Exhibit 10.11
COLLATERAL ASSIGNMENT
THIS COLLATERAL ASSIGNMENT (as amended, supplemented or otherwise modified
from time to time, this "Assignment") is made as of March 14, 2000 by and
between WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation, (the
"Company"), in favor of SUNTRUST BANK, a Georgia banking corporation, as trustee
(in such capacity, together with its successors and assigns, the "Trustee") for
the benefit of itself and the holders of the Notes (the "Holders").
RECITALS
A. Notes. Pursuant to that certain Indenture dated as of even date herewith
(as amended, restated, supplemented or otherwise modified from time to time, the
"Indenture"), by and between the Company and the Trustee, the Company (i) is
issuing its 13% First Mortgage Notes due 2005 (such notes, together with any
notes issued in replacement thereof or exchange therefor, the "Series A Notes"),
and (ii) is issuing its 13% Series B First Mortgage Notes due 2005 (such notes,
together with any notes issued in replacement thereof or exchange therefor, the
"Series B Notes", and together with the Series A Notes, the "Original Notes"),
in the original aggregate principal amount of $100,000,000, and pursuant to the
Indenture, the Company may issue additional notes up to an aggregate principal
amount of $35,000,000 in the same series as the Original Notes (such notes,
together with any notes issued in replacement thereof or exchange therefor, the
"Additional Notes", and together with the Original Notes, the "Notes"). All
initial capitalized terms used, but not defined, herein shall have the meaning
set forth in the Indenture.
B. Purpose. In order to induce the Holders to purchase the Original Notes,
the parties have entered into this Assignment to evidence the Company's
collateral assignment for security of certain contracts and documents related to
the design, construction and operation of the Project.
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
Notes, the Company agrees as follows:
1. Assignment. As security for the due and punctual payment and performance
of all indebtedness and obligations of the Company, now or hereafter due under
the Indenture, the Notes, the Collateral Documents and all other documents,
agreements and instruments (in each case, as amended, supplemented or otherwise
modified from time to time) now or hereafter executed and delivered in
connection with the Indenture, collectively, the "Transaction Documents"),
whether or not arising after the commencement of a proceeding under Bankruptcy
Law (including post-petition interest) and whether or not recovery of any such
obligation or liability may be barred by a statute of limitations or
prescriptive period or such obligation or liability may otherwise be
unenforceable (collectively, the "Obligations"), the Company hereby assigns and
transfers to the Trustee, and hereby grants to the Trustee a security interest
in, all of the Company's right, title and interest, to the extent assignable and
transferable, whether now existing or hereafter arising and whether now owned or
hereafter acquired, wherever located, in, to and under the following
(collectively, the "Assigned Collateral"):
(a) all contracts (including, without limitation, the Excavation
Contract, Construction Contract, Architect Contract and all other
construction contracts and architectural design, engineering and
development contracts and agreements, subcontracts, service agreements,
supply agreements and other such contracts and agreements) between the
Company and other persons, and all amendments, modifications, additions and
changes thereto, in each case relating to the Project;
(b) all plans, specifications, engineering reports, soil and
environmental reports, site plans, surveys, working drawings, shop
drawings, other reports, drawings and plans and other such documents, and
all amendments, modifications, supplements, general conditions, addenda,
additions and changes thereto, in each case relating to the Project;
(c) all other contracts, agreements, documents and instruments now
existing or hereafter arising relating to the Project, including, without
limitation, any and all construction, architectural and engineering
contracts, plans and specifications, drawings, and surveys, bonds, permits,
licenses and other governmental approvals and all other Plans (all of the
foregoing in subsections (a) through (c), collectively, the "Contracts and
Documents"); and
(d) all proceeds of the foregoing, including, without limitation, (i)
whatever is now or hereafter receivable or received upon the sale,
exchange, collection or other disposition of any of the Contracts and
Documents, whether voluntary or involuntary, (ii) any such items which are
now or hereafter acquired with any proceeds of Contracts and Documents, and
(iii) any insurance or payments under any indemnity, warranty or guaranty
now or hereafter payable by reason of loss or damage or otherwise with
respect to any Contracts and Documents or any proceeds thereof.
Notwithstanding the foregoing, the Assigned Collateral shall not include
any of the following (collectively, the "Excluded Assets"): (A) Gaming Licenses,
(B) Liquor Licenses, (C) all gaming devices, other licenses or permits and any
interest in such gaming devices, licenses or permits to the extent (but only to
the extent) that the Gaming Laws or Liquor Laws, as applicable, prohibit, as of
the date hereof, the Debtor from granting a security interest therein without
the approval of the relevant Gaming Authority or Liquor License Authority (but
only to the extent such approval has not been obtained), (D) FF&E to the extent
that (1) the purchase or lease of such FF&E is not financed with the proceeds of
the Notes but with the proceeds of an FF&E Financing and (2) the Debtor is
permitted to enter into such FF&E Financing for such FF&E under the Indenture
and (E) the Hyatt Intellectual Property, the Protected Marks and the Protected
Name; provided, however, that (x) any such Excluded Asset now owned or hereafter
acquired by the Debtor shall automatically become part of the Collateral when
and to the extent it may subsequently be made subject to such a lien and/or such
-2-
approval of the Gaming Authority or Liquor License Authority, as applicable, is
obtained and/or such FF&E Financing has been repaid, satisfied or terminated and
(y) all proceeds of any Excluded Assets shall be subject to the continuing
security interest granted hereunder to the full extent permitted under
applicable Gaming Laws or Liquor Laws or the terms of the FF&E Financing;
provided, further, that the security interest granted herein in the 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.
The Assigned Collateral includes, without limitation, those certain
contracts and agreements set forth in Exhibit A attached hereto and made a part
hereof.
The Company shall obtain from each other party to the Contracts and
Documents a Consent to Assignment in the form Exhibit B attached hereto and made
a part hereof.
2. Rights of the Company. This Assignment is an assignment for security
purposes only. Accordingly, notwithstanding anything to the contrary set forth
herein, the Company shall retain all rights with respect to the Contracts and
Documents, including, without limitation, the right to enforce all rights of
such Company thereunder, except during a period when an Event of Default has
occurred and is continuing.
3. Representations and Warranties of the Company. The Company represents
and warrants to the Trustee as of the date hereof that (a) the Company has
provided to Trustee true and complete copies of all Contract and Documents
executed as of the date hereof, and that none of the Contracts and Documents has
been amended or modified, except as set forth herein or as previously disclosed
in writing to the Trustee, (b) except for Permitted Liens, the Company has not
assigned or granted a security interest in any of the Contracts and Documents or
the proceeds thereof to anyone other than the Trustee, and (c) the Company is
not in default, and no event has occurred that with notice or lapse of time or
both would constitute a default by the Company, or to the Company's knowledge,
any other party under any of the Contracts and Documents.
4. Covenants of the Company. The Company agrees that (a) the Company will
not further assign, encumber or permit the assignment, transfer or encumbrance
of any of the Contracts and Documents or the proceeds thereof without the prior
written consent of (i) the Trustee, except as otherwise permitted under the
Indenture, and (ii) any surety or guarantor under any performance or completion
bond to the extent that failure to obtain such consent would affect the validity
or coverage provided by such bond; (b) the Company will perform and discharge
each material obligation, covenant and agreement to be performed by the Company
under each Contract and Document, at no cost or expense to the Trustee; (c) the
Company will use its commercially reasonable efforts to enforce or secure the
performance of each material obligation, covenant or agreement of the other
parties to each Contract and Document; and (d) the Company will not modify,
amend, supplement or in any way join in the release of any rights of the Company
under any of the Contracts and Documents or modify, amend, supplement or in any
way join in the discharge of any obligations of any counter-party under any
Contract or Document, without the prior written consent of (i) the Trustee to
-3-
the extent such modification, amendment, supplement, release or discharge would
be in any material way adverse to the Holders, and (ii) any surety or guarantor
under any performance or completion bond to the extent that failure to obtain
such consent would affect the validity or coverage provided by such bond, except
in each case with Trustee's prior written consent.
5. Limitation of Trustee's Obligations. Nothing in this Assignment shall
constitute an assumption of any obligation by the Trustee under the Contracts
and Documents. The Company shall continue to be liable for all obligations
thereunder and hereby agrees to perform all such obligations, to comply with all
terms and conditions of the Contracts and Documents, and to take such steps as
may be necessary or appropriate to secure performance by all other parties
thereto. The Company shall defend, indemnify and hold the Trustee harmless from
and against all liabilities, damages, losses, costs, and expenses, including,
without limitation, attorneys' fees, arising from or related to any failure by
the Company to perform any obligation of the Company under any of the Contracts
and Documents, which indemnity and hold harmless agreement shall survive the
payment and performance of the Obligations.
6. Cure by Trustee. At any time upon and during the continuation of an
Event of Default, the Trustee shall have the right, but shall have no
obligation, to take all actions that the Trustee may determine to be necessary
or appropriate to cure any breach or default under any of the Contracts and
Documents and to protect the rights of the Company or the Trustee thereunder,
and may do so in the Trustee's name, in the name of the Company or otherwise. If
any such action taken by the Trustee shall prove to be inadequate or invalid in
whole or in part, the Trustee shall not incur any liability on account thereof,
and the Company hereby agrees to defend, indemnify and hold the Trustee harmless
from and against all liabilities, damages, losses, costs, and expenses,
including, without limitation, reasonable attorneys' fees, which the Trustee may
incur or to which it may become subject in exercising any of its rights under
this Assignment, except for those arising from the gross negligence or willful
misconduct of the Trustee, which indemnity and hold harmless agreement shall
survive the payment and performance of the Obligations.
7. Rights and Remedies. Upon the occurrence of an Event of Default under
the Indenture, irrespective of whether a notice of default has been given with
respect to such Event of Default (unless required by the Indenture), and with or
without bringing any action or proceeding, the Trustee may, at its option,
succeed to and proceed to enforce all of the rights, interests and remedies of
the Company under the Contracts and Documents, amend, modify, cancel, terminate
or replace the same, reassign the Company's right, title and interest therein to
any other person, and exercise any and all other rights of the Company under the
Contracts and Documents, either in person or through an agent, receiver or
keeper, without further notice to or consent by the Company, and without regard
to the adequacy of security for the Obligations or the availability of any other
remedies. The exercise of any of the foregoing rights or remedies shall not cure
or waive any Default under the Indenture or any other Transaction Document, or
waive, modify or affect any notice of default thereunder, or invalidate any act
done pursuant to any such notice. In addition to the rights and remedies of the
Trustee as set forth in this Assignment, the Trustee shall be entitled to the
benefit of all other rights and remedies set forth in the Indenture and the
other Transaction Documents, at law or in equity. Without limiting the
-4-
foregoing, the Company hereby irrevocably constitutes and appoints the Trustee,
upon the occurrence and during the continuance of an Event of Default, as its
attorney-in-fact to demand, receive and enforce the Company's rights with
respect to the Contracts and Documents, to give appropriate receipts, releases
and satisfactions for and on behalf of the Company, and to do any and all acts
in the name of the Company with the same force and effect as the Company could
do if this Assignment had not been made. Such appointment is irrevocable and
coupled with an interest until payment in full and complete performance of all
the Obligations. The Trustee may appoint a substitute attorney-in-fact. The
Company ratifies all actions taken by the attorney-in-fact but, nevertheless, if
the Trustee requests, the Company will specifically ratify any action taken by
the attorney-in-fact by executing and delivering to the attorney-in-fact or to
any entity designated by the attorney-in-fact all documents necessary to effect
such ratification.
8. Additional Instruments. With respect to both existing and future
Contracts and Documents, the Company hereby agrees to execute and deliver, at
its sole cost and expense, such additional assignments and other documents as
the Trustee may reasonably request in order to implement the provisions of this
Assignment.
9. Gaming Laws and Regulations. The Company acknowledges that, to the
extent required under applicable law, the consummation of the transactions
contemplated hereby and the exercise of remedies hereunder may be subject to the
Colorado Limited Gaming Act and the regulations promulgated pursuant to each
such law, all as amended from time to time. The parties hereto further
acknowledge that the Gaming License held by the Company is not part of the
collateral of this Assignment and that, under the above described legislation
and rules promulgated thereunder, the Trustee may be precluded from or otherwise
limited in taking possession of or in selling the collateral of this Assignment
under the rights and remedies provisions of this Assignment and the other
Transaction Documents. The parties hereto also acknowledge that due to various
legal restrictions, including, without limitation, licensing of operators of
gaming facilities and prior approval of the sale or disposition of assets of a
licensed gaming operation, the sale of collateral may be denied by Gaming
Authorities or delayed pending approval of Gaming Authorities.
10. Conflicts with Indenture. In the event of any conflict between the
provisions of this Assignment and those of the Indenture, including, without
limitation, any conflicts or inconsistencies in any definitions herein or
therein, the applicable provisions or definitions of the Indenture shall govern.
11. Notice. All notices, requests and other communications provided for
hereunder shall be given in accordance with Section 11.02 of the Indenture. A
copy of any notice provided pursuant to this Assignment shall be provided to
Hyatt Gaming at its address as set forth in the Management Agreement.
12. Successors and Assigns; Third Party Beneficiaries. This Assignment
shall be binding upon the Company and the Trustee and their respective
-5-
successors and permitted assigns, and inure to the benefit of the Company, the
Trustee and the Holders, and shall not confer any rights or remedies upon any
other third party.
13. 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.
14. Termination and Release. Upon the indefeasible payment in full of all
Obligations (other than Unmatured Surviving Obligations) of the Company under
the Indenture, the Notes, this Assignment, the other Collateral Documents and
any other document or other agreement executed in connection herewith or
therewith, or upon Legal Defeasance or Covenant Defeasance, the Trustee shall,
at the request of the Company, deliver a certificate to the Debtor stating that
such Obligations have been paid in full, the security interest granted herein
shall terminate and all rights to the Collateral shall revert to the Company.
Upon any such termination the Trustee shall, at the Company's cost and expense,
execute and deliver to the Company such termination statements and such other
documents as the Company shall reasonably request to effect or evidence the
termination and release of such security interest in the Collateral. For the
purposes hereof, the term "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 the Indenture, the Notes, this
Assignment, the other Collateral Documents and any other document or agreement
executed in connection herewith or therewith, survives termination of such
documents or agreements and the indefeasible payment in full of the Senior
Notes.
15. Waiver of Trial by Jury. THE TRUSTEE AND COMPANY HEREBY WAIVE 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 ASSIGNMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.
16. Governing Law; Severability. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
If any term or provision of this Assignment 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
Assignment, or the validity or enforceability of such affected terms or
provisions at any other time or in any other jurisdiction.
17. Entire Agreement; . This Assignment sets forth the entire understanding
and agreement of the parties hereto, and shall supersede any other agreements
and understandings (written or oral) between the parties hereto on or prior to
the date of this Assignment with respect to the transaction contemplated in this
Assignment. No amendment or modification to any terms of this Assignment, or
-6-
cancellation of this Assignment, shall be valid unless in writing and executed
and delivered by both the parties hereto.
18. Facsimile; Counterparts. The Assignment may deliver an executed
signature page to this Assignment 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 Assignment 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]
-7-
IN WITNESS WHEREOF, the Company has executed this Assignment as of the
date first above written.
Windsor Woodmont Black Hawk Resort Corp.,
a Colorado corporation
By: /s/ Xxxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxx
-------------------------------------
Title: Executive Vice President
-------------------------------------
EXHIBIT A
LIST OF CONTRACTS AND DOCUMENTS
-------------------------------
1. 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 Windsor Woodmont, L.L.C., as owner ("WWLLC"), and Xxxx
Xxxxxxxx, Ltd., as architect ("Architect").
Settlement Agreement, dated as of even date herewith, by and
among, inter alia, WWLLC and Architect.
General Assignment, dated as of even date herewith, from WWLLC to
Company.
2. Standard Form of Agreement Between Owner and Contractor (AIA
Document A101/CMa), dated May 14, 1998, by and between WWLLC, as
owner, and X. X. Xxxxxxxx & Sons, Inc., as contractor
("Contractor").
Supplement to AIA Document A101/CMa Standard Form of Agreement
Between Owner and Contractor, dated May 14, 1998, by and between
WWLLC and Contractor.
Amendment, dated June 15, 1998, by and between WWLLC and
Contractor.
Second Amendment to Standard Form of Agreement Between Owner and
Contractor, dated December 31, 1999, by and between WWLLC and
Contractor.
General Assignment, dated as of even date herewith, from WWLLC to
Company.
3. Standard Form of Agreement Between Owner and Contractor, dated
January 25, 2000, by and between WWLLC, as owner, and PCL
Construction Services, Inc., as contractor.
General Assignment, dated as of even date herewith, from WWLLC to
Company.
A-1
EXHIBIT B
FORM OF CONSENT TO COLLATERAL ASSIGNMENT OF CONTRACT
----------------------------------------------------
THIS CONSENT TO COLLATERAL ASSIGNMENT OF CONTRACT (this "Consent") is made
as of _______________, 2000, by ____________________, a ____________________
("Contracting Party"), for SUNTRUST BANK, a Georgia bank, as trustee, (the
"Trustee"), for the benefit of the holders of the Notes (the "Holders").
RECITALS
A. Notes. Pursuant to that certain Indenture dated as of March 14, 2000 (as
amended, supplemented or otherwise modified from time to time, the "Indenture"),
by and between Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation
(the "Company"), and the Trustee, the Company has issued (i) its 13% First
Mortgage Notes due 2005 (such notes, together with any notes issued in
replacement thereof or exchange therefor, the "Series A Notes"), and (ii) its
13% Series B First Mortgage Notes due 2005 (such notes, together with any notes
issued in replacement thereof or exchange therefor, the "Series B Notes", and
together with the Series A Notes, the "Original Notes"), in the original
aggregate principal amount of $100,000,000, and pursuant to the Indenture, the
Company may issue additional notes up to an aggregate principal amount of
$30,000,000 in the same series as the Original Notes (such notes, together with
any notes issued in replacement thereof or exchange therefor, the "Additional
Notes", and together with the Original Notes, the "Notes"). All defined terms
used, but not defined herein, shall have the meanings set forth in the
Indenture.
B. Proceeds. The portion of the proceeds of the Notes have been deposited
into an escrow account pursuant to a Cash Collateral and Disbursement Agreement
(the "Disbursement Agreement") as of March 14, 2000, among Norwest Bank
Minnesota, N.A., a national association, as disbursement agent (the
"Disbursement Agent"), the Trustee, Hyatt Gaming Management, Inc., a Nevada
corporation, First American Heritage Title Company, a Colorado corporation, as
escrow agent, and Re Tech+, Inc., a Colorado corporation, as independent
construction consultant (the "Independent Construction Consultant"), and the
Company.
C. Security. The Company must use the proceeds of the Notes disbursed
pursuant to the Disbursement Agreement for the construction of the Project (as
defined in the Disbursement Agreement). The Contracting Party and the Company
are parties to that certain___________________________________________________
__________ [Name of Contract] dated as of ______________ (the "Contract")
relating to the design, construction and/or operation of the Project. In order
to induce the Holders to purchase the Original Notes, the Company has executed a
Collateral Assignment dated of even date with the Indenture (as amended,
supplemented or otherwise modified from time to time, the "Collateral
Assignment"), in favor of the Trustee, collaterally assigning all of the
Company's right, title and interest in and to, among other things, the Contract,
B-1
in order to secure the obligations of the Company under, among other documents,
the Notes and the Indenture (the "Obligations").
D. Consent. Pursuant to the Contract, the Company and the Trustee require
the consent of Contracting Party with respect to the Collateral Assignment and
the matters related thereto as set forth herein.
NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Contracting Party agrees as follows:
1. Consent to Assignment. Pursuant to the Contract, the Contracting Party
has performed or supplied, or agreed to perform or supply, certain services,
materials or documents in connection with the Project. The Contracting Party
hereby consents to the assignment of the Contract by the Company to the Trustee
as provided in the Collateral Assignment and this Consent.
2. The Company's Default under Contract. If the Company defaults under the
Contract, before exercising any remedy, the Contracting Party shall deliver to
the Trustee at the address set forth in Section 16 (or such other address
provided thereby in writing to the Company), by certified mail, postage prepaid,
return receipt requested, written notice of such default, specifying the nature
of the default and the steps necessary to cure the same, and clearly marked as a
notice of default pursuant to this Paragraph 2. If the Company fails to cure the
default within the time permitted under the Contract, then the Trustee shall
have an additional thirty (30) days after the expiration of the time permitted
under the Contract (but in no event less than an additional thirty (30) days
after the receipt by the Trustee of said notice from Contracting Party) within
which the Trustee shall have the right, but not the obligation, to cure such
default; provided, however, that, with respect to payment defaults only, the
Trustee shall have thirty (30) days from receipt of notice of such default
within which the Trustee shall have the right, but not the obligation, to cure
such default. The Contracting Party's delivery of such a notice of default to
the Trustee and the Trustee's failure to cure the same within the said
additional period shall be conditions precedent to the exercise of any right or
remedy of Contracting Party arising by reason of such default, except that the
Contracting Party shall not be required to continue performance under the
Contract for the said additional period, unless and until the Trustee agrees to
pay the Contracting Party for that portion of the work, labor and materials
rendered during the said additional period.
3. Certificate of Default Status. Upon the written request of the Trustee
at any time and from time to time, the Contracting Party shall furnish to the
Trustee, within five (5) days of receipt of such request, a certificate stating
whether, as of such request receipt date, the Company is in default on the
Contract and, if so, the nature of the default and the steps necessary to cure
the same. Such certificate shall not constitute a written notice of default
pursuant to Paragraph 2 unless clearly marked as such.
4. Company's Default under Obligations. If the Trustee gives written notice
to the Contracting Party that the Company has defaulted under the Obligations
and requests that the Contracting Party continue its performance under the
B-2
Contract, the Contracting Party thereafter shall perform for the Trustee under
the Contract in accordance with its terms, so long as the Contracting Party
shall be paid pursuant to the Contract for all work, labor and materials
rendered or supplied thereunder, including payment of any amounts due to
Contracting Party for work performed or materials supplied up to and including
the date of the Company's default.
5. Performance for the Trustee. If the Trustee (a) cures any default by the
Company pursuant to Paragraph 2, (b) gives written notice to the Contracting
Party that the Company has defaulted under the Collateral Documents pursuant to
Paragraph 4, (c) becomes the owner of the Project, (d) undertakes to complete
the construction of the Project pursuant to its rights under the Collateral
Documents, or (e) following a Default or an Event of Default under either the
Disbursement Agreement, the Indenture or the Subordinated Loan Agreement, or
otherwise requires the performance of the Contracting Party's obligations under
the Contract or the use of any plans and specifications, drawings, surveys or
other materials or documents previously prepared or provided by the Contracting
Party pursuant to the Contract, then in any such event, so long as Contracting
Party has received and continues to receive the compensation required under the
Contract related thereto, the Trustee shall have the right to obtain performance
from the Contracting Party of all of its obligations under the Contract, and to
use all such plans and specifications, drawings, surveys and other materials and
documents, and the ideas, designs and concepts contained therein, in connection
with the completion of the Project, without the payment of any additional fees
or charges to Contracting Party.
6. Amendments and Change Orders. The Contracting Party agrees that it will
not (a) modify, amend, supplement or in any way join in the release or discharge
of the Contracting Party's obligations under the Contract, or (b) perform any
work pursuant to any change order or directive unless the same is issued and
executed in accordance with the foregoing and the terms and conditions of the
Contract, unless (i) such change is commercially reasonable, and (ii) the
Independent Construction Consultant consents to such change in writing, or such
change is otherwise expressly permitted by the Disbursement Agreement.
7. List of Subcontracting Parties. Upon the written request of the Trustee
at any time and from time to time, the Contracting Party shall furnish to the
Trustee a current list of all Persons with whom the Contracting Party has
entered into subcontracts or other agreements related to the rendering of work,
labor or materials under the Contract, together with a statement as to the
status of each such subcontract or agreement, and the respective amounts, if
any, owed by the Contracting Party with respect thereto.
8. Compliance with Laws. The Contracting Party shall comply with, and shall
report to the Trustee any failure known to the Contracting Party of the Company,
the Project or any Person or entity furnishing materials or services in
connection with the construction of the Project to comply with all applicable
laws, ordinances, regulations and other legal requirements relating to the
construction of the Project.
B-3
9. Contracting Party's Records. At the Trustee's request, the Contracting
Party shall promptly submit to the Trustee such payroll vouchers, receipts, lien
releases and waivers, progress surveys, inspection reports and other documents
and papers relating to construction of the Project as the Trustee may require to
protect the priority of the Deed of Trust in favor of the Trustee on the real
property constituting the Project or to verify compliance with the provisions of
this Consent and the Disbursement Agreement.
10. Trustee Inspections. The Trustee, the Independent Construction
Consultant and their respective officers, employees, agents and representatives
(the "Inspecting Parties") shall have the right at any time to enter the site of
the Project and inspect the work of construction and all materials, plans,
specifications and other matters relating to the Project or the construction
thereof. From time to time, at the Contracting Party's place of business during
customary business hours and upon reasonable prior notice, the Inspecting
Parties shall also have the right to examine, copy and audit the books, records
and accounting data and other documents of the Contracting Party relating to the
Project. Any inspection of the Project by the Trustee or any examination,
acceptance or approval by the Trustee of documents relating to the Project,
including, but not limited to, plans, specifications, books, records and
vouchers, is for the sole purpose of protecting the Trustee's rights under the
Disbursement Agreement and the other Collateral Documents and its security for
the Obligations. The Contracting Party shall not rely on any such inspection,
examination, acceptance or approval by the Trustee. In no event shall the
Inspecting Parties be obligated to disclose to the Contracting Party or to the
Company the results of any such inspection or examination.
11. Security of Property and Equipment. The Contracting Party agrees to
cooperate with the Company and the Trustee in preserving their respective
ownership and security interests in all personal property relating to the
Project, including without limitation building materials, machinery and
appliances acquired by the Contracting Party with the proceeds of the Notes and
held or stockpiled on or off the site of the Project for incorporation into or
use in connection with the Project.
12. Representations and Warranties. The Contracting Party represents and
warrants to the Trustee that (a) it is duly licensed to conduct its business in
the jurisdiction contemplated by the Contract, and will at all times maintain
its license in full force and effect throughout the term thereof, (b) the
Contract has not been amended, modified or supplemented except as set forth
therein, (c) the Contract constitutes a valid and binding obligation of
Contracting Party and is enforceable against Contracting Party in accordance
with its terms, (d) there have been no prior assignments of, or any other
conveyance of any interest in, the Contract, and (e) all obligations of the
Company and the Contracting Party under the Contract have been performed as
required therein as of the date hereof.
13. Application of Funds. Nothing herein imposes or shall be construed to
impose upon the Trustee any duty to direct the application of any proceeds of
the Notes, and Contracting Party acknowledges that the Trustee is not obligated
to Contracting Party or any of its subcontracting Parties, materialmen,
suppliers or laborers.
B-4
14. Acknowledgment of Inducement. The Contracting Party understands that
the execution and delivery of this Consent is a condition precedent to the
purchase of the Notes, and that the Contracting Party is executing this Consent
to induce the purchasers of the Notes to purchase the Notes.
15. Irrevocability. The provisions hereof shall be irrevocable and remain
in full force and effect until the Company has fully paid and performed all of
the Obligations.
16. Notices. All notices, requests, demands and other communications (each,
a "Notice") required to be provided to the Contracting Party or the Trustee
pursuant to this Consent shall be in writing and shall be delivered (i) in
person, (ii) by certified U.S. mail, with postage prepaid and return receipt
requested, or (iii) by overnight courier service at the following address:
If to Trustee:
-------------
SunTrust Bank
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Fax: (000) 000-0000
If to the Contracting Party:
---------------------------
---------------------------
---------------------------
---------------------------
Attn:
----------------------
Facsimile No.:
-------------
All Notices sent by the Trustee or the Contracting Party shall be deemed to
have been received by the party to whom such Notice is sent upon (i) delivery to
the address of the recipient party, provided that such delivery is made prior to
5:00 p.m. (local time for the recipient party) on a Business Day, otherwise the
following Business Day, or (ii) the attempted delivery of such Notice if (A)
such recipient party refuses delivery of such Notice, or (B) such recipient
party is no longer at such address, and such recipient party failed to provide
the sending party with its current address pursuant to this Section 16. The
Contracting Party and the Trustee shall have the right to change their
respective address for the purposes of this Section 16 by providing a Notice of
such change in address as required under this Section 16.
17. 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.
B-5
18. Governing Law; Severability. THIS CONSENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.
If any term or provision of this Consent 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
Assignment, or the validity or enforceability of such affected terms or
provisions at any other time or in any other jurisdiction.
19. Entire Agreement; . This Consent sets forth the entire understanding
and agreement of the Contracting Party and the Trustee, and shall supersede any
other agreements and understandings (written or oral) between the Contracting
Party and the Trustee on or prior to the date of this Consent with respect to
the transaction contemplated in this Assignment. No amendment or modification to
any terms of this Consent, or cancellation of this Consent, shall be valid
unless in writing and executed and delivered by both the Contracting Party and
the Trustee.
20. Facsimile. The Contracting Party may deliver an executed signature page
to this Consent by facsimile transmission to the Trustee, which facsimile copy
shall be deemed to be an original executed signature page; provided, however,
that the Contracting Party shall deliver an original signature page to the
Trustee promptly thereafter.
[Remainder of page intentionally left blank;
Signatures on following page]
B-6
IN WITNESS WHEREOF, the Contracting Party has executed this Consent as of
the date first above written.
-----------------------------------,
a
----------------------------------
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
B-7
