateral or
made in connection herewith or therewith. The provisions set forth in this
Section 3 shall survive the termination of this Agreement and the discharge of
Pledgor's obligations under this Agreement or any other agreement constituting
Pledged Collateral.
Section 4. Further Assurances. Pledgor agrees that, at any time and
from time to time, it will make, execute, endorse, acknowledge and file and
refile, or permit the Trustee to file and refile, such lists, descriptions and
designations of the Pledged Collateral, copies of documents of title, vouchers,
invoices, schedules, confirmatory assignments, supplements, additional security
agreements, conveyances, financing statements, amendments thereto, continuation
statements, transfer endorsements, powers of attorney and other documents
(including without limitation this Agreement), in form reasonably satisfactory
to the Trustee in such offices as the Trustee may deem necessary or appropriate,
wherever required or permitted by law in order to perfect, protect and preserve
the rights and interests granted to the Trustee hereunder. Pledgor hereby (i)
authorizes the Trustee and appoints the Trustee as its attorney-in-fact to file
such financing statements, continuation statements, amendments thereto and other
documents, without the signature of Pledgor to the fullest extent permitted by
applicable law, and (ii) Pledgor agrees to do such further acts and things, and
to execute and deliver to the Trustee such additional assignments, agreements,
powers and instruments, in each case, as the Trustee may reasonably require to
carry into effect the purposes of this Agreement, to preserve or protect the
lien on the Pledged Collateral created by this Agreement or to assure and
confirm unto the Trustee its rights, powers and remedies hereunder. The
foregoing grant of authority is a power of attorney coupled with an interest and
such appointment shall be irrevocable for the term of this Agreement. All of the
foregoing shall be at the sole cost and expense of Pledgor.
Section 5. Representations, Warranties and Covenants. Pledgor
represents, warrants and covenants as follows:
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(a) Delivery; Perfection. To the extent that any of the Pledged
Collateral constitutes certificated securities, Pledgor has delivered
to the Trustee all certificates representing such Pledged Collateral
relating to the Securities identified on Schedule I hereto (and will
immediately deliver to the Trustee all certificates representing such
Pledged Collateral acquired after the date hereof), accompanied in
each case by undated bond powers duly executed in blank, and has
caused to be filed with the Secretary of State of the State of Texas,
the principal place of business of Pledgor, Uniform Commercial Code
financing statements evidencing the lien or pledge created by this
Agreement, and, together with the book entries described in Section
5(f) below and the execution and delivery of this Agreement, the
Advance Disbursement Account Agreement, the Interim Interest Reserve
Account Agreement, the Interest Reserve Account Agreement, the
Clearing Account Letter Agreement and the Account Agreement, such
delivery, filing, pledge, transfer and control of the Pledged
Collateral pursuant to this Agreement creates a valid and perfected
first priority security interest in the Pledged Collateral (except (i)
to the extent subordinated to Hyatt Gaming with respect to, but only
with respect to, the Hyatt Gaming Accounts and any Hyatt Gaming
Proceeds or other amounts held in any such Hyatt Gaming Accounts, and
(ii) as set forth in the Intercreditor Agreement) and pursuant to the
Uniform Commercial Code securing the payment and performance in full
of the Obligations.
(b) No Liens. Pledgor is as of the date hereof, and, as to
Pledged Collateral acquired by it from time to time after the date
hereof, Pledgor will be, the owner of all of the Pledged Collateral
free and clear of any lien (other than the Lien granted to the Trustee
under this Agreement or any other Transaction Document, the Liens
granted to Hyatt Gaming in the Hyatt Gaming Accounts, any Hyatt Gaming
Proceeds or other amounts held in any such Hyatt Gaming Accounts and
Permitted Liens specified in subclauses (iv), (vi), (viii) and (xv) of
the Indenture), and Pledgor shall defend the Pledged Collateral
against all claims and demands of all Persons at any time claiming any
interest therein adverse to the Trustee.
(c) Other Financing Statements. There is no financing statement
(or similar statement or instrument of registration under the law of
any jurisdiction) covering or purporting to cover any interest of any
kind in the Pledged Collateral and, so long as any Obligations are
outstanding, Pledgor shall not execute or authorize to be filed in any
public office any financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) or
statements relating to the Pledged Collateral, except financing
statements filed or to be filed in respect of and covering the Lien
granted by Pledgor pursuant to this Agreement or any other Transaction
Document and the Lien granted to Hyatt Gaming in the Hyatt Gaming
Accounts and any Hyatt Gaming Proceeds or other amounts held in any
such Hyatt Gaming Accounts.
(d) Chief Executive Office; Records. The chief executive office
of Pledgor is located at 0000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000, and
has been located there for at least four (4) months preceding the date
hereof. In addition, Pledgor's name has not been changed in the four
(4) months preceding the date hereof. Pledgor shall not establish a
new location for such office nor shall it change its name unless (i)
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it shall have given the Trustee not less than thirty (30) days' prior
written notice of its intention so to do, clearly describing such new
location or locations or name and providing such other information in
connection therewith as the Trustee may request, and (ii) with respect
to such new location or name, Pledgor shall have taken all action
satisfactory to the Trustee to maintain the perfection, priority and
validity of the lien of the Trustee in the Pledged Collateral intended
to be granted by this Agreement.
(e) Authorization; Enforceability; Consents and No Breach. The
execution and delivery of this Agreement and the performance by
Pledgor of its obligations hereunder are within Pledgor's corporate
powers, have been duly authorized by all necessary corporate action,
have received all necessary governmental approvals (if any shall be
required), and do not and will not contravene or conflict with any
provision of law or of the charter or by-laws of Pledgor or of any
agreement, instrument or order binding upon Pledgor.
(f) Book-Entry Securities. With respect to the Book-Entry
Securities identified in Schedule I hereto and the Book-Entry
Securities acquired by or on behalf of Pledgor from time to time with
the Note Proceeds and/or other amounts deposited or accruing in (1)
the Construction Disbursement Account and the Completion Reserve
Account (the "Investment Grade Accounts"), (2) the Clearing Account
and the Interim Interest Reserve Account (collectively, the "Trustee
Accounts") and (3) the Interest Reserve Account, (x) Pledgor (with
respect to Investment Grade Accounts) shall promptly request the
Disbursement Agent as Securities Intermediary, (y) the Trustee (with
respect to the Trustee Accounts) shall promptly request the Securities
Intermediary, and (z) the Trustee (with respect to the Interest
Reserve Account) shall promptly request the Interest Securities
Intermediary, to:
(i) cause such Book-Entry Securities to be credited to the
Securities Intermediary's or Interest Securities Intermediary's, as
applicable, trust/custody account maintained at the Federal Reserve
Bank at which such Securities Intermediary or Interest Securities
Intermediary, as applicable, maintains a Participant's Securities
Account (as such term is defined in 31 C.F.R. ss 357.2) (and to be
identified on the records of such Federal Reserve Bank as being held
for the sole and exclusive account of such Securities Intermediary
or Interest Securities Intermediary, as applicable),
(ii) credit by book-entry on its books and records such
Book-Entry Securities as being held for the account of the Trustee
and for the benefit of the Trustee (subject to the lien of Hyatt
Gaming in the Hyatt Gaming Accounts and any Hyatt Gaming Proceeds
thereof or other amounts held in such Hyatt Gaming Accounts, as
applicable); provided, however, with respect to the Interim Interest
Reserve Account, the Securities Intermediary shall, upon direction
from the Trustee, free deliver the Book-Entry Securities with
respect to such account to the Interest Securities Intermediary
which shall, credit by book-entry on its books and records such Book
Entry Securities as provided in this clause (ii), and
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(iii) send a confirmation to the Trustee that such Securities
Intermediary or Interest Securities Intermediary, as applicable, is
holding such Book-Entry Securities for the account of the Trustee
and for the benefit of the Trustee (subject to the lien of Hyatt
Gaming in the Hyatt Gaming Accounts and any Hyatt Gaming Proceeds
thereof or other amounts held in such Hyatt Gaming Accounts, as
applicable and in each case (i) with respect to the Investment Grade
Accounts, the Securities Intermediary shall act upon the
instructions of the Disbursement Agent, (ii) with respect to the
Trustee Accounts, the Securities Intermediary shall act upon the
instructions of the Trustee and (iii) with respect to the Interest
Reserve Account, the Interest Securities Intermediary shall act upon
the instructions of the Trustee.
With respect to the Pledged Collateral, Pledgor and the Trustee hereby
acknowledge and agree that Norwest is the Securities Intermediary at which
securities accounts for the Pledged Collateral is maintained, and Norwest hereby
agrees to maintain each of the Pledged Collateral Accounts (excluding the
Interest Reserve Account) as a "securities account" within the meaning of
Article 8 of the Uniform Commercial Code. Norwest hereby acknowledges that, and
the Pledgor hereby agrees, subject to the lien of Hyatt Gaming in the Hyatt
Gaming Accounts and any Hyatt Gaming Proceeds thereof or other amounts held in
such Hyatt Gaming Accounts, as applicable, (i) it has with respect to all
Pledged Collateral Accounts except the Interest Reserve Account, by book- entry
credited the Book-Entry Securities to the Trustee and the Trustee is the
entitlement holder with respect to the security entitlements therein, (ii) it
shall, as Securities Intermediary, comply with all written entitlement orders
originated by the Trustee (including such orders with respect to the Interim
Interest Reserve Account, directing the Securities Intermediary to free deliver
the such Book- Entry Securities to the Interest Securities Intermediary) without
the need for further consent by Pledgor or further direction from the
Disbursement Agent acting on the direction of any Party and (iii) the Trustee
shall have control over the Book-Entry Securities and the security entitlements
and securities accounts relating thereto.
With respect to the Pledged Collateral, Pledgor and the Trustee hereby
acknowledge and agree that SunTrust is the Interest Securities Intermediary at
which a securities account for the Pledged Collateral is maintained, and
SunTrust hereby agrees to maintain the Interest Reserve Account as a "securities
account" within the meaning of Article 8 of the Uniform Commercial Code.
SunTrust hereby acknowledges that, and the Pledgor hereby agrees, (i) it has by
book-entry credited the Book-Entry Securities to the Trustee and the Trustee is
the entitlement holder with respect to the security entitlements therein, (ii)
it shall, as Interest Securities Intermediary, comply with all written
entitlement orders originated by the Trustee without the need for further
consent by Pledgor, and (iii) the Trustee shall have control over the Book-Entry
Securities and the security entitlements and securities accounts relating
thereto.
Norwest and SunTrust each hereby agree that each item of property
(whether investment property, financial asset, security, instrument or cash)
credited to the respective Pledged Collateral Accounts which each established
and maintains, shall be treated as a "financial asset" within the meaning of
Section 8-102(a)(9) of the Uniform Commercial Code.
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(g) Pledged Collateral. All information set forth herein
(including the exhibits hereto) relating to the Pledged Collateral is
accurate and complete in all material respects.
Section 6. Provisions Concerning the Pledged Collateral.
(a) Protection of the Pledged Collateral. Pledgor shall not take
any action that impairs the rights of the Trustee in the Pledged
Collateral.
(b) Payments. So long as no Event of Default shall have occurred
and be continuing, all distributions, cash, interest, return of
capital or other payments made in respect of the Pledged Collateral
shall be deposited in the applicable Pledged Collateral Account and
utilized in accordance with the provisions of the Indenture and the
Disbursement Agreement (which utilization shall include, without
limitation, the payment of any installment due under the Senior
Notes). Upon the occurrence and during the continuation of an Event of
Default, the Trustee shall be entitled to exercise its rights and
remedies as set forth in Section 8 hereof.
Section 7. Transfers and Other Liens. Pledgor shall not (i) sell,
convey, assign or otherwise dispose of, or grant any option, right or warrant
with respect to, any of the Pledged Collateral except as permitted under the
Indenture, the Disbursement Agreement and this Agreement, or (ii) create or
permit to exist any Lien upon or with respect to any Pledged Collateral, except
for the lien of this Agreement and the other Transaction Documents and Permitted
Liens described in Section 5(b) hereof.
Section 8. Remedies Upon Default; Obtaining the Pledged Collateral
Upon Event of Default.
(a) If an Event of Default shall have occurred and be continuing,
subject to compliance with the Gaming Laws and the Liquor Laws, then
and in every such case, the Trustee may:
(i) instruct the obligor or obligors on any agreement, instrument
or other obligation constituting Pledged Collateral to make any
payment required by the terms of such instrument or agreement
directly to or as directed by the Trustee; provided, however, that
in the event that any such payments are made directly to Pledgor
prior to receipt by any such obligor of such instruction or
notwithstanding such instruction, Pledgor shall hold such amounts as
agent and trustee for the Trustee, segregate all amounts received
pursuant thereto in a separate account and pay such amounts promptly
to or as directed by the Trustee; and
(ii) proceed to exercise all rights, privileges and remedies of
Pledgor under the Pledged Collateral, and may exercise such rights
and remedies either in the name of the Trustee or in the name of
Pledgor for the use and benefit of the Trustee to the fullest extent
permitted by applicable law.
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(b) Upon the occurrence and during the continuance of an Event of
Default, the Trustee may from time to time exercise in respect of the
Pledged Collateral, in addition to the other rights and remedies
provided herein or otherwise available to it, all the rights and
remedies of a secured party under the Uniform Commercial Code. The
proceeds of the exercise by the Trustee of any remedy hereunder shall
be paid to and applied as follows:
First: to payment of all of the reasonable costs and expenses of the
Trustee, including (i) the expenses of such sale, (ii) the
out-of-pocket costs and expenses of the Trustee and the fees and
out-of-pocket costs and expenses of counsel employed by the Trustee,
(iii) the payment of all advances made by the Trustee for the account
of Pledgor hereunder, and (iv) the payment of all costs and expenses
incurred by the Trustee in connection with the administration and
enforcement of this Agreement, to the extent that such advances, costs
and expenses shall not have been reimbursed to the Trustee;
Second: to the payment in full of the Obligations in a manner
consistent with Section 6.10 of the Indenture as the Trustee in its
discretion shall decide and any Obligation as defined in the
Subordinated Loan Agreement to the extent required by Section 3.7 of
the Intercreditor Agreement with respect to the Advance Disbursement
Account;
Third: the balance, if any, of such proceeds shall be paid to the
Pledgor, its successors and assigns, or to whomever may be lawfully
entitled to receive the same.
(c) Upon the occurrence and during the continuance of an Event of
Default, subject to compliance with the Gaming Laws and the Liquor
Laws, the Trustee may, upon ten (10) business days' prior written
notice to Pledgor of the time and place, with respect to the Pledged
Collateral or any part thereof that shall then be or shall thereafter
come into the possession, custody or control of the Trustee or any of
its agents, sell, lease, assign or otherwise dispose of all or any
part of the Pledged Collateral, at such place or places as the Trustee
deems best, and for cash or for credit or for future delivery, at
public or private sale, without demand of performance or notice of
intention to effect any such disposition or of the time or place
thereof (except such notice as is required above or by applicable
statute and cannot be waived), and the Trustee or anyone else may be
the purchaser, lessee, assignee or recipient of any or all of the
Pledged Collateral so disposed of at any public sale (or, to the
extent permitted by law, at any private sale) and thereafter hold the
same absolutely, free from any claim or right of whatsoever kind,
including any right or equity of redemption (statutory or otherwise),
of Pledgor, any such demand, notice (other than the notice specified
above) and right or equity being hereby expressly waived and released.
The Trustee may, without notice or publication, adjourn any public or
private sale or cause the same to be adjourned from time to time by
announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so
adjourned. Notwithstanding the first sentence of this Section 8(c) to
the contrary, with respect to that portion of the Pledged Collateral
consisting of Book-Entry Securities, the parties acknowledge and
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agree that such Pledged Collateral is sold on a recognized market and,
accordingly, the Trustee need not furnish Pledgor with notice of its
intention to sell such Pledged Collateral. The proceeds of each
collection, sale or other disposition under this Section 8(c) shall be
applied in accordance with Section 8(b) hereof.
(d) Private Sale. The Trustee shall incur no liability as a
result of the sale of the Pledged Collateral, or any part thereof, at
any private sale pursuant to Section 8(c) hereof conducted in a
commercially reasonably manner. Pledgor hereby waives any claims
against the Trustee arising by reason of the fact that the price at
which the Pledged Collateral may have been sold at such private sale
was less than the price that might have been obtained at a public sale
or was less than the aggregate amount owed by Pledgor under the
Transaction Documents, even if the Trustee accepts, the first offer
received and does not offer the Pledged Collateral to more than one
offeree. Notwithstanding anything to the contrary in this Section
8(d), with respect to that portion of the Pledged Collateral
consisting of Book- Entry Securities, the parties acknowledge and
agree that such Pledged Collateral is sold on a recognized market and,
accordingly, such Pledged Collateral is excluded from this Section
8(d).
Section 9. The Trustee May Perform; the Trustee Appointed
Attorney-In-Fact. If Pledgor fails to do any act or thing that it has covenanted
to do hereunder or if any warranty on the part of Pledgor contained herein shall
be breached, the Trustee may (but shall not be obligated to), upon notice to
Pledgor specifying the action to be taken, do the same or cause it to be done or
remedy any such breach, and may expend funds for such purpose. Any and all
amounts so expended by the Trustee (including, but not limited to, reasonable
legal expenses and disbursements) shall be paid by Pledgor promptly upon demand
therefor, with interest at the fixed rate of interest of 15% per annum during
the period from the date on which such payment is made to and including the date
of repayment. Pledgor hereby authorizes the Trustee and appoints the Trustee its
attorney-in-fact, with full authority in the place and stead of Pledgor and in
the name of Pledgor, or otherwise, from time to time in the Trustee's reasonable
discretion to take any action and to execute any instrument which is consistent
and in accordance with the terms of this Agreement and the Transaction Documents
and which the Trustee may deem reasonably necessary or advisable to accomplish
the purposes of this Agreement. The foregoing grant of authority is a power of
attorney coupled with an interest and such appointment shall be irrevocable for
the term of this Agreement. Pledgor hereby ratifies all actions that such
attorney shall lawfully take or cause to be taken in accordance with this
Section 9.
Section 10. Notices. All notices, requests, demands and other
communication shall be given in the manner set forth in Section 11.02 of the
Indenture and shall be given or delivered at the following respective addresses
and facsimile and telephone numbers and to the attention of the following
individuals or departments: (i) if to Pledgor, at its address specified pursuant
to the Indenture; (ii) if to the Trustee, at its address specified pursuant to
the Indenture; (iii) if to the Securities Intermediary or the Interest
Securities Intermediary, at their respective addresses specified on the
signature page hereto; and (iv) as to any such party, at such other address,
facsimile or telephone number, or to the attention of such other individual or
department, as the party to which such information pertains may hereafter
specify for the purpose in a notice to the other specifically captioned "Notice
of Change of Address." A copy of any notice provided pursuant to this
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Agreement shall be provided to Hyatt Gaming at its address as set forth in the
Management Agreement.
Section 11. Governing Law; Terms; 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, EXCEPT TO THE EXTENT THAT THE PERFECTION
AND ENFORCEMENT OF THE SECURITY INTERESTS HEREUNDER IN RESPECT OF ANY PARTICULAR
PLEDGED COLLATERAL ARE GOVERNED BY THE LAWS OF ANOTHER JURISDICTION, AND EACH OF
THE PARTIES HERETO, TOGETHER WITH THE SECURITIES INTERMEDIARY AND THE INTEREST
SECURITIES INTERMEDIARY, EXPRESSLY AGREES THAT FOR PURPOSES OF SECTION 8-110 OF
THE UNIFORM COMMERCIAL CODE, THE SECURITIES INTERMEDIARY'S AND INTEREST
SECURITIES INTERMEDIARY'S JURISDICTION IS NEW YORK. THE PARTIES HERETO
IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL
COURT SITTING IN THE CITY OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT. 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 at any other time or in any
other jurisdiction.
Section 12. Facsimile; Counterparts. Each party hereto may deliver an
executed signature page to this Agreement by facsimile transmission to each
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 each 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.
Section 13. Headings. The Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction of this
Agreement.
Section 14. Entire Agreement; Amendments. This Agreement, together
with those other agreements referenced herein, constitutes the entire
understanding and agreement of the Pledgor and the Trustee, and shall supersede
any other agreements and understandings (written or oral) between the Pledgor
and the Trustee 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 both the Pledgor and the
Trustee.
Section 15. Limitation on Duty of the Trustee in Respect of Pledged
Collateral. Beyond the exercise of reasonable care in the custody thereof, the
Trustee shall have no duty as to any Pledged Collateral in its possession or
control or in the possession or control of any agent or bailee or any income
thereon or as to the preservation of rights against prior parties or any other
rights pertaining thereto. The Trustee shall be deemed to have exercised
reasonable care in the custody and preservation of the Pledged Collateral in its
possession if such Pledged Collateral is accorded treatment substantially equal
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to that which the Trustee accords its own property, and shall not be liable or
responsible for any loss or damage to any of the Pledged Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any agent
or bailee selected by the Trustee in good faith.
Section 16. No Waiver. No delay on the part of the Trustee in the
exercise of any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by the Trustee of any right or remedy shall preclude other
or further exercise thereof or the exercise of any other right or remedy.
Section 17. Binding Agreement; Assignment. This Agreement shall be
binding upon Pledgor and the Trustee and their respective successors and
assigns, and shall inure to the benefit of Pledgor, the Holders and the Trustee
and the respective successors and assigns of the Holders and the Trustee.
Section 18. Indemnification. Pledgor agrees to indemnify the Trustee
and hold the Trustee harmless from and against any and all liabilities, losses,
damages, costs and expenses of any kind or nature whatsoever, including without
limitation the reasonable fees and disbursements of counsel, which may be
incurred by the Trustee in connection with its actions hereunder or in
connection with any investigative, administrative or judicial proceeding
(whether or not the Trustee shall be designated a party thereto) relating to or
arising out of this Agreement or the Pledged Collateral (including without
limitation any such proceeding by Pledgor against the Trustee or the Trustee
against Pledgor); provided that the Trustee shall not have the right to be
indemnified hereunder for its own gross negligence or willful misconduct as
determined by a court of competent jurisdiction.
Section 19. Waiver of Right to Jury Trial. EACH OF THE PARTIES HERETO
HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDINGS INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY
ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER.
Section 20. Limitations of Gaming Laws and Liquor Laws. The Trustee
acknowledges that: (i) its grant of a security interest in, and its rights and
remedies with respect to the Pledged Collateral are subject to the limitations
and restrictions of the Gaming Laws and/or the Liquor Laws, which may, among
other things, require the Trustee to obtain the prior approval of the Gaming
Authority or Liquor License Authority, as applicable, enforcing such laws before
taking any action hereunder and to be licensed by such authorities before
exercising certain rights and remedies hereunder and (ii) the Gaming Laws and
Liquor Laws currently prohibit any pledge, hypothecation or transfer of any
Gaming License or Liquor License or any interests therein or attachment of any
security interest in such licenses.
Section 21. Conflicts with Indenture. In the event of any conflict
between the provisions of this Agreement and those of the Indenture, including,
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without limitation, any conflicts or inconsistencies in any definitions herein
or therein, the applicable provisions or definitions or the Indenture shall
govern.
Section 22. Termination. Upon the indefeasible payment in full of all
Obligations (other than Unmatured Surviving Obligations) of the Pledgor under
the Indenture, the Senior Notes, this Agreement or any other Transaction
Document, or upon Legal Defeasance or Covenant Defeasance, the Trustee shall, at
the request of the Pledgor, deliver a certificate to the Pledgor stating that
such Obligations have been paid in full, the security interest granted herein
shall terminate and all rights to the Pledged Collateral shall revert to the
Pledgor. Upon any such termination the Trustee shall, at the Pledgor's expense,
execute and deliver to the Pledgor such Uniform Commercial Code termination
statements and such other documents as the Pledgor shall reasonably request to
effect or evidence the termination and release of such security interest in the
Pledged Collateral.
[remainder of page intentionally left blank;
signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer as of the
date first above written.
PLEDGOR:
WINDSOR WOODMONT BLACK HAWK
RESORT CORP., a Colorado corporation
By: /s/ Xxxxx X. Xxxxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: President
TRUSTEE:
SUNTRUST BANK, a Georgia banking corporation
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: First Vice President
Norwest Bank Minnesota, N.A., a national association, acting in its capacity as
Securities Intermediary, hereby (i) agrees to act as Securities Intermediary and
(ii) acknowledges its agreement to be bound by the provisions of subsections
5(f) and 11 set forth in this Agreement.
NORWEST BANK MINNESOTA, N.A., a
national association
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
Midwest Plaza West Tower
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
SunTrust Bank, a Georgia banking corporation, acting in its capacity as Interest
Securities Intermediary, hereby (i) agrees to act as Securities Intermediary and
(ii) acknowledges its agreement to be bound by the provisions of subsections
5(f) and 11 set forth in this Agreement.
SUNTRUST BANK, a Georgia
banking corporation
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxx
Title: First Vice President
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Schedule I
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LIST OF SECURITIES
