Exhibit 10.16
HYATT GAMING COLLATERAL ASSIGNMENT
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THIS HYATT GAMING COLLATERAL ASSIGNMENT (as amended, supplemented or
otherwise modified from time to time, this "Hyatt Gaming Collateral Assignment")
is made as of March 14, 2000 by and between WINDSOR WOODMONT BLACK HAWK RESORT
CORP., a Colorado corporation, (the "Company"), in favor of HYATT GAMING
MANAGEMENT, INC., a Nevada corporation, together with its successors and
assigns, the "Lender").
RECITALS
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WHEREAS, the Company and SunTrust Bank, a Georgia banking corporation, as
trustee (herein, together with its successors in such capacity called the
"Indenture Trustee"), are, contemporaneously with the execution and delivery of
this Hyatt Gaming Collateral Assignment, entering into 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") pursuant to which the
Company (i) is issuing its 13% Series A First Mortgage Notes due 2005 (such
notes, together with any notes issued in replacement thereof or in exchange
therefor, the "Series A Notes"), and (ii) will issue its 13% Series B First
Mortgage Notes due 2005 (such notes, together with any notes issued in
replacement thereof or in exchange therefor, the "Series B Notes", and together
with the Series A Notes, the "Original Notes"), in the original aggregate
principal amount of $100,000,000 and pursuant to which the Company may issue
additional notes up to an aggregate principal amount of $35,000,000 in the same
series as the Original Notes (such notes, together with any notes issued in
replacement thereof or exchange therefor, the "Additional Notes", and together
with the Original Notes, the "Notes"). All initial capitalized terms used, but
not defined, herein shall have the meaning set forth in the Subordinated Loan
Agreement;
WHEREAS, it is a condition precedent to the purchase of the Notes that the
Company shall have executed and delivered that certain Collateral Assignment, of
even date herewith (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "First Collateral Assignment") to the
Indenture Trustee for itself and the ratable benefit of the holders from time to
time of the Notes to secure the payment and performance of the Obligations (as
defined in the First Collateral Assignment);
WHEREAS, the Company and Lender are, contemporaneously with the execution
and delivery of this Hyatt Gaming Collateral Assignment, entering into 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 Lender is loaning the Company
the principal amount of $7,500,000 (the "Subordinated Loan"). To evidence the
Subordinated Loan, the Company has executed and delivered to Lender 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"). All initial capitalized terms used, but not defined,
herein shall have the meaning set forth in the Subordinated Loan Agreement;
WHEREAS, it is a condition precedent to Lender's making of the Subordinated
Loan that the Company shall have executed and delivered this Hyatt Gaming
Collateral Assignment to Lender to secure the payment and performance of the
Obligations (as hereinafter defined); and
WHEREAS, Lender, the Company 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 the Company and each of the liens
securing such indebtedness.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, and in order to induce the Lender to enter into
the Subordinated Loan Agreement, the Company agrees as follows:
1. Assignment. As security for the due and punctual payment and performance
of all indebtedness and obligations of the Company, now or hereafter due under
the Subordinated Loan Agreement, the Subordinated Note, the Collateral Documents
and all other documents, agreements and instruments (in each case, as amended,
supplemented or otherwise modified from time to time), now or hereafter executed
and delivered in connection with the Subordinated Loan Agreement, collectively,
the "Transaction Documents"), whether or not arising after the commencement of a
proceeding under Bankruptcy Law (including post-petition interest) and whether
or not recovery of any such obligation or liability may be barred by a statute
of limitations or prescriptive period or such obligation or liability may
otherwise be unenforceable (collectively, the "Obligations"), the Company hereby
assigns and transfers to the Lender, and hereby grants to Lender, a security
interest in all of the Company's right, title and interest, to the extent
assignable and transferable, whether now existing or hereafter arising and
whether now owned or hereafter acquired, wherever located, in, to and under the
following (collectively, the "Assigned Collateral"):
(a) all contracts (including, without limitation, the Excavation Contract,
Construction Contract, Architect Contract and all other construction
contracts and architectural design, engineering and development
contracts and agreements, subcontracts, service agreements, supply
agreements and other such contracts and agreements) between the
Company and other persons, and all amendments, modifications,
additions and changes thereto, in each case relating to the Project;
(b) all plans, specifications, engineering reports, soil and environmental
reports, site plans, surveys, working drawings, shop drawings, other
reports, drawings and plans and other such documents, and all
amendments, modifications, supplements, general conditions, addenda,
additions and changes thereto, in each case relating to the Project;
(c) all other contracts, agreements, documents and instruments now
existing or hereafter arising relating to the Project, including,
without limitation, any and all construction, architectural and
engineering contracts, plans and specifications, drawings, and
surveys, bonds, permits, licenses and other governmental approvals and
all other Plans (all of the foregoing in subsections (a) through (c),
collectively, the "Contracts and Documents"); and
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(d) all proceeds of the foregoing, including, without limitation, (i)
whatever is now or hereafter receivable or received upon the sale,
exchange, collection or other disposition of any of the Contracts and
Documents, whether voluntary or involuntary, (ii) any such items which
are now or hereafter acquired with any proceeds of Contracts and
Documents, and (iii) any insurance or payments under any indemnity,
warranty or guaranty now or hereafter payable by reason of loss or
damage or otherwise with respect to any Contracts and Documents or any
proceeds thereof.
Notwithstanding the foregoing, the Assigned Collateral shall not include
any of the following (collectively, the "Excluded Assets"): (i) Gaming Licenses,
(ii) Liquor Licenses, (iii) 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), (iv) 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 (v) 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
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.
The Assigned Collateral includes, without limitation, those certain
contracts and agreements set forth in Exhibit A attached hereto and made a part
hereof.
The Company shall obtain from each other party to the Contracts and
Documents a Consent to Assignment in the form Exhibit B attached hereto and made
a part hereof.
2. Rights of the Company. This Hyatt Gaming Collateral Assignment is an
assignment for security purposes only. Accordingly, notwithstanding anything to
the contrary set forth herein, the Company shall retain all rights with respect
to the Contracts and Documents, including, without limitation, the right to
enforce all rights of such Company thereunder, except during a period when an
Event of Default has occurred and is continuing.
3. Representations and Warranties of the Company. The Company represents
and warrants to Lender as of the date hereof that (a) the Company has provided
to Lender true and complete copies of all Contract and Documents executed as of
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the date hereof, and that none of the Contracts and Documents has been amended
or modified, except as set forth herein or as previously disclosed in writing to
Lender, (b) except for Permitted Liens, the Company has not assigned or granted
a security interest in any of the Contracts and Documents or the proceeds
thereof to anyone other than Lender and the Indenture Trustee under the First
Collateral Assignment Agreement, and (c) the Company is not in default, and no
event has occurred that with notice or lapse of time or both would constitute a
default by the Company, or to the Company's knowledge, any other party under any
of the Contracts and Documents.
4. Covenants of the Company. The Company agrees that (a) the Company will
not further assign, encumber or permit the assignment, transfer or encumbrance
of any of the Contracts and Documents or the proceeds thereof without the prior
written consent of (i) Lender, except as otherwise permitted under the
Subordinated Loan Agreement, and (ii) any surety or guarantor under any
performance or completion bond to the extent that failure to obtain such consent
would affect the validity or coverage provided by such bond; (b) the Company
will perform and discharge each material obligation, covenant and agreement to
be performed by the Company under each Contract and Document, at no cost or
expense to Lender; (c) the Company will use its commercially reasonable best
efforts to enforce or secure the performance of each material obligation,
covenant or agreement of the other parties to each Contract and Document; and
(d) the Company will not modify, amend, supplement or in any way join in the
release of any rights of the Company under any of the Contracts and Documents or
modify, amend, supplement or in any way join in the discharge of any obligations
of any counterparty under any Contract or Document, without the prior written
consent of (i) Lender to the extent that such modification, amendment,
supplement, release or discharge would be in any material way adverse to Lender,
and (ii) any surety or guarantor under any performance or completion bond to the
extent that failure to obtain such consent would affect the validity or coverage
provided by such bond except in each case with the Lender's prior written
consent.
5. Limitation of Lender's Obligations. Nothing in this Assignment shall
constitute an assumption of any obligation by Lender under the Contracts and
Documents. The Company shall continue to be liable for all obligations
thereunder and hereby agrees to perform all such obligations, to comply with all
terms and conditions of the Contracts and Documents, and to take such steps as
may be necessary or appropriate to secure performance by all other parties
thereto. The Company shall defend, indemnify and hold Lender harmless from and
against all liabilities, damages, losses, costs, and expenses, including,
without limitation, attorneys' fees, arising from or related to any failure by
the Company to perform any obligation of the Company under any of the Contracts
and Documents, which indemnity and hold harmless agreement shall survive the
payment and performance of the Obligations.
6. Cure by Lender. At any time upon and during the continuation of an Event
of Default, Lender shall have the right, but shall have no obligation, to take
all actions that Lender may determine to be necessary or appropriate to cure any
breach or default under any of the Contracts and Documents and to protect the
rights of the Company or Lender thereunder, and may do so in Lender's name, in
the name of the Company or otherwise. If any such action taken by Lender shall
prove to be inadequate or invalid in whole or in part, Lender shall not incur
any liability on account thereof, and the Company hereby agrees to defend,
indemnify and hold Lender harmless from and against all liabilities, damages,
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losses, costs, and expenses, including, without limitation, reasonable
attorneys' fees, which Lender may incur or to which it may become subject in
exercising any of its rights under this Hyatt Gaming Collateral Assignment,
except for those arising from the gross negligence or willful misconduct of
Lender, which indemnity and hold harmless agreement shall survive the payment
and performance of the Obligations.
7. Rights and Remedies. Upon the occurrence of an Event of Default under
the Subordinated Loan Agreement, irrespective of whether a notice of default has
been given with respect to such Event of Default (unless required by the
Subordinated Loan Agreement), and with or without bringing any action or
proceeding, Lender may, at its option, succeed to and proceed to enforce all of
the rights, interests and remedies of the Company under the Contracts and
Documents, amend, modify, cancel, terminate or replace the same, reassign the
Company's right, title and interest therein to any other person, and exercise
any and all other rights of the Company under the Contracts and Documents,
either in person or through an agent, receiver or keeper, without further notice
to or consent by the Company, and without regard to the adequacy of security for
the Obligations or the availability of any other remedies. The exercise of any
of the foregoing rights or remedies shall not cure or waive any Default under
the Subordinated Loan Agreement or any other Transaction Document, or waive,
modify or affect any notice of default thereunder, or invalidate any act done
pursuant to any such notice. In addition to the rights and remedies of Lender as
set forth in this Hyatt Gaming Collateral Assignment, Lender shall be entitled
to the benefit of all other rights and remedies set forth in the Subordinated
Loan Agreement and the other Transaction Document, at law or in equity. Without
limiting the foregoing, the Company hereby irrevocably constitutes and appoints
Lender, upon the occurrence and during the continuance of an Event of Default,
as its attorney-in-fact to demand, receive and enforce the Company's rights with
respect to the Contracts and Documents, to give appropriate receipts, releases
and satisfactions for and on behalf of the Company, and to do any and all acts
in the name of the Company with the same force and effect as the Company could
do if this Assignment had not been made. Such appointment is irrevocable and
coupled with an interest until payment in full and complete performance of all
the Obligations. Lender may appoint a substitute attorney-in-fact. The Company
ratifies all actions taken by the attorney-in-fact but, nevertheless, if Lender
requests, the Company will specifically ratify any action taken by the
attorney-in-fact by executing and delivering to the attorney-in-fact or to any
entity designated by the attorney-in-fact all documents necessary to effect such
ratification.
8. Additional Instruments. With respect to both existing and future
Contracts and Documents, the Company hereby agrees to execute and deliver, at
its sole cost and expense, such additional assignments and other documents as
Lender may reasonably request in order to implement the provisions of this
Assignment.
9. Gaming Laws and Regulations. The Company acknowledges that, to the
extent required under applicable law, the consummation of the transactions
contemplated hereby and the exercise of remedies hereunder may be subject to the
Colorado Limited Gaming Act and the regulations promulgated pursuant to each
such law, all as amended from time to time. The parties hereto further
acknowledge that the Gaming License held by the Company is not part of the
collateral of this Assignment and that, under the above described legislation
and rules promulgated thereunder, Lender may be precluded from or otherwise
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limited in taking possession of or in selling the collateral of this Assignment
under the rights and remedies provisions of this Hyatt Gaming Collateral
Assignment and the other Transaction Documents. The parties hereto also
acknowledge that due to various legal restrictions, including, without
limitation, licensing of operators of gaming facilities and prior approval of
the sale or disposition of assets of a licensed gaming operation, the sale of
collateral may be denied by Gaming Authorities or delayed pending approval of
Gaming Authorities.
10. Conflicts with Subordinated Loan Agreement. In the event of any
conflict between the provisions of this Hyatt Gaming Collateral Assignment and
those of the Subordinated Loan Agreement, including, without limitation, any
conflicts or inconsistencies in any definitions herein or therein, the
applicable provisions or definitions of the Subordinated Loan Agreement shall
govern.
11. Notice. All notices, requests and other communications provided for
hereunder shall be given in accordance with Section 7.13 of the Subordinated
Loan Agreement. A copy of any notice provided pursuant to this Hyatt Gaming
Collateral Assignment shall be provided to Hyatt Gaming Management, Inc. at its
address as set forth in the Management Agreement.
12. Successors and Assigns; Third Party Beneficiaries. This Assignment
shall be binding upon and inure to the benefit of the parties, and their
respective permitted successors and permitted assigns. This Assignment shall not
confer any rights or remedies upon any third party.
13. No Waiver. No delay on the part of Lender in the exercise of any right
or remedy shall operate as a waiver thereof, and no single or partial exercise
by Lender of any right or remedy shall preclude other or further exercise
thereof or the exercise of any other right or remedy.
14. Termination and Release. Upon the indefeasible payment in full of all
Obligations (other than Unmatured Surviving Obligations) of the Company under
the Subordinated Loan Agreement, the Subordinated Note, this Hyatt Gaming
Collateral Assignment, the other Collateral Documents and any other document or
other agreement executed in connection herewith or therewith, or upon Legal
Defeasance or Covenant Defeasance, Lender shall, at the request of the Company,
deliver a certificate to the Debtor stating that such Obligations have been paid
in full, the security interest granted herein shall terminate and all rights to
the Collateral shall revert to the Company. Upon any such termination Lender
shall, at the Company's cost and expense, execute and deliver to the Company
such termination statements and such other documents as the Company shall
reasonably request to effect or evidence the termination and release of such
security interest in Collateral. For the purposes hereof, the term "Unmatured
Surviving Obligation" means, as of any date, an Obligation which is contingent
and unliquidated and not due and owing on such date and which, pursuant to
provisions of the Subordinated Loan Agreement, the Subordinated Note, this Hyatt
Gaming Collateral Agreement, the other Collateral Documents and any other
document or agreement executed in connection herewith or therewith, survives
termination of such documents or agreements and the indefeasible payment in full
of the Senior Notes.
15. Waiver of Trial By Jury. LENDER AND THE COMPANY HEREBY WAIVE TRIAL BY
JURY IN ANY JUDICIAL PROCEEDINGS INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER,
(WHETHER IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,
OR CONNECTED WITH THIS HYATT GAMING COLLATERAL ASSIGNMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER.
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16. Governing Law; Severability. THIS ASSIGNMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL
OBLIGATIONS LAW) WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
If any term or provision of this Assignment is held to be or rendered invalid or
unenforceable at any time in any jurisdiction, such term or provision shall not
affect the validity or enforceability of any other terms or provisions of this
Assignment, or the validity or enforceability of such affected terms or
provisions at any other time or in any other jurisdiction.
17. Conflicts with Subordinated Loan Agreement and Other Collateral
Documents. Notwithstanding any other provision of this Agreement, the terms and
provisions of this Agreement shall be subject and subordinate to the terms of
the Subordinated Loan Agreement. To the extent that the Subordinated Loan
Agreement provides Pledgor with a particular cure or notice period, or
establishes any limitations or conditions on the lender's actions with regard to
a particular set of facts, Pledgor shall be entitled to the same cure periods
and notice periods, and Lender shall be subject to the same limitations and
conditions in place of the cure periods, notice periods, limitations and
conditions provided for under the Subordinated Loan Agreement; provided,
however, that such cure periods, notice periods, limitations and conditions
shall not be cumulative as between the Subordinated Loan Agreement and this
Agreement. In the event of any conflict between the provisions of this Hyatt
Gaming Collateral Assignment and those of the Subordinated Loan Agreement,
including, without limitation, any conflicts or inconsistencies in any
definitions herein or therein, the applicable provisions or definitions in the
Subordinated Loan Agreement shall govern.
18. Entire Agreement; Amendments to Agreement. This Hyatt Gaming Collateral
Assignment sets forth the entire understanding and agreement of the parties
hereto, and shall supersede any other agreements and understandings (written or
oral) between the parties hereto on or prior to the date of this Hyatt Gaming
Collateral Assignment with respect to the transaction contemplated in this Hyatt
Gaming Collateral Assignment. No amendment or modification to any terms of this
Hyatt Gaming Collateral Assignment, or cancellation of this Hyatt Gaming
Collateral Assignment, shall be valid unless in writing and executed and
delivered by both the parties hereto.
19. Facsimile; Counterparts. Either party may deliver an executed signature
page to this Hyatt Gaming Collateral Assignment by facsimile transmission to the
other party, which facsimile copy shall be deemed to be an original executed
signature page; provided, however, that such party shall deliver an original
signature page to the other party promptly thereafter. This Hyatt Gaming
Collateral Assignment may be executed in any number of counterparts, each of
which shall be deemed an original and all of which counterparts together shall
constitute one agreement with the same effect as if the parties hereto had
signed the same signature page.
20. Intercreditor Agreement. This Hyatt Gaming Collateral Assignment is
made subject to all terms and conditions of the Intercreditor Agreement.
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[Remainder of page intentionally left blank;
Signatures on following page]
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IN WITNESS WHEREOF, the Company has executed this Hyatt Gaming Collateral
Assignment as of the date first above written.
Windsor Woodmont Black Hawk Resort Corp.,
a Colorado corporation
By:
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Name:
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Title:
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[Signature Page to Hyatt Gaming Collateral Assignment]
EXHIBIT A
LIST OF CONTRACTS AND DOCUMENTS
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1. Standard Form of Agreement Between Owner and Architect with Standard Form
of Architect's Services (AIA Document B141-1997, 1997 Edition Electronic
Format), dated January 31, 2000, by and between Windsor Woodmont, L.L.C.,
as owner ("WWLLC"), and Xxxx Xxxxxxxx, Ltd., as architect ("Architect").
Settlement Agreement, dated as of even date herewith, by and among, inter
alia, WWLLC and Architect.
General Assignment, dated as of even date herewith, from WWLLC to Company.
2. Standard Form of Agreement Between Owner and Contractor (AIA Document
A101/CMa), dated May 14, 1998, by and between WWLLC, as owner, and X. X.
Xxxxxxxx & Sons, Inc., as contractor ("Contractor").
Supplement to AIA Document A101/CMa Standard Form of Agreement Between
Owner and Contractor, dated May 14, 1998, by and between WWLLC and
Contractor.
Amendment, dated June 15, 1998, by and between WWLLC and Contractor.
Second Amendment to Standard Form of Agreement Between Owner and
Contractor, dated December 31, 1999, by and between WWLLC and Contractor.
General Assignment, dated as of even date herewith, from WWLLC to Company.
3. Standard Form of Agreement Between Owner and Contractor, dated January 25,
2000, by and between WWLLC, as owner, and PCL Construction Services, Inc.,
as contractor.
General Assignment, dated as of even date herewith, from WWLLC to Company.
A-1
EXHIBIT B
FORM OF CONSENT TO HYATT GAMING COLLATERAL ASSIGNMENT OF CONTRACT
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THIS CONSENT TO HYATT GAMING COLLATERAL ASSIGNMENT OF CONTRACT (this
"Consent") is made as of _______________, 2000, by ____________________, a
___________________________ ("Contracting Party"), for Hyatt Gaming Management,
Inc., a Nevada corporation (the "Lender").
RECITALS
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WHEREAS, Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation
(the "Company") and Lender have entered into 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 Lender loaned the Company the principal amount of
$7,500,000 (the "Subordinated Loan"). To evidence the Subordinated Loan, the
Company executed and delivered to Lender that certain Subordinated Promissory
Note dated as of March 14, 2000 (as the same may be amended, restated,
supplemented or otherwise modified from time to time, the "Subordinated Note").
All initial capitalized terms used, but not defined, herein shall have the
meanings set forth in the Subordinated Loan Agreement;
WHEREAS, the portion of the proceeds of the Notes have been deposited into
an escrow account pursuant to a Cash Collateral and Disbursement Agreement (the
"Disbursement Agreement") as of March 14, 2000 among Norwest Bank Minnesota,
N.A., a national association, as disbursement agent (the "Disbursement Agent"),
Suntrust Bank, a Georgia banking association, as trustee, Lender, First American
Heritage Title Company, a Colorado corporation, as escrow agent, and RE TECH+,
Inc., a Colorado corporation, as independent construction consultant (the
"Independent Construction Consultant"), and the Company;
WHEREAS, the Company must use the proceeds of the Subordinated Note for the
construction of the Project (as defined in the Disbursement Agreement). The
Contracting Party and the Company are parties to that certain
_____________________________________ [name of contract] dated as of
_______________ (the "Contract") relating to the design, construction and/or
operation of the Project. The Company has executed a Hyatt Gaming Collateral
Assignment dated of even date with the Subordinated Loan Agreement (as amended,
restated, supplemented or otherwise modified from time to time, the "Hyatt
Gaming Collateral Assignment"), in favor of Lender, collaterally assigning all
of the Company's right, title and interest in and to, among other things, the
Contract, in order to secure the obligations of the Company under, among other
documents, the Subordinated Loan Agreement and the Subordinated Note (the
"Obligations"); and
WHEREAS, pursuant to the Contract, the Company and Lender require the
consent of Contracting Party with respect to the Hyatt Gaming Collateral
Assignment and the matters related thereto as set forth herein.
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NOW THEREFORE, for good and valuable consideration, receipt of which is
hereby acknowledged, Contracting Party agrees as follows:
1. Consent to Assignment. Pursuant to the Contract, the Contracting
Party has performed or supplied, or agreed to perform or supply, certain
services, materials or documents in connection with the Project in accordance
with the terms of the Contract. The Contracting Party hereby consents to the
assignment of the Contract by the Company to Lender as provided in the Hyatt
Gaming Collateral Assignment and this Consent.
2. The Company's Default under Contract. If the Company defaults under
the Contract, before exercising any remedy, the Contracting Party shall deliver
to Lender at the address and in the manner set forth in Section 16 hereof (or
such other address provided thereby in writing to the Company), written notice
of such default, specifying the nature of the default and the steps necessary to
cure the same, and clearly marked as a notice of default pursuant to this
Paragraph 2. If the Company fails to cure the default within the time permitted
under the Contract, then Lender shall have an additional thirty (30) days after
the expiration of the time permitted under the Contract (but in no event less
than an additional thirty (30) days after the receipt by Lender of said notice
from Contracting Party) within which Lender shall have the right, but not the
obligation, to cure such default; provided, however, that, with respect to
payment defaults only, Lender shall have thirty (30) days from receipt of notice
of such default within which Lender shall have the right, but not the
obligation, to cure such default. The Contracting Party's delivery of such a
notice of default to Lender and Lender's failure to cure the same within the
said additional period shall be conditions precedent to the exercise of any
right or remedy of Contracting Party arising by reason of such default, except
that the Contracting Party shall not be required to continue performance under
the Contract for the said additional period, unless and until Lender agrees to
pay the Contracting Party for that portion of the work, labor and materials
rendered during the said additional period.
3. Certificate of Default Status. Upon the written request of Lender
at any time and from time to time, the Contracting Party shall furnish to
Lender, within five (5) business days of receipt of such request, a certificate
stating whether, as of such request receipt date, the Company is in default on
the Contract and, if so, the nature of the default and the steps necessary to
cure the same. Such certificate shall not constitute a written notice of default
pursuant to Paragraph 2 unless clearly marked as such.
4. Company's Default under Obligations. If Lender gives written notice
to the Contracting Party that the Company has defaulted under the Obligations
and requests that the Contracting Party continue its performance under the
Contract, the Contracting Party thereafter shall perform for Lender under the
Contract in accordance with its terms, so long as the Contracting Party shall be
paid pursuant to the Contract for all work, labor and materials rendered or
supplied thereunder, including payment of any amounts due to Contracting Party
for work performed or materials supplied up to and including the date of the
Company's default.
5. Performance for Lender. If Lender (a) cures any default by the
Company pursuant to Paragraph 2, (b) gives written notice to the Contracting
Party that the Company has defaulted under the Collateral Documents pursuant to
Paragraph 4, (c) becomes the owner of the Project, (d) undertakes to complete
B-2
the construction of the Project pursuant to its rights under the Collateral
Documents, or (e) following a Default or an Event of Default under either the
Disbursement Agreement or the Subordinated Loan Agreement, or otherwise requires
the performance of the Contracting Party's obligations under the Contract or the
use of any plans and specifications, drawings, surveys or other materials or
documents previously prepared or provided by the Contracting Party pursuant to
the Contract, then in any such event, so long as Contracting Party has received
and continues to receive the compensation required under the Contract related
thereto, Lender shall have the right to obtain performance from the Contracting
Party of all of its obligations under the Contract, and to use all such plans
and specifications, drawings, surveys and other materials and documents, and the
ideas, designs and concepts contained therein, in connection with the completion
of the Project, without the payment of any additional fees or charges to
Contracting Party.
6. Amendments and Change Orders. The Contracting Party agrees that it
will not (a) modify, amend, supplement or in any way join in the release or
discharge of the Contracting Party's obligations under the Contract, or (b)
perform any work pursuant to any change order or directive unless the same is
issued and executed in accordance with the foregoing and the terms and
conditions of the Contract, unless (i) such change is commercially reasonable,
and (ii) the Independent Construction Consultant consents to such change in
writing, or such change is otherwise expressly permitted by the Disbursement
Agreement.
7. List of Subcontracting Parties. Upon the written request of Lender
at any time and from time to time, the Contracting Party shall furnish to Lender
a current list of all Persons with whom the Contracting Party has entered into
subcontracts or other agreements related to the rendering of work, labor or
materials under the Contract, together with a statement as to the status of each
such subcontract or agreement, and the respective amounts, if any, owed by the
Contracting Party with respect thereto.
8. Compliance with Laws. The Contracting Party shall comply with, and
shall report to Lender any failure known to the Contracting Party of the
Company, the Project or any Person or entity furnishing materials or services in
connection with the construction of the Project to comply with all applicable
laws, ordinances, regulations and other legal requirements relating to the
construction of the Project.
9. Contracting Party's Records. At Lender's request, the Contracting
Party shall promptly submit to Lender such payroll vouchers, receipts, lien
releases and waivers, progress surveys, inspection reports and other documents
and papers relating to construction of the Project as Lender may require to
protect the priority of the Hyatt Gaming Deed of Trust in favor of Lender on the
real property constituting the Project or to verify compliance with the
provisions of this Consent and the Disbursement Agreement.
10. Lender Inspections. Lender, the Independent Construction
Consultant and their respective officers, employees, agents and representatives
(the "Inspecting Parties") shall have the right at any time to enter the site of
the Project and inspect the work of construction and all materials, plans,
specifications and other matters relating to the Project or the construction
thereof. From time to time, at the Contracting Party's place of business during
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customary business hours and upon reasonable prior notice, the Inspecting
Parties shall also have the right to examine, copy and audit the books, records
and accounting data and other documents of the Contracting Party relating to the
Project. Any inspection of the Project by Lender or any examination, acceptance
or approval by Lender of documents relating to the Project, including, but not
limited to, plans, specifications, books, records and vouchers, is for the sole
purpose of protecting Lender's rights under the Disbursement Agreement and the
other Collateral Documents and its security for the Obligations. The Contracting
Party shall not rely on any such inspection, examination, acceptance or approval
by Lender. In no event shall the Inspecting Parties be obligated to disclose to
the Contracting Party or to the Company the results of any such inspection or
examination.
11. Security of Property and Equipment. The Contracting Party agrees
to cooperate with the Company and Lender in preserving their respective
ownership and security interests in all personal property relating to the
Project, including without limitation building materials, machinery and
appliances acquired by the Contracting Party with the proceeds of the
Subordinated Note and held or stockpiled on or off the site of the Project for
incorporation into or use in connection with the Project.
12. Representations and Warranties. The Contracting Party represents
and warrants to Lender that (a) it is duly licensed to conduct its business in
the jurisdiction contemplated by the Contract, and will at all times maintain
its license in full force and effect throughout the term thereof, (b) the
Contract has not been amended, modified or supplemented except as set forth
therein, (c) the Contract constitutes a valid and binding obligation of
Contracting Party and is enforceable against Contracting Party in accordance
with its terms, (d) there have been no prior assignments of, or any other
conveyance of any interest in, the Contract other than to the Indenture Trustee
under the First Collateral Assignment, and (e) all obligations of the Company
and the Contracting Party under the Contract have been performed as required
therein as of the date hereof.
13. Application of Funds. Nothing herein imposes or shall be construed
to impose upon Lender any duty to direct the application of any proceeds of the
Subordinated Note, and Contracting Party acknowledges that Lender is not
obligated to Contracting Party or any of its subcontracting Parties,
materialmen, suppliers or laborers.
14. Acknowledgment of Inducement. The Contracting Party understands
that the execution and delivery of this Consent is a condition precedent to the
execution of the Subordinated Loan Agreement and the making of the Subordinated
Loan, and that the Contracting Party is executing this Consent to induce Lender
to enter into the Subordinated Loan Agreement and make the Subordinated Loan.
15. Irrevocability. The provisions hereof shall be irrevocable and
remain in full force and effect until the Company has fully paid and performed
all of the Obligations.
16. Notices. All notices, requests, demands and other communications
(each, a "Notice") required to be provided to the Contracting Party or Lender
pursuant to this Consent shall be in writing and shall be delivered (i) in
person, (ii) by certified U.S. mail, with postage prepaid and return receipt
requested, or (iii) by overnight courier service at the following address:
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If to Lender:
Hyatt Gaming Management, Inc.
Madison Plaza - 39th Floor
000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Counsel
Facsimile No.: (000) 000-0000
If to the Contracting Party:
Attn:
Facsimile No.:
All Notices sent by Lender or the Contracting Party shall be deemed to
have been received by the party to whom such Notice is sent upon (i) delivery to
the address of the recipient party, provided that such delivery is made prior to
5:00 p.m. (local time for the recipient party) on a Business Day, otherwise the
following Business Day, or (ii) the attempted delivery of such Notice if (A)
such recipient party refuses delivery of such Notice, or (B) such recipient
party is no longer at such address, and such recipient party failed to provide
the sending party with its current address pursuant to this Section 16. The
Contracting Party and Lender shall have the right to change their respective
address for the purposes of this Section 16 by providing a Notice of such change
in address as required under this Section 16.
17. No Waiver. No delay on the part of Lender in the exercise of any
right or remedy shall operate as a waiver thereof, and no single or partial
exercise by Lender of any right or remedy shall preclude other or further
exercise thereof in the exercise of any other right or remedy
18. Governing Law; Severability. This Consent shall be governed by,
and construed and enforced in accordance with, the laws of the state of New York
(including, without limitation, Section 5-1401 of the New York General
Obligations Law) without regard to the principles of conflicts of laws thereof.
If any term or provision of this Consent is held to be or rendered invalid or
unenforceable at any time in any jurisdiction, such term or provision shall not
affect the validity or enforceability of any other terms or provisions of this
Assignment, or the validity or enforceability of such affected terms or
provisions at any other time or in any other jurisdiction.
19. Entire Agreement; Amendments to Agreement. This Consent sets forth
the entire understanding and agreement of the Contracting Party and Lender, and
shall supersede any other agreements and understandings (written or oral)
between the Contracting Party and Lender on or prior to the date of this Consent
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with respect to the transaction contemplated in this Assignment. No amendment or
modification to any terms of this Consent, or cancellation of this Consent,
shall be valid unless in writing and executed and delivered by both the
Contracting Party and Lender.
20. Facsimile. The Contracting Party may deliver an executed signature
page to this Consent by facsimile transmission to Lender, which facsimile copy
shall be deemed to be an original executed signature page; provided, however,
that the Contracting Party shall deliver an original signature page to Lender
promptly thereafter.
[Remainder of page intentionally left blank; Signatures on following page]
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IN WITNESS WHEREOF, the Contracting Party has executed this Consent as
of the date first above written.
[Contracting Party],
a ____________________
By:
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Name:
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Title:
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