Exhibit 10.23
HYATT GAMING ACCOUNT AGREEMENT
THIS HYATT GAMING ACCOUNT AGREEMENT, dated as of March 14, 2000 (as
the same may be amended, restated, supplemented or otherwise modified from time
to time, the "Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT
CORP., a Colorado corporation ("Owner"), HYATT GAMING MANAGEMENT, INC., a Nevada
corporation, together with its successors and assigns, the "Lender"), and
NORWEST BANK MINNESOTA, N.A., a national association ("Norwest"), as securities
intermediary (Norwest, in such capacity, together with its successors and
assigns, the "Securities Intermediary"), upon the following terms and
conditions:
RECITALS
A. Owner and the Lender are parties to that certain Hyatt Gaming
Pledge and Assignment Agreement of even date herewith (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Hyatt Gaming Pledge and Assignment Agreement"), which has been acknowledged by
Securities Intermediary.
B. Owner desires that Securities Intermediary hold certain financial
assets and perform certain services with respect to such financial assets.
C. The Securities Intermediary is willing to hold such assets and to
perform such services, subject to the terms and conditions of this Agreement and
the Hyatt Gaming Pledge and Assignment Agreement.
NOW, THEREFORE, for the mutual covenants set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Definitions. All capitalized terms used herein without definition
shall have the meanings given to them in the Hyatt Gaming Pledge and Assignment
Agreement. Terms used but not otherwise defined herein that are defined in the
Uniform Commercial Code (as defined in the Hyatt Gaming Pledge and Assignment
Agreement) shall have the meanings given in the Uniform Commercial Code.
2. Establishment of Securities Accounts
(a) The Securities Intermediary hereby confirms and agrees that it
has established Account No. 00000000 in the name of Windsor Woodmont Black Hawk
Resort Corp. - Hyatt Gaming Construction Disbursement Account (the "Hyatt Gaming
Construction Disbursement Account") and Account No. 00000000 in the name of
Windsor Woodmont Black Hawk Resort Corp. - Hyatt Gaming Completion Reserve
Account (the "Hyatt Gaming Completion Reserve Account", and together with the
Hyatt Gaming Construction Disbursement Account, the "Securities Accounts"),
subject to the terms and conditions of this Agreement, the Cash Collateral and
Disbursement Agreement among SunTrust Bank, a Georgia banking corporation, as
trustee, Owner, Lender, First American Heritage Title Company, as the
construction escrow agent, Norwest, as disbursement agent (in such capacity,
together with its successors and assigns, the "Disbursement Agent"), and RE
TECH+, Inc., as the independent construction consultant (as the same may be
amended, restated, supplemented or otherwise modified from time to time, the
"Disbursement Agreement"), and the Hyatt Gaming Pledge and Assignment Agreement.
The Security Intermediary agrees (i) to maintain the Securities Accounts at its
office at Midwest Plaza West Tower, 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx,
XX 00000-0000, (ii) not to change the name or account number of the Securities
Accounts without the prior written consent of Lender and (iii) to close the
Securities Accounts upon the occurrence of the Final Accounts Disbursement
pursuant to the Disbursement Agreement.
(b) The Securities Accounts are accounts in which financial assets
are or may be credited and the Securities Intermediary shall hold such financial
assets in accordance with this Agreement and the Hyatt Gaming Pledge and
Assignment Agreement. The term "hold" shall include the deposit of any part of
or all of the financial assets with the Depositary Trust Company, the Federal
Reserve Book Entry System or any other centralized securities depositary system
or financial intermediary, whether presently or hereafter organized.
(c) Title to the financial assets held in the Securities Accounts
shall be registered in the name of Securities Intermediary who shall credit on
its books and records such financial assets as being held for the account of
Lender and for the benefit of Lender (subject to the subordinated interest of
the Indenture Trustee as set forth in the Pledge and Assignment Agreement of
even date herewith by Owner in favor of the Indenture Trustee (as amended,
restated, supplemented or otherwise modified from time to time, the "First
Pledge Agreement") in accordance with the provisions set forth in the Hyatt
Gaming Pledge and Assignment Agreement and the Securities Intermediary agrees
that in no event shall any financial asset held in the Securities Accounts be
registered in the name of Owner or payable to Owner.
(d) Owner hereby authorizes the Securities Intermediary, and the
Securities Intermediary hereby agrees to comply with any order of Lender from
time to time directing transfer or redemption of any financial asset relating to
the Securities Accounts and shall comply with such entitlement order without
further consent by Owner, Disbursement Agent or any other party. Lender shall
have an exclusive interest in (subject to the subordinated interest of the
Indenture Trustee as set forth in the First Pledge Agreement) and sole dominion
and control of the Securities Accounts and except in accordance with and
pursuant to the Disbursement Agreement, the Securities Intermediary shall not
comply with any future request by Owner in connection with the Securities
Accounts, including any request to close the Securities Accounts, unless
consented to in writing by Lender.
3. "Financial Asset" Election. The Securities Intermediary hereby
agrees that each item of property (whether investment property, financial asset,
security, instrument or cash) held in the Securities Accounts shall be treated
as a "financial asset" within the meaning of Section 8-102(a)(9) of the Uniform
Commercial Code.
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4. Securities Intermediary's Duties Regarding Investments. The
Securities Intermediary shall have no responsibility for supervision or
management of any property at any time in the Securities Accounts, except as
provided in this Agreement or the Hyatt Gaming Pledge and Assignment Agreement.
The Securities Intermediary's responsibility with regard to the sale, purchase
or exchange of investments shall be limited to the written orders of
Disbursement Agent, as directed by Owner in accordance with the Disbursement
Agreement with respect to the Securities Accounts without the need for further
consent by Owner; provided that the Securities Intermediary may take direction
from Owner with respect to investment as provided in the Disbursement Agreement.
5. Collection of Income and Principal. The Securities Intermediary
shall collect income and principal becoming due on the assets in the Securities
Accounts, but shall be under no responsibility or duty to undertake collection
efforts or to instigate or participate in any legal proceedings or to retain
counsel in an effort to accomplish such collection. The Securities Intermediary
shall advise Owner and Lender within a reasonable time of any non-payment of
principal or income. Any income received shall be disposed of as set forth in
the Hyatt Gaming Pledge and Assignment Agreement and the Disbursement Agreement.
6. Instructions: Signatures. Except as provided in the Disbursement
Agreement, all instructions and directions for the Securities Accounts must be
in writing, signed by a person or persons duly authorized to sign on behalf of
Lender in such form as the Securities Intermediary may reasonably require.
Specimen signatures of all persons to whom authority has been delegated shall be
furnished. The Securities Intermediary shall provide copies of such instructions
to Owner.
7. Accounting. The Securities Intermediary shall keep complete and
accurate books of account showing all receipts, disbursements and transactions
in the Securities Accounts and shall prepare and deliver to Owner and Lender
monthly reports summarizing the activity in the Securities Accounts. The
Securities Intermediary shall provide reports more frequently upon the
reasonable request by Owner or Lender. Owner agrees that it retains the
obligation to prepare and file all required federal, state and local tax reports
and returns and to pay any taxes related to its ownership of the assets in the
Securities Accounts.
8. Adverse Claims. Except for the claims and interests of Lender
(subject to the subordinated interest of the Indenture Trustee as set forth in
the First Pledge Agreement) and Owner in the Securities Accounts, the Securities
Intermediary does not have information pertaining to or current knowledge of any
claim to, or interest in, the Securities Accounts or in any "financial asset"
(as defined in Section 8-102(a) of the Uniform Commercial Code) credited
thereto. If any Person asserts any lien, encumbrance or adverse claim (including
any writ, garnishment, judgment, warrant of attachment, execution or similar
process) against the Securities Accounts or in any financial asset carried
therein, the Securities Intermediary will promptly notify Lender and Owner
thereof. The Securities Intermediary has not entered into any agreement with any
other Person relating to the Securities Accounts and/or any of the financial
assets credited thereto pursuant to which it agrees or has agreed to comply with
entitlement orders (as defined in Section 8-102(a)(8) of the Uniform Commercial
Code) of such Person; provided, that the Securities Intermediary shall take
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written orders from the Disbursement Agent at the request of Owner with respect
to investment of the property in the Securities Accounts.
9. Authority. Any person executing this agreement in a fiduciary or
other representative capacity represents that they have full power and authority
to do so and that any applicable or required court, corporate or other authority
has been duly and properly given and continues as of the date hereof.
10. Fees and Costs. Owner agrees to pay all reasonable costs incurred
by the Securities Intermediary in connection with the Securities Accounts. Such
costs will be paid by Owner directly to the Securities Intermediary upon demand.
11. Successors and Assigns; Third Party Beneficiaries. This Agreement
shall be binding upon and inure to the benefit of the parties, and their
respective permitted successors and permitted assigns. This Agreement shall not
confer any rights or remedies upon any third party.
12. Governing Law; Severability. This Agreement shall be governed by
the laws of the State of New York, without regard to the principles of conflict
of laws thereof AND EACH OF THE PARTIES HERETO, TOGETHER WITH THE SECURITIES
INTERMEDIARY, EXPRESSLY AGREES THAT FOR PURPOSES OF SECTIONS 8-110 OF THE
UNIFORM COMMERCIAL CODE, THE SECURITIES INTERMEDIARY'S JURISDICTION IS NEW YORK.
If any term or provision of this Agreement is held to be or rendered invalid or
unenforceable at any time in any jurisdiction, such term or provision shall not
affect the validity or enforceability of any other terms or provisions of this
Agreement, or the validity or enforceability of such affected terms or
provisions at any other time or in any other jurisdiction.
13. Entire Agreement; Amendments to Agreement. This Agreement,
together with those other agreements referenced herein, constitutes the entire
understanding and agreement of the Owner, Lender and the Securities
Intermediary, and shall supersede any other agreements and understandings
(written or oral) among the Owner, Lender and the Securities Intermediary on or
prior to the date of this Agreement with respect to the transaction contemplated
in this Agreement. No amendment or modification to any terms of this Agreement,
or cancellation of this Agreement, shall be valid unless in writing and executed
and delivered by all the parties hereto.
14. Facsimile; Counterparts. Each party hereto may deliver an executed
signature page to this Agreement by facsimile transmission to the other party,
which facsimile copy shall be deemed to be an original executed signature page;
provided, however, that such party shall deliver an original signature page to
the other party promptly thereafter. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which counterparts together shall constitute one agreement with the same effect
as if the parties hereto had signed the same signature page.
15. Intercreditor Arrangements. This Agreement is made subject to all
terms and conditions of that certain Intercreditor Subordination and Collateral
Agreement, dated as of March 14, 2000, by and among Owner, Lender and the
Indenture Trustee.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
OWNER:
Windsor Woodmont Black Hawk
Resort Corp.,
a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
----------------------------
Title: Executive Vice President
----------------------------
LENDER:
Hyatt Gaming Management, Inc.,
a Nevada corporation
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxxx
----------------------------
Title: Authorized Signatory
----------------------------
SECURITIES INTERMEDIARY:
NORWEST BANK MINNESOTA, N.A.,
a national association
By: /s/ Xxxxxx X. Xxxxx
----------------------------
Name: Xxxxxx X. Xxxxx
----------------------------
Title: Vice President
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[Signature Page to Hyatt Gaming Account Agreement]
