Exhibit 10.13
Recording at the Request of and
when Recorded Mail Original to:
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Xxxxxx & Xxxxxxx
Sears Tower Suite 5800
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxx
HYATT GAMING DEED OF TRUST TO PUBLIC TRUSTEE,
SECURITY AGREEMENT, FIXTURE FILING AND
ASSIGNMENT OF RENTS, LEASES
AND LEASEHOLD INTERESTS
(XXXXXX COUNTY, COLORADO)
TRUSTOR:
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
TRUSTEE:
PUBLIC TRUSTEE OF THE COUNTY OF XXXXXX, COLORADO
BENEFICIARY:
HYATT GAMING MANAGEMENT, INC.
PROPERTY ADDRESS:
Xxxxxxx Street and Highway 119
Black Hawk, Colorado
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TABLE OF CONTENTS
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Page
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ARTICLE 1. GRANT OF HYATT GAMING DEED OF TRUST..............................2
1.1 Grant of Hyatt Gaming Deed of Trust..........................2
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1.2 Status of Title; Defense of Actions and Costs................8
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1.3 Obligations Secured..........................................8
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1.4 After-Acquired Property.....................................10
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1.5 Security Agreement; Fixture Filing..........................10
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1.6 Second Lien.................................................11
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ARTICLE 2. COVENANTS CONCERNING THE TRUST PROPERTY.........................11
2.1 Taxes and Governmental Impositions..........................11
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2.2 Mechanic's and Other Liens; Subrogation.....................13
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2.3 Utilities...................................................13
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2.4 Insurance...................................................14
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2.5 Care of the Trust Property..................................14
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2.6 Future Tenant Leases........................................15
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2.7 Further Encumbrance.........................................16
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2.8 Partial Releases of Trust Property..........................17
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ARTICLE 3. ASSIGNMENT OF LEASES AND RENTS..................................18
3.1 Assignment of Leases and Rent...............................18
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3.2 Trustor's Limited License...................................18
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3.3 Limitation..................................................18
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3.4 Performance by Trustor......................................19
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3.5 No Merger of Leases.........................................19
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3.6 Remedies....................................................19
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3.7 Application of Income.......................................20
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3.8 Term........................................................21
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3.9 Actions of Trustee..........................................21
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ARTICLE 4. DEFAULTS AND REMEDIES...........................................21
4.1 Events of Default...........................................21
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4.2 Performance of Defaulted Acts...............................21
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4.3 Remedies....................................................21
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4.4 Foreclosure.................................................23
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4.5 Rescission of Notice of Default.............................24
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4.6 Appointment of Receiver.....................................24
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4.7 Remedies Not Exclusive; Waiver..............................24
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4.8 Casino......................................................25
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4.9 Multiple Collateral.........................................26
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4.10 Extensions and Partial Payments.............................27
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4.11 Protective Advances.........................................27
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4.12 Appointment as Attorney-in-Fact.............................28
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ARTICLE 5. GENERAL PROVISIONS..............................................28
5.1 Extension; Release..........................................28
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5.2 Trustor.....................................................29
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5.3 Additional Documents........................................29
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5.4 Statute of Limitations......................................29
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5.5 Severability................................................29
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5.6 Interaction with Subordinated Loan Agreement................30
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5.7 Other Collateral............................................30
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5.8 Notices.....................................................30
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5.9 No Waiver of Remedies.......................................30
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5.10 Trustee's Powers............................................31
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5.11 Beneficiary's Powers........................................31
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5.12 Additional Security.........................................31
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5.13 Captions....................................................31
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5.14 Trust Irrevocable; No Offset................................31
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5.15 Corrections.................................................31
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5.16 Attorneys' Fees.............................................32
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5.17 Acceptance by Trustee.......................................32
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5.18 Authorization to Rely.......................................32
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5.19 GOVERNING LAW...............................................32
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5.20 Time of Essence.............................................32
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5.21 Future Advances.............................................32
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5.22 Actions by Beneficiary to Preserve..........................32
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5.23 Reimbursement...............................................33
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5.24 Usury Savings Clause........................................33
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5.25 Jurisdiction and Venue......................................33
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5.26 Waiver of Jury Trial........................................33
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5.27 Waiver of Homestead and Other Exemptions....................33
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5.28 Construction Deed of Trust..................................34
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5.29 Gaming Laws.................................................34
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5.30 Entire Agreement; Amendments................................34
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Recording at the Request of and
when Recorded Mail Original to:
-------------------------------
Xxxxxx & Xxxxxxx
Sears Tower Suite 5800
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxx
HYATT GAMING DEED OF TRUST TO PUBLIC TRUSTEE,
SECURITY AGREEMENT, FIXTURE FILING AND
ASSIGNMENT OF RENTS, LEASES AND LEASEHOLD INTERESTS
(XXXXXX COUNTY, COLORADO)
-------------------------
THIS HYATT GAMING DEED OF TRUST TO PUBLIC TRUSTEE, SECURITY AGREEMENT,
FIXTURE FILING AND ASSIGNMENT OF RENTS, LEASES AND LEASEHOLD INTERESTS (as the
same may be amended, supplemented or otherwise modified from time to time, this
"Hyatt Gaming Deed of Trust") is made and entered into as of March 14, 2000, by
WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation (the
"Company"), whose address is 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxx 00000 and whose
federal taxation identification number is 00-000-0000 ("Trustor"), to the PUBLIC
TRUSTEE OF THE COUNTY OF XXXXXX, COLORADO ("Trustee"), for the benefit of HYATT
GAMING MANAGEMENT, INC., a Nevada corporation having an office at Madison Plaza
- 39th Floor, 000 Xxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, 00000, (together with
its successors and assigns, "Beneficiary").
RECITALS
A. SunTrust Bank, a Georgia banking corporation, as trustee (together with
its successors and assigns in such capacity, the "Indenture Trustee"), and
Trustor are the parties to that certain Indenture dated as of March 14, 2000 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Indenture"). Trustor is issuing (i) its 13% Series A First
Mortgage Notes due 2005 (such notes, together with any notes issued in
replacement thereof or in exchange therefor, the "Series A Notes"), and (ii) its
13% Series B First Mortgage Noes due 2005 (such notes, together with any notes
issued in replacement thereof or in exchange therefor, the "Series B Notes", and
together with the Series A Notes, the "Original Notes"), in the original
aggregate principal amount of $100,000,000 and pursuant to which Trustor 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 Subordinated Loan
Agreement.
B. The Indenture requires that the obligations of Trustor under the Notes,
the Indenture and the other documents executed in connection therewith be
secured by liens and security interests covering certain property of Trustor. In
connection therewith, Trustor executed and delivered a certain Deed of Trust to
Public Trustee, Fixture Filing and Assignment of Rents, Leases and Leasehold
Interests in favor of the Public Trustee of the County of Xxxxxx, Colorado, as
Trustee (as the same may be amended, restated, supplemented or otherwise
modified from time to time, the "First Deed of Trust") of even date herewith.
C. Beneficiary and Trustee are parties to that certain Subordinated Loan
Agreement, dated as of March 14, 2000 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Subordinated Loan
Agreement"), pursuant to which Beneficiary is loaning Trustor the principal
amount of $7,500,000 (the "Subordinated Loan"). To evidence the Subordinated
Loan, Trustor has executed and delivered to Beneficiary that certain
Subordinated Promissory Note of even date herewith, (as the same may be amended,
restated, supplemented or otherwise modified from time to time, the
"Subordinated Note"). Unless otherwise defined herein, capitalized terms used in
this Hyatt Gaming Deed of Trust shall have the meanings given such terms in
Annex A attached hereto. The Subordinated Loan Agreement, the Subordinated Note,
the Collateral Documents and all other documents, agreements and instruments (in
each case as amended, restated, supplemented or otherwise modified from time to
time) now or hereafter executed and delivered in connection with the
Subordinated Loan Agreement and the transactions described therein are
collectively hereinafter referred to as the "Transaction Documents."
D. The Subordinated Loan Agreement requires that the obligations of Trustor
thereunder and under the other Transaction Documents be secured by liens and
security interests covering certain property of Trustor. In connection
therewith, Trustor is executing and delivering this Hyatt Gaming Deed of Trust.
E. Beneficiary, Trustor and the Indenture Trustee have entered into that
certain Intercreditor Subordination and Collateral Agreement (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Intercreditor Agreement") of even date herewith to establish the relative
priorities of the indebtedness owing by Trustor and of the liens securing such
indebtedness.
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, Trustor agrees as follows:
ARTICLE 1.
GRANT OF HYATT GAMING DEED OF TRUST
1.1 Grant of Hyatt Gaming Deed of Trust . Trustor does hereby irrevocably
grant, assign, bargain, convey, transfer, warrant and set over unto Trustee, IN
TRUST, WITH POWER OF SALE, under and subject to the terms and conditions hereof,
for the benefit and security of Beneficiary, all of Trustor's right, title and
interest in and to all of the following property, to the extent assignable under
applicable law, whether now owned or hereafter acquired (collectively, the
"Trust Property"):
(a) the real property described in Exhibit A attached hereto and by
this reference incorporated herein, including without limitation all air rights
with respect thereto (the "Land");
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(b) any and all buildings, constructions, facilities and fixtures,
pipelines and all other improvements now on, or hereafter located or constructed
on or in, the Land or any portion thereof (collectively, the "Improvements"),
and all fixtures, construction materials, goods (including without limitation
consumer goods, equipment and inventory) and other articles of real and personal
property which are now or hereafter affixed to, placed upon or used in
connection with the Trust Property;
(c) any and all tenements and hereditaments of whatever kind or
description and wherever situated and all of Trustor's right, title and interest
in and to any land lying within the right of way of any street, open or
proposed, adjoining the Land, any and all sidewalks, and any land lying between
the boundaries of the Land and the center line of any adjacent street, road,
avenue or alley, whether existing, vacated or proposed;
(d) any and all furniture, fittings and fixtures (whether actually or
constructively attached, and including all trade fixtures), equipment, machinery
(including without limitation any and all equipment, machinery and apparatus
used for or in connection with maintaining and operating gaming facilities,
gaming devices including slot machines, poker tables and blackjack tables,
lodging, restaurants, bars or entertainment facilities), appliances,
construction materials, personal property, supplies, tools, paintings,
sculptures, murals, art work, books, now or hereafter or from time to time
situated on, in or under the Land and/or any the Improvements or used or usable
in connection with any present or future use of the Land, whether or not affixed
to the realty, including, but not limited to, power, lighting, heating,
electrical, ventilating, air conditioning, gas, electricity, water sprinkling
and sprinkler protection, mechanical and plumbing materials, waste removal,
refrigeration, ventilation, freezing, laundry, incinerating and power equipment;
fixtures and supplies; fences and fencing; water and power systems; irrigation
systems and equipment; plumbing, lifting, cleaning, fire prevention, fire
extinguishing, ventilating, cooling and communication apparatus and equipment;
engines; boilers; furnaces; elevators; escalators; pipes; pumps; tanks;
switchboards; ducts; conduits; conveyor belts; motors; refrigeration facilities
plants; vacuum cleaning systems; awnings; shrubbery, trees, vines and other
plants of every kind and nature; ranges; furnaces; ovens; burners;
refrigerators; cabinets; dishwashers; disposals; shades; awnings; blinds;
drapes; attached floor coverings, including carpeting; screens, storm doors and
windows; rugs and carpets; draperies; beds, bureaus, chests, desks, lamps,
bookcases, tables, chairs and couches; radios and television sets; china,
glassware, silverware, tableware, linens, towels, bedding and blankets; kitchen
equipment and utensils; bars and bar fixtures; uniforms; safes, vaults, cash
registers, accounting and duplicating machines; statuary, hangings, mirrors,
decorations, pictures and ornaments;
(e) any and all contract rights of whatever nature, whenever acquired,
relating to the Trust Property described in this Section 1.1, including without
limitation architectural and engineering plans, plans and specifications,
drawings, tests, reports or studies relating to the construction and the
Improvements on or to the Land, contracts for goods or services and management
contracts, all warranties and guaranties under such contracts and all rights
under architects' contracts, construction contracts, supply contracts,
completion bonds, performance bonds and payment bonds, all accounts, general
intangibles, documents, instruments and chattel paper arising from or in
connection with such Trust Property, including all books and records in
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connection therewith, all rights, claims, suits or demands that Trustor now has
or may hereafter acquire with respect to any damage to the Trust Property;
(f) any and all rights of Trustor under any leases or other agreements
entered into by Trustor (as a "landlord," "sublandlord," "lessor," "sublessor"
or similar capacity) now in existence or hereafter arising and providing for the
use and occupancy of all or any portion of the Trust Property (each, as amended,
supplemented or otherwise modified from time to time, a "Tenant Lease" and,
collectively, the "Tenant Leases");
(g) any and all additions, betterments and improvements hereafter
acquired or constructed upon or in connection with any other property, real or
personal, now or at any time hereafter subject to the lien of this Hyatt Gaming
Deed of Trust;
(h) any and all easements, rights of way, servitudes, surface rights,
interests in land, permits, licenses, grants affecting land, and all amendments
thereof, relating or appurtenant to the Land and/or any of the Improvements,
fixtures, personal property, easements, rights, interests and/or other items
described in this Section 1.1, now or hereafter belonging or pertaining to the
Land, including without limitation all franchises, privileges, reservations,
allowances, immunities, powers, rights, ordinances, permits, licenses, grants,
leases, consents, possessory and prescriptive rights of Trustor in, on, over,
under, across and through lands, roads, highways, railroads, canals, channels,
waterways, ditches, bridges or structures, or elsewhere, together with Trustor's
interest (now owned or hereafter acquired) in all fixtures, the Improvements and
personal property now or hereafter from time to time situated on, in, over,
under, across or through, attached! to or used in connection with such Trust
Property and all rights and appurtenances incident thereto;
(i) any and all rights, powers, franchises, privileges, immunities,
permits and licenses now or hereafter owned or possessed by Trustor that now or
at any time hereafter may be necessary or useful for, or appurtenant to, the
use, operation, management, maintenance, renewal, alteration or improvement of
any of the other Trust Property;
(j) any and all income, rents, receipts, security or similar deposits,
revenues, issues, royalties, profits, earnings, products and proceeds from any
and all of the Land or any buildings or other the Improvements, now owned or
hereafter acquired (collectively, the "Rents, Issues and Profits"), together
with the right to collect and apply the same to any indebtedness secured
hereunder, subject, however, to the right hereafter given to Trustor to collect
the Rents, Issues and Profits as long as Trustor is not in default hereunder;
(k) any and all rights and estates in reversion or remainder;
(l) any and all oil and gas or other mineral rights in or pertaining to
the Land and all royalty, leasehold and other rights of Trustor pertaining
thereto, now owned or hereafter acquired;
(m) any and all monies in the possession of Beneficiary (including
without limitation retainages and deposits for taxes and insurance), and all
refundable utility, tenant, escrow and governmental fees and deposits, and all
refundable fees and deposits of every other nature, now owned or hereafter
acquired;
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(n) any and all rights to obtain water, sewer and other services from
municipalities and service districts;
(o) any and all water and water rights, ditches and ditch rights,
reservoirs and storage rights, xxxxx and well rights, springs and spring rights,
groundwater rights (whether tributary, nontributary or not-nontributary), water
contracts, water allotments, water taps, shares in ditch or reservoir companies,
and all other rights of any kind or nature in or to the use of water, which are
appurtenant to, historically used on or in connection with, or located on or
under the Land, including without limitation shares of stock evidencing the
foregoing and all deposits made with or other security given to utility
companies by Trustor with respect to the Land or any buildings or other the
Improvements, together with any and all easements, rights of way, fixtures,
personal property, contract rights, permits or decrees associated with or used
in connection with any such rights;
(p) any and all shrubbery, trees, vines, flowers, plants and
landscaping features of every kind and nature and all crops of every type and
nature, annual and perennial, now or hereafter located on, under or above the
Land, all harvested crops wherever stored and any document of title or other
document representing a storage obligation, including, but not limited to,
warehouse receipts, negotiable or nonnegotiable, which may be received for crops
in which Trustor has any right, title or interest wherever stored;
(q) any and all claims or demands relating to insurance which Trustor
now has or may hereafter acquire with respect to any Trust Property, including
without limitation all advance payments of insurance premiums made by Trustor
with respect thereto;
(r) any and all awards and payments, including without limitation
interest payments, resulting from the exercise of any right of condemnation or
eminent domain or from any other public or private taking of, injury to or
decrease in the value of, any of the Land or the Improvements, or any agreement
or conveyance in lieu of any such action;
(s) any and all goods, inventory, equipment, building and other
materials, supplies, and other tangible personal property of every nature now
owned or hereafter acquired by Trustor and used or intended for use in the
construction, development, or operation of the Land or any Improvements
(including without limitation all opened and unopened food and liquor supplies);
(t) any and all of the records and books, computer programs, tapes,
discs, software and other like records and information now or hereafter
maintained by or on behalf of Trustor in connection with the use of the Land,
the Improvements, the Tenant Leases and Rents, Issues and Profits;
(u) any and all franchise, operating and management agreements, liquor
and gaming licenses (in each case, to the full extent legally assignable),
restaurant, occupancy, hotel, motel and other licenses, permits and
authorizations relating to the operation of the Improvements;
(v) any and all deposit accounts and other bank or similar accounts of
Trustor (together with all amounts in any such accounts), monies, accounts,
accounts receivable, contract rights and general intangibles (whether now owned
or existing or hereafter created or acquired, and including proceeds thereof)
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relating in any way to, or arising in any manner from, Trustor's ownership, use,
operation, leasing, or sale of all or any part of the property, rights and
interests described in this Section 1.1 (including without limitation all
monies, rents, receipts, proceeds and compensation of every kind whatsoever
received by or on behalf of Trustor and produced from (i) the use or occupancy
of all or any part of the Improvements by the public or others, for lodging,
dwelling, office or residential purposes, (ii) gains arising from the sale or
other disposition of capital assets, including furniture, fixtures and
equipment, (iii) compensation awards, or proceeds ! in lieu thereof, (iv) all
food and beverage sales, (v) garage and parking rentals, (vi) meeting space
rental, (vii) telephone, telecopy and telex income, (viii) income from vending
machines and newsstands, (ix) recreational fees, (x) hotel rentals; and (xi)
entertainment revenues;
(w) any and all other real property acquired by Trustor after the date
hereof whether or not it is adjacent or contiguous to the Land, and is acquired
by Trustor as a continuation, completion, correction or supplement to the Land;
(x) any and all other rights and interests of every name and nature in
all property, whether real, personal or mixed, tangible or intangible, now or
hereafter owned or leased by Trustor, forming a part of or used in connection
with or relating to the Land and the construction, operation and convenience of
the Improvements (including without limitation any excavation permits and other
permits issued by governmental authorities);
(y) subject to the provisions and limitations contained in the
Subordinated Loan Agreement, any and all proceeds of any sales or other
dispositions of the property or rights described in the foregoing clauses to
this Section 1.1 or any part thereof, whether voluntary or involuntary;
provided, however, that the foregoing shall not be deemed to permit such sales,
transfers or other dispositions except as specifically permitted herein;
(z) to the extent permitted by applicable law, any and all of Trustor's
right, title, and interest in and to any and all licenses, permits, variances,
special permits, franchises, certificates, rulings, certifications, validations,
exemptions, filings, registrations, authorizations, consents, approvals,
waivers, orders, rights and agreements (including without limitation options,
option rights and contract rights) now or hereafter obtained by Trustor from any
governmental authority having or claiming jurisdiction over the Land, the FF&E,
the Project or any other element of the Trust Property or providing access
thereto, or the operation of any business on, at, or from the Land, other than
any Gaming Licenses (except for any registrations, licenses, findings of
suitability or approvals issued by the Gaming Authority or any other gaming
licenses which are non-assignable) and the Liquor License; provided that, upon
an Event of Default hereunder or under (and as defined in) the Subordinated Loan
Agreement, if Beneficiary is not qualified under the Gaming Laws (as defined
below) to hold such Gaming Licenses, then Beneficiary shall designate an
appropriately qualified third party to which an assignment of such Gaming
Licenses can be made in compliance with the Gaming Laws;
(aa) any and all monies and other property, real or personal, which may
from time to time be subjected to the lien hereof by Trustor or by anyone on its
behalf or with its consent, or which may come into the possession or be subject
to the control of Beneficiary pursuant to this Hyatt Gaming Deed of Trust or any
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Collateral Document, including without limitation any protective advances under
this Hyatt Gaming Deed of Trust;
(bb) any and all of Trustor's rights further to assign, sell, lease,
encumber or otherwise transfer or dispose of the property described in the
foregoing clauses of this Section 1.1, for debt or otherwise, or to evidence or
secure a Permitted Lien or Permitted Disposition;
(cc) any and all after-acquired property in the same categories as any
of the foregoing clauses of this Section 1.1, and all additions and/or
accessions to, and all renewals, substitutions and replacements of, any of the
foregoing, and all other things of whatsoever kind and in any way or at any time
belonging or appurtenant to, or used in connection with, any of the Trust
Property described in this Section 1.1; and
(dd) to the extent not otherwise included in the foregoing, any and all
proceeds and products of any and all of the foregoing and, to the extent
permitted by applicable law, proceeds of any and all Gaming and Liquor Licenses
even if such Gaming and Liquor Licenses are not subject to the liens granted
hereunder and all collateral security and guarantees given by any person with
respect to any of the foregoing, and in any event including without limitation
any and all (i) proceeds of any insurance, indemnity, warranty or guarantee
payable to Beneficiary or to Trustor from time to time with respect to any of
the Trust Property, (ii) payments (in any form whatsoever) made or due and
payable to Trustor from time to time in connection with any requisition,
confiscation, condemnation, seizure or forfeiture of all or any part of the
Trust Property by any governmental authority (or any person acting under color
of a governmental authority), (iii) products of the Trust Property, (iv) other
amounts from time to time paid or payable under or in connection with any of the
Trust Property, and (v) subject to the provisions and limitations contained in
the Subordinated Loan Agreement, whatever is now or hereafter receivable or
received by Trustor upon the sale, exchange, collection or other disposition of
any item of Trust Property, whether voluntary or involuntary, including without
limitation the proceeds of a Permitted Disposition.
Notwithstanding the foregoing, the Trust Property shall not include any of
the following assets (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, further, 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
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, still further, that the security interest granted herein in the Cash
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Collateral Accounts shall be subordinated to the lien of the Indenture Trustee
in such accounts to the extent, but only to the extent, set forth in the
Intercreditor Agreement.
TO HAVE AND TO HOLD the Trust Property unto Trustee, its successors and
assigns forever, FOR THE PURPOSE OF SECURING, in such order of priority as
Trustee and Beneficiary may elect, the indebtedness and obligations described in
Section 1.3 hereof.
Trustor, for itself and its successors and assigns, covenants and agrees to
and with Beneficiary that, at the time or times of the execution of and delivery
of these presents or any instrument of further assurance with respect thereto,
Trustor has good right, full power and lawful authority to assign, grant,
convey, warrant, transfer, bargain or sell its interests in the Trust Property
in the manner and form as aforesaid, and that the Trust Property is free and
clear of all Liens and encumbrances whatsoever, except the Permitted Liens, and
Trustor shall warrant and forever defend the Trust Property in the quiet and
peaceable possession of Beneficiary and its successors and assigns against all
and every Person or Persons lawfully or otherwise claiming or to claim the whole
or any part thereof, except for the Permitted Liens. Trustor agrees that any
greater title to the Trust Property hereafter acquired by Trustor during the
term hereof shall be automatically subject hereto.
1.2 Status of Title; Defense of Actions and Costs . Trustor has the right
to mortgage and convey the Trust Property to Trustee and Beneficiary and will
warrant and defend the same to Trustee and Beneficiary and their respective
successors and assigns against the lawful claims and demands of every Person or
whomsoever claiming or to claim the same. Trustor agrees to protect, preserve
and defend Trustee's and Beneficiary's interests in the Trust Property and title
thereto; to appear and defend this Hyatt Gaming Deed of Trust in any action or
proceeding affecting or purporting to affect the Trust Property, the Lien or
security interest of this Hyatt Gaming Deed of Trust thereon, or any of the
rights of Trustee or Beneficiary hereunder, and to pay all reasonable costs and
expenses incurred by Trustee or Beneficiary in or in connection with any such
action or proceeding, including reasonable attorneys' fees, whether or not any
such action or proceeding progresses to judgment and whether or not brought by
or against Trustee or Beneficiary. Trustee and Beneficiary shall be reimbursed
for any such reasonable costs and expenses in accordance with the provisions of
this Hyatt Gaming Deed of Trust and the other Transaction Documents. Trustee or
Beneficiary may, but shall not be under any obligation to, appear or intervene
in any such action or proceeding, retain counsel therein, defend the same or
otherwise take such action therein as it be advised and may settle or compromise
the same. In connection therewith Beneficiary or Trustee, as the case may be, in
that behalf and for any of such purposes, but without obligation, may expend and
advance such sums of money as it reasonably may deem necessary, and shall be
reimbursed therefor in accordance with the provisions of this Hyatt Gaming Deed
of Trust and the other Transaction Documents.
1.3 Obligations Secured . This Hyatt Gaming Deed of Trust is given for the
purpose of securing the payment and performance in full when due (whether at
stated maturity, upon redemption or required repurchase, by acceleration or
otherwise) of all obligations of every type and nature of Trustor to Trustee,
any other trustee under any other Deed of Trust or Beneficiary (including
without limitation any and all amounts which may at any time be or become due
and payable and any and all interest accruing after the maturity of the
Subordinated Note and interest accruing after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or like
8
proceeding, relating to Trustor, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding and interest, to the extent
permitted by law, on the unpaid interest), whether direct or indirect, absolute
or contingent, due or to become due, or now existing or hereafter incurred,
which may arise under, out of, or in connection with, the Subordinated Loan
Agreement, the Subordinated Note, this Hyatt Gaming Deed of Trust, the other
Collateral Documents, or any other document made, delivered or given in
connection therewith, in each case whether on account of principal, premium,
interest, fees, Liquidated Damages, indemnities, costs, expenses or otherwise
(including without limitation all fees and disbursements of counsel to Trustee
or to the Beneficiary that are required to be paid by Trustor pursuant to the
terms of the Subordinated Loan Agreement, the Subordinated Note, this Hyatt
Gaming Deed of Trust, any other Collateral Document, or any other document
entered into by Trustor, or either of them, in connection with any of the
foregoing) (the foregoing, collectively, the "Obligations"). Notwithstanding the
scope of such definition, for purposes of any provision of Title 38 of the
Colorado Revised Statutes, the only "original evidence of debt" secured by this
Hyatt Gaming Deed of Trust is the single counterpart of the Subordinated Note
which bears a legend in the following form:
The counterpart of the Subordinated Promissory Note on which this
legend appears is, for purposes of Title 38 of the Colorado Revised
Statutes, the "original evidence of debt" secured by the Deed of
Trust, as defined herein.
In no event shall Trustee require Beneficiary to produce any or all of the
Subordinated Note or other Transaction Documents, other than the single
counterpart of the Subordinated Loan Agreement referred to above, to support
Beneficiary's written request for full or partial release of this Hyatt Gaming
Deed of Trust or for the sale of the Trust Property by Trustee, and Trustor
hereby waives any defense that such single counterpart of the Subordinated Note
is not, for purposes of Title 38 of the Colorado Revised Statutes, the "original
evidence of debt" secured by this Hyatt Gaming Deed of Trust. Trustor shall pay
and perform the Obligations at the times and places and in the manner specified
in the Subordinated Loan Agreement, the Subordinated Note and the other
Transaction Documents. This Hyatt Gaming Deed of Trust shall secure unpaid
balances of all loans and other such extensions of credit made to Trustor under
the Transaction Documents, whether made pursuant to an obligation of Beneficiary
to make such loans or extensions or otherwise. Such Obligations and other
extensions of credit may or may not be evidenced by notes executed pursuant to
the Subordinated Loan Agreement. All future advances will have the same priority
as the original advance. Any agreement hereafter made by Trustor and Beneficiary
pursuant to this Hyatt Gaming Deed of Trust shall be superior to the rights of
the holder of any intervening Lien or encumbrance to the extent allowed by law.
PROVIDED, HOWEVER, that if the principal and interest and all
other sums due or to become due under the Subordinated Note shall have been
indefeasibly paid in full at the time and in the manner stipulated herein and
all other sums payable hereunder and all other indebtedness secured hereby shall
have been indefeasibly paid in full, then, in such case, the estate, right,
title and interest of Trustee and Beneficiary in the Trust Property shall cease,
and upon written notice from Beneficiary that all of the indebtedness secured
hereby has been indefeasibly paid in full, cancellation of the Subordinated Note
secured hereby, surrender of this Hyatt Gaming Deed of Trust and the
Subordinated Loan Agreement to Trustee and payment by Trustor of Trustee's fees
9
and costs, all other amounts payable to Trustee hereunder and all recording
costs, Trustee shall release this Hyatt Gaming Deed of Trust and the Trust
Property shall become wholly free of the liens, security interests, conveyances
and assignments created and evidenced hereby.
1.4 After-Acquired Property . If Trustor hereafter acquires (a) any
property that is of the kind or nature described in Section 1.1 hereof and is or
is intended to become a part thereof, or (b) an interest in any of the Trust
Property greater than the interest now held, then such property or interest
shall, immediately upon such acquisition, become subject to the lien of this
Hyatt Gaming Deed of Trust as fully and completely and with the same effect as
though now owned by Trustor and specifically described herein, without need for
the delivery and/or recording of a supplement to this Hyatt Gaming Deed of Trust
or any other instrument, all to the extent permitted by applicable law;
provided, however, Trustor shall from time to time, if requested by Beneficiary
and at Trustor's expense, execute and deliver any and all such further
assurances, conveyances and assignments thereof as Beneficiary may reasonably
require for the purpose of expressly and specifically subjecting to the lien of
this Hyatt Gaming Deed of Trust any and all such property or interest.
1.5 Security Agreement; Fixture Filing . As
additional security for the Obligations, Trustor grants to Beneficiary a
security interest in the Trust Property. This Hyatt Gaming Deed of Trust shall
also, as to any part of the Trust Property that may or might now or hereafter be
deemed to be personal property, fixtures or other property covered by Article 9
of the Colorado Uniform Commercial Code (the "Personal Property"), be deemed to
constitute a security agreement, and Trustor, as debtor, hereby grants to
Beneficiary, as secured party, a security interest therein pursuant to the
Colorado Uniform Commercial Code. To the extent that any Personal Property has
been or may be acquired with funds advanced under the Transaction Documents,
this security interest granted hereunder is a purchase money security interest.
Trustor agrees, upon request of Beneficiary, and at Trustor's expense, to
execute any supplements to this Hyatt Gaming Deed of Trust, any separate
security agreement and any financing statements and continuation statements in
order to include specifically the Personal Property or otherwise to perfect the
security interest granted hereby. Upon the occurrence and continuance of any
Event of Default, Beneficiary shall have all of the rights and remedies therein
provided or otherwise provided by law or by this Hyatt Gaming Deed of Trust,
including but not limited to the right to require Trustor to assemble the
Personal Property and make it available to Beneficiary at a place to be
designated by Beneficiary which is reasonably convenient to both parties, the
right to take possession of such Personal Property with or without demand and
with or without process of law and the right to sell and dispose of such
Personal Property and distribute the proceeds according to law. The parties
hereto agree that any requirement of reasonable notice shall be met if
Beneficiary sends such notice to Trustor at least ten (10) days prior to the
date of sale, disposition or other event giving rise to the required notice, and
that the proceeds of any disposition of any such Personal Property may be
applied by Beneficiary first to the reasonable expenses in connection therewith,
including reasonable attorneys' fees and legal expenses incurred, and then to
payment of the other Obligations. The parties hereto further agree that any sale
of the Personal Property held contemporaneously with any sale of the Land or
other Trust Property and upon the same notice as required in the Colorado
Uniform Commercial Code shall be deemed to be a public sale conducted in a
commercially reasonable manner. With respect to any Personal Property that has
become so attached to the real property covered hereby that an interest therein
arises under the real property law of the State of Colorado, this Hyatt Gaming
10
Deed of Trust shall also constitute a financing statement and a fixture filing
under Sections 4-9-313 and 4-9-402(6) of the Colorado Uniform Commercial Code.
1.6 Second Lien . Trustor, Beneficiary and Indenture Trustee have entered
into the Intercreditor Agreement to establish the relative priorities of the
Liens created by the First Deed of Trust and this Hyatt Gaming Deed of Trust,
and this Hyatt Gaming Deed of Trust is made subject to all terms and conditions
of the Intercreditor Agreement.
ARTICLE 2.
COVENANTS CONCERNING THE TRUST PROPERTY
2.1 Taxes and Governmental Impositions.
(a) Payment. Subject to Section 2.1(c), Trustor will pay, or cause to
be paid, prior to delinquency, all taxes, assessments, charges, fees (including
without limitation gaming and Liquor License fees), fines and impositions of
every nature whatsoever charged, imposed, levied or assessed or to be charged,
imposed, levied or assessed upon or against the Trust Property or any part
thereof, or upon the interest of Trustee or Beneficiary in the Trust Property,
including without limitation (i) all income taxes (excluding income taxes of
Trustee or Beneficiary), assessments and other governmental charges lawfully
levied and imposed by the United States or any state, county, municipality or
other taxing or assessing authority in respect of the Trust Property or any part
thereof, (ii) all non-governmental levies or assessments, such as maintenance
charges, owner's association dues, charges or fees, levies or charges resulting
from covenants, conditions and restrictions affecting the Trust Property or any
part thereof, and (iii) any other charge that, if unpaid, would or could become
a Lien or charge upon the Trust Property, or any part thereof (all of which are
hereinafter collectively referred to as the "Impositions").
(b) Alternative Impositions. If at any time after the date hereof there
shall be assessed or imposed (i) a tax or assessment on Trustor's interest in
the Trust Property in lieu of or in addition to the Impositions payable by
Trustor pursuant to subparagraph (a) above, or (ii) a license fee, tax or
assessment imposed on Trustee or Beneficiary and measured by or based in whole
or in part upon the amount of the outstanding Obligations secured hereby (but
excluding any state or federal income or franchise tax), then all such taxes,
assessments, or fees shall be deemed to be included within the term
"Impositions" as defined in Section 2.1(a) above, and Trustor shall pay and
discharge the same as herein provided with respect to the payment of
Impositions.
(c) Contests. Trustor shall have the right, before the occurrence of
any delinquency of any Imposition, to contest or object to the amount or
validity of any such Imposition by appropriate legal proceedings, but such right
shall not be deemed or construed in any way as relieving, modifying or extending
Trustor's covenant to pay any such Imposition at the time and in the manner
provided in Section 2.1(a) hereof, unless Trustor has given thirty (30) days'
prior written notice to Beneficiary of Trustor's intent so to contest or object
to such Imposition, and unless: (i) the legal proceedings shall operate
conclusively to prevent the sale of the Trust Property, or any part thereof, to
satisfy such Imposition prior to final determination of such proceedings and
Trustor shall furnish a good and sufficient bond, surety or cash resources in
the amount of the Imposition that is being contested, plus any interest and
penalty that may be imposed thereon and that could become a Lien against the
11
Trust Property and in a manner to stay or prevent the sale of the Trust
Property, or other security satisfactory to Beneficiary; or (ii) Trustor shall
have paid such Imposition under protest and is suing to recover any refunds
thereof. Subject to the foregoing, within thirty (30) days after the date when
an Imposition is due and payable, Trustor shall deliver to Beneficiary evidence
reasonably acceptable to Beneficiary showing the payment of such Imposition. In
the event that Trustor contests or objects to an Imposition in accordance with
the foregoing, then Trustor shall promptly and diligently proceed to resolve the
dispute concerning the Imposition in a manner not prejudicial to Beneficiary or
its rights hereunder or under the other Transaction Documents.
(d) Payment by Beneficiary. Beneficiary shall have the right to pay any
Imposition after the date such Imposition shall have become delinquent if
Trustor's failure to pay such Imposition constitutes or would constitute, with
or without the giving of notice by Beneficiary or the passage of time, an Event
of Default (unless Trustor shall be contesting such Imposition pursuant to
Section 2.1(c) hereof), and to add to the Obligations the amount so paid,
together with interest thereon from the date of such payment at the then
applicable interest rate under the Subordinated Loan Agreement and the
Subordinated Note (the "Default Rate") and nothing herein contained shall affect
such right and such remedy. Any amounts paid by Beneficiary or Trustee in
discharge of any Impositions shall be (i) a future advance hereunder and a lien
on the Trust Property secured hereby prior to any right or title to, interest
in, or claim upon the Trust Property subordinate to the lien of this Hyatt
Gaming Deed of Trust, and (ii) payable on demand.
(e) No Credit. Trustor shall not claim, demand or be entitled to
receive any credit or credits towards the satisfaction of this Hyatt Gaming Deed
of Trust or on any interest payable thereon for any taxes assessed against the
Trust Property or any part thereof, and shall not claim any deduction from the
taxable value of the Trust Property by reason of this Hyatt Gaming Deed of
Trust.
(f) Deposits for Impositions or Insurance Premiums.
(i) At any time after the occurrence of an Event of Default, upon
request by Beneficiary, Trustor shall deposit with Beneficiary or to such
account as Beneficiary may direct (1) on the first day of each month following
such request an amount equal to 1/12 of the annual Impositions and/or annual
insurance premiums (as required by Beneficiary) reasonably estimated by
Beneficiary to become due with respect to the Trust Property for the ensuing
year, and (2) thirty (30) days prior to the next due date of any Impositions or
insurance premiums, an additional amount equal to the aggregate amount of such
Impositions or insurance premiums (as applicable), less the sum of the amounts
on deposit and the amounts to be deposited pursuant to clause (1) of this
subsection (f)(i). If the amounts on deposit under this Section 2.1(f) shall
exceed the amounts required, the excess shall be credited to the subsequent
deposits to be made by Trustor. If the amounts! on deposit under this Section
2.1(f) shall be insufficient to pay such Impositions or insurance premiums (as
applicable), upon request, Trustor shall immediately deposit an amount equal to
the deficiency with Beneficiary (or to such account as Beneficiary may direct).
Except as required under applicable law, the deposits under this Section 2.1(f)
shall be for the exclusive benefit of Beneficiary and all right, title and
interest in and to such deposits shall be subject to the exclusive dominion and
control of Beneficiary. In no event will Beneficiary be liable for any interest
on any amount so deposited. Beneficiary shall have no responsibility to ensure
the adequacy of the amounts deposited hereunder. At any time Beneficiary may
notify Trustor that it need no longer make deposits under this Section 2.1(f),
12
whereupon Trustor shall cease making such deposits; provided that any such
notice shall be without prejudice to Beneficiary's right to require thereafter
that Trustor make deposits under and in accordance with this Section 2.1(f).
(ii) If deposits are made under this Section 2.1(f), Beneficiary
shall make payments of the Impositions or insurance premiums for which such
deposits are made as the same become due, but only following actual receipt by
Beneficiary of the bills therefor, which Trustor shall furnish to Beneficiary
not later than ten (10) Business Days prior to the due date thereof, and only to
the extent that the amounts on deposit with Beneficiary at the time are
sufficient to make such payments. Notwithstanding the foregoing or the fact any
amounts deposited under this Section 2.1(f) may be deposited with respect to
certain Impositions or insurance premiums, Beneficiary may use any amounts on
deposit under this Section 2.1(f) to pay any Impositions or insurance premiums
as the same become due and in whatever order as Beneficiary, in its sole
discretion, may determine.
(iii) If an Event of Default or Default has occurred is continuing,
Beneficiary shall have the right, but not the obligation, to apply the deposits
held under this Section 2.1 toward the cure of such Event of Default or Default.
2.2 Mechanic's and Other Liens; Subrogation . Trustor will not suffer
any mechanic's, laborer's, materialmen's, statutory or other Lien or any
security interest or encumbrance (including without limitation any deed of trust
or mortgage) to be created or to remain outstanding (other than Permitted Liens)
on any of the Trust Property. Trustor will promptly pay and discharge any and
all amounts which are now or hereafter become Liens against the Trust Property,
which Liens are not Permitted Liens, whether or not superior to the lien hereof
or to any assignment of rents and leases given to Beneficiary. The lien
covenants of this Section 2.2 shall survive any foreclosure and sale of the
Trust Property and any conveyance thereof by deed in lieu of foreclosure with
respect to any such Liens in existence as of the date of transfer of title. To
the extent that proceeds of the Subordinated Note and any other advances
representing the Obligations are used to pay indebtedness secured by any
outstanding Lien or prior encumbrance against the Trust Property, such proceeds
have been advanced at Trustor's request and Beneficiary shall be subrogated to
any and all rights, security interests and Liens owned by any owner or holder of
such outstanding Liens or encumbrances, irrespective of whether such Liens or
encumbrances are released, and it is expressly understood that in consideration
of the payment of such indebtedness, Trustor, with respect to the Beneficiary,
hereby waives and releases all demands and causes of action for offsets,
payments and rentals to, upon and in connection with such indebtedness.
Notwithstanding the foregoing, Trustor will not be deemed to be in default under
this Section 2.2 if and so long as Trustor (a) promptly notifies Beneficiary in
writing of Trustor's intention to contest such Lien together with a reasonably
detailed description of the Lien, (b) contests in good faith the validity or
amount of any asserted Lien and diligently prosecutes or defends an action
appropriate to obtain a binding determination of the disputed matter, and (c)
provides Beneficiary with such security as Beneficiary may in its reasonable
discretion require to protect Beneficiary against all loss, damage and expense,
including without limitation attorneys' fees, which Beneficiary might incur if
the asserted Lien is determined to be valid.
2.3 Utilities . Trustor will pay, or cause to be paid, prior to
delinquency any charges for utilities, whether public or private, with respect
to the Trust Property or any part thereof.
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2.4 Insurance.
(a) Maintenance. Trustor will obtain and maintain insurance with
respect to the Trust Property in accordance with the provisions of the
Subordinated Loan Agreement. From and after the entry of judgment of
foreclosure, all rights and powers of Beneficiary hereunder and under the
Subordinated Loan Agreement to settle or participate in the settlement of losses
under policies of insurance or to hold and disburse or otherwise control use of
insurance proceeds shall continue in full force and effect in Beneficiary as
judgment creditor or mortgagee until confirmation of sale.
(b) Proceeds. If the Trust Property is materially damaged or
destroyed, Trustor shall give prompt notice thereof to Beneficiary and all
insurance proceeds shall be paid to Trustor, subject to the terms of Section
4.5(aa) of the Subordinated Loan Agreement. Notwithstanding the foregoing
provisions of this Section 2.4(b) and the provisions of Section 4.1 hereof
relating to defaults, it shall not be an Event of Default under this Hyatt
Gaming Deed of Trust if (i) the aforementioned insurance proceeds are
unavailable to Beneficiary because they have been received by the beneficiary
under the Deed of Trust (as defined in the Recitals hereof) and (ii) said
proceeds are used to restore the Trust Property to the equivalent of its
condition immediately prior to the casualty, or to such other condition as
Beneficiary may approve in writing.
(c) Condemnation. Immediately upon obtaining knowledge of the
institution of any proceedings for the condemnation of the Trust Property or any
material portion thereof, Trustor will notify Beneficiary of the pendency of
such proceedings. All condemnation proceeds shall be applied in accordance with
the applicable provisions of the Subordinated Loan Agreement.
(d) Restoration. Restoration of any of the Trust Property after
partial or complete casualty or condemnation shall be performed in accordance
with the applicable provisions of the Subordinated Loan Agreement.
2.5 Care of the Trust Property.
(a) Preservation and Maintenance.
(i) Trustor will preserve and maintain the Trust Property in
accordance with the applicable provisions of the Subordinated Loan Agreement.
Further, Trustor shall keep all of the Trust Property in good condition and
repair and expressly agrees that it will neither permit nor commit any waste
upon the Trust Property, nor do any other act or suffer or permit any act to be
done, whereby the Lien hereof may be impaired. Trustor shall comply in all
material respects with all zoning laws, building codes, subdivision laws, gaming
and liquor laws (including without limitation the Colorado Liquor Code and the
Colorado Limited Gaming Act and their respective regulations), and other
applicable laws, and Trustor shall not become involved in conduct that would
cause either the Gaming or Liquor Licenses relating to the Trust Property to be
suspended or revoked. Trustor agrees not to initiate or acquiesce in any zoning
variance or reclassification which woul! d prohibit the use of the Trust
Property for its intended purposes. Trustor shall at all times comply in all
material respects with applicable restrictive covenants and the terms and
conditions of all other Permitted Liens relating to the Trust Property.
Notwithstanding anything above to the contrary, to the extent expressly
permitted by the Subordinated Loan Agreement, Trustor may remove or sell any
14
fixture, equipment, machinery or appliance in or on the Trust Property incident
to the replacement of such items with replacements leased or purchased by
Trustor with the proceeds of FF&E Financing.
(ii) Without granting to Trustor any right to incur
Indebtedness or Liens not expressly permitted by the Subordinated Loan
Agreement, Trustor may make alterations or construct other improvements on the
Land to the extent not prohibited by the Subordinated Loan Agreement or under
any other documents creating a Permitted Lien on the Trust Property (any of the
foregoing are called herein a "Permitted Alteration"); provided that such work
shall be performed in a good and workmanlike manner and in compliance with all
laws including without limitation the Colorado Liquor Code and the Colorado
Limited Gaming Act.
(b) Notice of Damage. If the Trust Property or any part thereof is
materially damaged by fire or any other cause, Trustor shall give prompt written
notice thereof to Beneficiary.
(c) Right to Inspect. Beneficiary or its representative is hereby
authorized, with reasonable advance notice to Trustor, to enter upon and inspect
the Trust Property at any time during normal business hours and at any other
reasonable time
2.6 Future Tenant Leases.
(a) Any future Tenant Leases permitted by the Subordinated Loan
Agreement must be subordinate to the lien of this Hyatt Gaming Deed of Trust,
unless otherwise permitted by the Subordinated Loan Agreement. Each future
Tenant Lease must contain a provision that, at Beneficiary's election, upon
notice to tenant by Beneficiary, such Tenant Lease shall become superior, in
whole or in part, to the lien of this Hyatt Gaming Deed of Trust. Further, each
future Tenant Lease of real property shall obligate the tenant thereunder to
attorney, at the option of the purchaser of the Trust Property, to any purchaser
at foreclosure or other successor owner of the Trust Property.
(b) Trustor shall furnish to Beneficiary a true and complete copy
of each Tenant Lease, and any amendment, modification, extension or renewal of
any Tenant Lease hereafter made by Trustor, within thirty (30) days after
execution of each such Tenant Lease, amendment, modification, extension, or
renewal by the parties thereto.
(c) Trustor shall, at Trustor's sole cost and expense, perform each
and every material covenant, condition, promise and obligation on the part of
the lessor to be performed pursuant to the terms of each and every Tenant Lease
existing on the date hereof or hereafter made with respect to the Trust Property
or any part or parts thereof.
(d) Trustor shall promptly furnish to Beneficiary any and all
material information which Beneficiary may request concerning the performance
and observance of all covenants, agreements and conditions contained in the
Tenant Leases by the lessor thereunder to be kept, observed and performed and
concerning the compliance with all terms and conditions of the Tenant Leases.
15
(e) In the event of any failure by Trustor to keep, observe or
perform any material covenant, agreement or condition contained in the Tenant
Leases or to comply with the terms and conditions of any Tenant Leases, any
performance, observance or compliance by Beneficiary pursuant to this Hyatt
Gaming Deed of Trust on behalf of Trustor shall not remove or waive, as between
Trustor and Beneficiary, the corresponding Default or Event of Default under the
terms of this Hyatt Gaming Deed of Trust.
(f) Any proceedings or other steps taken by Beneficiary to
foreclose this Hyatt Gaming Deed of Trust, or otherwise to protect the interests
of Beneficiary hereunder, shall not automatically operate to terminate the
rights of any present or future tenant under any Tenant Lease, notwithstanding
that such rights may be subject and subordinate to the lien of this Hyatt Gaming
Deed of Trust. The failure to make any such tenant a defendant in any such
foreclosure proceeding and to foreclose such tenant's rights will not be
asserted by Trustor or any other defendant in such foreclosure proceeding as a
defense to any proceeding instituted by or on behalf of Beneficiary to foreclose
this Hyatt Gaming Deed of Trust or otherwise protect the interests of
Beneficiary hereunder.
2.7 Further Encumbrance.
(a) Trustor covenants that at all times prior to the indefeasible
satisfaction in full of the obligations, except for Permitted Liens, Permitted
Dispositions and dispositions permitted under Section 2.8, Trustor shall neither
make nor suffer to exist, nor enter into any agreement for, any sale,
assignment, exchange, mortgage, transfer, Lien, hypothecation or encumbrance of
all or any part of the Trust Property, including without limitation the Rents,
Issues and Profits. As used herein, "transfer" includes the actual transfer or
other disposition, whether voluntary or involuntary, by law, or otherwise,
except those transfers specifically permitted herein; provided, however, that
"transfer" shall not include the granting of utility or other beneficial
easements with respect to the Trust Property which have been granted by Trustor
and are reasonably necessary to the construction, maintenance or operation of
the Project.
(b) Trustor agrees that in the event the ownership of the Trust
Property or any part thereof becomes vested in a Person other than Trustor,
Beneficiary may, without notice to Trustor, deal in any way with such successor
or successors in interest with reference to this Hyatt Gaming Deed of Trust, the
Subordinated Note and other Obligations hereby secured without in any way
vitiating or discharging Trustor's or any guarantor's, surety's or endorser's
liability hereunder or under the Obligations hereby secured. No sale of the
Trust Property, no forbearance to any Person with respect to this Hyatt Gaming
Deed of Trust and no extension to any Person of the time for payment of the
Subordinated Note and other sums secured hereby given by Beneficiary shall
operate to release, discharge, modify, change or affect the original liability
of Trustor, or such guarantor, surety or endorser, either in whole or in part.
(c) This Hyatt Gaming Deed of Trust, shall not extend to (i) FF&E
to the extent the purchase or lease thereof has been financed or refinanced by,
or with the proceeds of, an FF&E Financing permitted under the Subordinated Loan
Agreement and (ii) any future or further advances made under such FF&E Financing
and to any modifications, renewals, extensions or refinancings thereof to which
the lien of this Hyatt Gaming Deed of Trust would otherwise attach, in each case
16
to the extent such FF&E Financing is permitted under the Subordinated Loan
Agreement; provided that any such FF&E Financing shall encumber only that FF&E
specifically subject to the FF&E Financing; and provided further that, upon the
repayment, satisfaction or termination of such FF&E Financing, all FF&E financed
thereby shall no longer be deemed an Excluded Asset and shall be subject to the
lien of this Hyatt Gaming Deed of Trust. The Beneficiary shall, if requested by
the Trustor, execute and deliver, at Trustor's sole expense, any instruments
reasonably necessary or appropriate to release the lien of this Hyatt Gaming
Deed of Trust with respect to or otherwise confirm that the lien of this Hyatt
Gaming Deed of Trust does not apply to any of such Excluded Assets; Trustor
covenants and agrees to comply with all of the terms and conditions set forth in
any FF&E Financing with respect to which Beneficiary has taken a Lien hereunder.
If Trustor shall fail to make any payment of principal of or interest on the
sums secured by such security interest or any payment in order to perform or
observe any other term, covenant, condition or agreement of any FF&E Financing
on Trustor's part to be performed or observed, except where Trustor is
diligently contesting such payment in good faith, then Beneficiary may make such
payment of the principal of or interest on the sums secured by such security
interest or may make any payment in order to perform or observe any other term,
covenant, condition or agreement of any FF&E Financing on Trustor's part to be
performed or observed, and any and all sums so expended by Beneficiary shall be
part of the Obligations and shall be secured by this Hyatt Gaming Deed of Trust
and shall be repaid by Trustor upon demand, together with interest thereon at
the Default Rate from the date of advance.
2.8 Partial Releases of Trust Property.
(a) Trustor may from time to time (i) transfer a portion of the
Trust Property (including any temporary taking) to any Person legally empowered
to exercise the power of eminent domain, (ii) make a Permitted Disposition, or
(iii) grant utility easements reasonably necessary for the construction and
operation of the Project, which grant or transfer is for the benefit of the
Trust Property. In each such case, and at Trustor's sole expense, Beneficiary
shall execute and deliver any instruments necessary or appropriate to effectuate
or confirm any such transfer or grant, free from the lien of this Hyatt Gaming
Deed of Trust; provided, however, that Beneficiary shall execute a lien release
or subordination agreement, as appropriate, for matters described in clauses (i)
and (iii) above only if:
(A) Beneficiary shall have received an Officers' Certificate or
Opinion of Counsel required or authorized by Section 7.19(e) of the Subordinated
Loan Agreement;
(B) No Default or Event of Default shall have occurred and be
continuing and the conditions of this Section 2.8 have been fulfilled, and such
transfer, grant or release is permitted by the Subordinated Loan Agreement;
(C) Beneficiary shall have received a counterpart of the
instrument pursuant to which such transfer, grant or release is to be made, and
each instrument which Beneficiary is requested to execute in order to effectuate
or confirm such transfer, grant or release, and each shall be acceptable to
Beneficiary in form and substance; and
(D) Beneficiary shall have received such other instruments,
certificates (including evidence of authority) and opinions as Beneficiary may
reasonably request or as required or authorized under the Subordinated Loan
17
Agreement, including, but not limited to, opinions that the proposed release is
permitted by this Section 2.8.
(b) Any consideration received for a transfer to any Person
empowered to exercise the right of eminent domain shall be subject to Section
2.5 hereof.
ARTICLE 3.
ASSIGNMENT OF LEASES AND RENTS
3.1 Assignment of Leases and Rent . As additional consideration for the
Obligations, Trustor hereby absolutely and unconditionally assigns and transfers
to Beneficiary the following:
(a) the Tenant Leases;
(b) any and all guaranties of the obligations of the tenants (the
"Tenants") under any of such Tenant Leases; and
(c) unless and until an Event of Default has occurred, the
immediate and continuing right to collect and receive all of the Rents, Issues
and Profits now due or that may become due or to which Trustor may now or
hereafter (whether during any applicable period of redemption or otherwise)
become entitled or may demand or claim, arising or issuing from or out of the
Tenant Leases, or from or out of the Trust Property or any part thereof.
3.2 Trustor's Limited License . Provided that no Event of Default
hereunder exists, Trustor shall have the right under a license granted hereby
and Beneficiary hereby grants to Trustor a license to collect, but not more than
one month in advance, all of the Rents, Issues and Profits arising from or out
of the Tenant Leases or any renewals or extensions thereof, or from or out of
the Trust Property or any part thereof, but only as trustee for the benefit of
Beneficiary. Trustor shall apply the Rents, Issues and Profits so collected
first to payment of any and all amounts due and payable under the Subordinated
Loan Agreement. Thereafter, so long as no Event of Default hereunder exists,
Trustor may use the Rents, Issues and Profits in any manner not inconsistent
with the Subordinated Loan Agreement. The license granted hereby shall be
revoked automatically upon the occurrence of an Event of Default hereunder.
3.3 Limitation . The acceptance by Beneficiary of the assignment
provided in this Article 3, together with all of the rights, powers, privileges
and authority created in this Article 3 or elsewhere in this Hyatt Gaming Deed
of Trust, shall not, prior to entry upon and taking possession of the Trust
Property by Beneficiary, be deemed or construed to constitute Beneficiary a
"mortgagee in possession," nor thereafter or at any time or in any event
obligate Beneficiary to appear in or defend any action or proceeding relating to
the Tenant Leases, the Rents, Issues and Profits or the Trust Property or to
take any action hereunder or to expend any money or incur any expenses or
perform or discharge any obligation or responsibility for any security deposits
or other deposits delivered to Trustor by any Tenant and not assigned and
delivered to Beneficiary, nor shall Beneficiary be liable in any way for any
injury or damage to person or property sustained by any person or persons, firm
or corporation in or about the Trust Property.
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3.4 Performance by Trustor . Trustor shall perform its obligations
under the Tenant Leases in accordance with their terms. Trustor shall not
default in the performance of any obligation of Trustor under any Tenant Lease
if, by reason of such default, the Tenant or other party thereunder has the
right to cancel such Tenant Lease or to claim any diminution or offset against
future Rents, Issues or Profits.
3.5 No Merger of Leases . If the estates of all parties to any Tenant
Lease shall at any time become vested in one owner, this Hyatt Gaming Deed of
Trust and the lien created hereby shall not be destroyed or terminated by
application of the doctrine of merger, and in such event, Beneficiary shall
continue to have and enjoy all of the rights and privileges of Beneficiary as to
the separate estates. In addition, upon the foreclosure of the lien created by
this Hyatt Gaming Deed of Trust, any Tenant Leases then existing and affecting
all or any portion of the Trust Property shall not be destroyed or terminated by
application of the law of merger or as a matter of law or as a result of such
foreclosure, unless Beneficiary or any purchaser at any such foreclosure sale
shall so elect in writing. No act by or on behalf of Beneficiary or any such
purchaser shall constitute a termination of any Tenant Lease or sublease unless
Beneficiary or such purchaser shall give written notice thereof to the lessee or
sublessee under such Tenant Lease.
3.6 Remedies . If an Event of Default has occurred and is continuing,
in addition to all other rights and remedies of Beneficiary as set forth under
Article 4 hereof, Beneficiary shall have the following rights and remedies:
(a) Possession and/or Collection of Rent. Beneficiary, without
first being required to (i) foreclose, (ii) take any actions to foreclose, (iii)
institute any legal proceedings of any kind whatsoever or (iv) exercise any
other actions or remedies hereunder or at law or in equity, shall have the
exclusive right and power (but not the obligation) (A) to enter upon and take
possession of the Trust Property or any part thereof, (B) to rent or re-rent the
same, either in the name of Beneficiary or Trustor, and/or (C) to receive all
Rents, Issues and Profits from the Trust Property. Beneficiary shall apply any
Rents, Issues and Profits received by Beneficiary first, to the costs and
expenses incurred by Beneficiary in protecting and operating the Trust Property,
and next, to the payment of the Obligations in such manner and in such order of
priority as Beneficiary shall determine consistent with the provisions of the
Subordinated Loan Agreement. Any such action by Beneficiary shall not operate as
a waiver of the Event of Default in question, or as an affirmance of any Tenant
Leases or of the rights of any Tenants in the event title to that part of the
Trust Property covered by the Tenant Leases or held by the Tenants should be
acquired by Beneficiary or other purchaser at a foreclosure sale. The right of
Beneficiary to receive all Rents, Issues and Profits from the Trust Property
upon the occurrence and during the continuance of any Event of Default shall be
applicable whether or not Beneficiary has entered upon, foreclosed, taken any
actions to foreclose or taken possession of the Trust Property, whether or not
Beneficiary has instituted any legal proceedings of any kind whatsoever, or
whether or not Beneficiary has otherwise attempted to exercise any other actions
or remedies hereunder or at law or in equity. If any such Rents, Issues and
Profits are paid to or received by Trustor, Trustor shall hold same in trust for
Beneficiary and immediately pay the same to Beneficiary (in the form received,
except for any necessary endorsement), without the necessity of any request or
demand therefor. Until receipt from Beneficiary of notice of the occurrence of
an Event of Default hereunder and during the continuance thereof, all Tenants of
the Tenant Leases and any successors to the leasehold interest of such Tenants
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may pay Rents, Issues and Profits directly to Trustor, but after notice of the
occurrence of any Event of Default and during the continuance of same, Trustor
covenants to and shall hold all Rents, Issues and Profits paid to Trustor in
trust for Beneficiary. Trustor hereby authorizes and directs all Tenants of the
Tenant Leases herein described, and any successors to the leasehold interest of
such Tenants, upon receipt of any notice from Beneficiary stating that an Event
of Default hereunder has occurred, to pay to Beneficiary the Rents, Issues and
Profits due and to become due under such Tenant Leases. Trustor agrees that such
Tenants shall have the right to rely upon any such notice and request by
Beneficiary without any obligation or right to inquire as to whether an Event of
Default actually exists and notwithstanding any notice from or claim of Trustor
to the contrary, and Trustor shall have no right or claim against the Tenants
for any such Rents, Issues and Profits so paid by the Tenants to Beneficiary. In
such event, receipt by Beneficiary of Rents, Issues and Profits from such
Tenants or their successors shall be a release of such Tenants or their
successors to the extent of all amounts so received by Beneficiary.
(b) Management. Beneficiary, at its option, but subject to the
provisions of Sections 4.8 and 5.30 hereof, may take over and assume the
management, operation and maintenance of the Trust Property and perform all acts
necessary and proper and expend such sums out of the income of the Trust
Property as may be needful in connection therewith, including without limitation
applying for appropriate approvals from the Liquor License Authorities and
Gaming Authorities, in the same manner and to the same extent as Trustor
theretofore might do, including without limitation the right to enter into new
leases, to cancel or surrender existing Tenant Leases, to alter or amend the
terms of existing Tenant Leases, to renew existing Tenant Leases, or to make
concessions to Tenants. Trustor hereby releases all claims against Beneficiary
arising out of such management, operation and maintenance, including without
limitation such claims as may arise from the negligence of Beneficiary, but not
the gross negligence or willful misconduct of Beneficiary and not any liability
of Beneficiary to account as hereinafter set forth.
(c) Receiver. Upon or at any time after the occurrence of an Event
of Default, but subject to the provisions of Sections 4.8 and 5.30 hereof,
Beneficiary shall at once become entitled to the possession, use and enjoyment
of the Trust Property and the Rents, Issues and Profits, from the date of such
occurrence and continuing during the pendency of any proceedings for sale by the
public trustee or foreclosure proceedings, and the period of redemption, if any.
Beneficiary shall be entitled to a receiver for the Trust Property, and of the
Rents, Issues and Profits, after any such default, including without limitation
the time covered by any proceedings for sale by the public trustee or
foreclosure proceedings and the period of redemption, if any. Beneficiary shall
be entitled to such receiver as a matter of right, without regard to the
solvency or insolvency of Trustor, or of the then owner of the Trust Property,
and without regard to the value thereof, and such receiver may be appointed by
any court of competent jurisdiction upon ex parte application, and without
notice, notice being hereby expressly waived. All Rents, Issues and Profits,
income and revenue therefrom shall be applied by such receiver to the payment of
the Obligations according to the orders and directions of the court, or in the
absence of such orders or directions, in the manner set forth in Section 3.7
below.
3.7 Application of Income . Beneficiary shall, after payment of all
proper charges and expenses, including reasonable compensation to any managing
agent as it shall select and employ, and after the accumulation of a reserve to
meet taxes, assessments and insurance as herein required in requisite amounts,
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credit the net amount of income received by it from the Trust Property by virtue
of this absolute assignment to any amounts due and owing to it by Trustor under
the terms hereof, but the manner of the application of such net income and what
items shall be credited shall be determined pursuant to the Subordinated Loan
Agreement, or otherwise in the sole discretion of Beneficiary. Without impairing
its rights hereunder, Beneficiary may, at its option, at any time and from time
to time, release to Trustor Rents, Issues and Profits received by Beneficiary,
or any portion of such Rents, Issues and Profits. Beneficiary shall not be
liable for its failure to collect, or its failure to exercise diligence in the
collection of Rents, Issues and Profits, but shall be accountable only for
Rents, Issues and Profits that Beneficiary shall actually receive.
3.8 Term . This absolute assignment shall remain in full force and
effect so long as the Obligations or any part thereof to Beneficiary remains
unpaid or unsatisfied, in whole or in part.
3.9 Actions of Trustee . All provisions hereof shall inure to the
benefit of and all actions authorized hereunder shall be exercisable by Trustee
or any substitute of Trustee at Beneficiary's request.
ARTICLE 4.
DEFAULTS AND REMEDIES
4.1 Events of Default . An Event of Default shall mean the occurrence
of any Event of Default set forth in Annex A attached hereto.
4.2 Performance of Defaulted Acts . From and after the occurrence of an
Event of Default, Beneficiary may (without prejudice to its other rights and
remedies), but need not, make any payment or perform any act required of Trustor
herein, in the Subordinated Loan Agreement or in any other Transaction Document,
in each case in any form and manner deemed expedient, including without
limitation making full or partial payments of principal or interest on prior
encumbrances, if any, and purchasing, discharging, compromising or settling any
tax Lien or other prior Lien or title or claim thereof, or redeeming from any
tax sale or forfeiture affecting the Trust Property or contesting any tax or
assessment. All monies paid for any of the purposes herein authorized and all
expenses paid or incurred in connection therewith, including reasonable
attorneys' fees (including reasonable fees of in-house counsel), shall be
included among the Obligations and shall be due and payable upon demand and with
interest thereon from the date of such payment or expense at the Default Rate.
Inaction of Beneficiary shall never be considered as a waiver of any right
accruing to it hereunder on account of any default on the part of Trustor.
Beneficiary, in making any payment hereby authorized relating to taxes or
assessments, may do so according to any xxxx, statement or estimate procured
from the appropriate public office without inquiry into the accuracy of such
xxxx, statement or estimate or into the validity of any tax, assessment, sale,
forfeiture, tax Lien or title or claim thereof.
4.3 Remedies . Upon the occurrence of any Event of Default, Beneficiary
may, at its option (in each case, subject to and in accordance with any
applicable terms of the Subordinated Loan Agreement):
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(a) declare all sums secured hereby to be immediately due and
payable, and the same shall thereupon become immediately due and payable without
any presentment, demand, protest or notice of any kind;
(b) terminate Trustor's right and license to collect the Rents,
Issues and Profits and either in person or by agent, with or without bringing
any action or proceeding, or by a receiver appointed by a court, and without
regard to the adequacy of its security, enter upon and take possession of the
Trust Property, or any part thereof, in its own name or in the name of Trustee,
and do any acts which it deems necessary or desirable to preserve the value,
marketability or rentability of the Trust Property, or any part thereof or
interest therein, make, modify, enforce, cancel or accept the surrender of any
Tenant Lease, take actions which may affect the income therefrom or protect the
security hereof, and with or without taking possession of the Trust Property,
xxx for or otherwise collect the Rents, Issues and Profits, including without
limitation those past due and unpaid, and apply the same, less costs and
expenses of operation and collection, including without limitation attorneys'
fees (including fees of in-house counsel), upon any Obligations secured hereby,
all in such order as Beneficiary may determine. From and after receipt of
written notice from Beneficiary to pay Rents, Issues and Profits directly to
Beneficiary or another party designated by Beneficiary, each Tenant shall pay
all such payments under its Tenant Lease in the manner instructed by
Beneficiary. The entering upon and taking possession of the Trust Property or
any portion thereof, the collection of the Rents, Issues and Profits and the
application thereof as aforesaid, or any of such acts, shall not cure or waive
any default or notice of default hereunder or invalidate any act done in
response to such default or pursuant to such notice, and notwithstanding the
continuance in possession of the Trust Property or the collection, receipt and
application of the Rents, Issues and Profits, Trustee or Beneficiary shall be
entitled to exercise every right provided for in any of the Subordinated Loan
Agreement, the other Transaction Documents or by law upon the occurrence of any
Event of Default, including without limitation the right to exercise the power
of sale provided herein;
(c) notwithstanding the availability of legal remedies, obtain
specific performance, mandatory or prohibitory injunctive relief, or other
equitable relief requiring Trustor to cure or refrain from repeating any
default;
(d) with or without accelerating the maturity of the Obligations,
xxx from time to time for any payment due under any of the Subordinated Loan
Agreement or the other Transaction Documents, or for money damages resulting
from any Trustor's default under any of the Subordinated Loan Agreement or the
other Transaction Documents;
(e) exercise all rights and remedies set forth in Section 1.5 and
all rights of a secured party under the Uniform Commercial Code;
(f) foreclose this Hyatt Gaming Deed of Trust, insofar as it
encumbers the Trust Property, by way of a trustee's sale pursuant to the
provisions of Title 38, Article 38, Colorado Revised Statutes, as currently in
effect, as amended, or in any other manner then permitted by law. If this Hyatt
Gaming Deed of Trust encumbers more than one parcel of real estate, foreclosure
may be by separate parcel or en masse, as Beneficiary may elect in its sole
discretion. Foreclosure through Trustee will be initiated by Beneficiary's
filing of its notice of election and demand for sale with Trustee. Upon the
filing of such notice of election and demand for sale, Trustee shall promptly
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comply with all notice and other requirements of the laws of the State of
Colorado then in force with respect to such sales, and shall give four weeks'
public notice of the time and place of such sale by advertisement weekly in some
newspaper of general circulation then published in the County or City and County
in which the Trust Property is located. The right to foreclose this Hyatt Gaming
Deed of Trust as a mortgage by appropriate proceedings in any court of competent
jurisdiction is also hereby given;
(g) exercise all other rights and remedies provided herein, in the
Subordinated Loan Agreement, the other Transaction Documents or in any other
document or agreement now or hereafter securing all or any portion of the
Obligations, or at law or in equity, or any combination of any such rights or
remedies, to the extent permitted by law.
Upon request by Beneficiary, Trustor shall assemble and make available
to Beneficiary at the Land any of the Trust Property which is not located on the
Land or which has been removed therefrom.
4.4 Foreclosure.
(a) All fees, costs and expenses of any kind incurred by
Beneficiary in connection with foreclosure of this Hyatt Gaming Deed of Trust,
including without limitation the costs of any appraisals of the Trust Property
obtained by Beneficiary, all costs of any receivership for the Trust Property
advanced by Beneficiary, and all reasonable attorneys' fees and consultants'
fees incurred by Beneficiary (including charges of in-house counsel),
appraisers' fees, outlays for documentary and expert evidence, stenographers'
charges, publication costs and costs (which may be estimates as to items to be
expended after entry of the decree) of procuring all such abstracts of title,
title searches and examination, title insurance policies and similar data and
assurances with respect to title, as Trustee or Beneficiary may reasonably deem
necessary either to prosecute such suit or to evidence to bidders at the sales
that may be had pursuant to such proceedings the true conditions of the title to
or the value of the Trust Property, together with and including a reasonable
compensation to Trustee, shall constitute a part of the Obligations and may be
included as part of the amount owing from Trustor to Beneficiary at any
foreclosure sale.
(b) The proceeds of foreclosure sale of the Trust Property shall be
distributed and applied in the following order of priority: first, on account of
all costs and expenses incident to the foreclosure proceedings, including
without limitation all such items as are mentioned in Section 4.4(a) hereof;
second, to the payment of all sums expended under the terms hereof not then
repaid, with accrued interest at the Default Rate; third, to the payment of all
other Obligations; and lastly, the remainder, if any, to the person or persons
legally entitled thereto.
(c) In case of an insured loss after judicial foreclosure or
Trustee's sale proceedings have been instituted, the proceeds of any insurance
policy or policies, if not applied to rebuilding or restoring the buildings or
improvements, shall be used to pay the amount due upon the Obligations. In the
event of judicial foreclosure or Trustee's sale, Beneficiary or Trustee is
hereby authorized, without the consent of Trustor, to assign any and all
insurance policies to the purchaser at the sale, or to take such other steps as
Beneficiary or Trustee may deem advisable to cause the interest of such
purchaser to be protected by any of the such insurance policies.
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(d) To the fullest extent allowable by law, Trustor hereby
expressly waives any right which it may have to direct the order in which any
Trust Property shall be sold in the event of any sale or sales pursuant to this
Hyatt Gaming Deed of Trust.
(e) Nothing in this Section 4.4 dealing with foreclosure procedures
or specifying particular actions to be taken by Beneficiary or by Trustee or any
similar officer shall be deemed to contradict or add to the requirements and
procedures now or hereafter specified by Colorado law, and any such
inconsistency shall be resolved in favor of Colorado law applicable at the time
of foreclosure.
4.5 Rescission of Notice of Default . Beneficiary may from time to time
withdraw any notice of election and demand for sale in accordance with Section
38-38-101(11) of the Colorado Revised Statutes. The exercise by Beneficiary of
such right shall not constitute a waiver of any breach or default then existing
or subsequently occurring, or impair the right of Beneficiary to execute and
deliver to Trustee, as above provided, other declarations or notices of default
to satisfy the Obligations under this Hyatt Gaming Deed of Trust or the other
Obligations, nor otherwise affect any provision, covenant or condition of any of
the Subordinated Loan Agreement or the other Transaction Documents or any of the
rights, obligations or remedies of Trustee or Beneficiary hereunder or
thereunder.
4.6 Appointment of Receiver . Trustor waives any right to any hearing
or notice of hearing prior to the appointment of a receiver. Such receiver and
its agents shall be empowered (a) to take possession of the Trust Property and
any businesses conducted by Trustor or any other person (excluding the business
of tenants of Trustor) thereon and any business assets used in connection
therewith and, if the receiver deems it appropriate, to operate the same, (b) to
exclude Trustor and Trustor's agents, servants, and employees from the Trust
Property, (c) to collect the rents, issues, profits, and income therefrom, (d)
to complete any construction which may be in progress, (e) to do such
maintenance and make such repairs and alterations as the receiver deems
reasonably necessary, (f) to use all stores of materials, supplies and
maintenance equipment on the Trust Property, (g) to pay all taxes and
assessments against the Trust Property and all premiums for insurance thereon,
(h) t pay all utility and other operating expenses, and all sums due under any
prior or subsequent encumbrance, and (i) generally to do anything which Trustor
could legally do if Trustor were in possession of the Trust Property. All
expenses incurred by the receiver or his agents shall constitute a part of the
Obligations, including without limitation reasonable attorneys' fees. Any
revenues collected by the receiver shall be applied first to the expenses of the
receivership, including reasonable attorneys' fees incurred by the receiver and
by Beneficiary (including charges of in-house counsel), together with interest
thereon at the Default Rate from the date incurred until repaid, and the balance
shall be applied toward the Obligations or in such other manner as the court may
direct. Unless sooner terminated with the express consent of Beneficiary, any
such receivership will continue until the Obligations have been discharged in
full, or until title to the Trust Property has passed after foreclosure sale and
all applicable periods of redemption have expired.
4.7 Remedies Not Exclusive; Waiver . Trustee and Beneficiary, and each
of them, shall be entitled to enforce the payment and performance of any
Obligations and to exercise all rights and powers under this Hyatt Gaming Deed
of Trust or under any other Transaction Document or other agreement or any laws
now or hereafter in force, notwithstanding the fact that some or all of the
24
Obligations may now or hereafter be otherwise secured, whether by mortgage, deed
of trust, pledge, Lien, assignment or otherwise. Neither the acceptance of this
Hyatt Gaming Deed of Trust nor its enforcement, whether by court action or
pursuant to the power of sale or other powers contained herein, shall prejudice
or in any manner affect Trustee's or Beneficiary's right to realize upon or
enforce any other rights or security now or hereafter held by Trustee or
Beneficiary. Trustee and Beneficiary, and each of them, shall be entitled to
enforce this Hyatt Gaming Deed of Trust and any other rights or security now or
hereafter held by Beneficiary or Trustee in such order and manner as they or
either of them may in their absolute discretion determine. No remedy herein or
by law provided or permitted shall be exclusive of any other remedy, but each
shall be cumulative and in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity. Every power or remedy given by any of
the Transaction Documents to Trustee or Beneficiary, or to which either of them
may be otherwise entitled, may be exercised, concurrently or independently, from
time to time and as often as may be deemed expedient by Trustee or Beneficiary,
and either of them may pursue inconsistent remedies. By exercising or by failing
to exercise any right, option or election hereunder, Beneficiary shall not be
deemed to have waived any provision hereof or to have released Trustor from any
of the Obligations secured hereby unless such waiver or release is in writing
and signed by Beneficiary. The waiver by Beneficiary of Trustor's failure to
perform or observe any term, covenant or condition referred to or contained
herein to be performed or observed by Trustor shall not be deemed to be a waiver
of such term, covenant or condition on any other occasion or any subsequent
failure of Trustor to perform or observe the same or any other such term,
covenant or condition referred to or contained herein, and no custom or practice
which may develop between Trustor and Beneficiary during the term hereof shall
be deemed a waiver of or in any way affect the right of Beneficiary to insist
upon the performance by Trustor of the Obligations secured hereby in strict
accordance with the terms hereof or any other Transaction Document.
4.8 Casino . Trustor acknowledges that part of the Trust Property
consists of a casino and gaming property (the "Casino") which is subject to
Gaming Laws and the jurisdiction of the Gaming Authorities and that, under the
applicable Gaming Laws, the operation of the Casino by a person other than a
person properly licensed by the Gaming Authorities to operate a casino and
gaming business (a "Licensee") is prohibited and may result in the closing of
the Casino, the loss of customers, employees, revenues and good will, and the
severe diminution in the value of the Trust Property, all to the economic
jeopardy and extreme detriment of Beneficiary. In order to mitigate such adverse
consequences, Trustor agrees that, if an Event of Default has occurred, either
before or after seeking an appointment of a receiver, in addition to any other
right or remedy available to Beneficiary hereunder or under applicable law (but
subject to any applicable requirements of the applicable Gaming Laws), (a)
Beneficiary shall have the right (but not the obligation) to solicit any
Licensee or other person with the capacity to become a Licensee to purchase,
lease and/or operate the Casino as a receiver of the Trust Property, as a
supervisor of the Casino, as a purchaser of the Trust Property or Casino at any
foreclosure sale, or in any other appropriate capacity permitted under the
applicable Gaming Laws; (b) any such Licensee or other person and Beneficiary
may, to the extent permitted under the applicable Gaming Laws, apply to and
appear before the Gaming Authorities and any other appropriate authority for a
license or a finding of suitability to permit such Licensee or other person to
operate the Casino; and (c) Trustor shall cooperate fully with any action taken
by Beneficiary and any such Licensee or other person pursuant to this Section
4.8.
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4.9 Multiple Collateral.
(a) No recovery of any judgment by Trustee or Beneficiary and no
levy of an execution under any judgment upon the Trust Property or upon any
property of Trustor encumbered by any other Collateral Document shall affect in
any manner or to any extent the lien of this Hyatt Gaming Deed of Trust upon the
Trust Property or any part thereof, and any Liens, rights, powers and remedies
of Trustee or Beneficiary shall continue unimpaired until all of the Obligations
have been satisfied and indefeasibly paid in full.
(b) Trustor agrees that it shall not at any time insist upon,
plead, seek or in any manner whatever claim or take any benefit or advantage of
a judgment, declaration or a determination that:
(i) the Trust Property or any other property of Trustor
encumbered by a Transaction Document represents, on an individual basis, an
allocable portion of the then outstanding aggregate principal amount of the
Subordinated Note or the Obligations;
(ii) the lien of this Hyatt Gaming Deed of Trust or of any
other Transaction Document has been released, unless the Obligations have been
satisfied and indefeasibly paid in full;
(iii) a deficiency judgment with respect to any action taken by
Trustee or Beneficiary against the Trust Property or any other property of
Trustor encumbered by a Transaction Document extinguishes all or any portion of
the remaining Obligations, or precludes Trustee or Beneficiary from proceeding
against the Trust Property or to satisfy such remaining Obligations; or
(iv) Trustee's or Beneficiary's commencement, prosecution, or
taking to judgment of any action (including without limitation Trustee's or
Beneficiary's acceptance of a deed in lieu of foreclosure) or Trustee's or
Beneficiary's application for or use of any remedy (including without limitation
the appointment of a receiver for the Trust Property or any other property of
Trustor encumbered by a Transaction Document) against the Trust Property or any
other property of Trustor encumbered by a Transaction Document precludes or bars
Trustee or Beneficiary (under a "single action" rule, "security first" rule or
similar rule) from commencing, prosecuting or taking to judgment any other
action or applying for or using any remedy against the Trust Property or any
other property of Trustor encumbered by a Transaction Document.
(v) Beneficiary may, at its option, in such order, and
utilizing such combinations of remedies with respect to the Trust Property
and/or any other property of Trustor encumbered by a Transaction Document as
Beneficiary shall so elect, pursue its remedies against (i) the Trust Property,
individually, or any other property of Trustor encumbered by a Transaction
Document, individually; (ii) the Trust Property and any combination of any other
property of Trustor encumbered by a Transaction Document; (iii) the Trust
Property and all of the other property of Trustor encumbered by a Transaction
Document; or (iv) all or any combination of any other property of Trustor
encumbered by a Transaction Document, in separate proceedings or in one
proceeding in any order which Beneficiary deems appropriate.
26
4.10 Extensions and Partial Payments . Trustor agrees that, without
affecting the liability of any person for payment of the Obligations or
affecting the lien of this Hyatt Gaming Deed of Trust upon the Trust Property or
any part thereof, Beneficiary may at any time and from time to time, on request
of Trustor, without notice to any person liable for payment of any Obligations,
extend the time or agree to alter the terms of payment of all or any part of
such Obligations. Acceptance by Beneficiary of any payment in an amount less
than the amount then due on the Obligations shall be deemed an acceptance on
account only, and the failure to pay the entire amount then due shall continue
to be an Event of Default hereunder. At any time thereafter and until the entire
amount then due on the Obligations has been paid, Beneficiary shall be entitled
to exercise all rights conferred upon it in this Hyatt Gaming Deed of Trust upon
the occurrence of an Event of Default hereunder.
4.11 Protective Advances . All advances, disbursements and expenditures
made or incurred by Beneficiary before and during a foreclosure, and before and
after judgment of foreclosure, and at any time prior to sale and, where
applicable, after sale, and during the pendency of any related proceedings, for
the following purposes, in addition to those otherwise authorized by this Hyatt
Gaming Deed of Trust or by applicable law (collectively "Protective Advances"),
shall have the benefit of all applicable provisions of law, including without
limitation those referred to below:
(a) all advances by Beneficiary in accordance with the terms of
this Hyatt Gaming Deed of Trust to: (i) preserve, maintain or repair any Trust
Property, or restore or rebuild the improvements upon the Trust Property; (ii)
preserve the lien of this Hyatt Gaming Deed of Trust or the priority hereof; or
(iii) enforce this Hyatt Gaming Deed of Trust;
(b) payments by Beneficiary of: (i) principal, interest or other
obligations in accordance with the terms of any prior Lien or encumbrance on the
Trust Property; (ii) real estate taxes and assessments, general and special and
other taxes and assessments of any kind or nature whatsoever that are assessed
or imposed upon the Trust Property or any part thereof; (iii) amounts in
connection with any Tenant Lease pursuant to Section 4.3 hereof; (iv) other
obligations authorized by this Hyatt Gaming Deed of Trust; or (v) any other
amounts in connection with other Liens, encumbrances or interests reasonably
necessary to preserve the status of title to the Trust Property;
(c) advances by Beneficiary in settlement or compromise of any
claims asserted by claimants under any prior Liens;
(d) reasonable attorneys' fees and other costs incurred (including
charges for in-house counsel): (i) in connection with a judicial foreclosure or
trustee's sale; (ii) in connection with any action, suit or proceeding brought
by or against Beneficiary for the enforcement of this Hyatt Gaming Deed of Trust
or arising from the interest of Beneficiary hereunder; or (iii) in preparation
for or in connection with the commencement, prosecution or defense of any other
action that could materially adversely affect the lien of this Hyatt Gaming Deed
of Trust or the Trust Property;
(e) expenses deductible from proceeds of sale; and
(f) expenses incurred and expenditures made by Beneficiary for any
one or more of the following: (i) premiums for casualty and liability insurance
paid by Beneficiary (whether or not Beneficiary or a receiver is in possession)
and all renewals thereof; (ii) repair or restoration of damage or destruction in
27
excess of available insurance proceeds or condemnation awards; (iii) payments
deemed by Beneficiary to be required for the benefit of the Trust Property or
required to be made by the owner of the Trust Property under any grant or
declaration of easement, easement agreement, agreement with any adjoining land
owners or instruments creating covenants or restrictions for the benefit of or
affecting the Trust Property; (iv) shared or common expense assessments payable
to any association or corporation in which the owner of the Trust Property is a
member in any way affecting the Trust Property; and (v) any costs incurred in
connection with obtaining approvals and licenses from Gaming Authorities
including investigation costs.
All Protective Advances shall be additional Obligations secured by this
Hyatt Gaming Deed of Trust and shall become immediately due and payable upon
demand and with interest thereon from the date of the advance until paid at the
Default Rate. This Hyatt Gaming Deed of Trust shall be a lien for all Protective
Advances as to subsequent purchasers and judgment creditors from the time this
Hyatt Gaming Deed of Trust is recorded.
All Protective Advances shall, except to the extent, if any, that any
of the same is clearly contrary to or inconsistent with the applicable
provisions of law, apply to and be included in: (a) any determination of the
amount of indebtedness secured by this Hyatt Gaming Deed of Trust at any time;
(b) the indebtedness found due and owing to Beneficiary in the judgment of
foreclosure and any subsequent supplemental judgments, orders, adjudications or
findings by the court of any additional indebtedness becoming due after such
entry of judgment, it being agreed that in any foreclosure judgment, the court
may reserve jurisdiction for such purpose; and (c) application of income in the
hands of any receiver or mortgagee in possession.
4.12 Appointment as Attorney-in-Fact . Trustor constitutes and appoints
Beneficiary as Trustor's attorney-in-fact, at Beneficiary's election, with full
authority in the place and stead of Trustor and in the name of Trustor,
Beneficiary or otherwise, from time to time after the occurrence of an Event of
Default, to perform any action and to execute and record any instrument deemed
necessary, advisable or incidental to accomplish the purposes of this Hyatt
Gaming Deed of Trust, including without limitation in connection with exercising
remedies and effectuating the actions described in this Article 4, in each
instance only to the extent Trustor has failed to comply with the provisions of
this Hyatt Gaming Deed of Trust. Such appointment is irrevocable and coupled
with an interest until payment in full and complete performance of all the
Obligations. Beneficiary may appoint a substitute attorney-in-fact. Trustor
ratifies all actions taken by the attorney-in-fact but, nevertheless, if
Beneficiary requests, Trustor 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.
ARTICLE 5.
GENERAL PROVISIONS
5.1 Extension; Release . The lien hereof shall remain in full force and
effect during any postponement or extension of the time of payment of the
Obligations, or of any part thereof, and any number of extensions or
modifications hereof, or any renewals, modifications, extensions, replacements
or substitutions of the Subordinated Loan Agreement, the Subordinated Note, any
additional notes taken by Beneficiary or any other Transaction Document, shall
28
not affect the lien hereof or the liability of Trustor or of any subsequent
obligor to pay the Obligations, unless and until such lien or liability shall
have been expressly released in writing by Beneficiary by proper instrument in
accordance with the terms of the Subordinated Loan Agreement. Upon written
request from Beneficiary, Trustee shall fully reconvey, without warranty, this
Hyatt Gaming Deed of Trust and the lien hereof by proper instrument in
accordance with the terms of the Subordinated Loan Agreement. The recitals in
any such reconveyance of any matters or facts shall be conclusive proof of the
truthfulness thereof. The grantee in such reconveyance may be described as "the
person or persons legally entitled thereto." Beneficiary shall have no
obligation to record any release instrument.
5.2 Trustor . This Hyatt Gaming Deed of Trust and all provisions
hereof, shall extend to and be binding upon Trustor and all persons claiming
under or through Trustor. Whenever in this Hyatt Gaming Deed of Trust there is
reference made to any of the parties hereto, such reference shall be deemed to
include, wherever applicable, a reference to the heirs, executors and
administrators or successors and assigns (as the case may be) of Trustor,
Trustee and Beneficiary. Trustor's successors and assigns shall include, without
limitation, a receiver, trustee or debtor-in-possession of or for such Trustor.
5.3 Additional Documents . Trustor agrees that upon request of
Beneficiary it will from time to time and at its expense execute, acknowledge
and deliver all such additional instruments and further assurances of title and
will do or cause to be done all such further acts and things as may be
reasonably necessary or desirable to fully protect, preserve, perfect and
maintain the security of Beneficiary hereunder and otherwise effectuate the
intent of this Hyatt Gaming Deed of Trust.
5.4 Statute of Limitations . To the fullest extent allowed by law, the
right to plead, use or assert any statute of limitations as a plea or defense or
bar of any kind, or for any purpose, to any debt, demand or obligation secured
or to be secured hereby, or to any complaint or other pleading or proceeding
filed, instituted or maintained for the purpose of enforcing this Hyatt Gaming
Deed of Trust or any rights hereunder, is hereby waived by Trustor.
5.5 Severability . The invalidity of any one or more covenants, phrases,
clauses, sentences or paragraphs of this Hyatt Gaming Deed of Trust shall not
affect the remaining portions of this Hyatt Gaming Deed of Trust or any part
thereof, and the same shall be construed as if such invalid covenants, phrases,
clauses, sentences or paragraphs, if any, had not been inserted herein. If the
lien of this Hyatt Gaming Deed of Trust is invalid or unenforceable as to any
part of the Obligations secured hereby, or if the lien is invalid or
unenforceable as to any part of the Trust Property, the unsecured or partially
secured portion of such Obligations shall be completely paid prior to the
payment of the remaining and secured or partially secured portion of such
Obligations, and all payments made on such Obligations, whether voluntary or
under foreclosure, trustee's sale, or other enforcement action or procedure,
shall be considered to have been first paid on and applied to the full payment
of that portion of such indebtedness which is not secured or fully secured by
the lien of this Hyatt Gaming Deed of Trust.
29
5.6 Interaction with Subordinated Loan Agreement.
(a) Incorporation by Reference. Any capitalized term used in this
Hyatt Gaming Deed of Trust without definition, but defined in the Subordinated
Loan Agreement, shall have the same meaning here as in the Subordinated Loan
Agreement.
(b) Conflicts. Notwithstanding any other provision of this Hyatt
Gaming Deed of Trust to the contrary, the terms and provisions of this Hyatt
Gaming Deed of Trust shall be subject and subordinate to the terms of the
Subordinated Loan Agreement. To the extent that the Subordinated Loan Agreement
provides Trustor with a particular cure or notice period, or establishes any
limitations or conditions on Beneficiary's actions with regard to a particular
set of facts, Trustor shall be entitled to the same cure periods and notice
periods, and Beneficiary shall be subject to the same limitations and
conditions, under this Hyatt Gaming Deed of Trust, as under the Subordinated
Loan Agreement, in place of the cure periods, notice periods, limitations and
conditions provided for under this Hyatt Gaming Deed of Trust; provided,
however, that such cure periods, notice periods, limitations and conditions
shall not be cumulative as between the Subordinated Loan Agreement and this
Hyatt Gaming Deed of Trust. In the event of any conflict or inconsistency
between the provisions of this Hyatt Gaming Deed of Trust and those of the
Subordinated Loan Agreement, including without limitation any conflicts or
inconsistencies in any definitions herein or therein, the provisions or
definitions of the Subordinated Loan Agreement shall govern.
5.7 Other Collateral . This Hyatt Gaming Deed of Trust is one of a
number of security agreements to secure the debt delivered by or on behalf of
Trustor pursuant to the Subordinated Loan Agreement and the other Collateral
Documents and securing the Obligations secured hereunder. All potential junior
Lien claimants are placed on notice that, under any of the Collateral Documents
or otherwise (such as by any separate future unrecorded agreement between
Trustor and Beneficiary), other collateral for the Obligations secured hereunder
(i.e., collateral other than the Trust Property) may, under certain
circumstances, be released without a corresponding reduction in the total
principal amount secured by this Hyatt Gaming Deed of Trust. Such a release
would decrease the amount of collateral securing the same indebtedness, thereby
increasing the burden on the remaining Trust Property created and continued by
this Hyatt Gaming Deed of Trust. No such release shall impair the priority of
the lien of this Hyatt Gaming Deed of Trust. By accepting its interest in the
Trust Property, each and every junior Lien claimant shall be deemed to have
acknowledged the possibility of, and consented to, any such release. Nothing in
this paragraph shall impose any obligation upon Beneficiary.
5.8 Notices . All notices and other communications under this Hyatt
Gaming Deed of Trust shall be in writing, except as otherwise provided in this
Hyatt Gaming Deed of Trust. A notice, if in writing, shall be considered as
properly given if given in accordance with the provisions of Annex B attached
hereto.
5.9 No Waiver of Remedies . By accepting payment of any amount secured
hereby after its due date, or an amount which is less than the amount then due,
or performance of any obligation required hereunder after the date required for
such performance, Beneficiary does not waive its right to require prompt payment
or performance when due of all other amounts or obligations so secured or to
declare a default by reason of the failure to so pay or perform.
30
5.10 Trustee's Powers . At any time or from time to time without
liability therefor and without notice to Trustor, upon written request of
Beneficiary and presentation of the original or certified copies of this Hyatt
Gaming Deed of Trust, and without affecting the personal liability of any person
for payment of the Obligations secured hereby or the effect of this Hyatt Gaming
Deed of Trust upon the remainder of the Trust Property, Trustee may (a) release
any part of the Trust Property, (b) consent in writing to the making of any map
or plat of all or any part of the Property, (c) join in granting any easement on
any part of the Trust Property, or (d) join in any extension agreement or any
agreement subordinating the lien or charge of this Hyatt Gaming Deed of Trust.
5.11 Beneficiary's Powers . Without affecting the liability of Trustor
or any other person liable for the payment of any Obligation secured hereby, and
without affecting the lien or charge of this Hyatt Gaming Deed of Trust upon any
portion of the Trust Property not then or theretofore released as security for
the full amount of all unpaid Obligations, Beneficiary may, from time to time
and without notice (a) release any person so liable, (b) extend the maturity or
alter any of the terms of any such obligation, or join in any agreement
modifying the terms of the Subordinated Loan Agreement or any Transaction
Document, (c) waive any provision hereof or grant other indulgences, (d) release
or reconvey, or cause to be released or reconveyed, at any time at Beneficiary's
option, all or any part of the Trust Property, (e) take or release any other or
additional security for any obligation herein mentioned, (f) make compositions
or other arrangements with debtors in relation thereto, or (g) subordinate the
lien or charge of this Hyatt Gaming Deed of Trust.
5.12 Additional Security . If Beneficiary at any time holds additional
security for any of the Obligations secured hereby, all such security shall be
taken, considered and held as cumulative, and Beneficiary may enforce the sale
thereof or otherwise realize upon the same, at its option, either before or
concurrently with the exercise of any of its rights or remedies hereunder or
after a sale is made hereunder. The taking of additional security, execution of
partial releases of the security, or any extension of the time of payment of the
indebtedness secured hereby shall not diminish the force, effect or impair the
liability of any maker, surety or endorser for the payment of any such
indebtedness.
5.13 Captions . The captions or headings at the beginning of each
Section hereof are for the convenience of the parties and are not to be
construed as a part of this Hyatt Gaming Deed of Trust.
5.14 Trust Irrevocable; No Offset . The Trust created hereby is
irrevocable by Trustor. No offset or claim that Trustor now has or may in the
future have against Beneficiary or Trustee shall relieve Trustor from paying the
amounts or performing the Obligations contained herein or secured hereby.
5.15 Corrections . Trustor shall, upon request of Trustee, promptly
correct any defect, error or omission which may be discovered in the contents of
this Hyatt Gaming Deed of Trust or in the execution or acknowledgment hereof,
and will execute, acknowledge and deliver such further instruments and do such
further acts as may be necessary or as may be reasonably requested by Trustee to
carry out more effectively the purposes of this Hyatt Gaming Deed of Trust, to
subject to the lien and security interest hereby created any of Trustor's
properties, rights or interest covered or intended to be covered hereby, and to
perfect and maintain such lien and security interest.
31
5.16 Attorneys' Fees . All references to "attorneys' fees" in this
Hyatt Gaming Deed of Trust shall include, without limitation, such reasonable
amounts as may then be charged by Beneficiary for legal services furnished by
attorneys in the employ of Beneficiary (including reasonable charges for
in-house counsel).
5.17 Acceptance by Trustee . Trustee accepts this Trust when this Hyatt
Gaming Deed of Trust, duly executed and acknowledged, is made a public record as
provided by law.
5.18 Authorization to Rely . Trustee, upon presentation to it of an
affidavit signed by or on behalf of Beneficiary setting forth any fact or facts
showing a default by Trustor under any of the terms or conditions of this Hyatt
Gaming Deed of Trust, is authorized to accept as true and conclusive all facts
and statements in such affidavit and to act hereunder in complete reliance
thereon.
5.19 GOVERNING LAW . THIS HYATT GAMING DEED OF TRUST, THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HERETO, AND ANY CLAIMS OR DISPUTES RELATING THERETO,
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK EXCEPT THAT, FOR PURPOSES OF DETERMINING THE CREATION, VALIDITY,
PRIORITY AND ENFORCEMENT OF THE LIEN CREATED HEREBY AND THE EXERCISE OF REMEDIES
HEREUNDER IN CONNECTION WITH SUCH LIEN, THE LAWS OF THE STATE OF COLORADO SHALL
GOVERN.
5.20 Time of Essence . Time is of the essence of this Hyatt Gaming Deed
of Trust and of every part hereof of which time is an element.
5.21 Future Advances . To the extent Beneficiary may make advances
pursuant hereto or to the terms of the Subordinated Loan Agreement, the parties
hereto acknowledge and intend that all such advances, if any, whenever hereafter
made, shall be secured by this Hyatt Gaming Deed of Trust with the same priority
as the initial amounts advanced and secured by this Hyatt Gaming Deed of Trust.
5.22 Actions by Beneficiary to Preserve . Should an Event of Default
occur, Beneficiary, in its own discretion, without obligation so to do and
without further notice to or demand upon Trustor and without releasing Trustor
from any Obligation, may make or do the same in such manner and to such extent
as it may deem necessary or desirable to protect the security hereof. In
connection therewith (without limiting Beneficiary's general powers),
Beneficiary shall have and is hereby given the right, but not the obligation (a)
to enter upon and take possession of the Trust Property, (b) to make additions,
alterations, repairs and improvements to the Trust Property which it may
consider necessary, desirable or proper to keep the Trust Property in good
condition and repair the same as needed, (c) to appear and participate in any
action or proceeding affecting or which may affect the security hereof or the
rights or powers of Beneficiary hereunder, (d) to pay, purchase, contest or
compromise any encumbrance, claim, charge, Lien or debt which in the judgment of
Beneficiary may affect or appear to affect the security of this Hyatt Gaming
Deed of Trust or be or appear to be prior or superior hereto, and (e) in
exercising such powers, to pay necessary expenses and employ necessary or
desirable consultants including without limitation in connection with applying
32
for gaming approvals under applicable Gaming Laws and approvals for transfers of
ownership for any Liquor License.
5.23 Reimbursement . Trustor shall pay immediately upon demand all sums
expended for expenses paid or incurred by Beneficiary, including without
limitation court costs, expenses for evidence of title, appraisals and surveys,
license fees, trustees' fees and reasonable attorneys' fees (including charges
for in-house counsel), under any of the terms of this Hyatt Gaming Deed of
Trust, including without limitation the provisions of Section 5.22 hereof,
together with interest on the amount of each expenditure from the date of such
expenditure at the Default Rate.
5.24 Usury Savings Clause . It is the intention of the parties to
conform strictly to the usury laws, whether state or federal, that are
applicable to the transaction of which this Hyatt Gaming Deed of Trust is a
part. All agreements between Trustor and Beneficiary, whether now existing or
hereafter arising and whether oral or written, are hereby expressly limited so
that in no contingency or event whatsoever shall the amount paid or agreed to be
paid by Trustor for the use, forbearance or detention of the money to be loaned
or advanced under the Subordinated Loan Agreement, the Subordinated Note, this
Hyatt Gaming Deed of Trust, any other Collateral Document, or any other
agreement or instrument relating thereto, or for the payment or performance of
any covenant or obligation contained herein or therein, exceed the maximum
amount permissible under applicable federal or state usury laws. If under any
circumstances whatsoever fulfillment of any such provision, at the time
performance of such provision shall be due, shall involve exceeding the limit of
validity prescribed by law, then the obligation to be fulfilled shall be reduced
to the limit of such validity. If under any circumstances Trustor shall have
paid an amount deemed interest by applicable law, which would exceed the highest
lawful rate, such amount that would be excessive interest under applicable usury
laws shall be applied to the reduction of the principal amount owing in respect
of the Obligations and not to the payment of interest, or if such excessive
interest exceeds the unpaid balance of principal and any other amounts due
hereunder, the excess shall be refunded to Trustor. All sums paid or agreed to
be paid for the use, forbearance or detention of the principal under any
extension of credit or advancement of funds by Beneficiary shall, to the extent
permitted by applicable law, and to the extent necessary to preclude exceeding
the limit of validity prescribed by law, be amortized, prorated, allocated and
spread from the date of the Subordinated Note until payment in full of the
Obligations so that the actual rate of interest on account of such principal
amounts is uniform throughout the term hereof.
5.25 Jurisdiction and Venue . At the sole option of Beneficiary, any
action concerning this Hyatt Gaming Deed of Trust or any other Transaction
Document may be brought in the Colorado District Court for the County in which
the Beneficiary is located or in the United States District Court for the
District of Colorado, and Trustor consents to venue and personal jurisdiction
with respect thereto.
5.26 Waiver of Jury Trial . Trustor hereby waives any right to jury
trial of any claim, cross-claim or counter-claim relating to or arising out of
or in connection with this Hyatt Gaming Deed of Trust and/or any of the other
Transaction Documents.
5.27 Waiver of Homestead and Other Exemptions . To the extent permitted
by law, Trustor hereby waives all rights to any homestead or other exemption to
which Trustor would otherwise be entitled under any present or future
33
constitutional, statutory, or other provision of applicable state or federal
law.
5.28 Construction Deed of Trust . This Hyatt Gaming Deed of Trust
secures indebtedness for construction purposes as described in Section 4-9-313,
Colorado Revised Statutes (1973), as amended.
5.29 Gaming Laws . The grant of, and terms and provisions of, this
Hyatt Gaming Deed of Trust, including, but not limited to, all rights and
remedies of Beneficiary and powers of attorney and appointment, are expressly
subject to all laws, statutes, regulations and orders affecting limited gaming
or the sale of liquor (collectively, the "Gaming Laws"), in the State of
Colorado, which may include, but not be limited to, the necessity for
Beneficiary to obtain the prior approval of the regulatory agencies enforcing
the Gaming Laws before taking any action hereunder and to be licensed by such
regulatory agencies before exercising certain rights and remedies hereunder.
5.30 Entire Agreement; Amendments . This Hyatt Gaming Deed of Trust
sets forth the entire understanding and agreement among the parties hereto, and
shall supersede any other understandings and agreements (written or oral) among
the parties hereto with respect to the to the subject matter of this Hyatt
Gaming Deed of Trust. No amendment or modification to, or waiver, discharge or
release of, any terms of this Hyatt Gaming Deed of Trust, shall be valid unless
in writing and executed and delivered by the Trustor, the Trustee and the
Beneficiary.
34
IN WITNESS WHEREOF, Trustor has duly executed and delivered this Hyatt
Gaming Deed of Trust to Public Trustee, Security Agreement, Fixture Filing and
Assignment of Rents, Leases and Leasehold Interests (Xxxxxx County, Colorado) as
of the day and year first written above.
WINDSOR WOODMONT BLACK HAWK
RESORT CORP.,
a Colorado corporation
By:
----------------------------------
Name:
----------------------------------
Title:
----------------------------------
[Signature Page to Hyatt Gaming Deed of Trust]
ACKNOWLEDGMENT
STATE OF NEW YORK )
---------------------------
)ss.
COUNTY OF NEW YORK )
----------------------------------
The foregoing instrument was acknowledged before me this ___ day of
March, 2000, by _______________ as _______________, of Windsor Woodmont Black
Hawk Corp., a Colorado corporation.
WITNESS my hand and official seal.
------------------------------------------
Notary Public
Name:
-------------------------------------
My commission expires
---------------------
[Signature Page to Hyatt Gaming Deed of Trust]
EXHIBIT A
(Attached to and forming a part of the Hyatt Gaming Deed of Trust to
Public Trustee, Security Agreement, Fixture Filing and Assignment
of Rents, Leases and Leasehold Interests, dated as of March 14, 2000 to the
Public Trustee of the County of Xxxxxx, Colorado, from
Windsor Woodmont Black Hawk Resort Corp., for the benefit of
Hyatt Gaming Management, Inc.)
LEGAL DESCRIPTION
[see attached document]
Exhibit A-1
ANNEX A
(Attached to and forming a part of the Hyatt Gaming Deed of Trust to
Public Trustee, Security Agreement, Fixture Filing and Assignment
of Rents, Leases and Leasehold Interests, dated as of March 14, 2000 to the
Public Trustee of the County of Xxxxxx, Colorado, from
Windsor Woodmont Black Hawk Resort Corp., for the benefit of
Hyatt Gaming Management, Inc.)
DEFINED TERMS
"Black Hawk Casino" means the project to develop, construct, equip and
operate the Black Hawk Casino by Hyatt and related entities as described in the
Offering Memorandum.
"Business Day" means any day other than Saturday, Sunday or any other
day on which banks in Denver, Colorado are permitted or required to be closed by
law or any Governmental Authority.
"Capital Lease Obligation" means, at the time any determination thereof
is to be made, the amount of the liability in respect of a capital lease that
would at that time be required to be capitalized on a balance sheet in
accordance with GAAP.
"Capital Stock" means:
(1) in the case of a corporation, corporate stock;
(2) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents
(however designated) of corporate stock;
(3) in the case of a partnership or limited liability company,
partnership or membership interests (whether general or
limited); and
(4) any other interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or
distributions of assets of, the issuing Person.
"Cash Collateral and Disbursement Agreement" means the Cash Collateral
and Disbursement Agreement among the Company, the Trustee, Hyatt Gaming
Management, Inc., the Construction Escrow Agent, the Independent Construction
Consultant and the Disbursement Agent in connection with the Black Hawk Casino.
"Collateral Documents" means, collectively, the Hyatt Gaming Deed of
Trust to Public Trustee, Security Agreement, Fixture Filing and Assignment of
Rents, Leases and Leasehold Interests by the Company to the Public Trustee of
Xxxxxx, Colorado, the Hyatt Gaming Security Agreement by the Company in favor of
the Beneficiary, the Hyatt Gaming Collateral Assignments by the Company in favor
of the Beneficiary, the Cash Collateral and Disbursement Agreement, the Hyatt
Gaming Pledge and Assignment by the Company in favor of the Beneficiary, the
Uniform Commercial Code financing statements and fixture filings, and any other
Annex A-1
agreements, instruments, documents, pledges or filings that evidence, set forth
or limit the Lien of the Beneficiary in the Collateral.
"Construction Disbursement Accounts" has the meaning set forth in the
Cash Collateral and Disbursement Agreement.
"Construction Disbursement Budget" has the meaning set forth in the
Cash Collateral and Disbursement Agreement.
"Construction Escrow Agent" means the construction escrow agent
retained in connection with the construction of the Black Hawk Casino, or any
successor construction escrow agent appointed by the Trustee pursuant to the
terms of the Cash Collateral and Disbursement Agreement.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Disbursement Agent" means Norwest Bank Minnesota, N.A. a national
association, as disbursement agent.
"Event of Default" shall have the meaning given in the Subordinated
Loan Agreement.
"FF&E" means furniture, fixtures or equipment used in the ordinary
course of the business of the Company and its Subsidiaries.
"FF&E Financing" means the incurrence of Indebtedness, the proceeds of
which are utilized solely to finance or refinance the acquisition of (or entry
into a capital lease by the Company or a Subsidiary with respect to) FF&E.
"Final Plans" with respect to any particular work or improvement means
Plans which (i) have received final approval from all governmental authorities
required to approve such Plans prior to completion of the work or improvements
and (ii) contain sufficient specificity to permit the completion of the work or
improvement.
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as have been approved by a significant segment of the accounting
profession, which are in effect from time to time.
"Gaming Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States federal government, any foreign government, any state,
province or city or other political subdivision or otherwise, whether now or
hereafter in existence, including the Colorado Limited Gaming Commission and the
Colorado Division of Gaming, and any other applicable gaming regulatory
authority with authority to regulate any gaming operation (or proposed gaming
operation) owned, managed or operated by the Company or any of its respective
Subsidiaries.
Annex A-2
"Gaming License" means any license, permit, franchise or other
authorization from any Gaming Authority necessary on the date of the
Subordinated Loan Agreement or at any time thereafter to own, lease, operate or
otherwise conduct the business of the Company or any of its Wholly Owned
Restricted Subsidiaries.
"Governmental Authority" means any nation or government, any state,
municipality or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, including without limitation the Colorado Division of
Gaming and the Colorado Limited Gaming Control Commission.
"Guarantee" means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business, direct or
indirect, in any manner including without limitation by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness.
"Hedging Obligations" means with respect to any specified Person, the
obligations of such Person under: (i) interest rate swap agreements, interest
rate cap agreements and interest rate collar agreements; and (ii) other
agreements or arrangements designed to protect such Person against fluctuations
in interest rates.
"Indebtedness" means, with respect to any specified Person, any
indebtedness of such Person, whether or not contingent, in respect of:
(1) borrowed money;
(2) evidenced by bonds, notes, debentures or similar instruments
or letters of credit (or reimbursement agreements in respect
thereof);
(3) banker's acceptances;
(4) representing Capital Lease Obligations; or
(5) the balance deferred and unpaid of the purchase price of any
property, except any such balance that constitutes an accrued
expense or trade payable, if and to the extent any of the
preceding items (other than letters of credit and Hedging
Obligations) would appear as a liability upon a balance sheet
of the specified Person prepared in accordance with GAAP. In
addition, the term "Indebtedness" includes all Indebtedness of
others secured by a Lien on any asset of the specified Person
(whether or not such Indebtedness is assumed by the specified
Person) and, to the extent not otherwise included, the
Guarantee by the specified Person of any indebtedness of any
other Person.
The amount of any Indebtedness outstanding as of any date shall be:
(1) the accreted value thereof, in the case of any Indebtedness
issued with original issue discount; and
Annex A-3
(2) the principal amount thereof, together with any interest
thereon that is more than 30 days past due, in the case of any
other Indebtedness.
"Independent Construction Consultant" means the independent
construction consultant retained in connection with the construction of the
Black Hawk Casino, or any successor independent construction consultant
appointed by the Trustee pursuant to the terms of the Cash Collateral and
Disbursement Agreement.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset,
whether or not filed, recorded or otherwise perfected under applicable law,
including any conditional sale or other title retention agreement, any lease in
the nature thereof, any option or other agreement to sell or give a security
interest in and any filing of or agreement to give any financing statement under
the Uniform Commercial Code (or equivalent statutes) of any jurisdiction.
"Liquidated Damages" means all liquidated damages then owing pursuant
to Section 2.1(d) of the Registration Rights Agreement. "Liquor License" means
any license, permit, franchise or other authorization from any Liquor Licensing
Authority necessary on the date of the Subordinated Loan Agreement or at any
time thereafter to own, lease, operate or otherwise conduct the retail,
restaurant or other entertainment facilities of the Company or any of its Wholly
Owned Restricted Subsidiaries in the manner described in the Offering
Memorandum.
"Liquor Licensing Authority" means any agency, authority, board,
bureau, commission, department, office or instrumentality of any nature
whatsoever of the United States federal government, any foreign government, any
state, province or city or other political subdivision or otherwise, whether now
or hereafter in existence, 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, managed or
operated by the Company or any of its respective Subsidiaries.
"Minimum Facilities" means, with respect to the Black Hawk Casino, a
casino which has in operation at least 1200 slot machines, and related amenities
(including a restaurant, a bar and an entertainment area) and has parking for at
least 800 vehicles.
"Obligations" shall have the meaning attributed to it in Section 1.3.
"Offering Memorandum" means the Offering Memorandum of U.S. Bancorp
Libra dated March 14, 2000.
"Operating" means, with respect to the Black Hawk Casino, the first
time that:
(1) all Gaming Licenses have been granted and have not been
revoked or suspended;
Annex A-4
(2) all Liens (other than Liens created by the Collateral
Documents or Permitted Liens) related to the development,
construction and equipping of, and beginning operations at,
the Black Hawk Casino have been discharged or, if payment is
not yet due or if such payment is contested in good faith by
the Company, sufficient funds remain in the Construction
Disbursement Account to discharge such Liens and the Company
has taken any action (including the institution of legal
proceedings) necessary to prevent the sale of any or all of
the Black Hawk Casino or the real property on which the Black
Hawk Casino will be constructed;
(3) the Independent Construction Consultant, the general
contractor and the architect of the Black Hawk Casino shall
deliver a certificate to the Trustee certifying that the Black
Hawk Casino is substantially complete in all material respects
in accordance with the Final Plans with respect to the Minimum
Facilities and all applicable building and other laws,
ordinances and regulations;
(4) the Black Hawk Casino is in a condition (including
installation of furnishings, fixtures and equipment) to
receive customers in the ordinary course of business;
(5) the Minimum Facilities are open to the general public and
operating in accordance with applicable law;
(6) a permanent or temporary certificate of occupancy has been
issued for the Black Hawk Casino by the appropriate
governmental authorities; and
(7) a notice of completion of the Black Hawk Casino has been
recorded.
"Operating Deadline" means December 31, 2001.
"Opinion of Counsel" means an opinion from legal counsel who is
reasonably acceptable to Lender, that meets the requirements of Section 7.20 of
the Subordinated Loan Agreement. The counsel may be an employee of or counsel to
either the Issuers or the Trustee.
"Permitted Dispositions" means the sale, transfer, lease or other
disposition of assets in the Trust Property, in the ordinary course of business,
of inventory held in the ordinary course of business and other sales, transfers,
or other dispositions of assets in the Trust Property in the ordinary course of
business; provided that all provisions of the Subordinated Loan Agreement are
complied with, including, without limitation, Sections 4.5(i) and 4.5(cc).
"Permitted Liens" means:
(1) Liens on property of a Person existing at the time such Person
is merged into or consolidated with the Company or any Wholly
Owned Restricted Subsidiary of the Company; provided that such
Liens were in existence prior to the contemplation of such
merger or consolidation and do not extend to any assets other
than those of the Person merged into or consolidated with the
Company or any Wholly Owned Restricted Subsidiary;
Annex A-5
(2) Liens on property existing at the time of acquisition thereof
by the Company or any Wholly Owned Restricted Subsidiary of
the Company (other than materials, supplies or FF&E acquired
in connection with developing, constructing or equipping of,
or commencing operations at, the Black Hawk Casino), provided
that such Liens were in existence prior to the contemplation
of such acquisition;
(3) Liens existing on the date of the Subordinated Loan Agreement
and previously disclosed to the Beneficiary in writing;
(4) statutory Liens of landlords and carriers, warehousemen,
mechanics, suppliers, materialmen, repairmen or other like
Liens arising in the ordinary course of business and with
respect to amounts not yet delinquent or being contested in
good faith by an appropriate process of law; provided that (a)
a reserve or other appropriate provision as shall be required
by GAAP shall have been made therefor and (b) with respect to
such Liens arising in connection with the Black Hawk Casino,
the Company has obtained any title insurance endorsements
required by, and has otherwise complied with the provisions
relating thereto contained in, the Cash Collateral and
Disbursement Agreement;
(5) Liens for taxes, assessments or governmental charges or claims
that are not yet delinquent or that are being contested in
good faith by appropriate proceedings promptly instituted and
diligently concluded; provided that any reserve or other
appropriate provision as shall be required in conformity with
GAAP shall have been made therefor;
(6) Liens securing obligations in respect of the Indenture, the
Notes, or the Subordinated Loan Agreement or the Subordinated
Note;
(7) Liens on FF&E to secure Indebtedness permitted by the
Subordinated Loan Agreement;
(8) pledges or deposits in the ordinary course of business to
secure lease obligations or nondelinquent obligations under
workers' compensation, unemployment insurance or similar
legislation; and
(9) easements, rights-of-way, restrictions, minor defects or
irregularities in title and other similar charges or
encumbrances not interfering in any material respect with the
business or assets of the Company or any Subsidiary incurred
in the ordinary course of business.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
"Plans" means the plans, specifications, working drawings, change
orders, correspondence and related items that collectively:
Annex A-6
(1) provide for and detail the manner of development, construction
and equipping of the Black Hawk Casino;
(2) call for construction which will permit the Black Hawk Casino
to be Operating on or prior to the Operating Deadline;
(3) call for construction which will cause the Black Hawk Casino
to be Operating for a total cost consistent with its
Construction Disbursement Budget (as defined in the Cash
Collateral and Disbursement Agreement) and the line items set
forth therein;
(4) to the extent such Plans are amended, in the reasonable,
professional judgment of the Independent Construction
Consultant, continue to represent a logical evolution
consistent with previous Plans; and
(5) together with any amendments, are consistent with the
description of the Black Hawk Casino contained in the Offering
Circular, and are consistent with all governmental approvals
and requirements, including without limitation the Black Hawk
Building Department, Historical Architecture Review Commission
and Gaming Authorities.
"Project" means the Black Hawk Casino as described in the Offering
Memorandum, as the Plans may be amended pursuant to the Collateral Documents and
the Subordinated Loan Agreement, but excluding the Excluded Assets defined in
Section 1.
"Subsidiary" means, with respect to any specified Person:
(1) any corporation, association or other business entity of which
more than 50% of the total voting power of shares of Capital
Stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly
or indirectly, by such Person or one or more of the other
Subsidiaries of that Person (or a combination thereof); and
(2) any partnership (a) the sole general partner or the managing
general partner of which is such Person or a Subsidiary of
such Person or (b) the only general partners of which are such
Person or one or more Subsidiaries of such Person (or any
combination thereof).
"Wholly Owned Subsidiary" of any Person means a Subsidiary of such
Person at least 90% of the outstanding Capital Stock or other ownership
interests of which will at the time be owned by such Persons or by one or more
Wholly Owned Subsidiaries of such Person, and one or more Wholly Owned
Subsidiaries of such Person.
"Wholly Owned Restricted Subsidiary" of any specified Person means a
Restricted Subsidiary of such Person all of the outstanding Capital Stock or
other ownership interests of which (other than directors' qualifying shares)
shall at the time be owned by such Person or by one or more Wholly Owned
Subsidiaries of such Person and one or more Wholly Owned Restricted Subsidiaries
of such Person.
Annex A-7
* * * * *
Annex A-8
ANNEX B
(Attached to and forming a part of the Hyatt Gaming Deed of Trust to
Public Trustee, Security Agreement, Fixture Filing and Assignment
of Rents, Leases and Leasehold Interests, dated as of March 14, 2000 to the
Public Trustee of the County of Xxxxxx, Colorado, from
Windsor Woodmont Black Hawk Resort Corp., for the benefit of
Hyatt Gaming Management, Inc.)
NOTICE PROVISION
All notices, requests, demands and other communications (each, a
"Notice") required to be provided to Trustor, Beneficiary or the Trustee
pursuant to this Hyatt Gaming Deed of Trust 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 the Trustor:
------------------
Windsor Woodmont Black Hawk Resort Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xxxxxxxxxx
Facsimile No.: (000) 000-0000
If to the Trustee:
-----------------
Xxxxxx County Public Trustee
X.X. Xxx 000
Xxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Public Trustee
Facsimile No.: (000) 000-0000
If to the Beneficiary:
---------------------
Hyatt Gaming Management, Inc.
Madison Plaza - 39th Floor
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
Annex B-1
with a copy to:
--------------
Xxxxxx & Xxxxxxx
Sears Tower Suite 5800
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxx
Facsimile No.: (000) 000-0000
All Notices sent by any party hereto 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 Annex B. A party
shall have the right to change their respective address for the purposes of this
Annex B by providing a Notice of such change in address as required under this
Annex B.
* * * * *
Annex B-2
