Exhibit 10.18
INTERCREDITOR SUBORDINATION AND COLLATERAL AGREEMENT
This INTERCREDITOR SUBORDINATION AND COLLATERAL AGREEMENT (this
"Agreement") is made as of March 14, 2000, by and among SunTrust Bank, a Georgia
banking corporation, as trustee (in such capacity, together with its successors
and assigns, for the benefit of itself and the holders of the Notes (as defined
below), the "Trustee"), Hyatt Gaming Management, Inc., a Nevada corporation
("Hyatt Gaming"), and Windsor Woodmont Black Hawk Resort Corp., a Colorado
corporation (the "Company").
RECITALS
1. On the date hereof, the Company and the Trustee are 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 the Company is issuing (a) its 13% Series A First Mortgage Notes due
2005 (such notes, together with any notes issued in replacement thereof, 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 One Hundred
Million Dollars ($100,000,000) and pursuant to which the Company may issue up to
an additional Thirty Five Million ($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 "Notes"). All terms used and
not otherwise defined herein shall have the meanings given in the Indenture.
2. On the date hereof, Hyatt Gaming will make available to the Company a
subordinated loan in the aggregate principal amount of $7,500,000 evidenced by
that certain Subordinated Promissory Note (the "Hyatt Gaming Note") and made
pursuant to that certain Subordinated Loan Agreement dated as of even date
herewith (as amended, supplemented or otherwise modified from time to time, the
"Subordinated Loan Agreement"), by and between the Company and Hyatt Gaming.
3. As a condition to the purchase of the Notes, the parties have agreed to
enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
provisions set forth herein and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the Trustee, Hyatt
Gaming and the Company agree as follows:
1. Definitions. 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:
"Advance Disbursement Account" shall mean the Advance Disbursement
Account as defined in the Cash Collateral and Disbursement Agreement.
"Hyatt Gaming Accounts" shall mean the Hyatt Gaming Construction
Disbursement Account and the Hyatt Gaming Completion Reserve Account.
"Hyatt Gaming Accounts Security Agreement" shall mean the Security
Agreement which grants the Hyatt Gaming First Lien.
"Hyatt Gaming First Lien" shall mean the Lien of Hyatt Gaming on the
Hyatt Gaming Accounts.
"Hyatt Gaming First Lien Debt" shall mean any amount of the Hyatt Gaming
Note secured by the Hyatt Gaming First Lien. Notwithstanding the foregoing,
"Hyatt Gaming First Lien Debt" shall mean $0 if all amounts in the Hyatt Gaming
Accounts have been disbursed in accordance with the provisions of the Cash
Collateral and Disbursement Agreement.
"Proceeding" shall mean any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition, foreclosure or other
similar proceeding, any dissolution, liquidation or winding up proceeding, any
assignment for the benefit of creditors or any proceeding for the marshaling of
assets (in each case whether voluntary or involuntary with respect to the
Company).
"Senior Collateral Documents" means, collectively, the Deed of Trust by
the Company to the Public Trustee of Xxxxxx Colorado, the Security Agreement by
the Company in favor of the Trustee, the Collateral Assignment by the Company in
favor of the Trustee, the Cash Collateral and Disbursement Agreement, the Pledge
Agreement by the DPR 1992 Trust in favor of the Trustee, the Pledge Agreement by
APR 21st Century Trust in favor of the Trustee, the Pledge Agreement by AMR 21st
Century Trust in favor of the Trustee, the Advance Disbursement Account
Agreement among the Company, the Trustee and Norwest Bank Minnesota, N.A., the
Pledge and Assignment by the Company in favor of the Trustee, the Account
Agreement among the Company, the Trustee and Norwest Bank Minnesota, N.A., the
Manager Subordination Agreement, the Uniform Commercial Code financing
statements and fixture filings, and any other agreements, instruments,
documents, pledges or filings that evidence, set forth or limit the Lien of the
Trustee in the Collateral.
"Senior Debt" means (a) all indebtedness, liabilities and
obligations of every kind or nature, absolute or contingent, now existing or
hereafter arising, of the Company, its successors and assigns, under the
Indenture, the Notes, any Senior Collateral Documents or any other documents,
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instruments or agreements executed in connection with any of the foregoing (the
foregoing, collectively, the "Senior Transaction Documents"), to the Trustee or
any holder of Notes and their successors and assigns and, subject to Section 4.3
of the Subordinated Loan Agreement, any Person who extends credit to the Company
for the purpose of refunding any such indebtedness, liabilities or obligations,
including without limitation the principal of, and interest on (including any
interest accruing after the commencement of any Proceeding with respect to the
Company and any interest which would have accrued but for the commencement of
any such Proceeding whether or not allowed as a claim in that Proceeding ), and
all premiums, fees, charges, expenses and indemnities arising under or in
connection with the Senior Transaction Documents; and (b) any modifications,
amendments, refundings, renewals or extensions of any indebtedness or obligation
described in clause (a) of this definition.
"Subordinated Collateral Documents" means, collectively, the Hyatt
Gaming Deed of Trust by the Company to the Public Trustee of Xxxxxx Colorado,
the Hyatt Gaming Security Agreement by the Company in favor of Hyatt Gaming, the
Hyatt Gaming Collateral Assignment by the Company in favor of Hyatt Gaming, the
Hyatt Gaming Pledge Agreement by the DPR 1992 Trust in favor of Hyatt Gaming,
the Hyatt Gaming Pledge Agreement by APR 21st Century Trust in favor of the
Trustee, the Hyatt Gaming Pledge Agreement by AMR 21st Century Trust in favor of
Hyatt Gaming, the Hyatt Gaming Pledge and Assignment by the Company in favor of
Hyatt Gaming, the Hyatt Gaming Account Agreement among the Company, the Trustee
and Norwest Bank Minnesota, N.A., the Uniform Commercial Code financing
statements and fixture filings, and any other agreements, instruments,
documents, pledges or filings that evidence, set forth or limit the Lien of the
Trustee in the Collateral.
"Subordinated Debt" means (a) all indebtedness, liabilities and
obligations of every kind or nature, absolute or contingent, now existing or
hereafter arising or advanced, of the Company, its successors and assigns, under
the Subordinated Loan Agreement or the Subordinated Collateral Documents (the
foregoing, collectively, the "Subordinated Transaction Documents"), to Hyatt
Gaming and its successors and assigns and any Person who extends credit to the
Company for the purpose of refunding any such indebtedness, liabilities or
obligations, including without limitation the principal of, and interest on
(including any interest accruing after the commencement of any Proceeding with
respect to the Company and any interest which would have accrued but for the
commencement of any such Proceeding whether or not allowed as a claim in that
Proceeding ), and all premiums, fees, charges, expenses and indemnities arising
under or in connection with the Subordinated Transaction Documents; and (b) any
modifications, amendments, refundings, renewals or extensions of any
indebtedness or obligation described in clause (a) of this definition; provided
that Hyatt Gaming shall have a first Lien on the Hyatt Gaming Accounts pursuant
to the Hyatt Gaming Accounts Security Agreement, and any amounts secured by or
recoverable from such Hyatt Gaming Accounts shall be excluded from this
definition of Subordinated Debt.
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2. Subordination.
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2.1 Notwithstanding any other provision of the Subordinated Loan
Agreement, the Subordinated Debt shall be subordinate and junior in right of
payment and lien rights, to the extent and in the manner set forth in this
Agreement, to the prior indefeasible payment in full in cash of all Senior Debt
(whether outstanding on the date hereof or hereafter created, incurred, assumed
or guaranteed), and that the subordination is for the benefit of the holders of
Senior Debt.
2.2 Following an Event of Default under the Senior Debt or in
the event of any distribution, division or application, partial or complete,
voluntary or involuntary, by operation of law or otherwise, of all or any part
of the assets of the Company or the proceeds thereof (including any assets now
or hereafter securing any Subordinated Debt) to creditors of the Company or upon
any Indebtedness of the Company, by reason of any Proceeding with respect to the
Company, or any readjustment of Indebtedness, arrangements, reorganizations,
compositions or extensions, or sale of all or substantially all of the assets of
the Company, then and in any such event:
(a) The holders of Senior Debt shall thereafter
be entitled to receive payment in full in cash of all Senior
Debt before Hyatt Gaming shall be entitled to receive any
payment or other distributions on, or with respect to, the
Subordinated Debt;
(b) Any payment or distribution of any kind or
character, whether in cash, securities or other property, which
but for this Agreement would thereafter be payable or
deliverable upon or with respect to the Subordinated Debt shall
instead be paid or delivered directly to the Trustee for the
benefit of the holders of the Senior Debt for application on the
Senior Debt, whether then due or not due, until the Senior Debt
shall have first been fully and indefeasibly paid in cash;
(c) In the event that Hyatt Gaming fails (i) to
demand, xxx for, collect and receive any payment or distribution
with respect to the Subordinated Debt at least 15 days before
the expiration of the applicable statute of limitations or (ii)
to file or vote any claim in any Proceeding with respect to the
Subordinated Debt at least 15 days before the expiration of the
applicable period of time for filing or voting such claim, Hyatt
Gaming hereby irrevocably authorizes and empowers the Trustee,
and appoints the Trustee as attorney-in-fact, with respect to
any such actions Hyatt Gaming has failed timely to take, to
(provided that the holders of a majority in aggregate principal
amount of the Notes shall so direct in accordance with the terms
of the Indenture) demand, xxx for, collect and receive every
such payment or distribution and give acquittance therefor, and
to file and vote claims (in Proceedings or otherwise) and take
such other actions, in the Trustee's own name or otherwise, as
Hyatt Gaming shall have failed timely to take and as the Trustee
may deem necessary or advisable for the enforcement of this
Agreement. Hyatt Gaming shall duly and promptly take such action
as may be reasonably requested by the Trustee to assist in the
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collection of the Subordinated Debt for the account of any
holder of the Senior Debt, and to file appropriate proofs of
claim with respect to the Subordinated Debt and to vote the
same, and to execute and deliver to the Trustee on demand such
powers of attorney, proofs of claim, assignments of claim or
other instruments as may be reasonably requested by the Trustee
to enable the Trustee or any other holder of the Senior Debt in
accordance with this Agreement to enforce any and all claims
upon or with respect to the Subordinated Debt and to collect and
receive any and all payments or distributions which may be
payable or deliverable at any time after an Event of Default on
the Senior Debt shall occur and be continuing upon or with
respect to the Subordinated Debt. In addition, Hyatt Gaming
shall take no action (whether oral, written or otherwise) in
contravention of any action of the Trustee duly taken and
permitted hereunder; Such appointment as attorney-in-fact
pursuant to this Section 2.2(c) is irrevocable and coupled with
an interest until payment in full and complete performance of
all the Senior Debt. The Trustee may appoint a substitute
attorney-in-fact. Hyatt Gaming ratifies all actions taken by the
attorney-in-fact in accordance with this Agreement but,
nevertheless, if the Trustee requests, Hyatt Gaming 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;
(d) Should any direct or indirect payment be
made to Hyatt Gaming upon or with respect to the Subordinated
Debt after an Event of Default on the Senior Debt should occur
and be continuing and prior to the payment in full of the Senior
Debt in accordance with this Agreement, Hyatt Gaming will
forthwith deliver the same to the Trustee in precisely the form
received (together with for the endorsement or assignment of
Hyatt Gaming where necessary) for application on the Senior
Debt. Until so delivered, any such payment or distribution shall
be held in trust by Hyatt Gaming as property of the holders of
the Senior Debt.
2.3 Permitted Payments. Subject to the provisions of this
Agreement including, without limitation, Section 4.1 and 5(b), the Company may
pay to, and Hyatt Gaming may accept payment of, amounts due under the
Subordinated Loan Agreement. The Company and Hyatt Gaming shall not change,
alter, amend, waive or otherwise modify the Subordinated Loan Agreement without
the prior written consent of the holders of a majority in aggregate principal
amount of the Notes then outstanding except as would not adversely affect the
holders of Notes.
3. Priority of Liens.
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3.1 Except for the Hyatt Gaming First Lien, any Lien of Hyatt
Gaming on any assets or property of the Company or any proceeds or revenues
therefrom which Hyatt Gaming may have at any time as security for any
Subordinated Debt shall be, and hereby is, subordinated and inferior in every
respect to all Liens, security interests, or encumbrances now or hereafter
granted to the Trustee by the Company or by law, whether now existing or
hereafter acquired or arising, that the Trustee now has or hereafter acquires as
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security for the Senior Debt. The priorities specified herein are applicable
irrespective of (i) the time, manner or order of attachment or perfection, or
lack of perfection, of any security interests or liens granted by the Company,
(ii) the time, manner or order of filing of, or any failure to file, financing
statements or other instruments, (iii) whether any Collateral is in the
possession of the Trustee or Hyatt Gaming or any of their respective agents or
representatives or (iv) any provision of the Uniform Commercial Code or any
other applicable law.
3.2 Following an Event of Default under the Senior Debt which
has occurred and is continuing, the Trustee may, at its option, take any action
to foreclose or realize upon or enforce any of its rights with respect to the
Collateral without the prior consent of Hyatt Gaming; provided that upon the
foreclosure or realization on or enforcement of rights against the Collateral by
the Trustee, the proceeds from the disposition of the Collateral (after
deducting the expenses of the sale or other disposition) shall be applied first
to the payment in full in cash of the Senior Debt and then to the payment of the
Subordinated Debt in accordance with Section 2 hereof. Hyatt Gaming hereby
agrees that any such foreclosure, realization or enforcement of so much of the
Collateral for the Senior Debt as is necessary to satisfy in full in cash all of
the Senior Debt shall be free and clear of any security interest granted to
Hyatt Gaming. Hyatt Gaming retains all of its rights as a junior secured
creditor to participate in any foreclosure proceedings or realization or
enforcement of rights against the Collateral in which the Trustee is
participating and to protect its interests with respect to the surplus, if any,
arising from any such disposition of the Collateral for the Senior Debt and
otherwise with respect to its position as a junior secured creditor. Hyatt
Gaming shall cooperate with the Trustee in any such foreclosure, realization,
enforcement or disposition, and upon the Trustee's request, Hyatt Gaming shall
execute and deliver any releases (including execution of termination and partial
release statements) or other documents and agreements that the Trustee in its
reasonable discretion deems necessary to dispose of the Collateral for the
Senior Debt, subject to Hyatt Gaming's right in any surplus or otherwise as a
junior secured creditor.
3.3 Upon request, the Trustee shall render accountings to Hyatt
Gaming giving effect to the application of proceeds of the Collateral as
provided herein.
3.4 The Trustee shall give to Hyatt Gaming copies of any notice
of foreclosure or other enforcement or collection action sent to the Company.
3.5 If the Senior Debt is indefeasibly paid in full in cash and
the Trustee thereafter acquires possession of any Collateral or receives any
proceeds of the Collateral, the Trustee shall promptly deliver such Collateral
and proceeds to Hyatt Gaming, unless it is otherwise required to deliver the
Collateral and proceeds according to applicable law, and the Company hereby
consents to such payment by the Trustee.
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3.6 Subject to Section 4 hereof, in the event the Hyatt Gaming
First Lien Debt exceeds $0, the Company and the Trustee agree that:
(a) Nothing herein shall restrict Hyatt Gaming's
rights to take any actions with respect to the Hyatt Gaming
First Lien or otherwise exercise its rights under the Hyatt
Gaming Accounts Security Agreement with respect to the Hyatt
Gaming First Lien Debt.
(b) The Company and the Trustee shall not
hinder, obstruct or interfere with any such action or exercise
of rights by Hyatt Gaming referred to in paragraph (a) of this
Section 3.6.
(c) The Company and the Trustee shall cooperate
with Hyatt Gaming in connection with any such action or exercise
of rights by Hyatt Gaming referred to in paragraph (a) of this
Section 3.6.
(d) The Trustee's Lien on the Hyatt Gaming
Accounts shall be junior and subordinate to the Hyatt Gaming
First Lien.
(e) The Hyatt Gaming First Lien shall not be
impaired if any of the following events shall occur (provided
that nothing in this Section 3.6(e) shall be construed to permit
any such event prohibited by the Subordinated Loan Agreement,
the Hyatt Gaming Note or the Hyatt Gaming Accounts Security
Agreement, or any other agreement, instrument or document
relating to the Hyatt Gaming First Lien Debt, as applicable):
(i) The time for the Company's
performance of, or compliance with, any of its
agreements contained in the Subordinated Loan
Agreement, the Hyatt Gaming Note, or the Hyatt
Gaming Accounts Security Agreement, or any other
agreement, instrument or document relating to
the Hyatt Gaming First Lien Debt, may be
modified or extended or such performance or
compliance may be waived (other than
modifications or extensions that adversely
affect the holders of Senior Debt or are not
permitted by the Indenture);
(ii) Hyatt Gaming may exercise
or refrain from exercising any rights under the
Subordinated Loan Agreement, the Hyatt Gaming
Note, or the Hyatt Gaming Accounts Security
Agreement, or any other agreement, instrument or
document relating to the Hyatt Gaming First Lien
Debt; and
(iii) The Hyatt Gaming Accounts
Security Agreement may be revised, amended or
otherwise modified for the purpose of adding or
changing any provisions thereof, or changing in
any manner the rights of Hyatt Gaming (other
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than revisions, amendments or modifications that
adversely affect the holders of Senior Debt or
are not permitted by the Indenture).
(f) Should any direct or indirect payment or
distribution be made to the Trustee from the Hyatt Gaming
Accounts, the Trustee shall forthwith deliver the same to the
Hyatt Gaming Accounts, and until so delivered, any such payment
or distribution shall be held in trust by the Trustee as
property of the Hyatt Gaming Accounts.
(g) Any Lien of the Trustee with respect to the
Hyatt Gaming Accounts shall be, and hereby is, subordinated and
inferior in every respect to the Hyatt Gaming First Lien. The
priorities specified herein are applicable irrespective of (i)
the time, manner or order of attachment or perfection, or lack
of perfection, of any security interests or liens granted by the
Company with respect to the Hyatt Gaming Accounts, (ii) the
time, manner or order of filing of, or any failure to file,
financing statements or other instruments with respect to the
Hyatt Gaming Accounts, (iii) whether any funds from the Hyatt
Gaming Disbursement Account are in the possession of the Trustee
or Hyatt Gaming or any of their respective agents or
representatives or (iv) any provision of the Uniform Commercial
Code or any other applicable law.
(h) Following an Event of Default under the
Subordinated Loan Agreement which has occurred and is continuing
after the expiration of any applicable Hold-off Period has
expired, upon Hyatt Gaming's written request, the Trustee shall
execute and deliver any releases (including execution of
termination and partial release statements) or other documents
and agreements that Hyatt Gaming in its reasonable discretion
deems necessary to dispose of the funds in the Hyatt Gaming
Accounts for application to the Hyatt Gaming First Lien Debt,
subject to the Trustee's right in any surplus or otherwise as a
junior secured creditor with respect to the Hyatt Gaming
Accounts.
(i) Until Hyatt Gaming has received payment in
full in cash of the Hyatt Gaming First Lien Debt, the Trustee
agrees that the Trustee will not assert or seek to enforce
against the Company any interest of the Trustee in the Hyatt
Gaming Accounts for any portion of the Senior Debt, subject to
the Trustee's right to participate in any foreclosure
proceedings or realization or enforcement of rights against the
Hyatt Gaming Accounts in which Hyatt Gaming is participating and
to protect its interests with respect to any surplus and
otherwise with respect to its position as a junior secured
creditor with respect to the Hyatt Gaming Accounts.
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(j) Upon request, Hyatt Gaming shall render an
accounting to the Trustee giving effect to the application of
proceeds of the Hyatt Gaming Accounts as provided herein.
(k) Hyatt Gaming shall give to the Trustee
copies of any notice of foreclosure or other enforcement or
collection action sent to the Company pursuant to the Hyatt
Gaming Accounts Security Agreement.
(l) No right of Hyatt Gaming to enforce the
subordination of the Senior Debt to the Hyatt Gaming First Lien
shall be impaired by any act or failure to act by the Company or
by its failure to comply with this Agreement.
(m) Following an Event of Default under the
Subordinated Loan Agreement which has occurred and is continuing
after the expiration of any applicable Hold-off Period, the
Trustee shall duly and promptly take such action as may be
reasonably requested by Hyatt Gaming to assist in the collection
of the Hyatt Gaming First Lien Debt for the account of Hyatt
Gaming, and to file appropriate proofs of claim with respect to
the Hyatt Gaming First Lien Debt to vote the same, and to
execute and deliver to Hyatt Gaming on demand such proofs of
claim, assignments of claim or other instruments as may be
reasonably requested by Hyatt Gaming to enable Hyatt Gaming to
enforce any and all claims upon or with respect to the Hyatt
Gaming First Lien Debt and to collect and receive any and all
payments or distributions which may be payable or deliverable
with respect to the Hyatt Gaming First Lien Debt. Hyatt Gaming
shall be responsible for any fees and expenses reasonably
incurred by the Trustee in following such directions or taking
such actions as requested by Hyatt Gaming; provided that the
Trustee shall give Hyatt Gaming prior written notice to the
extent any such costs and expenses may exceed One Thousand
Dollars ($1,000). In addition, the Trustee shall take no action
(whether oral, written or otherwise) in contravention of any
action of Hyatt Gaming duly taken and permitted hereunder with
respect to the Hyatt Gaming First Lien Debt.
(n) Following an Event of Default under the
Subordinated Loan Agreement, but subject to the provisions of
Section 4 of this Agreement, Hyatt Gaming may, at its option,
take any action to foreclose or realize upon or enforce any of
its rights with respect to the Hyatt Gaming First Lien upon five
(5) day's notice to the Trustee (but without the prior consent
of the Trustee); provided that upon the foreclosure or
realization on or enforcement of rights against the Hyatt Gaming
First Lien (after deducting the expenses of the sale or other
disposition) shall be applied first to the payment in full in
cash of the Hyatt Gaming First Lien Debt and then to the payment
of the Senior Debt. The Trustee retains all of its rights as a
junior secured creditor to (provided that the holders of a
majority in aggregate principal amount of the Notes shall so
direct in accordance with the terms of the Indenture)
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participate in any foreclosure proceedings or realization or
enforcement of rights against the Hyatt Gaming Accounts in which
the Trustee is participating and to protect its interests with
respect to the surplus, if any, arising from any such
disposition of the Hyatt Gaming Accounts and otherwise with
respect to its position as a junior secured creditor with
respect to the Hyatt Gaming Accounts. Subject to the provisions
of Section 4 of this Agreement, the Trustee shall cooperate with
the Hyatt Gaming in any such foreclosure, realization,
enforcement or disposition with respect to the Hyatt Gaming
Accounts, and upon the Hyatt Gaming's request, the Trustee shall
execute and deliver any releases (including execution of
termination and partial release statements) or other documents
and agreements that Hyatt Gaming in its reasonable discretion
deems necessary to dispose of the Hyatt Gaming Accounts, subject
to the Trustee's right in any surplus or otherwise as a junior
secured creditor with respect to the Hyatt Gaming Accounts.
(o) The Trustee hereby waives, and agrees not to
assert any right, now or hereafter existing, to require Hyatt
Gaming to proceed against or exhaust the Hyatt Gaming Accounts
or to marshal any assets in favor of the Trustee or any other
holder of any Senior Debt prior to proceeding against the Hyatt
Gaming Accounts.
3.7 Notwithstanding anything to the contrary contained in this
Agreement or any Senior Collateral Document or Subordinated Collateral Document,
to the extent the Trustee shall receive any proceeds from the exercise of its
remedies with respect to the Advance Disbursement Account, the Trustee agrees
promptly to distribute any such proceeds to the holders of the Notes and to
Hyatt Gaming, pro rata according to the amounts funded into such Advance
Disbursement Account by Hyatt Gaming from the Hyatt Gaming Construction
Disbursement Account and by the Trustee from the Trustee Construction
Disbursement Account, respectively.
3.8 Notwithstanding anything to the contrary contained in this
Agreement or any Senior Collateral Document or Subordinated Collateral Document,
to the extent the Trustee shall receive any proceeds from the exercise of its
remedies with respect to the Trust Account No. 00000000, the Trustee agrees
promptly to distribute any such proceeds to the holders of the Notes and to
Hyatt Gaming, pro rata according to the amounts funded into such Trust Account
No. 00000000.
4. Defaults; Hold-off Period; Right to Cure.
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4.1 In the event that any Default or Event of Default shall
occur and be continuing with respect to any Senior Debt, or if any payment of
Subordinated Debt would create a Default or Event of Default, unless and until
all Senior Debt shall have been indefeasibly paid in full in cash, the right of
Hyatt Gaming to receive any payments or other distributions with respect to
Subordinated Debt shall be suspended during the continuance of such Default or
Event of Default and until such payment or other distribution would no longer
constitute an Event of Default. Hyatt Gaming covenants that upon the occurrence
of any default under the Subordinated Transaction Documents, it shall not take
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any action to accelerate the Subordinated Debt or commence any collection action
against the Company or take any action to foreclose or enforce its rights
against or realize upon the Collateral (including any set off or offset rights
or any rights under bankers' liens) unless such default includes the failure to
pay any principal due and payable with respect to the Subordinated Debt until
the first to occur of (a) such Hyatt Gaming Default exists uncured for a period
of 360 consecutive days or (b) the Trustee, the Company or any other party
(other than Hyatt Gaming or any of its Affiliates) shall initiate a Proceeding
or the Trustee shall initiate foreclosure proceedings or realization or
enforcement rights against any Collateral (the earlier of each such period
described in (a) or (b), the "Hold-off Period"). In any exercise of rights after
the Hold-off Period, Hyatt Gaming may act to protect its interest as a junior
secured creditor.
4.2 The Trustee may, at the direction of a majority of the
Noteholders and not from its own funds, at any time during a Hold-off Period
elect to cure a Hyatt Gaming Default by paying to Hyatt Gaming all amounts
necessary to cure such default, and Hyatt Gaming shall accept such payments in
satisfaction of such Hyatt Gaming Default. The Trustee shall be subrogated to
the rights of Hyatt Gaming with respect to the amount of such payments in
accordance with the provisions of Section 9 hereof.
4.3 Notwithstanding the provisions of this Section 4, if Hyatt
Gaming shall receive, while any Event of Default under the Senior Debt has
occurred and is continuing, any payment or distribution of any kind with respect
to Subordinated Debt (whether from any Collateral or otherwise), such payment or
distribution shall be received in trust for, and shall be delivered to the
Trustee promptly in precisely the form received (except for the endorsement or
assignment of Hyatt Gaming where necessary) for application on the Senior Debt,
whether then due or not due. Until so delivered, the payment or distribution
shall be held in trust by Hyatt Gaming as property of the holders of Senior
Debt.
4.4 If the Trustee delivers to the Company a notice of Default
with respect to which the Company has an opportunity to cure, the Trustee shall
concurrently deliver a copy of such notice to Hyatt Gaming. Hyatt Gaming shall
have the right (but shall not be obligated) to cure the Default prior to the
expiration of the applicable cure period. At any time, Hyatt Gaming may, upon
notice to the Trustee, but without any liability, discontinue curing any
Default. The principal amount of the Subordinated Debt shall be increased by the
amounts advanced by Hyatt Gaming to cure any such Default and the reasonable
fees, expenses and costs associated with any cure of a Default made by Hyatt
Gaming.
5. No Acceleration or Exercise of Remedies. So long as any Senior Debt
remains unpaid, Hyatt Gaming will not (a) cause any portion of the Subordinated
Debt to become due prior to the due date for such Subordinated Debt as set forth
in the Subordinated Loan Agreement and the Hyatt Gaming Note; (b) except to the
extent permitted in the Indenture and in accordance with the asset sale, and
excess cash flow redemption provisions set forth in the Subordinated Loan
Agreement as in effect on the date hereof, accept any payment, prepayment or
defeasance of any portion of the Subordinated Debt prior to the due date for
such Subordinated Debt as set forth in the Subordinated Loan Agreement; (c)
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accept any payment, prepayment or defeasance of any portion of the Subordinated
Debt in violation of this Agreement; (d) modify or alter in any way the
provisions of the Subordinated Loan Agreement if the effect of such is to
accelerate the payments of Subordinated Debt due thereon; or (e) except as set
forth in Sections 3.2, 3.3 and 4.1, exercise any remedies with respect to the
Subordinated Debt or any Collateral at any time securing payment or performance
thereof unless and until, in each such case, all of the Senior Debt shall have
been indefeasibly paid in full in cash, or the Trustee shall have otherwise
consented in writing; provided, however, that the foregoing shall not limit
Hyatt Gaming's right to seek injunctive relief or specific performance of the
covenants set forth in the Subordinated Loan Agreement to prevent any payment to
the Company or its Affiliates or other transactions between the Company and its
Affiliates or to participate in any Proceeding or realization or enforcement of
rights against the Collateral in which the Trustee is participating and to
protect its interest as a junior secured creditor. Except as and to the extent
provided hereinafter, Hyatt Gaming will not ask, demand, xxx for, take or
receive from the Company, by set-off or in any other manner, direct or indirect
payment (whether in cash or property), of the whole or any part of the
Subordinated Debt or any transfer of any property in payment of or as security
therefor, so long as there exists an Event of Default under the Indenture.
6. Bankruptcy. Until the Senior Debt shall have been indefeasibly paid
in full in cash, Hyatt Gaming will not, without the prior consent of the
Trustee, commence, or join with any other person in commencing, any Proceeding
against any Person with respect to the Subordinated Debt under any bankruptcy,
reorganization, readjustment of debt, dissolution, receivership, liquidation or
insolvency law or statute now or hereafter in effect in any jurisdiction but,
subject to the provisions of Section 2.2, Hyatt Gaming shall have the right to
appear and participate in any Proceeding initiated by the Trustee, the Borrowers
or other parties.
7. Continuing Subordination. The subordination effected by this
Agreement is a continuing subordination and may not be modified or terminated by
Hyatt Gaming or any other holder of any Subordinated Debt until all of the
Senior Debt shall have been indefeasibly paid in full in cash. At any time and
from time to time if an Event of Default under the Senior Debt has occurred and
is continuing, without consent of or notice to Hyatt Gaming or any other holder
of Subordinated Debt, and without impairing or affecting the obligations of any
of them hereunder:
(a) The time for the Company's performance of, or
compliance with, any of its agreements contained in the Indenture,
the Notes or the other Senior Transaction Documents, or any other
agreement, instrument or document relating to the Senior Debt, may
be modified or extended or such performance or compliance may be
waived;
(b) The Trustee may exercise or refrain from
exercising any rights under the Indenture, the Notes or the other
Senior Transaction Documents, or any other agreement, instrument or
document relating to the Senior Debt;
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(c) Subject to Section 4.3 of the Subordinated Loan
Agreement, the Indenture, the Notes or the other Senior Transaction
Documents, or any other agreement, instrument or document relating
to the Senior Debt, may otherwise be revised, amended or otherwise
modified for the purpose of adding or changing any provisions
thereof, or changing in any manner the rights of the Trustee or the
Company;
(d) Payment of the Senior Debt or any portion thereof
may be extended or refunded or any notes evidencing such Senior
Debt may be renewed in whole or in part;
(e) The maturity of the Senior Debt may be
accelerated, and any Collateral or any other rights of the Trustee
may be exchanged, sold, surrendered, released or otherwise dealt
with in accordance with the terms of any present or future
agreement with the Company and any other agreement of subordination
(and the debt covered thereby) may be surrendered, released or
discharged, or the terms thereof modified or otherwise dealt with
in any manner; and
(f) Any person liable in any manner for payment of the
Senior Debt may be released by holders of Senior Debt.
8. Waivers. Hyatt Gaming hereby waives, and agrees not to assert (a)
any right, now or hereafter existing, to require the Trustee to proceed against
or exhaust any Collateral at any time securing the Senior Debt, or to marshal
any assets in favor of Hyatt Gaming or any other holder of any Subordinated
Debt; (b) any notice of the incurrence of Senior Debt, it being understood that
advances may be made under the Indenture, or any other agreement, document or
instrument now or hereafter relating to the Senior Debt, without notice to or
authorization of Hyatt Gaming.
9. Subrogation. Except with respect to the Hyatt Gaming First Lien,
Hyatt Gaming hereby subordinates all rights of subrogation to the rights of the
holders of Senior Debt to receive payments or distributions, and any rights of
subrogation to any Collateral for the Senior Debt, until the Senior Debt shall
have been indefeasibly paid in full in cash. Upon such payment in full, Hyatt
Gaming shall be subrogated to all rights of the holders of Senior Debt.
10. Subordination Not Impaired by the Company. No right of any holder
of Senior Debt to enforce the subordination of the Subordinated Debt shall be
impaired by any act or failure to act by the Company or by its failure to comply
with this Agreement.
11. No Third Party Beneficiaries. This Agreement is not intended to
give or confer any rights to any Person other than the holders of the Senior
Debt. No other party, including the Company, is intended to be a third party
beneficiary of this Agreement.
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12. Legend; Further Assurances.
--------------------------
(a) The Company, Hyatt Gaming and the Trustee shall
cause each note or other instrument which now or hereafter
evidences all or any portion of the Subordinated Debt or the
Senior Debt to be conspicuously marked with the following
legend:
"This instrument is subject to the terms of a
Intercreditor Subordination and Collateral Agreement
dated as of March 14, 2000, between SunTrust Bank, as
trustee, Hyatt Gaming Management, Inc. and Windsor
Woodmont Black Hawk Resort Corp. (as amended in
accordance with its terms) which is incorporated
herein by reference. Notwithstanding any statement to
the contrary contained in this instrument, no payment
on account of the obligations hereunder, whether of
principal or interest or otherwise, shall be made,
paid, received or accepted except in accordance with
the express terms of the Intercreditor Subordination
and Collateral Agreement."
Upon request, the Company, Hyatt Gaming and the Trustee shall execute
all documents and instruments reasonably necessary to evidence or carry out the
provisions of this Agreement.
13. No Impairment of the Company's Obligations. Nothing contained in
this Agreement shall impair, as between the Company and the Trustee or Hyatt
Gaming, the obligations of the Company, which are unconditional and absolute, to
pay the Senior Debt, the Subordinated Debt and the Hyatt Gaming First Lien Debt
as and when all or any portion thereof shall become due and payable in
accordance with its terms or prevent the Trustee or Hyatt Gaming (subject to the
terms hereof) from exercising all of their respective rights, powers and
remedies provided by agreement, applicable law or otherwise.
14. Duration; Subordinated Transaction Documents Amendment. This
Agreement is of a continuing nature, and it shall continue in force so long as
any portion of the Subordinated Debt or Hyatt Gaming First Lien Debt remains
unpaid. As between Hyatt Gaming and the Trustee, Hyatt Gaming may not, without
the prior written consent of the Trustee or the holders of a majority of the
Notes then outstanding, amend, modify, extend or renew the terms of the
Subordinated Transaction Documents and the Subordinated Debt if any such change
would (i) increase the aggregate principal amount of the indebtedness thereunder
in excess of $7,500,000 outstanding at any one time (including the face amount
of all undrawn letters of credit), (ii) increase the interest rate or rates per
annum, (iii) increase the fees payable with respect to such indebtedness, (iv)
change any principal or interest payment dates, or (v) otherwise adversely
affect the Senior Debt.
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15. Representations and Warranties.
------------------------------
15.1 Hyatt Gaming hereby represents and warrants that (a) the
execution and delivery of this Agreement and the performance by Hyatt Gaming of
its obligations hereunder have received all necessary approvals and do not and
will not contravene or conflict with any provision of law or of any indenture,
instrument or other agreement to which Hyatt Gaming is a party or by which it or
its property may be bound or affected or result in or require the creation or
imposition of any mortgage, Lien, pledge, security interest, charge or other
encumbrance in, upon or of any of its properties or assets under any such
indenture, instrument or other agreement, (b) Hyatt Gaming has full power,
authority and legal right to make and perform this Agreement, (c) Hyatt Gaming
has not assigned or transferred any indebtedness owing by the Company or any of
the Collateral for the Subordinated Debt and that Hyatt Gaming will not assign
or transfer same, (d) this Agreement is the legal, valid and binding obligation
of Hyatt Gaming, enforceable against Hyatt Gaming in accordance with its terms,
and (e) the Subordinated Debt is not subject to any other subordination
agreement.
15.2 The Company hereby represents and warrants that (a) the
execution and delivery of this Agreement and the performance by the Company of
its obligations hereunder have received all necessary approvals and do not and
will not contravene or conflict with any provision of law or of any indenture,
instrument or other agreement to which the Company is a party or by which it or
its property may be bound or affected or result in or require the creation or
imposition of any mortgage, Lien, pledge, security interest, charge or other
encumbrance in, upon or of any of its properties or assets under any such
indenture, instrument or other agreement, (b) the Company has full power,
authority and legal right to make and perform this Agreement, (c) this Agreement
is the legal, valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms, (d) the Subordinated Debt is not
subject to any other subordination agreement, and (e) the Hyatt Gaming First
Lien Debt is not subject to any other subordination agreement.
15.3 The Trustee hereby represents and warrants that (a) the
execution and delivery of this Agreement and the performance by the Trustee of
its obligations hereunder have received all necessary approvals and do not and
will not contravene or conflict with any provision of law or of any indenture,
instrument or other agreement to which the Trustee is a party or by which it or
its property may be bound or affected or result in or require the creation or
imposition of any mortgage, Lien, pledge, security interest, charge or other
encumbrance in, upon or of any of its properties or assets under any such
indenture, instrument or other agreement, (b) the Trustee has full power,
authority and legal right to make and perform this Agreement, (c) the Trustee
has not assigned or transferred any indebtedness owing by the Company or any of
the Collateral for the Senior Debt and that the Trustee will not assign or
transfer same, and (d) this Agreement is the legal, valid and binding obligation
of the Trustee, enforceable against the Trustee in accordance with its terms.
16. No Waiver. No failure on the part of the Trustee or Hyatt Gaming to
exercise, no delay in exercising, and no course of dealing with respect to, any
right or remedy hereunder will operate as a waiver thereof; nor will any single
15
3
or partial exercise of any right or remedy hereunder preclude any other or
further exercise thereof or the exercise of any other right or remedy. This
Agreement may not be amended or modified except by written agreement of the
Trustee, Hyatt Gaming, and the Company.
17. Successors and Assigns. This Agreement, and the terms, covenants
and conditions hereof, shall be binding upon and inure to the benefit of the
parties hereto, the holders of Notes and their respective successors and
assigns; provided that this Agreement may not be assigned to any party other
than successors or assigns of the holders of the Notes or the holder of the
Hyatt Gaming Note.
18. Order of Precedence. Notwithstanding anything herein to the
contrary, if there is a conflict between this Agreement and the Subordination,
Non-Disturbance and Attornment Agreement dated as of even date herewith by and
between the Trustee and Hyatt Gaming (the "Other Agreement"), this Agreement
shall control with respect to matters relating to the Subordinated Debt, the
Subordinated Transaction Documents and the Collateral, and the Other Agreement
shall control with respect to matters relating to the Subordinated Obligations,
the Unsubordinated Obligations and the Management Agreement, as such terms are
defined in the Other Agreement.
19. GOVERNING LAW. THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH
AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO
CHOICE OF LAW PRINCIPLES.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
21. Severability. The invalidity, illegality or unenforceability in any
jurisdiction of any provision in or obligation under this Agreement shall not
affect or impair the validity, legality or enforceability of the remaining
provisions or obligations under this Agreement or of such provision or
obligation in any other jurisdiction.
22. Trustee's Duties. The Trustee's duties hereunder are governed by
the Indenture. The Trustee will be governed in its actions hereunder by
direction of a majority of the holders of the Senior Notes.
* * * * *
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IN WITNESS WHEREOF, this Intercreditor Subordination and Collateral
Agreement has been duly executed as of the day and year first above written.
SUNTRUST BANK,
a Georgia banking corporation
By: /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
-----------------------------
Title: First Vice Presedent
-----------------------------
HYATT GAMING MANAGEMENT, INC.,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------
Title: Authorized Signatory
-----------------------------
WINDSOR WOODMONT BLACK HAWK
RESORT CORP.,
a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Executive Vice President
-----------------------------
[Signature Page to Intercreditor Subordination and Collateral Agreement]
