Exhibit 10.12
SUBORDINATED LOAN AGREEMENT
by and between
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
as Borrower
and
HYATT GAMING MANAGEMENT, INC.
as Lender
Dated as of March 14, 2000
TABLE OF CONTENTS
Page
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ARTICLE I. Definitions.........................................................1
ARTICLE II. The Loan..........................................................25
2.1 Loan Terms...........................................................25
2.2 Interest.............................................................25
2.3 Hyatt Gaming Deed of Trust...........................................25
2.4 Warrants.............................................................25
2.5 Other Collateral Documents...........................................25
2.6 Opinions.............................................................26
ARTICLE III. Loan Disbursements...............................................26
3.1 Funding..............................................................26
ARTICLE IV. The Borrower's Representations and Warranties, Covenants and
Agreements....................................................................27
4.1 Compliance with Senior Loan Documents................................27
4.2 Intentionally Omitted................................................27
4.3 Intentionally Omitted................................................27
4.4 Payments to Developer................................................27
4.5 Covenants............................................................27
(a) Payment of Note.............................................27
(b) Reports.....................................................28
(c) Compliance Certificate......................................28
(d) Taxes.......................................................29
(e) Stay, Extension and Usury Laws..............................29
(f) Restricted Payments.........................................30
(g) Dividend and Other Payment Restrictions Affecting
Subsidiaries................................................31
(h) Incurrence of Indebtedness and Issuance of Preferred
Stock.......................................................32
(i) Asset Sales.................................................36
(j) Transactions with Affiliates................................37
(k) Liens.......................................................38
(l) Line of Business............................................38
(m) Corporate Existence.........................................38
(n) Articles of Incorporation...................................39
(o) Limitation of Sale and Leaseback Transactions...............39
(p) Limitation on Formation of Subsidiaries and Issuances
and Sales of Equity Interests in Wholly Owned
Subsidiaries................................................39
(q) Advances to Subsidiaries....................................40
(r) [Intentionally Omitted].....................................40
(s) Additional Subsidiary Guarantees............................40
i
(t) Insurance...................................................40
(u) Limitation on Status as Investment Company..................41
(v) Further Assurances..........................................41
(w) Construction................................................42
(x) Limitation on Use of Proceeds...............................42
(y) Extension of Subdivision Agreement..........................42
(z) Deposit of Funds into Construction Disbursement
Accounts....................................................42
(aa) Event of Loss...............................................42
(bb) Excess Cash Purchase Repayment..............................43
(cc) Merger, Consolidation or Sale of Assets.....................44
(dd) Successor Corporation Substituted...........................44
(ee) Limitations on Preferred Stock Payments.....................45
(ff) Board of Directors..........................................45
4.6 Suitability Matters..................................................45
4.7 Representations and Warranties.......................................45
ARTICLE V. The Lender's Rights and Remedies...................................52
5.1 Acceleration.........................................................52
5.2 No Liability of the Lender...........................................52
5.3 Right to Cure; Protective Advances...................................52
5.4 Protective Advances..................................................52
5.5 Subordination........................................................52
ARTICLE VI. Events of Default.................................................53
6.1 Events of Default....................................................53
ARTICLE VII. General Conditions...............................................55
7.1 Waivers..............................................................55
7.2 No Third Party Beneficiaries.........................................55
7.3 Assignment...........................................................55
7.4 Amendments...........................................................56
7.5 Terms................................................................56
7.6 Governing Law and Jurisdiction.......................................56
7.7 Waiver of Jury Trial.................................................56
7.8 Savings Clause.......................................................56
7.9 Survival of Indenture Provisions.....................................56
7.10 Entire Agreement.....................................................56
7.11 Execution in Counterparts............................................56
7.12 Captions.............................................................56
7.13 Notices..............................................................56
7.14 No Right of Offset...................................................57
7.15 Fees and Expenses....................................................57
7.16 Attorneys' Fees......................................................57
7.17 Indemnification......................................................57
ii
7.18 Gaming Regulations...................................................57
7.19 Release of Collateral................................................58
7.20 Certificate and Opinion Requirements.................................58
7.21 Lender's Investment Representation Regarding the Warrants............59
iii
TABLE OF EXHIBITS
Exhibit A. Form of Subordinated Promissory Note
iv
SUBORDINATED LOAN AGREEMENT
THIS SUBORDINATED LOAN AGREEMENT, dated as of March 14, 2000 (this
"Agreement"), is entered into by and between WINDSOR WOODMONT BLACK HAWK RESORT
CORP., a Colorado corporation (the "Borrower") and HYATT GAMING MANAGEMENT,
INC., a Nevada corporation (the "Lender").
RECITALS
--------
A. The Lender has agreed to make available to the Borrower,
subject to certain conditions as set forth herein, a subordinated loan in an
aggregate principal amount of Seven Million Five Hundred Thousand
($7,500,000.00) (the "Loan"), to be deposited by the Lender into the Hyatt
Gaming Accounts (as defined below) and disbursed by Norwest Bank Minnesota,
N.A., a national association, as disbursement agent (the "Disbursement Agent"),
pursuant to the Cash Collateral and Disbursement Agreement (as defined below).
B. The Borrower will use the proceeds of the Loan to finance a
portion of the construction, development, equipping and operation of a casino,
parking garage and related amenities to be located in Black Hawk, Colorado (the
"Casino").
C. The Lender is willing to make the Loan described herein above
based on the terms and conditions set forth in this Agreement.
AGREEMENT
---------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Borrower and the Lender hereby
agree as follows:
ARTICLE I.
DEFINITIONS
For the purposes hereof:
1.1 "Acquired Debt" means, with respect to any specified Person, (i)
Indebtedness of any other Person existing at the time such other Person is
merged with or into or became a Restricted Subsidiary of such specified Person,
including, without limitation, Indebtedness incurred in connection with, or in
contemplation of, such other Person merging with or into or becoming a
Restricted Subsidiary of such specified Person; and (ii) Indebtedness secured by
a Lien encumbering any asset acquired by such specified Person.
1.2 "Additional Notes" means additional Senior Notes (other than the Initial
Notes) issued under the Indenture, as part of the same series as the Initial
Notes.
1.3 "Advance Disbursement Account" means the Advance Disbursement Account as
defined in and established pursuant to the Cash Collateral and Construction
Disbursement Agreement.
1.4 "Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition, "control"
(including with correlative meanings, the terms "controlling", "controlled by"
and "under common control with"), as used with respect to any Person, shall mean
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such Person, whether through the
ownership of voting securities, by agreement or otherwise; provided that the
beneficial ownership of ten percent (10%) or more of the voting securities of a
Person will be deemed to be control.
1.5 "Affiliate Transaction" has the meaning set forth in Section 4.5(j) hereof
1.6 "Asset Sale" means: (i) the sale, lease, conveyance or other disposition of
any assets or rights (including, without limitation, by way of a sale and
leaseback whether in a single transaction or a series of related transactions
(a) that have a fair market value in excess of $250,000, or (b) for net proceeds
in excess of $250,000, or (c) that consist of or relates to any assets or rights
other than used equipment to be sold or disposed of in the ordinary course of
business provided that the sale, lease, conveyance or other disposition of all
or substantially all the assets of the Borrower and its Subsidiaries, taken as a
whole, will be governed by Section 4.5 (cc) (not by Section 4.5(i) hereof); and
(ii) the issuance or sale by the Borrower or any of its Restricted Subsidiaries
of Equity Interests of any of its Restricted Subsidiaries, whether in a single
transaction or a series of related transactions (a) that have a fair market
value in excess of Two Hundred Fifty Thousand Dollars ($250,000), or (b) for net
proceeds in excess of Two Hundred Fifty Thousand Dollars ($250,000).
Notwithstanding the foregoing, the following shall not be deemed to be Asset
Sales: (i) a transfer of assets by the Borrower to a Wholly Owned Restricted
Subsidiary or by a Wholly Owned Restricted Subsidiary to the Borrower or to
another Wholly Owned Restricted Subsidiary; (ii) an issuance of Equity Interests
by a Wholly Owned Restricted Subsidiary to the Borrower or to another Wholly
Owned Restricted Subsidiary; (iii) a Restricted Payment that is permitted by
Section 4.5(f); (iv) the disposition of all or substantially all of the assets
of the Borrower and its Subsidiaries taken as a whole governed by Section
4.5(cc); (v) a disposition of Cash Equivalents permitted by the provisions
hereof; and (vi) the granting of any Permitted Lien.
1.7 "Attributable Debt" in respect of a sale and leaseback transaction means, at
the time of determination, the present value (discounted at the rate of interest
implicit in such transaction, determined in accordance with GAAP) of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such sale and leaseback transaction (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended).
1.8 "Authorization" has the meaning set forth in Section 4.7(p) hereof.
1.9 "Bankruptcy Law" means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
1.10 "Basic Fee" means the Basic Fee (as defined in the Management Agreement)
payable pursuant to Section 4.2(a)(i) of the Management Agreement as in effect
on the Closing Date.
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1.11 "Basic Fee" means the Basic Fee (as defined in the Management Agreement)
payable pursuant to Section 4.2(a)(i) of the Management Agreement as in effect
on the Closing Date.
1.12 "Bench Excavation Permit Remediation" means Site Rehabilitation Security
pursuant to Section 18-251 of the Black Hawk Municipal Code.
1.13 "Borrower" has the meaning set forth in the Preamble hereof.
1.14 "Borrower Loss of License Event" means any denial, revocation, suspension
(for a period in excess of three (3) days) or non-renewal of any license or
authorization for the Casino or its operations (a "Project License"), whether
resulting from any judicial or administrative proceeding, or otherwise, and
which results, directly or indirectly, from any act or omission of, or
ineligibility to hold a Project License by the Borrower or its Affiliates,
including, without limitation, the commission of any crime or other act deemed
inconsistent with the holding of a Project License, or the association or
affiliation with unsuitable persons or entities, whether or not the allegations
with respect thereto are true in fact. No Borrower Loss of License Event shall
be deemed to have occurred so long as (i) proceedings with respect thereto are
being contested with due diligence and in good faith by the Borrower, or the
person or entity affected thereby, or in lieu of contest the Borrower elects not
to renew or elects to surrender a Project License of any non-controlling
Affiliate of the Borrower so long as the operations of the Casino continue
without interruption, notwithstanding the surrender of any such Project License,
or (ii) if such loss of license or authorization is caused by the acts or
omissions of the Manager or any Affiliate of the Manager; provided that, during
the pendency of such proceedings or non-renewal or surrender process, the Casino
is able to continue gaming operations on an uninterrupted basis. Notwithstanding
the foregoing, a Borrower Loss of License Event, however, shall be deemed to
have occurred notwithstanding that additional rights of appeal or contest may be
available if, as a result of any such action, (i) gaming operations by the
Casino are prohibited; or (ii) gaming operations of the Casino are materially
restrained, limited or restricted in a manner materially adverse to Casino
operations for a period longer than thirty (30) days.
1.15 "Capital Lease Obligations" 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 such time be required to be capitalized on a balance sheet in accordance with
GAAP.
1.16 "Capital Stock" means (i) in the case of a corporation, corporate stock;
(ii) in the case of an association or business entity, any and all shares,
interests, participations, rights or other equivalents (however designated) of
corporate stock; (iii) in the case of a partnership, partnership interests
(whether general or limited); (iv) in the case of a limited liability company,
membership interests; and (v) 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.
1.17 "Cash Collateral and Disbursement Agreement" means the Cash Collateral and
Disbursement Agreement, dated as of the Closing Date, among the Borrower, the
Trustee, the Independent Construction Consultant, the Construction Escrow Agent
and the Disbursement Agent, as it may be amended, modified or supplemented by
the parties thereto.
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1.18 "Cash Equivalents" means (i) United States dollars; (ii) securities issued
or directly and fully guaranteed or insured by the United States government or
any agency or instrumentality thereof having maturities of not more than six
months from the date of acquisition; (iii) certificates of deposit and
Eurodollar time deposits with maturities of six months or less from the date of
acquisition, bankers' acceptances with maturities not exceeding six months and
overnight bank deposits, in each case with any domestic commercial bank having
capital and surplus in excess of Five Hundred Million Dollars ($500,000,000) and
a Xxxxx Bank Watch Rating of "B" or better; (iv) repurchase obligations with a
term of not more than seven days for underlying securities of the types
described in clauses (ii) and (iii) above entered into with any financial
institution meeting the qualifications specified in clause (iii) above; (v)
commercial paper having the highest rating obtainable from Xxxxx'x Investors
Service, Inc. or Standard & Poor's Corporation and in each case maturing within
six months after the date of acquisition; and (vi) investment funds investing
solely in securities of the types described in clauses (ii), (iii), (iv) or (v)
above if such fund has net assets of at least Five Hundred Million Dollars
($500,000,000).
1.19 "Casino" has the meaning set forth in Recital B hereof.
1.20 "Change of Control" means the occurrence of any of the following: (i) Hyatt
Gaming Management, Inc. no longer operates the Casino pursuant to the Management
Agreement, as the same may be amended from time to time on terms no less
favorable to the Borrower or the Lender than the terms thereof prior to such
amendment; (ii) the sale, lease, transfer, conveyance or other disposition
(other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the Borrower and its
Subsidiaries, taken as a whole, to any "person" (as such term is used in Section
13(d)(3) of the Exchange Act) other than a Related Party; or (iii) the adoption
of a plan relating to the liquidation or dissolution of the Borrower; or (iv) on
or prior to an Initial Public Offering, the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of which
is that a "person" (as such term is defined in Section 13(d)(3) of the Exchange
Act) or related group (within the meaning of Section 13(d)(3) or Section
14(d)(2) of the Exchange Act), other than Related Parties owning more than 45%
of the total voting power entitled to vote in the election of Directors; or (v)
after an Initial Public Offering, acquisition in a single transaction or in a
related series of transactions, by way of merger, consolidation or other
business combination or purchase of beneficial ownership (within the meaning of
Rule 13d-3 under the Exchange Act, or any successor provision) by any Person or
related group (within the meaning of Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act, or any successor provision to either of the foregoing, including
any "group" acting for the purpose of acquiring, holding or disposing of
securities within the meaning of Rule 13d-5(b)(1) under the Exchange Act) other
than Related Parties owning more than 45% of the total voting power entitled to
vote in the election of Directors; or (vi) during any period of two consecutive
years, individuals who at the beginning of such period constituted the directors
(together with any new board members whose election or appointment by such
committee or whose nomination for election by the shareholders of the Borrower
was approved by a vote of a majority of the board members then still in office
who were either board members at the beginning of such period or whose election
or nomination for election was previously so approved) cease for any reason to
constitute a majority of the Directors then in office.
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1.21 "City Improvement Bonds" means Indebtedness issued pursuant to or in
accordance with authority of the Special Improvement District number 1998-2 of
Xxxxxx County, Colorado for the purpose of financing public improvements to
Xxxxxxx Street.
1.22 "Closing and Pre-Closing Equity Investments" means the investments made by
the stockholders of the Borrower on or prior to the issue date of the Series A
Notes in the aggregate amount of approximately $11.5 million.
1.23 "Closing Date" means March 14, 2000.
1.24 "Closing Escrow Account" has the meaning set forth in Section 3.1 hereof.
1.25 "Closing Escrow Agent" has the meaning set forth in Section 3.1 hereof.
1.26 "Collateral Documents" has the meaning set forth in Section 2.5 hereof.
1.27 "Colorado Gaming Regulations" has the meaning set forth in Section 7.18
hereof.
1.28 "Completion Reserve Account" means the account to be maintained by the
Disbursement Agent and pledged to the holders of the Senior Notes (who will have
a first priority lien) and to the Lender (which will have a second priority
lien) pursuant to the terms of the Cash Collateral and Disbursement Agreement,
into which approximately Seven Million One Hundred Thousand Dollars ($7,100,000)
of the proceeds of the Senior Notes shall be deposited.
1.29 "Consolidated Cash Flow" means, with respect to any specified Person for
any period, the Consolidated Net Income of such Person for such period plus (i)
an amount equal to any extraordinary loss plus any net loss realized in
connection with an Asset Sale (to the extent such losses were deducted in
computing such Consolidated Net Income); plus (ii) provision for taxes based on
income or profits of such Person and its Restricted Subsidiaries for such
period, to the extent that such provision for taxes was included in computing
such Consolidated Net Income; plus (iii) Consolidated Interest Expense of such
Person and its Restricted Subsidiaries for such period, to the extent that any
such expense was deducted in computing such Consolidated Net Income; plus (iv)
depreciation, amortization (including amortization of goodwill and other
intangibles but excluding amortization of prepaid cash expenses that were paid
in a prior period) of such Person and its Restricted Subsidiaries for such
period to the extent that such depreciation and amortization were deducted in
computing such Consolidated Net Income, in each case, on a consolidated basis
and determined in accordance with GAAP; plus (v) all other non-cash expenses
(excluding any such non-cash expense to the extent that it represents an accrual
of or reserve for cash expenses in any future period or amortization of a
prepaid cash expense that was paid in a prior period) reducing Consolidated Net
Income for such period; minus (vi) all non-cash items increasing Consolidated
Net Income for such period, other than the accrual of revenue in the ordinary
course of business. Notwithstanding the foregoing, the provision for taxes on
the income or profits of, and the depreciation and amortization of, a Restricted
Subsidiary of the referent Person will be added to Consolidated Net Income to
compute Consolidated Cash Flow only to the extent (and in the same proportion)
that the Net Income of such Restricted Subsidiary was included in calculating
the Consolidated Net Income of such Person and only if a corresponding amount
5
would be permitted at the date of determination to be dividended to the Borrower
by such Restricted Subsidiary without prior governmental approval (that has not
been obtained), and without direct or indirect restriction pursuant to the terms
of its charter and all agreements, instruments, judgments, decrees, orders,
statutes, rules and governmental regulations applicable to that Subsidiary or
its stockholders.
1.30 "Consolidated Interest Expense" means, with respect to any Person for any
period, without duplication: (i) the consolidated interest expense of such
Person and its Restricted Subsidiaries for such period, whether paid or accrued
and whether or not capitalized (including, without limitation, amortization or
original issue discount, non-cash interest payments, the interest component of
any deferred payment obligations, the interest component of all payments
associated with Capital Lease Obligations, imputed interest with respect to
Attributable Debt, commissions, discounts and other fees and charges incurred in
respect of letter of credit or bankers' acceptance financings, and net payments
(if any) pursuant to Hedging Obligations); (ii) the consolidated interest
expense of such Person and its Restricted Subsidiaries that was capitalized
during such period; and (iii) any interest expense on Indebtedness of another
Person that is Guaranteed by such Person or one of its Restricted Subsidiaries
or secured by a Lien on assets of such Person or one of its Restricted
Subsidiaries (whether or not such Guarantee or Lien is called upon).
1.31 "Consolidated Net Income" means, with respect to any specified Person for
any period, the aggregate of the Net Income of such Person and its Restricted
Subsidiaries for such period, on a consolidated basis, determined in accordance
with GAAP; provided that: (i) the Net Income (but not loss) of any Person that
is not a Restricted Subsidiary or that is accounted for by the equity method of
accounting shall be included only to the extent of the amount of dividends or
distributions paid in cash to the referent Person or a Wholly Owned Restricted
Subsidiary thereof; (ii) the Net Income of any Restricted Subsidiary shall be
excluded to the extent that the declaration or payment of dividends or similar
distributions by such Restricted Subsidiary of such Net Income is not at the
date of determination permitted without any prior governmental approval (that
has not been obtained) or, directly or indirectly, by operation of the terms of
its charter or any agreement, instrument, judgment, decree, order, statute, rule
or governmental regulation applicable to such Restricted Subsidiary or its
stockholders; (iii) the Net Income of any Person acquired in a pooling of
interests transaction for any period prior to the date of such acquisition shall
be excluded; (iv) the cumulative effect of a change in accounting principles
will be excluded; and (v) the Net Income (but not loss) of any Unrestricted
Subsidiary will be excluded, whether or not distributed to the specified Person
or one of its Subsidiaries.
1.32 "Consolidated Net Worth" means, with respect to any specified Person as of
any date, the sum of: (i) the consolidated equity of the common stockholders of
such Person and its consolidated Subsidiaries as of such date; plus (ii) the
respective amounts reported on such Person's balance sheet as of such date with
respect to any series of preferred stock (other than Disqualified Stock) that by
its terms is not entitled to the payment of dividends unless such dividends may
be declared and paid only out of net earnings in respect of the year of such
declaration and payment, but only to the extent of any cash received by such
Person upon issuance of such preferred stock; minus (iii) all write-ups (other
than write-ups resulting from foreign currency translations and write-ups of
6
tangible assets of a going concern business made within Twelve (12) months after
the acquisition of such business) subsequent to the Closing Date in the book
value of any asset owned by such Person or a consolidated Subsidiary of such
Person; minus (iv) all investments as of such date in unconsolidated
Subsidiaries and in Persons that are not Subsidiaries (except, in each case,
Permitted Investments); minus (v) all unamortized debt discount and expense and
unamortized deferred charges as of such date, all of the foregoing determined in
accordance with GAAP.
1.33 "Construction Disbursement Account" means the account to be maintained by
the Disbursement Agent and pledged to the holders of the Senior Note (who will
have a first priority lien) and to Lender (which will have a second priority
lien), pursuant to the terms of the Cash Collateral and Disbursement Agreement,
into which approximately Fifty-Three Million Three Hundred Thousand Dollars
($53,300,000) of the net proceeds of the Senior Notes shall be deposited.
1.34 "Construction Disbursement Budget" means itemized schedules setting forth
on a line item basis all of the costs (including financing costs) estimated to
be incurred in connection with the financing, design, development, construction
and equipping of the Casino, as such schedules are delivered to the Disbursement
Agent on the Closing Date and as amended from time to time in accordance with
the terms of the Cash Collateral and Disbursement Agreement.
1.35 "Construction Escrow Agent" means First American Heritage Title Company in
its capacity as construction Escrow Agent under the Cash Collateral and
Disbursement Agreement, as approved (or as to which such right of approval is
waived) by Lender, such approval or waiver of approval not to be unreasonably
withheld or delayed, or any successor thereto appointed by Trustee and approved
(or as to which such right of approval is waived) by Lender.
1.36 "Default" means the occurrence or existence of an event or condition which,
upon the giving of notice or the passage of time, or both, would constitute an
Event of Default.
1.37 "Disbursement Agent" has the meaning set forth in Recital A hereof.
1.38 "Disqualified Stock" means any Capital Stock that, by its terms (or by the
terms of any security into which it is convertible or for which it is
exchangeable), or upon the happening of any event, matures or is mandatorily
redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at
the option of the holder thereof, in whole or in part, on or prior to the date
that is ninety-one (91) days after the date on which the Senior Notes mature.
Notwithstanding the preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders thereof have the right to require
the Borrower to repurchase or redeem such Capital Stock upon the occurrence of a
Change of Control or an Asset Sale shall not constitute Disqualified Stock if
the terms of such Capital Stock provide that the Borrower may not repurchase or
redeem any such Capital Stock pursuant to such change of control or asset sale
repurchase or redemption unless such repurchase or redemption complies with
Section 4.5(f) hereof.
1.39 "Environmental Laws" has the meaning set forth in Section 4.7(n) hereof.
7
1.40 "Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security that is
convertible into, or exchangeable for, Capital Stock).
1.41 "Equity Offering" means a public offer (other than a public offering
registered on Form S-8 under the Securities Act) or private placement of common
Capital Stock of the Borrower that results in gross proceeds of at least $25.0
million to the Borrower.
1.42 "Equity Purchase Agreements" means:
(i) that certain Windsor Woodmont Black Hawk Resort Corp.
Subscription Agreement, dated as of March 14, 2000, by
Colorado Five, Ltd., as amended by the letter agreement
between such parties dated March 14, 2000;
(ii) that certain Windsor Woodmont Black Hawk Resort Corp.
Subscription Agreement, dated as of March 14, 2000, by Xxxx
Xxxxxx, as amended by the letter agreement between such
parties dated March 14, 2000;
(iii) that certain Windsor Woodmont Black Hawk Resort Corp.
Subscription Agreement, dated as of March 14, 2000, by
Xxxxxx X. Xxxxxx, as amended by the letter agreement between
such parties dated March 14, 2000;
(iv) that certain Windsor Woodmont Black Hawk Resort Corp.
Subscription Agreement, dated as of March 14, 2000, by
Xxxxxx X. Xxxxxx, as amended by the letter agreement between
such parties dated March 14, 2000; and
(v) that certain Windsor Woodmont Black Hawk Resort Corp.
Subscription Agreement, dated as of March 14, 2000, by
Normandy, Inc., as amended by the letter agreement between
such parties dated March 14, 2000.
1.43 "ERISA" has the meaning set forth in Section 4.7(m) hereof.
1.44 "Event of Default" means any of the events described in Article VI hereof.
1.45 "Event of Loss" means, with respect to any property or asset (tangible or
intangible, real or personal), any of the following: (i) any loss, destruction
or damage of such property or asset; (ii) any institution of any proceedings for
the condemnation or seizure of such property or asset or for the exercise of any
right of eminent domain; (iii) any actual condemnation, seizure or taking by
exercise of the power of eminent domain or otherwise of such property or asset,
or confiscation of such property or asset or the requisition of the use of such
property or asset; or (iv) any settlement in lieu of clauses (ii) or (iii)
above.
1.46 [Intentionally Omitted]
1.47 "Excavation Agreement" means the amended excavation contract, dated
December 31, 1999 between the Borrower and X. X. Xxxxxxxx & Sons, Inc.
1.48 "Excess Cash Flow" means, with respect to the Borrower for any Operating
Year, the Consolidated Cash Flow of the Borrower and its Subsidiaries for such
Operating Year, minus (i) interest expense (including the interest portion of
any payments associated with Capital Lease Obligations) of the Borrower and its
Subsidiaries that is actually paid during such Operating Year, minus (ii) up to
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Three Million Dollars ($3,000,000) in capital expenditures of the Borrower and
its Subsidiaries paid during such Operating Year to maintain or improve the
Casino (excluding any capital expenditures made with the proceeds from the sale
of the Senior Notes or the proceeds of the Loan), minus (iii) up to One Million
Dollars ($1,000,000) in capital expenditures of the Borrower and its
Subsidiaries paid during such Operating Year to ensure the Casino complies with
all applicable laws, rules and regulations, minus (iv) principal payments made
during such Operating Year on Indebtedness permitted to be incurred pursuant to
Section 4.5(h) and minus (v) taxes of Borrower and its Subsidiaries accrued with
respect to such Operating Year.
1.49 "Excess Cash Flow Offer" has the meaning set forth in Section 4.5(bb)
hereof.
1.50 "Excess Construction Proceeds" means, with respect to any Operating Year,
all amounts returned to the Borrower from any or all of the Construction
Disbursement Account, the Interest Reserve Account, the Completion Reserve
Account, the Hyatt Gaming Construction Disbursement Account, the Hyatt Gaming
Completion Reserve Account or the Advance Disbursement Account in accordance
with the terms of the Cash Collateral and Disbursement Agreement (provided that
if any such amounts are returned to the Borrower prior to the first Operating
Year, such amounts shall be included in the first Operating Year).
1.51 "Excess Proceeds" has the meaning set forth in Section 4.5(i) hereof.
1.52 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
1.53 "Exchange Notes" means the notes issued in the Exchange Offer pursuant to
Section 2.06(f) of the Indenture as in effect on the date hereof.
1.54 "Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
1.55 "FF&E" means furniture, fixtures or equipment used in the ordinary course
of the business of the Borrower and its Subsidiaries.
1.56 "FF&E Financing" means (A) a financing (i) the proceeds of which are
utilized solely to finance the acquisition of (or entry into a capital lease) by
the Borrower or a Subsidiary with respect to FF&E, (ii) from a Person which is
not an Affiliate of the Borrower or any holder of the Senior Notes, (iii) on
commercial, fair market terms, (iv) in an amount not to exceed Twenty Million
Eight Hundred Thousand Dollars ($20,800,000), and (v) which is secured by a
first lien only on the furnishings, fixtures and equipment of the Casino as to
which neither Lender nor the holders of the Senior Notes has a lien; or (B) any
other financing as otherwise approved by Lender or as to which Lender has waived
its approval rights.
1.57 "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.
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1.58 "First Deed of Trust" means that certain Deed of Trust to Public Trustee,
Security Agreement, Fixture Filing and Assignment of Rents, Leases and Leasehold
Interests (Xxxxxx County, Colorado) dated as of the Closing Date, executed by
the Borrower to secure its obligations to the Senior Note holders.
1.59 "Fixed Charges" means, with respect to any Person for any period, without
duplication, the sum of: (i) the Consolidated Interest Expense of such Person
and its Restricted Subsidiaries for such period, whether paid or accrued,
including Interest, but excluding amortization of debt issuance costs and
issuance discounts in connection with the issuance of the Senior Notes, but
including, without limitation, amortization of debt issuance costs and original
issue discount, non-cash interest payments, the interest component of any
deferred payment obligations, the interest component of all payments associated
with Capital Lease Obligations, imputed interest with respect to Attributable
Debt, commissions, discounts and other fees and charges incurred in respect of
letter of credit or bankers' acceptance financings, and net of the effect of all
payments made or received pursuant to Hedging Obligations; plus (ii) the product
of (a) all dividends, whether paid or accrued, whether or not in cash, on any
series of preferred stock of such Person or any of its Restricted Subsidiaries,
other than dividend payments on Equity Interests payable solely in Equity
Interests of such Person (other than Disqualified Stock) or to the Borrower or a
Restricted Subsidiary of such Person, times (b) a fraction, the numerator of
which is one and the denominator of which is one minus the then current combined
federal, state and local statutory tax rate of such Person, expressed as a
decimal, plus (iii) if such Person is the Borrower or any of its Restricted
Subsidiaries the Basic Fee, in each case, on a consolidated basis and in
accordance with GAAP.
1.60 "Fixed Charge Coverage Ratio" means with respect to any Person for any
period, the ratio of the Consolidated Cash Flow of such Person and its
Restricted Subsidiaries for such period to the Fixed Charges of such Person and
its Subsidiaries for such period. In the event that the Borrower or any of its
Subsidiaries incur, assume, guarantee or redeem any Indebtedness (other than
ordinary working capital revolving credit borrowings) or issues preferred stock
subsequent to the commencement of the period for which the Fixed Charge Coverage
Ratio is being calculated but prior to the date on which the event for which the
calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"),
then the Fixed Charge Coverage Ratio will be calculated giving pro forma effect
to such incurrence, assumption, guarantee or redemption of Indebtedness, or such
issuance or redemption of preferred stock, as if the same had occurred at the
beginning of the applicable four-quarter reference period. In addition, for
purposes of calculating the Fixed Charge Coverage Ratio: (i) acquisitions that
have been made by the Person or any of its Restricted Subsidiaries, including
through mergers or consolidations and including any related financing
transactions, during the four-quarter reference period or subsequent to such
reference period and on or prior to the Calculation Date will be deemed to have
occurred on the first day of the four-quarter reference period and Consolidated
Cash Flow for such reference period will be calculated on a pro forma basis in
accordance with Regulation S-X under the Securities Act, but without giving
effect to clause (iii) of the proviso set forth in the definition of
Consolidated Net Income; (ii) the Consolidated Cash Flow attributable to
discontinued operations, as determined in accordance with GAAP, and operations
or businesses disposed of prior to the Calculation Date, shall be excluded; and
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(iii) the Fixed Charges attributable to discontinued operations, as determined
in accordance with GAAP, and operations or businesses disposed of prior to the
Calculation Date, shall be excluded, but only to the extent that the obligations
giving rise to such Fixed Charges shall not be obligations of the referent
Person or any of its Restricted Subsidiaries following the Calculation Date.
1.61 "GAAP" means United States generally accepted accounting principles as in
effect on the date hereof.
1.62 "Gaming Authority" means any agency, authority, board, bureau, commission,
department, office or instrumentality of any nature whatsoever of the United
States federal or foreign government, any state, province or any city or other
political subdivision or otherwise, and whether now or hereafter in existence,
or any officer or official thereof, including the Colorado Limited Gaming
Control Commission and any other applicable gaming regulatory authority with
authority to regulate any gaming operation (or proposed gaming operation) owned
by the Borrower or any of its Subsidiaries and managed or operated by Manager.
1.63 "Gaming Business" means the gaming business and includes all businesses
either licensed or unlicensed by a Gaming Authority necessary for, incident to
or connected with or arising out of the operation of a gaming establishment or
facility (including developing and operating lodging, retail and restaurant
facilities, sports or entertainment facilities, transportation services or other
related activities or enterprises and any additions or improvements thereto) and
any businesses incident and useful to the gaming business, including, without
limitation, food and beverage distribution operations to the extent that they
are operated in connection with a gaming business.
1.64 "Gaming Facility" means any tangible building or other structure used or
expected to be used to enclose space in which a Gaming Business is conducted and
(i) wholly or partially owned, directly or indirectly, by the Borrower or any
Subsidiary or (ii) any portion or aspect of which is managed or used, or
expected to be managed or used, by the Borrower or a Subsidiary; provided that
the term Gaming Facility does not include any real property whether or not such
building or other structure is located thereon or adjacent thereto or any
furniture, fixtures and equipment, including gaming equipment, used in
connection with any Gaming Business.
1.65 "Gaming Law" means the gaming laws of any jurisdiction or jurisdictions to
which the Borrower or any of its Subsidiaries is, or may at any time after the
Closing Date, be subject.
1.66 "Gaming License" means any license, permit, franchise or other
authorization from any Gaming Authority required on the Closing Date or at any
time thereafter to own, lease, operate or otherwise conduct the Gaming Business
of the Borrower, including all licenses granted under the Gaming Laws of any
jurisdiction to which the Borrower or any of its Subsidiaries is, or may at any
time after the Closing Date, be subject.
1.67 "Gaming Redemption" means the repurchase or redemption of Capital Stock of
the Borrower pursuant to Section 2 of Fifth Article of the Borrower's Second
Amended and Restated Articles of Incorporation, as in effect on the Closing
Date, as the same may be amended from time to time on terms that are no less
favorable to the Lender.
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1.68 "Gaming Redemption Indebtedness" means Indebtedness that is incurred by the
Borrower in connection with any Gaming Redemption and that has terms, and is
subordinated in right of payment to the prior payment in full in cash of the
Note pursuant to terms approved by Lender or as which Lender has waived such
approval right (which approval or waiver thereof shall not be unreasonably
withheld).
1.69 "Government Securities" means the securities purchased upon consummation of
the offering with the funds deposited in the Interest Reserve Account which are
comprised of (i) direct obligations of the United States of America for the
timely payment of which its full faith and credit is pledged or (ii) obligations
of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the timely payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United
States of America, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended), as custodian with respect to any such Government Security or a
specific payment of principal of or interest on any such Government Security
held by such custodian for the account of the holder of such depository receipt;
provided, that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Security or the specific payment of principal of or interest on the Government
Security evidenced by such depository receipt; provided however, "Government
Securities" shall include Investment Grade Securities during the three-day
period following the Closing Date.
1.70 "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, letters of credit and
reimbursement agreements in respect thereof), of all or any part of any
Indebtedness.
1.71 "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.
1.72 "Hyatt Gaming Accounts" means the Hyatt Gaming Completion Reserve Account,
the Hyatt Gaming Construction Disbursement Account and the Advance Disbursement
Account collectively (to the extent of its interest therein).
1.73 "Hyatt Gaming Collateral" means all assets, now owned or hereafter
acquired, of the Borrower or any of its Subsidiaries, that are pledged or
assigned, or required to be pledged or assigned under this Agreement, the Note
or the Hyatt Gaming Collateral Documents, to Lender pursuant to the Hyatt Gaming
Collateral Documents which will initially include all real estate, improvements
and all personal property owned by the Borrower and all accounts held by or for
the benefit of the Borrower, together with the proceeds thereof (including,
without limitation, the proceeds of Asset Sales).
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1.74 "Hyatt Gaming Completion Reserve Account" means the account into which
Seven Hundred Thousand Dollars ($700,000) of the Loan will be deposited by
Lender, which account is to be maintained by the Disbursement Agent pursuant to
the terms of the Cash Collateral and Disbursement Agreement and with respect to
which Lender shall have a first lien pursuant to the Hyatt Gaming Collateral
Documents.
1.75 "Hyatt Gaming Construction Disbursement Account" means the account into
which Five Million Two Hundred Thousand Dollars ($5,200,000) of the Loan will be
deposited by Lender, which account is to be maintained by the Disbursement Agent
pursuant to the terms of the Cash Collateral and Disbursement Agreement and with
respect to which Lender shall have a first lien pursuant to the Hyatt Gaming
Collateral Documents.
1.76 "Hyatt Gaming Deed of Trust" means that certain Hyatt Gaming Deed of Trust
to Public Trustee, Security Agreement, Fixture Filing and Assignment of Rents,
Leases and Leasehold Interests (Xxxxxx County, Colorado) executed by the
Borrower in favor of the Lender of even date herewith in form satisfactory to
the Lender, as it may be amended, modified or supplemented with the written
consent of the beneficiary thereto.
1.77 "Hyatt Gaming Pledge Agreements" means that certain (i) Hyatt Gaming Pledge
Agreement executed by DPR 1992 Trust in favor of Lender, (ii) Hyatt Gaming
Pledge Agreement by APR 21st Century Trust in favor of Lender, and (iii) that
certain Hyatt Gaming Pledge Agreement by AMR 21st Century Trust in favor of
Lender.
1.78 "Hyatt Gaming Pledge and Assignment Agreement" means that certain Hyatt
Gaming Pledge and Assignment Agreement executed by Borrower in favor of Lender
of even date herewith in form satisfactory to the Lender, as it may be amended,
modified or supplemented with the written consent of Lender.
1.79 "Indebtedness" means, with respect to any Person, any indebtedness of such
Person, whether or not contingent, in respect of borrowed money or evidenced by
bonds, notes, debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof) or banker's acceptances or
representing Capital Lease Obligations or the balance deferred and unpaid of the
purchase price of any property, except any such balance that constitutes an
accrued expense or trade payable or representing any Hedging Obligations, if and
to the extent any of the foregoing indebtedness (other than letters of credit,
performance or other surety bonds and Hedging Obligations) would appear as a
liability upon a balance sheet of such Person prepared in accordance with GAAP,
as well as all indebtedness secured by a Lien on any asset of such Person
(whether or not such indebtedness is assumed by such Person) and, to the extent
not otherwise included, the Guarantee by such Person of any indebtedness or
other obligation of any other Person. The amount of any Indebtedness outstanding
as of any date shall be: (i) the accreted value thereof, in the case of any
Indebtedness issued with original issue discount; and (ii) the principal amount
thereof, together with any interest thereon that is more than thirty (30) days
past due, in the case of any other Indebtedness.
1.80 "Indenture" means that certain Indenture dated as of the Closing Date
between the Borrower and the Trustee, as it may be amended, modified or
supplemented by the parties thereto, evidencing indebtedness initially not to
13
exceed One Hundred Million Dollars ($100,000,000) with the amount deposited in
the Interest Reserve Account pursuant to the Cash Collateral and Disbursement
Agreement to be available only as a reserve for debt service, with additional
indebtedness (i) not to exceed Thirty Million Dollars ($30,000,000) pursuant to
the terms of the Indenture and so long as such additional indebtedness shall be
used solely to finance the construction of a hotel, parking structure and
related facilities proximate to the Casino and (ii) not to exceed Five Million
Dollars ($5,000,000) pursuant to the terms of the Indenture and so long as such
Indebtedness shall be used solely to finance cost overruns for the construction
of the Casino hotel, parking, structure and related facilities proximate to the
Casino.
1.81 "Initial Public Offering" means a firm commitment underwritten public
Equity Offering of Capital Stock of the Borrower pursuant to a registration
statement filed with the SEC under the Securities Act.
1.82 "Independent Construction Consultant" means RE Tech+, Inc. in its capacity
as Independent Construction Consultant under the Cash Collateral and
Disbursement Agreement, as approved (or as to which such right of approval is
waived) by Lender, such approval or waiver of approval not to be unreasonably
withheld or delayed, or any successor thereto appointed by the Trustee and
approved (or as to which such right of approval is waived) by Lender.
1.83 "Initial Notes" has the meaning set forth in the Indenture.
1.84 "Intellectual Property" has the meaning set forth in Section 4.7(s) hereof.
1.85 "Interest" means the interest accruing under the Note.
1.86 "Interest Reserve Account" means the account to be maintained by the
Disbursement Agent and pledged to the holders of the Senior Notes (who will have
a first priority lien) and to the Lender (which will have a second priority
lien) pursuant to the terms of the Cash Collateral and Disbursement Agreement,
into which approximately Twenty-Four Million One Hundred Thousand Dollars
($24,100,000) of the proceeds of the Senior Notes shall be deposited and used to
purchase the Government Securities.
1.87 "Investment Grade Securities" means any Investment in (i) marketable direct
obligations issued or unconditionally guaranteed by the United States Government
or issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition thereof, (ii) marketable direct obligations issued by any state of
the United States of America maturing within one year from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from both Standard & Poor's Rating Service and
Xxxxx'x Investors Service, Inc. (or any successor to either of their rating
agency businesses), (iii) commercial paper maturing no more than one year from
the date of creation thereof and, at the time of acquisition, having one of the
two highest ratings obtainable from both Standard & Poor's Rating Service and
Xxxxx'x Investors Service, Inc. (or any successor to either of their rating
agency businesses), (iv) certificates of deposit maturing within one year from
the date of acquisition thereof issued by, or bank accounts maintained with,
commercial banks organized under the laws of the United States of America or any
14
state thereof or the District of Columbia, each having combined capital and
surplus of not less than Five Hundred Million Dollars ($500,000,000) and having
a rating of "A1" or better from Standard & Poor's Rating Service or "P1" or
better from Xxxxx'x Investors Service, Inc. (or any successor to either of their
rating agency businesses), or (v) money market funds organized under the laws of
the United States or any state thereof that invest solely in any of the types of
investments permitted under this definition; provided that any such Investment
Grade Securities which are purchased with a portion of the net proceeds from the
Note are deposited in either the Hyatt Gaming Construction Disbursement Account
or the Hyatt Gaming Completion Reserve Account and the Lender has a first
priority perfected security interest in such Investment Grade Securities.
1.88 "Investments" means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates) in the forms
of direct or indirect loans (including guarantees or Indebtedness or other
obligations), advances (excluding commission, travel and similar advances to
officers and employees made in the ordinary course of business), capital
contributions, purchases or other acquisitions for consideration of
Indebtedness, Equity Interests or other securities, together with all items that
are or would be classified as investments on a balance sheet prepared in
accordance with GAAP; provided that an acquisition of assets, Equity Interests
or other securities by the Borrower for consideration consisting of common
Equity Interests of the Borrower will not be deemed to be an Investment. If the
Borrower or any Restricted Subsidiary of the Borrower sells or otherwise
disposes of any Equity Interests of any direct or indirect Restricted Subsidiary
of the Borrower such that, after giving effect to any such sale or disposition,
such Person is no longer a Restricted Subsidiary of the Borrower, the Borrower
shall be deemed to have made an Investment on the date of any such sale or
disposition equal to the fair market value of the Equity Interests of such
Restricted Subsidiary not sold or disposed of in an amount determined as
provided in the final paragraph of Section 4.5(f) hereof. The acquisition by the
Borrower or any Restricted Subsidiary of the Borrower of a Person that holds an
Investment in a third Person shall be deemed to be an Investment by the Borrower
or such Restricted Subsidiary in such third Person in an amount equal to the
fair market value of the Investment held by the acquired Person in such third
Person in an amount determined as provided in the final paragraph of Section
4.5(f) hereof.
1.89 "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).
1.90 "Liquidated Damages" means all liquidated damages then owing pursuant to
Section 2.1(d) of the Warrant Registration Rights Agreement.
1.91 "Liquor License" means any license, permit, franchise or other
authorization from any Liquor Licensing Authority necessary or required on the
Closing Date or at any time thereafter to own, lease, operate or otherwise
conduct the lodging, retail, restaurant or other entertainment facilities of the
15
Borrower in the manner described in the Offering Memorandum, including all
licenses granted under the liquor licensing laws of any jurisdiction to which
the Borrower is, or may at any time after the Closing Date, be subject.
1.92 "Liquor Licensing Authority" means any agency, authority, board, bureau,
commission, department, office or instrumentality of any nature whatsoever of
the United States federal or a foreign government, any state, province or any
city or other political subdivision or otherwise, and whether now or hereafter
in existence, or any officer or official thereof, 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 by the Borrower or any of its Subsidiaries and managed or operated by
Manager.
1.93 "LLC" means Windsor Woodmont, L.L.C., a Colorado limited liability company.
1.94 "Loan" has the meaning set forth in Recital A hereof.
1.95 "Loan Documents" means this Agreement, the Cash Collateral and Disbursement
Agreement, the Hyatt Gaming Collateral Documents, the Warrant Registration
Rights Agreement and the Note, and any other documents executed by the Borrower
for the benefit of the Lender and evidencing, securing or relating to the Loan.
1.96 "Management Agreement" means the Management Agreement between the Borrower
and the Lender dated February 2, 2000, as amended as of the Closing Date, as it
may be further amended, modified, or supplemented by the parties thereto.
1.97 "Manager" means the "Manager" as defined in the Management Agreement.
1.98 "Material Adverse Effect" has the meaning set forth in Section 4.7(a)
hereof.
1.99 "Maturity" means March 15, 2010.
1.100 "Minimum Facilities" means, with respect to the Casino, a casino which has
in operation at least one thousand two hundred (1,200) slot machines and related
amenities (including a restaurant, buffet restaurant and a bar) and has parking
for at least eight hundred (800) vehicles.
1.101 "Net Income" means, with respect to any Person for any period, the net
income (loss) of such Person for such period, determined in accordance with
GAAP, excluding, however: (i) any gain (but not loss), together with any related
provision for taxes on such gain (but not loss), realized in connection with (a)
any Asset Sale (including, without limitation, dispositions pursuant to sale and
leaseback transactions) or (b) the disposition of any securities by such Person
or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness
of such Person or any of its Restricted Subsidiaries; (ii) any extraordinary or
nonrecurring gain (but not loss), together with any related provision for taxes
on such extraordinary or nonrecurring gain (but not loss); and (iii) solely for
the purpose of calculating the Fixed Charge Coverage Ratio to determine
compliance by the Borrower with Section 4.5(f) pre-opening expenses as
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determined in accordance with GAAP incurred by such Person in connection with
the opening of the Casino up to a maximum of Two Million Dollars ($2,000,000).
1.102 "Net Loss Proceeds" means the aggregate cash proceeds received by the
Borrower or any of its Restricted Subsidiaries in respect of any Event of Loss,
including, without limitation, insurance proceeds from condemnation awards or
damages awarded by any judgment, net of the direct costs in recovery of such Net
Loss Proceeds (including, without limitation, legal, accounting, appraisal and
insurance adjuster fees and any relocation expenses incurred as a result
thereof), amounts required to be applied to the repayment of Indebtedness
secured by a Lien on the asset or assets that were the subject of such Event of
Loss (other than Indebtedness secured by Liens in favor of Lender or the holders
of the Senior Notes as the repayment of such Indebtedness is governed by Section
4.5(aa) hereof and Section 4.28 of the Indenture, respectively), and any taxes
paid or payable as a result thereof.
1.103 "Net Proceeds" means the aggregate cash proceeds received by the Borrower
or any of its Subsidiaries in respect of any Asset Sale (including, without
limitation, any cash received upon the sale or other disposition of any non-cash
consideration received in any Asset Sale), net of the direct costs relating to
such Asset Sale (including, without limitation, legal, accounting and investment
banking fees, and sales commissions), taxes paid or payable as a result thereof
(after taking into account any available tax credits or deductions and any tax
sharing arrangements), amounts required to be applied to the repayment of
Indebtedness (to the extent, in the case of revolving credit Indebtedness, such
Indebtedness is permanently reduced) secured by a Lien on the asset or assets
that were the subject of such Asset Sale and any reserve for adjustment in
respect of the sale price of such asset or assets established in accordance with
GAAP; provided, that the Lender will hold a perfected security interest in such
aggregate cash proceeds.
1.104 "Non-Casino Loss of License Event" means any delay, postponement or denial
of the issuance, or revocation, suspension (for a period in excess of three (3)
days) or non-renewal of any license required for the operation of gaming or
ownership of gaming facilities by the Lender or any Affiliate of the Lender at
any other location other than the Casino, or any written communication by a
representative of a licensing authority threatening any of the foregoing whether
resulting from any judicial or administrative proceeding, or otherwise, and
which results, directly or indirectly, from the Lender's making the Loan,
Lender's association with the Borrower any Affiliate of the Borrower, or the
Borrower's or any of its Affiliates' association with a Non-Qualified Person.
1.105 "Non-Qualified Person" means any Person that would, if associated with the
Borrower or its Affiliates or with the Lender or its Affiliates, in the
reasonable judgment of the Lender or any licensing authority, impair or cause
the denial, suspension or revocation of any gaming registration, permit,
license, right or entitlement or alcoholic beverage registration, permit,
license, right or entitlement held or applied for by the Lender, or any
Affiliate of the Lender.
1.106 "Non-Recourse Debt" means Indebtedness (i) as to which neither the
Borrower nor any Restricted Subsidiary (a) provides any guarantee or credit
support of any kind (including any undertaking, agreement or instrument that
would constitute Indebtedness) or (b) is directly or indirectly liable; (ii) no
17
default with respect to which, including any rights that the holders thereof may
have to take enforcement action against an Unrestricted Subsidiary, would
permit, upon notice, lapse of time or both, any holder of any other Indebtedness
of the Borrower or any Restricted Subsidiary to declare a default under such
other Indebtedness or cause the payment thereof to be accelerated or payable
prior to its stated maturity; and (iii) as to which the lenders of such
Indebtedness have been notified in writing that they will not have any recourse
to the Equity Interests or assets of the Borrower or any of its Restricted
Subsidiaries.
1.107 "Note" means the Subordinated Promissory Note of the Borrower in favor of
the Lender in the amount of Seven Million Five Hundred Thousand Dollars
($7,500,000) in the form attached hereto as Exhibit A and by this reference
incorporated herein, as well as any promissory note or notes issued by the
Borrower in substitution, replacement, extension, amendment or renewal of any
such promissory note or notes.
1.108 "Note Conversion Agreements" means:
(i) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Xxxxx Xxxxxxxxx, as amended by the letter agreement between such
parties accepted by Borrower March 14, 2000;
(ii) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Xxxxxx X. Xxxxxx, as amended by the letter agreement between such
parties accepted by Borrower March 14, 2000;
(iii) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Xxxxxx X. Xxxxxx, as amended by the letter agreement between such
parties accepted by Borrower March 14, 2000;
(iv) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Xxxx X. Xxxxxx, as amended by the letter agreement between such
parties accepted by Borrower March 14, 2000;
(v) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Xxxx Xxxxxxxx, as amended by the letter agreement between such parties
accepted by Borrower March 14, 2000;
(vi) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Xxxxxxxx Deal, as amended by the letter agreement between such parties
accepted by Borrower March 14, 2000;
(vii) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Normandy, Inc., as amended by the letter agreement between such
parties accepted by Borrower March 14, 2000; and
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(viii) that certain Subordinated Replacement Promissory Note Conversion
Agreement, accepted by Borrower as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., Windsor Woodmont, L.L.C. and
Colorado Five, Ltd., as amended by the letter agreement between such
parties accepted by Borrower March 14, 2000.
1.109 "Obligation" means any principal, interest, penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable under
the documentation governing any Indebtedness.
1.110 "Offering Memorandum" means the Offering Memorandum of the Borrower
relating to the Series A Notes dated March 7, 2000 as supplemented by a
supplement thereto dated March 14, 2000.
1.111 "Officer" means, with respect to any Person, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer, any Assistant Treasurer, the Controller,
the Secretary or any Vice-President of such Person.
1.112 "Officer's Certificate" means a certificate signed on behalf of the
Borrower by two Officers of the Borrower, one of whom must be the principal
executive officer, the principal financial officer, the treasurer or the
principal accounting officer of the Borrower, that meets the requirements of
Section 7.20 hereof.
1.113 "Outside Completion Date" shall have the meaning set forth in the
Subdivision Agreement.
1.114 "Operating" means, with respect to the Casino, the first time that: (i)
all Gaming Licenses have been granted and have not been revoked or suspended;
(ii) all Liens (other than Liens created by the Hyatt Gaming Collateral
Documents or Permitted Liens) related to the development, construction and
equipping of, and beginning operations at, the Casino have been discharged or,
if payment is not yet due or if such payment is contested in good faith by the
Borrower, sufficient funds remain in the Senior Cash Collateral Accounts (other
than the Interest Reserve Account) and the Hyatt Gaming Accounts to discharge
such Liens and the Borrower has taken any action (including the institution of
legal proceedings) necessary to prevent the sale of any or all of the Casino or
the real property on which the Casino will be constructed; (iii) the Independent
Construction Consultant, the general contractor and the architect of the Casino
will have delivered a certificate to the Lender certifying that the 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; (iv) the Casino is in a condition
(including installation of furnishings, fixtures and equipment) to receive
customers in the ordinary course of business; (v) the Minimum Facilities are
open to the general public and operating in accordance with all applicable laws;
and (vi) a temporary certificate of occupancy has been issued for the Casino by
the appropriate governmental authorities.
1.115 "Operating Deadline" means December 31, 2001.
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1.116 "Operating Year" means the four consecutive fiscal quarter period of the
Borrower beginning on the first day of the first fiscal quarter of the Borrower
commencing after the date that the Casino first becomes Operating, and each
succeeding four consecutive fiscal quarter period thereafter that begins
immediately after the last day of such initial four quarter period or any
subsequent four quarter period.
1.117 "Opinion of Counsel" means an opinion from legal counsel who is reasonably
acceptable to the Lender, that meets the requirements of Section 7.20 hereof.
The counsel may be an employee of or counsel to the Borrower or any Subsidiary
of the Borrower.
1.118 "Permitted Debt" has the meaning set forth in Section 4.5(h) hereof.
1.119 "Permitted Investments" means: (i) any Investment in Cash Equivalents;
(ii) any Restricted Investment made as a result of the receipt of non-cash
consideration from an Asset Sale that was made pursuant to and in compliance
with Section 4.5(i) hereof; (iii) any acquisition of assets solely in exchange
for the issuance of Equity Interests (other than Disqualified Stock) of the
Borrower; (iv) after the Casino is Operating, any purchases from time to time by
the Borrower of the Senior Notes, as required under the terms of the Indenture
as in effect on the date hereof in accordance with Section 4.29 of the
Indenture; (v) obligations or securities received in settlement of debts created
in the ordinary course of business and owing to the Borrower or any Restricted
Subsidiary or in the settlement of judgments; and (vi) advances to employees of
the Borrower or any of its Restricted Subsidiaries in the ordinary course of
business to pay for reasonable business expenses incurred by such employees.
1.120 "Permitted Liens" means (i) Liens on property of a Person existing at the
time such Person is merged into or consolidated with the Borrower or any
Restricted Subsidiary of the Borrower in accordance with the terms hereof;
provided that such Liens were not created in 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 Borrower; (ii) Liens on property existing
at the time of acquisition thereof by the Borrower or any Restricted Subsidiary
of the Borrower in accordance with the terms hereof (other than materials,
supplies or FF&E acquired in connection with developing, constructing or
equipping of, or commencing operations at, the Casino), provided that such Liens
were in existence prior to the contemplation of such acquisition; (iii) Liens
existing on the Closing Date and previously disclosed in the Title Policy for
the Hyatt Gaming Deed of Trust; (iv) 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; (v)
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, and for which a reserve or other
appropriate provision, if any, as shall be required by GAAP shall have been
made, and, with respect to such Liens arising in connection with the
construction of the Casino, there is no Default or Event of Default under the
Cash Collateral and Disbursement Agreement; (vi) Liens created on property
pursuant to the terms of the Senior Notes on property that constitutes
20
Collateral on which Lender has a valid, perfect and, except as otherwise
permitted by the terms hereof and the Collateral Documents, first priority Lien
or pursuant to any Permitted Refinancing Indebtedness incurred in accordance
with this Agreement to extend, refinance, renew, replace, defease or refund the
Senior Notes, so long as such Liens do not extend to property that was not
covered by the Senior Notes; (vii) Liens on FF&E to secure Indebtedness incurred
in accordance with clause (h) (I) of the definition of Permitted Debt in Section
4.5; (viii) Liens securing obligations under this Agreement or the other Loan
Documents; (ix) pledges or deposits in the ordinary course of business to secure
lease obligations or nondelinquent obligations under workers' compensation,
unemployment insurance or similar legislation; (x) zoning, 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 Borrower or any subsidiary incurred in the ordinary
course of business; (xi) Liens on the real property encumbered by the Hyatt
Gaming Deed of Trust to secure Indebtedness incurred in accordance with clause
(h)(F) of the definition of Permitted Debt in Section 4.5; (xii) Liens on
Collateral to secure Indebtedness incurred in accordance with clause (h)(L)
provided (a) such Liens are not senior to the Liens securing the Obligations
hereunder and under the Note and the other Collateral Documents and (b) such
Indebtedness is not senior in right of payment to such Obligations; (xiii)
leases or subleases granted to their Persons not materially interfering with the
ordinary course of business of the Borrower or any of its Restricted
Subsidiaries; (xiv) Liens securing Hedging Obligations incurred in accordance
with the terms hereof; (xv) attachment or judgment Liens not giving rise to a
Default or an Event of Default and; (xvi) Liens on Capital Stock of an
Unrestricted Subsidiary owned directly by another Unrestricted Subsidiary to
secure Indebtedness of such Unrestricted Subsidiary the Capital Stock of which
is being provided as a security; provided that any such Lien may not extend to
any property or assets of the Borrower or any of its Restricted Subsidiaries
other than such Capital Stock.
1.121 "Permitted Refinancing Indebtedness" means any Indebtedness of the
Borrower or any of its Restricted Subsidiaries issued in exchange for, or the
net proceeds of which are used to extend, refinance, renew, replace, defease or
refund other Indebtedness of the Borrower or any of its Restricted Subsidiaries
(other than intercompany Indebtedness); provided that: (i) the principal amount
(or accreted value, if applicable) of such Permitted Refinancing Indebtedness
does not exceed (a) with respect to the Senior Notes, the principal amount
outstanding under the Senior Notes at the time such Permitted Refinancing
Indebtedness is issued plus any premium and interest required under the
Indenture, as in effect on the date hereof plus the reasonable fees, expenses
and costs incurred in connection therewith, and (b) with respect to all other
Indebtedness, the original principal amount of (or accreted value, if
applicable) the Indebtedness so extended, refinanced, renewed, replaced,
defeased or refunded plus any interest and premium payable thereon (plus all
accrued interest thereon, the amount of reasonable expenses incurred in
connection therewith and premiums incurred in connection therewith pursuant to
the original loan documents governing such indebtedness); (ii) such Permitted
Refinancing Indebtedness has a final maturity date no earlier than the final
maturity date of, and has a Weighted Average Life to Maturity equal to or
greater than the Weighted Average Life to Maturity of, the Indebtedness being
extended, refinanced, renewed, replaced, defeased or refunded; (iii) if the
Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded
21
is subordinated in right of payment to the Note, such Permitted Refinancing
Indebtedness has a final maturity date no earlier than the final maturity date
of and is subordinated in right of payment to, the Note on terms at least as
favorable to the Lender as those contained in the documentation governing the
Indebtedness being extended, refinanced, renewed, replaced, defeased or
refunded; and (iv) such Indebtedness is incurred by the Borrower or by the
Restricted Subsidiary who is the obligor on the Indebtedness being extended,
refinanced, renewed, replaced, defeased or refunded.
1.122 "Person" means any individual, partnership, limited liability company,
corporation, unincorporated association, joint venture, trust or other entity,
whether in its own or representative capacity.
1.123 "Plans" means the plans, specifications, working drawings, change orders,
correspondence and related items, which may be amended by the Borrower, as the
case may be, as necessary or appropriate, that collectively: (i) provide for and
detail the manner of development, construction and equipping of the Casino; (ii)
call for construction which shall permit the Casino to be Operating on or prior
to the Operating Deadline, subject only to Permitted Liens; and (iii) call for
construction which shall cause the 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; and
(iv) together with any amendments, are consistent with the description of the
Casino contained in the Offering Memorandum, and are consistent with all
governmental approvals and requirements, including, without limitation, the
Black Hawk Building Department, Historical Architecture Review Commission,
Gaming Authorities, and the Subdivision Agreement.
1.124 "Project License" has the meaning set forth in Section 1.14 hereof.
1.125 "Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the Closing Date, among the Borrower and the other parties named on
the signature pages thereof, as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional Notes, one or
more registration rights agreements between the Borrower and the other parties
thereto, as such agreement(s) may be amended, modified or supplemented from time
to time, relating to rights given by the Borrower to the purchasers of
Additional Notes to register such Additional Notes under the Securities Act.
1.126 "Related Party" means (i) the LLC and (ii) Xxxxxx X. Xxxxxxxxxx, Normandy,
Inc., Irving Deal and Xxxxxxxx Deal and, any trust formed for the benefit of
such individual, his/her spouse or his/her children or any corporation,
partnership, or limited liability company that is at least fifty percent (50%)
owned by such individuals.
1.127 "Restricted Investment" means an Investment other than a Permitted
Investment.
1.128 "Restricted Payment" has the meaning set forth in Section 4.5(f)(iv)
hereof.
1.129 "Restricted Subsidiary" of a Person means any Subsidiary of such Person
that is not an Unrestricted Subsidiary.
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1.130 "SEC" means the Securities and Exchange Commission.
1.131 "Securities Act" means the Securities Act of 1933, as amended.
1.132 "Senior Cash Collateral Accounts" means, collectively, the Interest
Reserve Account, the Completion Reserve Account, the Construction Disbursement
Account and the Senior Note Advance Disbursement Account, each as defined in the
Indenture as in effect on the date hereof and established pursuant to the Cash
Collateral and Disbursement Agreement.
1.133 "Senior Debt" means (i) all indebtedness, liabilities and obligations of
every kind or nature, absolute or contingent, now existing or hereafter arising,
of the Borrower, its successors and assigns, under the Indenture, the Senior
Notes, any Collateral Documents (as defined in the Indenture), or any other
documents, instruments or agreements executed in connection with any of the
foregoing (the foregoing, collectively, the "Senior Note Documents"), to the
Trustee or any holder of the Senior Notes and their successors and assigns and,
subject to Section 4.1 hereof, any Person who extends credit to the Borrower for
the purpose of refunding any such indebtedness, liabilities or obligations,
including without limitation the principal of, and interest on (including any
interest accruing after the commencement of any Proceeding (as defined in the
Indenture) with respect to the Borrower and any interest which would have
accrued but for the commencement of any such Proceeding), and all premiums,
fees, charges, expenses and indemnities arising under or in connection with the
Senior Loan Documents; (ii) any modifications, amendments, refundings, renewals
or extensions of any indebtedness or obligation described in clause (i) of this
definition; (iii) the FF&E Financing; and (iv) the City Improvement Bonds.
1.134 "Senior Loan Documents" means the Senior Note Documents and all documents
evidencing, securing or relating to the FF&E Financing and the City Improvement
Bonds.
1.135 "Senior Note Documents" has the meaning set forth in Section 1.132 hereof.
1.136 "Senior Notes" means the notes issued pursuant to the Indenture.
1.137 "Series A Preferred Stock" means the Borrower's Series A Preferred Stock,
par value $0.01 per share.
1.138 "Series B Preferred Stock" means the Borrower's Series B Preferred Stock,
par value $0.01 per share.
1.139 "Significant Subsidiary" means any Subsidiary that would be a "significant
subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated
pursuant to the Securities Act, as such Regulation is in effect on the Closing
Date.
1.140 "Sponsor" means Xxxxxx X. Xxxxxxxxxx.
1.141 "Subdivision Agreement" means the Subdivision Agreement dated as of
December 29, 1997 between Borrower and the City of Black Hawk, Colorado.
23
1.142 "Subordination Agreement" means the Intercreditor Subordination and
Collateral Agreement by and among the Borrower, the Lender and the Trustee of
even date herewith in form satisfactory to the Lender, as it may be amended,
modified, or supplemented by the parties thereto.
1.143 "Subsidiary" means with respect to any Person, (i) any corporation,
association or other business entity of which more than fifty percent (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 (ii) 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).
1.144 "Subsidiary Guarantee" means the Guarantee by a Subsidiary of the
Borrower's payment obligations under this Agreement, the Note and the other Loan
Documents executed pursuant to the provisions of this Agreement.
1.145 "Subsidiary Guarantor" means any Subsidiary that executes a Subsidiary
Guarantee in accordance with the provisions of this Agreement, and its
respective successors and assigns.
1.146 "Subsidiary Intercompany Note" means the intercompany note senior to any
subordinated debt of, and pari passu with all existing senior Indebtedness of
the issuing Subsidiary, issued by Restricted Subsidiaries of the Borrower in
favor of the Borrower to evidence advances by the Borrower, in each case, in
form satisfactory to the Lender.
1.147 "Title Policy" has the meaning set forth in Section 2.3 hereof.
1.148 "Transactions" means the transactions contemplated by the Loan Documents.
1.149 "Trustee" means SunTrust Bank, a Georgia banking corporation, as indenture
trustee under the Indenture.
1.150 "Unrestricted Subsidiary" means any Subsidiary of the Borrower that is
designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a
resolution, but only to the extent that such Subsidiary: (i) has no Indebtedness
other than Non-Recourse Debt; (ii) is not party to any agreement, contract,
arrangement or understanding with the Borrower or any Restricted Subsidiary of
the Borrower unless the terms of any such agreement, contract arrangement or
understanding are no less favorable to the Borrower or such Restricted
Subsidiary than those that might be obtained at the time from Persons who are
not Affiliates of the Borrower; (iii) is a Person with respect to which neither
the Borrower nor any of its Restricted Subsidiaries has any direct or indirect
obligation (a) to subscribe for additional Equity Interests or (b) to maintain
or preserve such Person's financial condition or to cause such Person to achieve
any specified levels of operating results; (iv) has not guaranteed or otherwise
directly or indirectly provided credit support for any Indebtedness of the
Borrower or any of its Restricted Subsidiaries; and (v) has at least one
director on its board of directors that is not a director or executive officer
24
of the Borrower or any of its Restricted Subsidiaries and has at least one
executive officer that is not a director or executive officer of the Borrower or
any of its Restricted Subsidiaries.
Any designation of a Subsidiary of the Borrower as an Unrestricted
Subsidiary shall be evidenced to the Lender by providing the Lender a
certified copy of a resolution of the Borrower's Board of Directors giving
effect to such designation and an Officers' Certificate certifying that
such designation complied with the preceding conditions and was permitted
by Section 4.5(f) hereof. If, at any time, any Unrestricted Subsidiary
would fail to meet the preceding requirements as an Unrestricted
Subsidiary, it shall thereafter cease to be an Unrestricted Subsidiary for
purposes of this Agreement and any Indebtedness of such Subsidiary shall
be deemed to be incurred by a Restricted Subsidiary of the Borrower as of
such date and, if such Indebtedness is not permitted to be incurred as of
such date under Section 4.5(h), the Borrower shall be in default of such
covenant. The Board of Directors of the Borrower may at any time designate
any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that
such designation shall be deemed to be an incurrence of Indebtedness of
such Unrestricted Subsidiary and such designation shall only be permitted
if (i) such Indebtedness is permitted under Section 4.5(h) hereof,
calculated on a pro forma basis as if such designation had occurred at the
beginning of the four-quarter reference period; and (ii) no Default or
Event of Default would be in existence following such designation, (iii)
such Subsidiary becomes a Subsidiary Guarantor; and (iv) such Subsidiary
becomes a party to all Hyatt Gaming Collateral Documents.
1.151 "Warrant Agreement" means that certain First Warrant Agreement between the
Borrower and The Sun Trust Bank, as warrant agent, of even date herewith, as it
may be amended, modified or supplemented by the parties thereto.
1.152 "Warrant Registration Rights Agreement" means that certain Warrant
Registration Rights Agreement of even date herewith by and between Lender and
the Borrower, as it may be amended, modified or supplemented by the parties
thereto.
1.153 "Warrant Shares" means any common stock of the Borrower issuable upon
exercise of the Warrants.
1.154 "Warrants" means the warrants for the purchase of thirty-three thousand
eight hundred eighty-seven (33,887) shares of the Borrower's common stock issued
to the Lender pursuant to the Warrant Agreement.
1.155 "Weighted Average Life to Maturity" means, when applied to any
Indebtedness at any date, the number of years obtained by dividing (i) the sum
of the products obtained by multiplying (a) the amount of each then remaining
installment, sinking fund, serial maturity or other required payments of
principal, including payment at final maturity, in respect thereof, by (b) the
number of years (calculated to the nearest one-twelfth) that shall elapse
between such date and the making of such payment by (ii) the then outstanding
principal amount of such Indebtedness.
25
1.156 "Wholly Owned Restricted Subsidiary" of any Person means a Wholly Owned
Subsidiary of such Person that is also a Restricted Subsidiary of such Person.
1.157 "Wholly Owned Subsidiary" of any Person means a Subsidiary of such Person
at least ninety percent (90%) of the outstanding Capital Stock or other
ownership interests of which will at the time be owned by such Persons by one or
more Wholly Owned Subsidiaries of such Person, or by such Person and one or more
Wholly Owned Subsidiaries of such Person.
ARTICLE II.
THE LOAN
2.1 LoanTerms. Subject to the terms and conditions of this Agreement, the
Lender hereby lends and the Borrower hereby borrows the principal sum of
Seven Million Five Hundred Thousand Dollars ($7,500,000), such borrowing
to be evidenced by the Note.
2.2 Interest. The outstanding principal balance of the Loan shall bear interest
and principal and Interest shall be repayable all in accordance with the terms
of the Note. The Borrower shall make prepayments of the amounts outstanding
under the Note as required by Sections 4.5(i), (aa) and (bb) hereof.
2.3 Hyatt Gaming Deed of Trust. The Borrower shall execute and deliver the
Hyatt Gaming Deed of Trust and provide the Lender with an ALTA Title
Policy (or commitment therefor) from First American Title Insurance
Company with endorsements satisfactory to the Lender (the "Title Policy")
insuring that the Hyatt Gaming Deed of Trust is subject only to the First
Deed of Trust and any other permitted encumbrances approved in writing by
the Lender. The Borrower shall pay all costs and expenses of recording the
Hyatt Gaming Deed of Trust and of issuance of the Title Policy.
2.4 Warrants. Concurrently herewith the Borrower shall have entered into the
Warrant Agreement and the Lender, the Borrower and the Trustee shall have
entered into the Warrant Registration Rights Agreement, each as additional
consideration for the Lender providing the Loan to the Borrower.
2.5 Other Collateral Documents. The Lender shall have a first lien on the
Hyatt Gaming Accounts and a second lien on (a) the Borrower's and its
subsidiaries' accounts receivable, general intangibles, inventory and
other personal property (other than furnishings, fixtures and equipment as
to which the lender of the FF&E Financing has a first lien and with
respect to which Lender and holders of the Senior Notes shall have no
lien), (b) the Senior Cash Collateral Accounts, (c) to the extent
permitted by law, certain construction contracts, operating agreements,
licenses, permits and other agreements as to which the holders of the
Senior Notes have a first lien, (d) stock or other equity interests of
current and future subsidiaries of the Borrower and (e) any other
collateral as to which the holders of the Senior Debt have a first or a
second lien. The documents evidencing such liens and security interest are
herein referred to as the "Collateral Documents" and include, without
limitation, the following documents, each dated as of the Closing Date:
(A) that certain Hyatt Gaming Security Agreement; (B) that certain Hyatt
Gaming Pledge and Assignment Agreement; (C) that certain Hyatt Gaming
Account Agreement; (D) that certain Hyatt Gaming Collateral Assignment;
26
(E) that certain Hyatt Gaming Pledge Agreement by the DPR 1992 Trust in
favor of Lender; (F) that certain Hyatt Gaming Pledge Agreement by APR
21st Century Trust in favor of Lender; (G) that certain Hyatt Gaming
Pledge Agreement by AMR 21st Century Trust in favor of Lender; and (H) the
Hyatt Gaming Deed of Trust.
2.6 Opinions. The Borrower shall cause to have delivered on the Closing Date
each of the following opinions, dated as of the Closing Date:
(a) An opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the
Borrower, in form satisfactory to the Lender;
(b) An opinion of Xxxxxx, Xxxxxxxxx & Xxxx, P.C., Colorado real estate
counsel and corporate counsel for the Borrower, in form satisfactory to the
Lender; and
(c) An opinion of Xxxx, Dill, Carr, Xxxxxxxxxx & Xxxxxxxxx, P.C., Colorado
gaming counsel for the Borrower, in form satisfactory to the Lender.
ARTICLE III.
LOAN DISBURSEMENTS
3.1 Funding. Concurrently herewith the Lender has deposited a total of Seven
Million Five Hundred Thousand Dollars ($7,500,000) in the Hyatt Gaming Accounts
(other than the Hyatt Gaming Advance Disbursement Account) and in the closing
escrow account (the "Closing Escrow Account") with First American Heritage Title
Company's local affiliate (the "Closing Escrow Agent"). Specifically, Lender has
deposited approximately Five Million Two Hundred Thousand Dollars ($5,200,000)
into the Hyatt Gaming Construction Disbursement Account, Seven Hundred Thousand
Dollars ($700,000) into the Hyatt Gaming Completion Reserve Account and One
Million Six Hundred Thousand Dollars ($1,600,000) into the Closing Escrow
Account. The funds in the Closing Escrow Account shall be disbursed at the
direction of the Closing Escrow Agent. The Loan shall be disbursed by the
Disbursement Agent pursuant to the terms of the Cash Collateral and Disbursement
Agreement and the terms of the Closing Escrow Account on terms reasonably
satisfactory to Lender.
ARTICLE IV.
THE BORROWER'S REPRESENTATIONS AND WARRANTIES, COVENANTS
AND AGREEMENTS
4.1 Compliance with Senior Loan Documents. The Borrower shall not amend, modify
or supplement the Senior Loan Documents or refinance the Senior Debt without
Lender's prior written consent so as to increase principal or interest, extend
the maturity or amend, modify or add covenants relating to the Loan or the
Management Agreement that materially and adversely affect the Lender; provided,
however, the amount of any such refinancing may include the amount of principal,
interest or other amounts (including fees and expenses) due on the Senior Debt
so refinanced.
27
4.2 Intentionally Omitted.
4.3 Intentionally Omitted.
4.4 Payments to Developer. No developer fees or other fees, expenses or
reimbursements shall be paid to the Borrower or its Affiliates:
(a) On or before the Closing Date, other than a One Million Seven Hundred
Thousand Dollar ($1,700,000) developer incentive fee to be payable in preferred
stock and a total of Three Hundred Thousand Dollars ($300,000) for the salary
and benefits of Xxxxxx Xxxxxxxxxx and Xxxxxxx Xxxxxx;
(b) During the period after the Closing Date and until the Casino is
Operating, to the extent the sum of fees, expenses and reimbursements payable
during such period would exceed One Million Two Hundred Thousand Dollars
($1,200,000), excluding reimbursement for reasonable and documented travel and
related expenses included in the Construction Disbursement Budget of
approximately Two Hundred Twenty Five Thousand Dollars ($225,000) in the
aggregate for any twelve (12) month period during such period, plus a Six
Hundred Thousand Dollar ($600,000) completion bonus to be payable only out of
the contingency in the Completion Reserve Account and the Hyatt Gaming
Completion Reserve Account, on a pro rata basis as set forth in the Cash
Collateral and Disbursement Agreement; and
(c) In excess of Three Hundred Fifty Thousand Dollars ($350,000) per year
for each year after the Casino is Operating and until such time as all
Obligations of the Borrower under this Agreement, the Note and the other Loan
Documents are paid in full; provided, however, that no amounts permitted to be
paid to the Borrower or its Affiliates pursuant to this Section 4.4(C) shall be
paid during any year unless and until the Incentive Fee (as defined in the
Management Agreement) shall have been paid for such period pursuant to the terms
of the Management Agreement.
4.5 Covenants.
(a) Payment of Note. Subject to the terms of the Subordination Agreement,
the Borrower shall pay or cause to be paid all amounts owing to Lender under the
Note, this Agreement and the other Loan Documents in accordance with their
respective terms. Principal, premium, if any, and Interest shall be considered
paid on the date due if the Lender holds, as of 10:00 a.m. Eastern Time on the
due date, money deposited by the Borrower in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, and
Interest then due. The Borrower shall pay all Liquidated Damages, if any, in the
same manner on the dates and in the amounts set forth in the Warrant
Registration Rights Agreement. If the Lender has given wire transfer
instructions to the Borrower, the Borrower will pay all principal, Interest,
premium and Liquidated Damages, if any, on the Note in accordance with those
instructions. All other payments on the Note shall be made at Lender's address
set forth in the Note. The Borrower shall pay when due any property taxes,
insurance, repair and maintenance costs, amounts due under the Management
Agreement, or other amounts necessary for the
28
Borrower to carry on the operation of its Casino business and protect the value
of the Hyatt Gaming Collateral.
(b) Reports.
(i) Whether or not required by the rules and regulations of the SEC,
beginning with respect to the Borrower's fiscal quarter ended March 31, 2000 and
continuing for so long as the Note is outstanding, the Borrower shall furnish to
the Lender (i) all consolidated quarterly and annual financial information that
would be required to be contained in a filing with the SEC on Forms 10-Q and
10-K if the Borrower were required to file such forms, including a "Management's
Discussion and Analysis of Financial Condition and Results of Operations" that
describes the financial position and results of operations of the Borrower and
its Subsidiaries and, with respect to the annual information only, a report
thereon by the Borrower's certified independent accountants and (ii) all current
reports that would be required to be filed with the SEC on Form 8-K if the
Borrower were required to file such reports, in each case, within the time
periods specified in the SEC's rules and regulations. If the Borrower has
designated any of its Subsidiaries as Unrestricted Subsidiaries, then the
quarterly and annual financial information required by the preceding paragraph
shall include a reasonably detailed presentation, either on the face of the
financial statements or in the footnotes thereto, and in Management's Discussion
and Analysis of Financial Condition and Results of Operations, of the financial
condition and results of operations of the Borrower and its Restricted
Subsidiaries separate from the financial condition and results of operations of
the Unrestricted Subsidiaries of the Borrower. In addition, following
consummation of the Exchange Offer whether or not required by the rules and
regulations of the SEC, the Borrower shall file a copy of all such information
and reports with the SEC for public availability within the time periods
specified in the SEC's rules and regulations (unless the SEC will not accept
such a filing) and make such information available to securities analysts and
prospective investors upon request.
(ii) For so long as the Note remains outstanding, the Borrower shall
furnish to the Lender and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act.
(c) Compliance Certificate.
(i) The Borrower shall deliver to the Lender, within 90 days after the
end of each fiscal year, an Officers' Certificate stating that a review of the
activities of the Borrower and its Subsidiaries during the preceding fiscal year
has been made under the supervision of the signing Officers with a view to
determining whether the Borrower has kept, observed, performed and fulfilled its
obligations under this Agreement, the Note and the Hyatt Gaming Collateral
Documents, and further stating, as to each such Officer signing such
certificate, that to the best of his or her knowledge the Borrower has kept,
observed, performed and fulfilled each and every covenant contained in this
Agreement, the Note and the Hyatt Gaming Collateral Documents and is not in
default in the performance or observance of any of the terms, provisions and
conditions of this Agreement, the Note or the Hyatt Gaming Collateral Documents
(or, if a Default or Event of Default shall have occurred, describing all such
Defaults or Events of Default of which he or she may have knowledge and what
29
action the Borrower is taking or proposes to take with respect thereto) and that
to the best of his or her knowledge no event has occurred and remains in
existence by reason of which payments on account of the principal of or
Interest, if any, on the Note is prohibited or if such event has occurred, a
description of the event and what action the Borrower is taking or proposes to
take with respect thereto.
(ii) So long as not contrary to the then current recommendations of the
American Institute of Certified Public Accountants, the year-end financial
statements delivered pursuant to Section 4.5(c)(i) above shall be accompanied by
a written statement of the Borrower's independent public accountants (who shall
be a firm of established national reputation) that in making the examination
necessary for certification of such financial statements, nothing has come to
their attention that would lead them to believe that the Borrower has violated
any provisions of Section 4.5(h) hereof or, if any such violation has occurred,
specifying the nature and period of existence thereof, it being understood that
such accountants shall not be liable directly or indirectly to any Person for
any failure to obtain knowledge of any such violation.
(iii) The Borrower shall, so long as the Note is outstanding, deliver to
the Lender, forthwith upon any Officer becoming aware of any Default or Event of
Default or any Default or Event of Default (each as defined in the Cash
Collateral and Disbursement Agreement) or any Default or Event of Default (each
as defined in the Indenture), an Officers' Certificate specifying such Default
or Event of Default and what action the Borrower is taking or proposes to take
with respect thereto.
(d) Taxes.The Borrower shall pay, and shall cause each of its Subsidiaries
to pay, prior to delinquency, all material taxes, assessments, and governmental
levies except such as are contested in good faith and by appropriate proceedings
or where the failure to effect such payment is not adverse in any material
respect to the Lender.
(e) Stay, Extension and Usury Laws.The Borrower covenants (to the extent
that it may lawfully do so) that it shall not at any time insist upon, plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay,
extension or usury law wherever enacted, now or at any time hereafter in force,
that may affect the covenants or the performance of this Agreement or the Note;
and the Borrower (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that it shall
not, by resort to any such law, hinder, delay or impede the execution of any
power herein granted to the Lender, but shall suffer and permit the execution of
every such power as though no such law has been enacted.
(f) Restricted Payments.The Borrower shall not, and shall not permit any of
its Restricted Subsidiaries to, directly or indirectly:
(i)declare or pay any dividend or make any other payment or distribution
on account of the Borrower's or any of its Restricted Subsidiaries' Equity
Interests (including, without limitation, any payment in connection with any
merger or consolidation involving the Borrower or any of its Restricted
Subsidiaries) or to the direct or indirect holder of the Borrower's or any of
30
its Restricted Subsidiaries' Equity Interests in any capacity (other than
dividends or distributions payable in Equity Interests (other than Disqualified
Stock) of the Borrower or dividends or distributions payable to the Borrower or
a Wholly Owned Restricted Subsidiary of the Borrower by a Wholly Owned
Restricted Subsidiary of the Borrower);
(ii) purchase, redeem or otherwise acquire or retire for value
(including, without limitation, in connection with any merger or consolidation
involving the Borrower, any Equity Interests of the Borrower or any direct or
indirect parent of the Borrower or other Affiliate of the Borrower (other than
any such Equity Interests owned by the Borrower or any Wholly Owned Restricted
Subsidiary of the Borrower);
(iii) make any payment of principal (whether or not at maturity) on or
with respect to, or purchase, redeem, defease or otherwise acquire or retire for
value any Indebtedness that is pari passu with or subordinated to the Note; or
(iv) make any Restricted Investment (all such payments and other actions
set forth in clauses (i) through (iv) above being collectively referred to as
"Restricted Payments"),
unless, at the time of and after giving effect to such Restricted Payment, all
Obligations of the Borrower under the Note, this Agreement and the other Loan
Documents have been indefeasibly paid in full.
The preceding provisions will not prohibit the following Restricted Payments:
(i) so long as no Default has occurred and is continuing or would
be caused by such payment, the payment of any dividend or distribution within
sixty (60) days after the date of declaration thereof, if at such date of
declaration such payment would have complied with the provisions of this
Agreement;
(ii) so long as no Default has occurred and is continuing or would
be caused by such payment, the redemption, repurchase, retirement, defeasance or
other acquisition of any pari passu Indebtedness or Equity Interests of the
Borrower in exchange for, or out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Borrower) of, other Equity
Interests of the Borrower (other than any Disqualified Stock);
(iii) so long as no Default has occurred and is continuing or would
be caused by such payment, the defeasance, redemption, repurchase or other
acquisition of pari passu or subordinated Indebtedness, including the Note, with
the net cash proceeds from an incurrence of Permitted Refinancing Indebtedness;
(iv) so long as no Default has occurred and is continuing or would
be caused by such payment, the defeasance, repurchase, redemption or other
acquisition of FF&E Financing pursuant to any scheduled pre-payment or mandatory
sinking fund relating to such FF&E Financing at the time of its incurrence in
accordance with the terms of this Subordinated Loan Agreement;
31
(v) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, the repurchase of any Equity
Interests deemed to occur upon exercise of stock options or warrants if such
Equity Interests represent a portion of the exercise price of such stock options
or warrants;
(vi) so long as no Default has occurred and is continuing or would
be caused by such payment, the declaration of any scheduled dividends to the
holders of any Disqualified Stock of the Borrower or any of its Restricted
Subsidiaries issued after the Closing Date in compliance with Section 4.5(h)
hereof;
(vii) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, the repurchase, redemption or
other acquisition or retirement for value of any Equity Interests of the
Borrower or any Restricted Subsidiary of the Borrower required by any applicable
law, rule or regulation (other than any Gaming Law); and
(viii) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, the repurchase, redemption or
other acquisition or retirement of any Equity Interests of the Borrower or any
Restricted Subsidiary of the Borrower as required by any Gaming Law in exchange
for Gaming Redemption Indebtedness.
(d) Dividend and Other Payment Restrictions Affecting Subsidiaries.The
Borrower shall not, and shall not permit any of its Restricted Subsidiaries to,
directly or indirectly, create or otherwise cause or suffer to exist or become
effective any encumbrance or restriction on the ability of any Restricted
Subsidiary to:
(i) pay dividends or make any other distributions on its Capital Stock
to the Borrower or any of its Restricted Subsidiaries, or with respect to any
other interest or participation in, or measured by its profits, or pay any
indebtedness owed to the Borrower or any of its Restricted Subsidiaries;
(ii) make loans or advances to the Borrower or any of its Restricted
Subsidiaries; or
(iii) transfer any of its properties or assets to the Borrower or any of
its Restricted Subsidiaries.
However, the preceding restrictions will not apply to such encumbrances
or restrictions existing under or by reason of:
(A) this Agreement, the Note or the Hyatt Gaming Collateral
Documents;
(B) applicable law;
(C) by reason of customary non-assignment provisions in leases or
contracts entered into in the ordinary course of business;
32
(D) Permitted Refinancing Indebtedness, provided that the
restrictions contained in the agreements governing such Permitted Refinancing
Indebtedness are no more restrictive than those contained in the agreements
governing the Indebtedness being refinanced;
(E) the acquisition of the Capital Stock of any Person, or
property or assets of any Person by the Borrower or any Restricted Subsidiary,
if the encumbrances or restrictions (a) existed at the time of the acquisition
and were not incurred in contemplation thereof and (b) are not applicable to any
Person or the property or assets of any Person other than the Person acquired or
the property or assets of the Person acquired;
(F) any agreement for the sale or other disposition of a
Restricted Subsidiary that restricts distributions by that Restricted Subsidiary
pending its sale or other disposition;
(G) Liens securing FF&E Financing that limit the right of the
debtor to dispose of the assets subject to such Lien; and
(H) the Indenture, the Senior Notes and the other Senior Note
Documents.
(h) Incurrence of Indebtedness and Issuance of Preferred Stock.The Borrower
shall not, and shall not permit any of its Restricted Subsidiaries to, directly
or indirectly, create, incur, issue, assume, guarantee or otherwise become
directly or indirectly liable with respect to, contingently or otherwise
(collectively, "incur"), any Indebtedness (including Acquired Debt) and the
Borrower shall not issue any Disqualified Stock and shall not permit any of its
Restricted Subsidiaries to issue any shares of preferred Stock; provided,
however, that, so long as no Default or Event of Default has occurred and is
continuing, the Borrower may incur Indebtedness (including Acquired Debt) or
issue shares of Disqualified Stock if:
(i) the Casino is Operating;
(ii) the Fixed Charge Coverage Ratio for the Borrower's most recently
ended four full fiscal quarters for which internal financial statements are
available immediately preceding the date on which such additional Indebtedness
is incurred or such Disqualified Stock is issued would have been at least 2.0 to
1, determined on a pro forma basis (including a pro forma application of the net
proceeds therefrom), as if the additional Indebtedness had been incurred, or the
Disqualified Stock had been issued, as the case may be, at the beginning of such
four-quarter period; and
(iii) the Weighted Average Life to Maturity of such Indebtedness is
greater than the remaining Weighted Average Life to Maturity of the Note.
The provisions of the first paragraph of this Section 4.5(h) shall not
prohibit the incurrence of any of the following items of Indebtedness
(collectively, "Permitted Debt"):
33
(A) so long as no Default or Event of Default has occurred and is
continuing, the incurrence by the Borrower of Indebtedness represented by the
Note on the Closing Date;
(B) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, the issuance by the Borrower of
the Exchange Notes to be issued pursuant to the Registration Rights Agreement or
the incurrence by the Borrower and its Restricted Subsidiaries of obligations
arising under the Hyatt Gaming Collateral Documents, to the extent that such
obligations would constitute Indebtedness;
(C) so long as no Default or Event of Default has occurred and is
continuing or would be caused by such payment, the incurrence by the Borrower or
any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in
exchange for, or the net proceeds of which are used to extend, refinance, renew,
replace, defease or refund, Indebtedness that was permitted by this Agreement to
be incurred under the first paragraph of this Section 4.5(h) or clause (K) of
this Section 4.5(h);
(D) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, the incurrence by the Borrower or
any of its Restricted Subsidiaries of intercompany Indebtedness between or among
the Borrower and any of its Wholly Owned Restricted Subsidiaries; provided,
however, that:
1. such Indebtedness is expressly subordinate to the payment
in full of all Obligations with respect to the Note;
2. any subsequent issuance or transfer of Equity Interests
that results in any such Indebtedness being held by a Person other than the
Borrower or a Wholly Owned Restricted Subsidiary and any sale or other transfer
of any such Indebtedness to a Person that is not either the Borrower or a Wholly
Owned Restricted Subsidiary thereof shall be deemed, in each case, to constitute
an incurrence of such Indebtedness by the Borrower or such Wholly Owned
Restricted Subsidiary, as the case may be; and
3. if any Restricted Subsidiary is the obligor on such
Indebtedness, such Indebtedness is represented by a Subsidiary Intercompany Note
that is pledged to the Lender as security for the Note;
(E) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, the incurrence by the Borrower of
Hedging Obligations that (a) are incurred for the purpose of fixing or hedging
interest rate risk with respect to any floating rate Indebtedness that is
permitted by the terms of this Agreement to be incurred by the Borrower under
clause (I) below and (b) are on terms approved by Lender (which approval shall
not be unreasonably withheld);
(F) so long as no Default or Event of Default has occurred and is
continuing, the incurrence by the Borrower of Indebtedness solely in respect of
City Improvement Bonds in an aggregate principal amount (or accreted value, as
34
applicable) at any time outstanding not to exceed Three Million Dollars
($3,000,000);
(G) so long as no Default or Event of Default has occurred and is
continuing, the incurrence by the Borrower of Indebtedness solely in respect of
standby letters of credit or surety bonds required to be issued under the
Excavation Agreement (a) in an amount not to exceed the lesser of: one hundred
ten percent (110%) of the cost of the remaining work to be performed thereunder
or Seven Million Five Hundred Thousand Dollars ($7,500,000) and (b) on terms
approved by Lender, which approval shall not be unreasonably withheld;
(H) so long as no Default or Event of Default has occurred and is
continuing, the incurrence by the Borrower of Indebtedness solely in respect of
performance or similar bonds or standby letters of credit; provided that any
such bond or standby letter of credit is incurred in the ordinary course of the
Borrower's business pursuant to the Public Improvements Performance Guarantee
pursuant to paragraph 11 of the Subdivision Agreement or the Bench Excavation
Permit Remediation in an aggregate principal amount not to exceed Two Million
Dollars ($2,000,000) at any one time outstanding; and provided, further, that
any such bond or standby letter of credit is incurred on terms customary for
operations similar to the Borrower's [and, provided, further that such
Indebtedness shall be reduced in an amount and to the extent that funds are
disbursed to the City of Blackhawk pursuant to such Subdivision Agreement or
Bench Excavation Permit Remediation];
(I) so long as no Default or Event of Default has occurred and is
continuing, the incurrence by the Borrower of FF&E Financing with the consent of
Lender, or as to which such right of consent is waived (which consent or waiver
thereof shall not be unreasonably withheld); provided, however, that (a) the
principal amount of such Indebtedness does not exceed the cost (including sales
and excise taxes, installation and delivery charges and other direct costs of,
and other direct expenses paid or charged in connection with, such purchase) of
the FF&E purchased or leased with the proceeds thereof, (b) no Indebtedness
incurred under the Note is utilized for the purchase or lease of such FF&E, (c)
the aggregate principal amount of such Indebtedness does not exceed Twenty
Million Eight Hundred Thousand Dollars ($20,800,000) outstanding at any time;
and (d) the payment of interest and principal shall be amortized over at least a
four-year period from the date of issuance, with payments to be applied first to
interest and then to principal on a monthly (or less frequent) basis, which
monthly (or less frequent) payments shall not exceed Six Hundred Thousand
Dollars ($600,000) per month (or proportionately greater amount for less
frequent payments);
(J) so long as no Default or Event of Default has occurred and is
continuing, the incurrence by the Borrower of Indebtedness or the issuance by
the Borrower of Disqualified Stock solely to finance the construction of a
hotel, parking structure and related facilities at the Casino during the first
Operating Year, so long as the Fixed Charge Coverage Ratio for the Borrower's
most recently ended two full fiscal quarters for which internal financial
statements are available immediately preceding the date on which such additional
Indebtedness is incurred or such Disqualified Stock is issued would have been at
least 2.0 to 1, determined on a pro forma basis, as if the additional
35
Indebtedness had been incurred, or the Disqualified Stock had been issued, as
the case may be, at the beginning of such two-quarter period;
(K) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, bond or surety obligations posted
by the Borrower or any of its Restricted Subsidiaries in order to prevent the
loss or material impairment of or to obtain a Gaming License or as otherwise
required by an order of any Gaming Authority to the extent required by
applicable law and consistent in character and amount with customary industry
practice so long as such Indebtedness does not result in, and is not secured by,
a Lien on any of the Hyatt Gaming Collateral;
(L) so long as no Default or Event of Default has occurred and is
continuing the incurrence by the Borrower or any of its Restricted Subsidiaries
of additional Indebtedness in aggregate principal amount not to exceed Five
Million Dollars ($5,000,000); provided that such Indebtedness has terms, and is
subordinated in right of payment to the payment in full in cash of the Note
pursuant to terms, approved by Lender, or as to which such right of approval is
waived (which approval shall not be unreasonably withheld);
(M) so long as no Default or Event of Default has occurred and is
continuing the incurrence by the Borrower of the Senior Notes as in effect on
the Closing Date;
(N) without regard for whether a Default has occurred and is
continuing or would be caused by such payment, the incurrence by the Borrower of
Gaming Redemption Indebtedness as a result of any Gaming Redemption; provided
that such Indebtedness has terms, and is subordinated in right of payment in
full in cash of the Note pursuant to terms, approved by Lender, or as to which
such right of approval is waived (which approval shall not be unreasonably
withheld); and
(O) so long as no Default or Event of Default has occurred and is
continuing the incurrence by the Borrower of Additional Senior Notes issued to
The Ravich Revocable Trust of 1989 or Affiliates of the foregoing in the
aggregate principal amount not to exceed Five Million Dollars ($5,000,000);
provided that such Indebtedness is used solely to finance the completion of the
development, construction and initial equipment (other than equipment secured by
or purchased with the proceeds of any FF&E Financing) of the Casino prior to the
Operating of the Casino; provided, further, that the Construction Disbursement
Account and the Hyatt Gaming Construction Disbursement Account have been
depleted and less than Four Million Dollars ($4,000,000) of aggregate proceeds
remains in the Completion Reserve Account and the Hyatt Gaming Completion
Reserve Account and the Borrower reasonably believes that the funds remaining in
the Completion Reserve Account and the Hyatt Gaming Completion Reserve Account
will not be sufficient to finance completion of the development, construction
and initial equipment (other than equipment secured by or purchased with the
proceeds of any FF&E Financing) of the Casino sufficient for the Casino to begin
Operating; and provided, further, that the Borrower reasonably believes that the
incurrence of such additional Indebtedness will provide proceeds to the Borrower
36
that are sufficient to finance the completion of the development, construction
and initial equipment of the Casino sufficient for the Casino to begin
Operating.
The Borrower shall not incur any Indebtedness (including Permitted
Debt) that is contractually subordinated in right of payment to any other
Indebtedness of the Borrower unless such Indebtedness is also contractually
subordinated in right of payment to the Note on substantially identical terms;
provided, however, that no Indebtedness of the Borrower shall be deemed to be
contractually subordinated in right of payment to any other Indebtedness of the
Borrower solely by virtue of being secured.
For purposes of determining compliance with this Section 4.5(h),
in the event that an item of proposed Indebtedness meets the criteria of more
than one of the categories of Permitted Debt described in clauses (A) through
(O) above, or is entitled to be incurred pursuant to the first paragraph of this
Section 4.5(h) the Borrower will be permitted to classify such item of
Indebtedness on the date of its incurrence in any manner that complies with this
Section 4.5(h).
(i) Asset Sales.The Borrower shall not, and shall not permit any of its
Restricted Subsidiaries to, consummate an Asset Sale, unless:
(i) the Casino is Operating;
(ii) the Borrower (or the Restricted Subsidiary, as the case may be)
receives consideration at the time of such Asset Sale at least equal to the fair
market value (evidenced by a resolution of the Board of Directors set forth in
an Officers' Certificate delivered to the Lender) of the assets or Equity
Interests issued or sold or otherwise disposed of; and
(iii) at least eighty percent (80%) of the consideration received
therefor by the Borrower or such Subsidiary is in the form of cash or Cash
Equivalents; and
(iv) the assets subject to such Asset Sale do not constitute Collateral
or, in the case of any such assets that do constitute Collateral, such sale is
permitted by the applicable Collateral Documents or this Subordinated Loan
Agreement.
For purposes of this provision, each of the following will be deemed to
be cash in the amount of:
(A) any liabilities (as shown on the Borrower's or such Restricted
Subsidiary's most recent balance sheet) of the Borrower or any Restricted
Subsidiary (other than contingent liabilities and liabilities that are by their
terms subordinated to the Note) that are assumed by the transferee of any such
assets pursuant to a customary novation agreement that releases the Borrower or
such Restricted Subsidiary from further liability; and
(B) any securities or other obligations received by the Borrower
or any such Restricted Subsidiary from such transferee that are promptly (but in
37
any event within 90 days) converted by the Borrower or such Restricted
Subsidiary into cash (to the extent of the cash received).
Within two hundred seventy (270) days after the receipt of any Net
Proceeds from an Asset Sale, the Borrower or such Restricted Subsidiary, as the
case may be, may (1) apply such Net Proceeds to the making of a capital
expenditure or the acquisition of long-term assets, in either case, which will
be owned by the Borrower or such Restricted Subsidiary and be used by or useful
to the Borrower or such Restricted Subsidiary in any line of business in which
the Borrower or such Restricted Subsidiary is permitted to be engaged pursuant
to Section 4.5(l) hereof or (2) contractually commit to apply such Net Proceeds
to the payment of the costs of construction of real property improvements or the
costs of capital expenditures which, in each case, will be Hyatt Gaming
Collateral and will be owned by the Borrower or such Restricted Subsidiary and
be used by or useful to the Borrower or such Restricted Subsidiary in any line
of business in which the Borrower or such Restricted Subsidiary is permitted to
be engaged pursuant to Section 4.5(l) hereof; provided, that in the case of each
of clause (1) and clause (2) hereof the Borrower or such Restricted Subsidiary,
as the case may be, uses such replacement asset at the same location as the
assets sold and grants to the Lender, a perfected security interest on any such
properties or assets acquired or constructed with the Net Proceeds of any such
Asset Sale on the terms set forth in this Agreement and the Hyatt Gaming
Collateral Documents. Pending the final application of any such Net Proceeds,
the Borrower or such Restricted Subsidiary may invest such Net Proceeds in Cash
Equivalents which shall be pledged to the Lender as security for the Note.
Any Net Proceeds from Asset Sales that do not constitute Hyatt Gaming
Collateral and that are not applied or invested as provided in the preceding
paragraph shall be deemed to constitute "Excess Proceeds." To the extent that
any Excess Proceeds are available to prepay all or any portion of the Note under
the terms of the Indenture as in effect on the date hereof, the Borrower shall,
on the first day such payment may be made pursuant to the terms of the Indenture
as in effect on the date hereof, make a prepayment of principal, together with
all accrued and unpaid interest, outstanding under the Note in an amount equal
to the Excess Proceeds minus the amount that the terms of the Indenture, as in
effect on the date hereof, require be used to purchase Senior Notes.
(j)Transactions with Affiliates.The Borrower shall not, and shall not permit
any of its Restricted Subsidiaries to, make any payment to, or sell, lease,
transfer or otherwise dispose of any of its properties or assets to, or purchase
any property or assets from, or enter into or make or amend any transaction,
contract, agreement, understanding, loan, advance or guarantee with, or for the
benefit of, any Affiliate (each of the foregoing, an "Affiliate Transaction"),
unless:
(i) such Affiliate Transaction is on terms that are no less favorable to
the Borrower or the relevant Restricted Subsidiary than those that would have
been obtained in a comparable transaction by the Borrower or such Restricted
Subsidiary with an unrelated Person; and
(ii) the Borrower delivers to the Lender:
38
(A) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of One
Million Dollars ($1,000,000), a resolution of the Borrower's Board of Directors
set forth in an Officers' Certificate certifying that such Affiliate Transaction
complies with clause (i) above and that such Affiliate Transaction has been
approved by a majority of the disinterested directors, and
(B) with respect to any Affiliate Transaction or series of related
Affiliate Transactions involving aggregate consideration in excess of Five
Million Dollars ($5,000,000), an opinion as to the fairness to the Lender of
such Affiliate Transaction from a financial point of view issued by an
independent accounting, appraisal or investment banking firm of national
standing.
The following items will not be deemed to be Affiliate Transactions and,
therefore, will not be subject to the provisions of the prior paragraph:
1. payments made pursuant to the Senior Notes, as in effect on
the Closing Date and the Management Agreement;
2. any employment agreement entered into by the Borrower or
any of its Restricted Subsidiaries in the ordinary course of business on terms
customary in the gaming industry providing for payments not to exceed Two
Hundred Forty Thousand Dollars ($240,000) individually during any twelve-month
period (so long as the aggregate payments to all employees, consultants,
accountants, attorneys, representatives, developers and other professionals
(other than the Lender) and the aggregate costs associated with the operations
of the Borrower (other than pursuant to the Management Agreement) do not exceed
Seven Hundred Thousand Dollars ($700,000) in the aggregate during any
twelve-month period beginning after the Casino is Operating);
3. any indemnification agreement entered into by the Borrower
or any of its Restricted Subsidiaries in the ordinary course of business on
terms customary in the gaming industry;
4. Restricted Payments that are permitted by Section 4.5(f)
hereof;
5. any transaction or series of transactions solely between
the Borrower and one or more of its Restricted Subsidiaries; and
6. Affiliate agreements pursuant to written, executed
agreements in effect on the Closing Date, the material terms of which are
described in the Offering Memorandum, and renewals and extensions of such
agreements on terms no less favorable to the Lender than the terms of such
original agreements and transactions.
(k) Liens.The Borrower shall not, and shall not permit any of its Restricted
Subsidiaries to, directly or indirectly, create, incur, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired, or any proceeds,
39
income or profits therefrom or assign or convey any right to receive income
therefrom, except Permitted Liens.
(l) Line of Business.The Borrower shall not, and shall not permit any
Subsidiary to engage in any business, development or investment activities other
than the Gaming Business at the Casino and/or the operation of a hotel at the
Casino.
(m) Corporate Existence.Subject to Sections 4.5(cc) and (dd) hereof, the
Borrower shall do or cause to be done all things necessary to preserve and keep
in full force and effect (i) its corporate existence, and the corporate,
partnership or other existence of each of its Subsidiaries, in accordance with
the respective organizational documents (as the same may be amended from time to
time) of the Borrower or any such Subsidiary and (ii) the rights (charter and
statutory), licenses and franchises of the Borrower and its Subsidiaries;
provided, however, that the Borrower shall not be required to preserve any such
right, license or franchise, or the corporate, partnership or other existence of
any of its Subsidiaries, if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Borrower and its Subsidiaries, taken as a whole, and that the loss thereof
is not adverse in any material respect to the Lender. The Borrower will not
liquidate or dissolve and will take and fulfill, or cause to be taken and
fulfilled, all actions and conditions necessary to qualify, and to preserve and
keep in full force and effect its qualification, to do business as a foreign
corporation in the jurisdictions in which the conduct of its business or the
ownership or leasing of its properties requires such qualification, except to
the extent such failure would not have a Material Adverse Effect.
(n) Articles of Incorporation.The Borrower shall not amend Article Fifth or
Article Ninth of its Amended and Restated Articles of Incorporation as in effect
on the Closing Date.
(o) Limitation of Sale and Leaseback Transactions.The Borrower shall not,
and shall not permit any of its Restricted Subsidiaries to, enter into any sale
and leaseback transaction; provided that the Borrower or any of its Restricted
Subsidiaries may enter into a sale and leaseback transaction if:
(i) the Borrower or such Restricted Subsidiary could have (a) incurred
Indebtedness in an amount equal to the Attributable Debt relating to such sale
and leaseback transaction pursuant to the Fixed Charge Coverage Ratio test set
forth in the first paragraph of Section 4.5(h) hereof and (b) incurred a Lien to
secure such Indebtedness pursuant to the provisions of Section 4.5(k) hereof;
(ii) the gross cash proceeds of such sale and leaseback transaction are
at least equal to the fair market value (as determined in good faith by the
Board of Directors and set forth in an Officers' Certificate delivered to
Lender) of the property that is the subject of such sale and leaseback
transaction; and
(iii) the transfer of assets in such sale and leaseback transaction is
permitted by, and the Borrower applies the proceeds of such transaction in
compliance with Section 4.5(i) hereof.
40
(p) Limitation on Formation of Subsidiaries and Issuances and Sales of
Equity Interests in Wholly Owned Subsidiaries.Without the consent of Lender (or
as to which Lender has waived such right of consent), the Borrower shall not
directly or indirectly create or acquire or agree to create or acquire any
Subsidiaries. The Borrower (i) shall not, and shall not permit any Restricted
Subsidiary of the Borrower to, transfer, convey, sell, lease or otherwise
dispose of any Capital Stock of any Wholly Owned Restricted Subsidiary to any
Person (other than the Borrower or a Wholly Owned Restricted Subsidiary of the
Borrower), unless (a) such transfer, conveyance, sale, lease or other
disposition is of all the Capital Stock of such Wholly Owned Restricted
Subsidiary and (b) the cash Net Proceeds from such transfer, conveyance, sale,
lease or other disposition are applied in accordance with Section 4.5(i) or
4.5(cc) hereof and (ii) shall not permit any Wholly Owned Restricted Subsidiary
of the Borrower to issue any of its Equity Interests (other than, if necessary,
shares of its Capital Stock constituting directors' qualifying shares) to any
Person other than to the Borrower or a Wholly Owned Restricted Subsidiary of the
Borrower.
(q) Advances to Subsidiaries.All advances to Subsidiaries made by the
Borrower from time to time after the Closing Date shall be evidenced by
unsecured Subsidiary Intercompany Notes (in form acceptable to Lender) in favor
of the Borrower that will be pledged to the Lender as Hyatt Gaming Collateral to
secure the Note, subject to the Intercreditor Agreement. Each Subsidiary
Intercompany Note shall be payable upon demand and shall bear interest at the
same rate as the Note.
(r) [Intentionally Omitted]
(s) Additional Subsidiary Guarantees.Without limiting the provisions of
Section 4.5(p), if the Borrower or any of its Restricted Subsidiaries shall
acquire or create a Restricted Subsidiary after the Closing Date, the Borrower
shall cause such newly acquired or created Restricted Subsidiary to, within ten
(10) Business Days of the date on which it was acquired or created, execute a
Guarantee in a form satisfactory to the Lender, and the Borrower shall execute
and deliver, and cause such Subsidiary and others to execute and deliver to
Lender such Collateral Documents and shall execute and deliver, and cause such
Subsidiary and others to execute and deliver such other documents and Opinions
of Counsel as Lender shall require to create or confirm the creation of a valid,
perfected security interest in and Lien on the property and other assets of such
Restricted Subsidiary and 100% of the outstanding Capital Stock of such newly
acquired or created Subsidiary.
(t) Insurance.Until all Obligations of the Borrower under this Agreement,
the Note and the other Loan Documents have been paid in full, the Borrower
shall, and shall cause its Restricted Subsidiaries to, maintain insurance with
responsible carriers against such risks and in such amounts as is customarily
carried by similar businesses with such deductibles, retentions, self insured
amounts and coinsurance provisions as are customarily carried by similar
businesses of similar size, including, without limitation, property and
casualty, and, with respect to insurance on the Hyatt Gaming Collateral, shall
have provided insurance certificates evidencing such insurance to the Lender on
or prior to the Closing Date and shall thereafter provide such certificates
prior to the anniversary or renewal date of each such policy, which certificate
41
shall expressly state the expiration date for each policy listed.
Customary insurance coverage shall be deemed to include the following:
(i) workers' compensation insurance to the extent required to comply
with all applicable state, territorial or United States laws and regulations, or
the laws and regulations of any other applicable jurisdiction;
(ii) comprehensive general liability insurance with minimum limits of
One Million Dollars ($1,000,000);
(iii) umbrella or excess liability insurance providing excess liability
coverages over and above the foregoing underlying insurance policies up to a
minimum limit of Twenty-Five Million Dollars ($25,000,000);
(iv) business interruption insurance at all times on and after the
Casino is Operating; and
(v) property insurance protecting the property against loss or damage by
fire, lightning, windstorm, tornado, water damage, vandalism, riot, earthquake,
civil commotion, malicious mischief, hurricane and such other risks and hazards
as are from time to time covered by an "all-risk" policy or a property policy
covering "special" causes of loss. Such insurance shall provide coverage in the
amount of not less than the lesser of one hundred twenty percent (120%) of the
outstanding principal amount of the Senior Notes plus accrued and unpaid
Interest and one hundred percent (100%) of actual replacement value (as
determined at each policy renewal based on the X.X. Xxxxx Building Index or some
other recognized means) of any improvements customarily insured consistent with
industry standards and with a deductible no greater than two percent (2%) of the
insured value of the Casino or such greater amount as is available on
commercially reasonable terms (other than earthquake or flood insurance, for
which the deductible may be up to ten percent (10%) of such replacement value).
All insurance required under this Agreement (except worker's
compensation) shall name the Borrower and the Lender as additional insureds or
loss payees, as the case may be, with losses in excess of One Million Dollars
($1,000,000) payable jointly to the Borrower and the Lender (unless a Default or
Event of Default has occurred and is then continuing, in which case all losses
are payable solely to the Lender), with no recourse against the Lender for the
payment of premiums, deductibles, commissions or club calls, and for at least
thirty (30) days notice of cancellation. All such insurance policies shall be
issued by carriers having an A.M. Best & Company, Inc. rating of A or higher and
a financial size category of not less than X, or if such carrier is not rated by
A.M. Best & Company, Inc., having the financial stability and size deemed
appropriate by an opinion from a reputable insurance broker. The Borrower shall
deliver to the Lender on the Closing Date and each anniversary thereafter a
certificate of an insurance agent stating that the insurance policies obtained
by the Borrower and its Restricted Subsidiaries comply with this Section 4.5(t)
and the related applicable provisions of the Hyatt Gaming Collateral Documents.
42
(u) Limitation on Status as Investment Company.The Borrower and its
Subsidiaries are prohibited from being required to register as an "investment
company" (as that term is defined in the Investment Company Act of 1940, as
amended), or from otherwise becoming subject to regulation under the Investment
Company Act of 1940.
(v) Further Assurances.The Borrower shall (and shall cause each of its
Restricted Subsidiaries to) do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, as applicable, any and all
such further acts, deeds, conveyances, security agreements, mortgages,
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers, certificates,
assurances and other instruments as may be required from time to time in order:
(i) to carry out more effectively the purposes of the Hyatt Gaming Collateral
Documents or any other Loan Document; (ii) to subject to the Liens created by
any of the Hyatt Gaming Collateral Documents any of the properties, rights or
interests required to be encumbered thereby; (iii) to perfect and maintain the
validity, effectiveness and priority of any of the Hyatt Gaming Collateral
Documents and the Liens intended to be created thereby; and (iv) to better
assure, convey, grant, assign, transfer, preserve, protect and confirm to the
Lender any of the rights granted now or hereafter intended by the parties
thereto to be granted to the Lender or under any other instrument executed in
connection therewith or granted to the Borrower under the Hyatt Gaming
Collateral Documents or under any other instrument executed in connection
therewith.
(w) Construction.The Borrower shall construct the Casino, including the
furnishing, fixturing and equipping thereof, to be prosecuted with diligence and
continuity in a good and workmanlike manner substantially in accordance with the
Plans and contracts to which the Borrower is a party and in accordance with the
Cash Collateral and Disbursement Agreement.
(x) Limitation on Use of Proceeds.The Borrower shall cause the net proceeds
of the Note, and the proceeds of the Senior Notes, to be deposited in the Senior
Cash Collateral Accounts and the Hyatt Gaming Accounts. Of such amounts,
approximately Twenty-Four Million One Hundred Thousand Dollars ($24,100,000)
will be deposited in the Interest Reserve Account and invested solely in
Government Securities, approximately Fifty Seven Million Three Hundred Thousand
Dollars ($57,300,000) will be deposited in the Construction Disbursement Account
and the Hyatt Gaming Construction Disbursement Account and invested solely in
Investment Grade Securities and Eight Million Dollars ($8,000,000) will be
deposited in the Completion Reserve Account and the Hyatt Gaming Completion
Reserve Account and invested solely in Investment Grade Securities, in each
case, to be disbursed only in accordance with the Cash Collateral and
Disbursement Agreement.
(y) Extension of Subdivision Agreement.
The Borrower shall cause:
(i) the completion of public improvements required pursuant to the
Subdivision Agreement to be substantially completed in all material respects on
or prior to June 1, 2000; or
43
(ii) the date on which such public improvements are required to be
substantially completed in all material respects pursuant to the Subdivision
Agreement to be executed from June 1, 2000 through at least December 31, 2001.
(z) Deposit of Funds into Construction Disbursement Accounts. When any cash
or other proceeds are released from any existing escrow account or security
deposit made by or held for the benefit of the Borrower, Borrower shall cause
such cash or other proceeds to be deposited into the Construction Disbursement
Account and the Hyatt Gaming Construction Disbursement Account on a pro rata
basis promptly following the release of such cash or other proceeds.
(aa)Event of Loss. Subject to the conditions set forth below, within 90 days
after any Event of Loss with respect to any Hyatt Gaming Collateral, Borrower or
the affected Restricted Subsidiary of Borrower, as the case may be, shall so
notify Lender, describing in such notice the nature of the Event of Loss in
reasonable detail, and shall (i) subject to the provisions of this Section
4.5(aa), apply the Net Loss Proceeds from such Event of Loss to the rebuilding,
repair, replacement or construction of the improvements to the Casino, with no
concurrent obligation to make any purchase of the Note; (ii) if the Casino is
not Operating and the Net Loss Proceeds exceed $1.0 million, deposit the Net
Loss Proceeds in the Hyatt Gaming Construction Disbursement Account to be
disbursed in accordance with the procedures set forth in the Disbursement
Agreement; (iii) if the Net Loss Proceeds exceed $1.0 million, deliver to Lender
within 60 days after such Event of Loss a written opinion from a nationally
recognized architect that the Casino, with at least the Minimum Facilities, can
be rebuilt, repaired, replaced or constructed and Operating within not more than
360 days after the Event of Loss (but in no event later than the date that is
six months prior to the maturity date of the Note); and (iv) if the Net Loss
Proceeds exceed $1.0 million, deliver an Officers' Certificate certifying that
Borrower has available from Net Loss Proceeds or other sources sufficient funds
to complete the rebuilding, repair, replacement or construction described in
clause (i) above and in accordance with clause (iii) above. To the extent that
any Excess Loss Proceeds are available to prepay all or any portion of the Note
under the terms of the Indenture as in effect on the date hereof, the Borrower
shall, on the first day such payment may be made pursuant to the terms of the
Indenture as in effect on the date hereof, make a prepayment of principal,
together with all accrued and unpaid interest, outstanding under the Note in an
amount equal to the Excess Loss Proceeds minus the amount that the terms of the
Indenture, as in effect on the date hereof, require be used to purchase Senior
Notes. Pending the rebuilding, repair, replacement or construction of the
improvements as aforesaid or the completion of any Event of Loss Offer (as
defined in the Indenture), Borrower or the affected Restricted Subsidiary, as
the case may be, shall pledge to Lender as additional Collateral all Net Loss
Proceeds or other cash on hand required for such rebuilding, repair, replacement
or construction pursuant to the terms of the Collateral Documents relating to
the Casino. Such pledged funds shall be released to Borrower or the affected
Restricted Subsidiary to pay for or reimburse the Company or the affected
Restricted Subsidiary for the actual cost of such permitted rebuilding, repair,
replacement or construction, or such Event of Loss Offer only as provided in
this Section and pursuant to the terms of the Collateral Documents relating to
the Casino. Pending the final application of the Net Loss Proceeds, such
proceeds may be invested in Cash Equivalents which shall be pledged to Lender as
security for the Note. Borrower or the applicable Restricted Subsidiary shall
grant to Lender, a lien, subject to Permitted Liens, on any properties or assets
44
rebuilt, repaired, replaced or constructed with such Net Loss Proceeds on the
terms set forth in this Subordinated Loan Agreement and the Collateral
Documents. With respect to any Event of Loss pursuant to clause (iv) of the
definition of "Event of Loss" that has a fair market value (or replacement cost,
if greater) in excess of Five (5) Million Dollars, Borrower (or the affected
Restricted Subsidiary, as the case may be), shall be required to receive
consideration at least (i) equal to the fair market value (evidenced by a
resolution of the Board of Directors set forth in an Officers' Certificate
delivered to Lender) of the assets subject to the Event of Loss and (ii) at
least 90% of which is in the form of Cash Equivalents.
Regardless of whether Net Loss Proceeds are made available to Borrower
pursuant to the provisions of this Section, upon the occurrence of an Event of
Loss Borrower shall promptly repair the improvements to be at least equal value
and of substantially the same character and condition as prior to such damage.
(bb) Excess Cash Purchase Repayment. With respect to each Operating Year,
"Excess Cash Proceeds" means the sum of (i) the amount equal to fifty percent
(50%) of the Borrower's Excess Cash Flow in respect of the four consecutive
fiscal quarters ending on or immediately following the last day of such
Operating Year and (ii) one hundred percent (100%) of Excess Construction
Proceeds for such Operating Year. To the extent that any Excess Cash Flow
Proceeds are available to prepay all or any portion of the Note under the terms
of the Indenture as in effect on the date hereof, the Borrower shall, on the
first day such payment may be made pursuant to the terms of the Indenture as in
effect on the date hereof, make a prepayment of principal, together with all
accrued and unpaid interest, outstanding under the Note in an amount equal to
the Excess Cash Flow Proceeds minus the amount that the terms of the Indenture
as in effect on the date hereof require be used to purchase Senior Notes.
(cc) Merger, Consolidation or Sale of Assets. The Borrower shall not,
directly or indirectly, consolidate or merge with or into (whether or not the
Borrower is the surviving corporation), or sell, assign, transfer, convey or
otherwise dispose of all or substantially all of its properties or assets of the
Borrower and its Subsidiaries taken as a whole, in one or more related
transactions to, another Person unless (i) the Borrower is the surviving
corporation or the Person formed by or surviving any such consolidation or
merger (if other than the Borrower) or to which such sale, assignment, transfer,
conveyance or other disposition shall have been made is a corporation organized
or existing under the laws of the United States, any state thereof or the
District of Columbia, (ii) the Person formed by or surviving any such
consolidation or merger (if other than the Borrower) or the Person to which such
sale, assignment, transfer, conveyance or other disposition shall have been made
assumes all the obligations of the Borrower under the Note, this Agreement and
the Hyatt Gaming Collateral Documents pursuant to a supplemental Agreement in a
form reasonably satisfactory to the Lender, (iii) immediately after such
transaction, no Default or Event of Default exists (iv) such transaction would
not result in the loss or suspension or material impairment of any Gaming
License unless a comparable replacement Gaming License is effective prior to or
simultaneously with such loss, suspension or material impairment; (v) the
Borrower or the Person formed by or surviving any such consolidation or merger
(if other than the Borrower), or to which such sale, assignment, transfer,
45
conveyance or other disposition shall have been made: (a) shall have
Consolidated Net Worth immediately after the transaction equal to or greater
than the Consolidated Net Worth of the Borrower immediately preceding the
transaction; and (b) shall, on the date of such transaction after giving pro
forma effect thereto and any related financing transactions as if the same had
occurred at the beginning of the applicable four-quarter period, be permitted to
incur at least One Dollar ($1.00) of additional Indebtedness pursuant to the
Fixed Charge Coverage Ratio test set forth in clause (ii) of the first paragraph
of Section 4.5(h) hereof; and (vi) such transaction would not require the Lender
to obtain a Gaming License or be qualified or found suitable under the law of
any applicable gaming jurisdiction; provided that the Lender would not have been
required to obtain a Gaming License or be qualified or found suitable under the
laws of any applicable gaming jurisdiction in the absence of such transaction.
In addition, the Borrower shall not, directly or indirectly, lease all or
substantially all of its properties or assets, in one or more related
transactions, to any other Person.
(dd) Successor Corporation Substituted. Upon any consolidation or merger, or
any sale, assignment, transfer, lease, conveyance or other disposition of all or
substantially all of the assets of the Borrower in accordance with Section
4.5(cc) hereof, the successor corporation formed by such consolidation or into
or with which the Borrower is merged or to which such sale, assignment,
transfer, lease, conveyance or other disposition is made shall succeed to, and
be substituted for (so that from and after the date of such consolidation,
merger, sale, lease, conveyance or other disposition, the provisions of this
Agreement referring to the "Borrower" shall refer instead to the successor
corporation and not to the Borrower), and may exercise every right and power of
the Borrower under this Agreement with the same effect as if such successor
Person had been named as the Borrower herein; provided, however, that the
predecessor Borrower shall not be relieved from the obligation to pay the
principal of and Interest on the Note except in the case of a sale of all of the
Borrower's assets that meets the requirements of Section 4.5(cc) hereof.
(ee) Limitations on Preferred Stock Payments. Notwithstanding anything
contained in this Agreement or any other Loan Document to the contrary, until
such time as all Obligations of the Borrower under the Note, this Agreement and
the other Loan Documents have been indefeasibly paid in full, the Borrower shall
not (i) pay any dividend or make any other payment or distribution on account of
either Series A Preferred Stock or Series B Preferred Stock or (ii) purchase,
redeem or otherwise acquire or retire for value any Series A Preferred Stock or
Series B Preferred Stock.
(ff) Board of Directors. The Company shall not permit the Board of Directors
of the Borrower to be comprised at any time of a number of directors such that
the number of directors who are at any time Related Parties exceeds the number
of directors who are not Related Parties.
4.6 Suitability Matters. If any officer, director or other party affiliated with
the Borrower shall be found unsuitable and the Borrower is required to
repurchase such unsuitable party's shares in the Borrower or otherwise make any
payment to such unsuitable party, such payment shall be at the lesser of cost or
fair market value and payable entirely with indebtedness of the Borrower with
46
any principal, interest or other amounts thereunder deferred and subordinate to
the indefeasible repayment and satisfaction in full of the Senior Debt and the
Loan.
4.7 Representations and Warranties. (a) Each of the Borrower and the LLC is duly
organized, validly existing as a corporation or a limited liability company,
respectively, and in good standing under the laws of the state of its
incorporation or formation and has all corporate or limited liability company
power and authority, as the case may be, to carry on its business as described
in the Offering Memorandum and to own, lease and operate its properties, and is
duly qualified and is in good standing as a foreign corporation or a foreign
limited liability company authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of property
requires such qualification, except where failure to be so qualified and in good
standing, singly or in the aggregate, would not have a material adverse effect
on the business, assets, prospects, condition (financial or otherwise) or
results of operations of the Borrower and its subsidiaries, taken as a whole, or
draw into question the validity or enforceability of this Agreement or the other
Loan Documents or the validity, perfection or priority of any Lien created
thereunder (a "Material Adverse Effect").
(b) The authorized, issued and outstanding capital stock of the Borrower is
as set forth under the caption "Description of Capital Stock" in the Offering
Memorandum and, as of the date hereof, there has been no change in the
authorized, issued and outstanding capital stock since the date of the Offering
Memorandum. The shares of issued and outstanding capital stock of the Borrower
have been duly authorized and validly issued and are fully paid and
non-assessable; none of the outstanding shares of capital stock of the Borrower
was issued in violation of or are subject to the preemptive or other similar
rights of any securityholder of the Borrower.
(c) The Borrower has no Subsidiaries.
(d) Other than the Equity Purchase Agreements, the Note Conversion
Agreements, the Second Warrant Agreement and the Warrants issued pursuant
thereto, and the First Warrant Agreement and the Warrants issued pursuant
thereto, the Borrower does not have any outstanding options to purchase, or any
preemptive rights or other rights to subscribe for or purchase, or any
securities or obligations convertible into, or any contracts or commitments to
issue or sell, any equity interests or any such options, rights, convertible
securities or obligations of the Borrower.
(e) The Warrants have been duly authorized by the Borrower and, on the
Closing Date, will have been duly executed by the Borrower. When the Warrants
have been duly executed and issued by the Borrower in the manner provided for in
the First Warrant Agreement and delivered to Lender, the Warrants will be in the
form contemplated by, and entitled to the benefits of, the First Warrant
Agreement and the Warrant Registration Rights Agreement and will constitute
valid and binding obligations of the Borrower, enforceable against the Borrower
in accordance with their terms, except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or similar laws
affecting enforcement of creditors' rights generally or by general principles of
47
equity (regardless of whether enforcement is considered in a proceeding in
equity or at law) and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(f) The Warrant Shares have been duly authorized and reserved for issuance
by the Borrower and, when issued, paid for and delivered upon exercise of the
Warrants in accordance with the terms of the Warrants and the First Warrant
Agreement assuming receipt of the full exercise price thereof, will be validly
issued, fully paid and non-assessable and will not be subject to any preemptive
or similar rights.
(g) The First Warrant Agreement, the Warrant Registration Rights Agreement,
the Warrants, and the Warrant Shares will conform in all material respects to
the respective descriptions thereof contained in the Offering Memorandum.
(h) Each of the Loan Documents to which the Borrower is a party has been
duly authorized by the Borrower, and, on the Closing Date, will have been duly
executed and delivered by the Borrower. When each of the Loan Documents to which
the Borrower is a party has been duly executed and delivered, each of them will
be a valid and binding agreement of the Borrower, enforceable against the
Borrower in accordance with its terms except as (i) enforceability thereof may
be limited by bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), reorganization, moratorium or other similar
laws, now or hereafter in effect, relating to or affecting enforcement of
creditors' rights generally or by general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law) and the
discretion of the court before which any proceeding therefor may be brought,
(ii) rights of acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability, and (iii) any rights
to indemnity or contribution thereunder may be limited by federal and state
securities laws and public policy considerations.
(i) The execution, delivery and performance by the Borrower of the Loan
Documents to which the Borrower is a party, compliance by the Borrower with all
provisions thereof and the consummation of the transactions contemplated thereby
do not and will not (i) require any consent, approval, authorization or other
order of, or qualification with, any court or governmental body or agency
(except (A) such as may be required under the securities or Blue Sky laws of the
various states, (B) those that have already been obtained and are in full force
and effect or those that the Borrower would not customarily possess at the date
hereof but which will be obtained in the ordinary course of development of the
Casino, (C) those to be issued by any Gaming Authority or Liquor Licensing
Authority which are necessary for the Borrower to own and operate the Casino or
(D) those relating to commencement of construction of the Casino to be obtained
and certified in accordance with the Indenture prior to certain disbursements of
the proceeds of the Senior Notes), (ii) conflict with the charter, formation
documents or bylaws of the Borrower, (iii) conflict with or constitute a breach
of any of the terms or provisions of, or a default under any indenture, loan
agreement, mortgage, lease or other agreement or instrument that is material to
the Borrower, to which the Borrower is a party or by which the Borrower or its
property is bound, (iv) violate or conflict with any applicable law or any rule,
48
regulation, judgment, order or decree of any court or any governmental body or
agency having jurisdiction over the Borrower or its property (including, without
limitation, any Gaming Law (as defined in the Indenture)), except to the extent
such violation or conflict, singly or in the aggregate, would not have a
Material Adverse Effect, (v) result in the imposition or creation of (or the
obligation to create or impose) any Lien, except Permitted Liens, under, any
agreement or instrument to which the Borrower is a party or by which the
Borrower or its property is bound, or (vi) result in the termination or
revocation of any Authorization of the Borrower or result in any other
impairment of the rights of the holder of any such Authorization, except to the
extent such termination, revocation or impairment, singly or in the aggregate,
will not have a Material Adverse Effect.
(j) The Borrower is not in violation of its charter or formation documents
or bylaws. Upon the Closing of the Transactions, the Borrower will not be in
default in the performance of any obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is material to the Borrower to which the Borrower is a party
or by which the Borrower or its property is bound, except to the extent such
default, singly or in the aggregate, would not have a Material Adverse Effect.
Upon the Closing of the Transactions, to the Borrower's knowledge, there will
not exist any state of facts which constitutes an event of default on the part
of the Borrower as defined in such documents or which, with notice or lapse of
time or both, would constitute such an event of default.
(k) There are no legal or governmental proceedings pending actions, suits or
governmental investigations pending, or, to the Borrower's knowledge, overtly
threatened to which the Borrower is or could be a party or to which any of its
property is or could be subject, which could result in a Material Adverse
Effect, that are not described in the Offering Memorandum.
(l) Except for obligations or liabilities being paid out and satisfied on or
prior to the Closing Date or obligations or liabilities under the Loan Documents
or the Senior Loan Documents, the Borrower does not have any material (in excess
of Twenty-Five Thousand Dollars ($25,000) annually) obligation or liability
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due) arising out of transactions entered into on or prior to the
Closing Date.
(m) Other than as described in the Offering Memorandum, the Borrower has not
violated any Environmental Laws (as defined below) or any provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or the
rules and regulations promulgated thereunder, except for such violations which,
singly or in the aggregate, would not have a Material Adverse Effect.
(n) Except as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect and except as disclosed in the
Offering Memorandum (A) the Borrower is in compliance with and not subject to
liability under applicable Environmental Laws, (B) the Borrower has made all
filings and provided all notices required under any applicable Environmental
Laws, and has and is in compliance with all permits required under any
applicable Environmental Laws and each of them is in full force and effect, (C)
49
there is no civil, criminal or administrative action, suit, demand, claim,
hearing, notice of violation, investigation, proceeding, notice or demand letter
or request for information pending or, to the knowledge of the Borrower
threatened against the Borrower under any Environmental Law, (D) no lien,
charge, encumbrance or restriction has been recorded under any Environmental Law
with respect to any assets, facility or property owned, operated, leased or
controlled by the Borrower, (E) Borrower has not received notice that it has
been identified as a potentially responsible party under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended
("CERCLA") or any comparable state law, (F) no property or facility of the
Borrower is (i) listed or proposed for listing on the National Priorities List
under CERCLA or (ii) listed in the Comprehensive Environmental Response,
Compensation, Liability Information System List promulgated pursuant to CERCLA,
or on any comparable list maintained by any state or local governmental
authority.
For purposes of this Agreement, "Environmental Laws" means the common
law and all applicable federal, state and local laws or regulations, codes,
orders, decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder, relating to pollution or protection of public or employee
health and safety or the environment, including, without limitation, laws
relating to (i) emissions, discharges, releases or threatened releases of
hazardous materials into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata), (ii) the
manufacture, processing, distribution, use, generation, treatment, storage,
disposal, transport or handling of hazardous materials, and (iii) underground
and above ground storage tanks and related piping, and emissions, discharges,
releases or threatened releases therefrom.
(o) Except such as could not, singly or in the aggregate reasonably be
expected to have a Material Adverse Effect, and other than as disclosed in the
Offering Memorandum, there exists no fact, and no event has occurred, which has
or is reasonably likely to result in (A) material liability (including, without
limitation, alleged or potential liability for investigatory costs, cleanup
costs, governmental response costs, natural resource damages, property damages,
personal injuries or penalties) of the Borrower arising out of, based on or
resulting from the presence or release into the environment of any hazardous
material (including without limitation any pollutant or contaminant or
hazardous, dangerous or toxic chemical, material, waste or substance regulated
under or within the meaning of any Environmental Law) or (B) any violation of
any Environmental Law.
(p) The Borrower has such permits, licenses, consents, exemptions,
franchises, authorizations and other approvals (each, an "Authorization") of,
and has made all filings with and notices to, all governmental or regulatory
authorities and self-regulatory organizations and all courts and other
tribunals, including without limitation, under any applicable Environmental
Laws, as are necessary to own, lease, license and operate its properties and to
conduct its business in the manner described in the Offering Memorandum, except
for (A) such as may be required under the securities or Blue Sky laws of the
various states, (B) those that the Borrower would not customarily possess at the
date hereof but which will be obtained in the ordinary course of development of
the Casino, (C) those to be issued by any Gaming Authority or Liquor Licensing
Authority which are necessary for the Borrower to own and operate the Casino,
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and (D) those relating to commencement of construction of the Casino to be
obtained and certified in accordance with the Indenture prior to certain
disbursements of the proceeds of the Senior Notes, except, in the case of
clauses (B), (C) and (D) of this Section 4.7(p), where the failure to have such
Authorization, or to have made such filings or notices would not, singly or in
the aggregate, have a Material Adverse Effect. Each such Authorization is valid
and in full force and effect and the Borrower is in compliance in all material
respects with all the terms and conditions thereof and with the rules and
regulations of the authorities and governing bodies having jurisdiction with
respect thereto. To the Borrower's knowledge, no event has occurred (including,
without limitation, the receipt of any notice from any authority or governing
body) which allows or, after notice or lapse of time or both, would allow,
revocation, suspension or termination of any such Authorization or results or,
after notice or lapse of time or both, would result in any other impairment of
the rights of the holder of any such Authorization. The Borrower has no reason
to believe that any governmental body or agency is considering limiting,
suspending or revoking any such Authorization. The Borrower has no reason to
believe that any such Authorization necessary in the future to own or operate
the Casino in the manner described in the Offering Memorandum, including without
limitation, any Gaming License or Liquor License, will not be granted upon
application (or, alternatively, that the necessity to obtain such license,
permit or approval will not be waived), or that any Gaming Authority or Liquor
Licensing Authority or any other governmental agencies are investigating the
Borrower or related parties, other than in ordinary course administrative
reviews or any ordinary course review of the transactions contemplated hereby.
(q) There are no contracts, agreements or understandings, other than the
Registration Rights Agreement and the Warrant Registration Rights Agreement,
granting any person the right to require the Borrower to file a registration
statement under the Act with respect to any securities of the Borrower or to
require the Borrower to include such securities with the Senior Notes, the
Warrants or the Warrant Shares registered pursuant to any registration
statement.
(r) Upon the closing of the Transactions, the Borrower will have good and
marketable title in fee simple to all real property subject to the Hyatt Gaming
Deed of Trust and good and marketable title to all personal property owned by
the Borrower which is described or referred to in the Offering Memorandum or
otherwise material to the business of the Borrower, free and clear of Liens
(except Permitted Liens) and defects, except such as are contemplated under the
Loan Documents, or such as do not, singly or in the aggregate, have a Material
Adverse Effect. Any real property held under lease or sublease by the Borrower
will be held, upon the closing of the Transactions, under valid, subsisting and
enforceable leases or subleases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such property by the
Borrower, except as described in the Offering Memorandum. The Borrower does not
have any notice of any default or material claim of any sort that has been
asserted by anyone adverse to the rights of the Borrower under any of the leases
or subleases mentioned above, or affecting or questioning the rights of the
Borrower to the continued possession of the leased or subleased premises under
any such lease or sublease, except to the extent such default or adverse claim,
singly or in the aggregate, would not have a Material Adverse Effect.
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(s) The Borrower owns or possesses all patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names ("Intellectual Property")
currently employed by it in connection with its business as described in the
Offering Memorandum except where the failure to own or possess such intellectual
property would not, singly or in the aggregate, have a Material Adverse Effect;
and the Borrower has not received any notice of infringement of or conflict with
asserted rights of others with respect to any of such intellectual property
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(t) The Borrower is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged. The Borrower has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such coverage expires or to obtain similar coverage from
similar insurers at a cost that would not singly or in the aggregate have a
Material Adverse Effect.
(u) The Borrower maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(v) All material tax returns required to be filed by the Borrower in any
jurisdiction have been filed, and all material taxes, including withholding
taxes, penalties and interest, assessments, fees and other charges due pursuant
to such returns or pursuant to any assessment received by the Borrower have been
paid, other than those being contested in good faith and for which adequate
reserves have been provided.
(w) The contemplated operation and use of the Casino, including the
construction of the Casino, will be (giving effect to any waivers or variances
which may be obtained) in compliance with all applicable municipal, county,
state and federal laws, regulations, ordinances, standards, orders, and other
regulations, where the failure to comply therewith could have a Material Adverse
Effect. Under applicable zoning and use laws, ordinances, rules and regulations,
the Casino may be used for the purposes contemplated in the Offering Memorandum,
the Indenture and the Loan Documents, and all necessary approvals have been
obtained therefor, except for approvals which the Borrower would not customarily
possess at the date hereof but which will be obtained in the ordinary course of
development of the Casino or those relating to commencement of construction of
the Casino to be obtained or certified in accordance with the Indenture prior to
certain disbursements of the proceeds of the Senior Notes, except to the extent
the failure to have obtained such approvals would not, singly or in the
aggregate, have a Material Adverse Effect.
52
(x) Upon execution and delivery of the Loan Documents (other than the Hyatt
Gaming Pledge and Assignment Agreement) by the parties thereto and completion of
the filings and recordings contemplated thereby, the security interests created
for the benefit of Lender pursuant to the Loan Documents (other than the Hyatt
Gaming Pledge and Assignment Agreement) will constitute valid, perfected
security interests in the collateral subject thereto subject to Permitted Liens.
(y) All notice filings to be made pursuant to the Loan Documents (including
without limitation all financing statements) are in proper form to be filed in
order to perfect a security interest in the collateral described therein.
(z) At all times after execution and delivery of the Hyatt Gaming Pledge and
Assignment and the Account Agreement (as defined therein) and completion of the
filings and recordings contemplated thereby, the security interests created for
the benefit Lender pursuant to the Hyatt Gaming Pledge and Assignment Agreement
will constitute valid, perfected second priority security interests in the
collateral subject thereto (other than the Hyatt Gaming Accounts, with respect
to which such security interests will constitute valid, perfected first priority
security interests).
(aa) The Borrower has not dealt with any broker, investment banker, or other
person who may be entitled to any commission or compensation in connection with
the making of the Loan.
(bb) Lender has been furnished with a copy of the plans and specifications
for the construction of the improvements of the Casino and other necessary
expenditures. Such plans and specifications are satisfactory to the Borrower.
The anticipated cost of such improvements (including interest, legal,
architectural, engineering, planning, zoning and other similar costs) does not
exceed the amounts for such costs set forth under the caption "Use of Proceeds"
in the Offering Memorandum. The Borrower is not aware of any material defects in
the plans or specifications for such improvements. In addition, each of the
other amounts set forth in "Sources of Funds" and "Project Costs" under the
caption "Use of Proceeds" in the Offering Memorandum are based upon reasonable
assumptions as to all matters material to the estimates set forth therein and
are not expected by the Borrower to exceed the amounts set forth for such items.
(cc) The Borrower has prepared the Construction Disbursement Budget and the
Construction Schedule (as defined in the Cash Collateral and Disbursement
Agreement) and has developed the assumptions on which the Construction
Disbursement Budget and Construction Schedule are based. The Construction
Disbursement Budget and the Construction Schedule are, as of the Closing Date,
(i) in the opinion of the Borrower, based on reasonable assumptions as to all
legal and factual matters material to the estimates set forth therein, (ii) call
for the construction of the Minimum Facilities on or prior to the Operating
Deadline and (iii) consistent with the provisions of the Indenture and the Loan
Documents.
53
(dd) The Borrower acknowledges that Lender and, for purposes of the opinions
to be delivered pursuant to Section 2.6 hereof, counsel to the Borrower, will
rely upon the accuracy and truth of the foregoing representations and hereby
consents to such reliance.
ARTICLE V.
THE LENDERS RIGHTS AND REMEDIES
The following rights and remedies are available to the Lender:
5.1 Acceleration. Subject to the terms of the Subordination Agreement, upon the
occurrence of an Event of Default (other than an Event of Default pursuant to
Sections 6.1(i) hereof, as to which the next sentence of this Section 5.1 shall
apply), the entire unpaid principal balance of the Loan and all accrued interest
thereon shall, at the option of the Lender, become immediately due and payable.
Subject to the terms of the Subordination Agreement, upon the occurrence of an
Event of Default pursuant to Section 6.1(i) hereof, the entire unpaid principal
balance of the Loan and all accrued interest thereon shall immediately become,
and shall be deemed to immediately become, automatically due and payable without
any act on the part of the Lender. In addition, upon acceleration, any and all
other obligations of the Borrower to the Lender under the Loan Documents shall
be immediately due and payable.
5.2 No Liability of the Lender. Whether or not the Lender elects to employ any
or all remedies available to it in the event of an occurrence of an Event of
Default, the Lender shall not be liable for the construction or completion of
the Casino or for the performance or nonperformance of any other obligation of
the Borrower.
5.3 Right to Cure; Protective Advances. Lender may, but shall have no obligation
to, cure any breach, default or event of default by the Borrower under any one
or more of (i) this Agreement, (ii) the other Loan Documents, (iii) any of the
Senior Loan Documents and (iv) the Management Agreement.
5.4 Protective Advances. Any amount advanced pursuant to Section 5.3(a) hereof
or under any of the Hyatt Gaming Collateral Documents shall be added to the
principal of the Loan, secured by the Hyatt Gaming Collateral Documents, and
shall bear interest at the rate set forth in the Note.
5.5 Subordination. Lender agrees to forbear from any exercise of remedies to the
extent required by the Subordination Agreement.
ARTICLE VI.
EVENTS OF DEFAULT
6.1 Events of Default. An "Event of Default" occurs and is continuing under this
Agreement if:
(a) the Borrower defaults for thirty (30) days in the payment when due of
Interest on, Liquidated Damages, if any, with respect to or any other amounts
54
(other than those described in Sections 4.5(i), (aa) or (bb) hereof that become
due and owing under this Agreement, the Note or any of the other Loan Documents;
(b) the Borrower defaults in the payment when due of principal of or
premium, if any, on the Note;
(c) the Borrower fails to comply with any of the provisions of Section
4.5(f), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), (s), (t), (x), (y),
(z), (aa), (bb) or (cc) hereof;
(d) a Change of Control shall occur;
(e) the Borrower or any of its Restricted Subsidiaries for thirty (30) days
after notice thereof fails to comply with the provisions of any of the other
agreements in this Agreement not set forth in clause (c) above;
(f) a default occurs under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
Indebtedness for money borrowed by the Borrower or any of its Subsidiaries (or
the payment of which is guaranteed by the Borrower or any of its Subsidiaries)
whether such Indebtedness or guarantee now exists, or is created after the
Closing Date, if that default: (i) is caused by a failure to pay principal of,
or interest or premium, if any, on such Indebtedness prior to the expiration of
the grace period provided in such Indebtedness on the date of such default (a
"Payment Default"); or (ii) results in the acceleration of such Indebtedness
prior to its express maturity, and, in each case, the principal amount of any
such Indebtedness, together with the principal amount of any other such
Indebtedness under which there has been a Payment Default or the maturity of
which has been so accelerated, aggregates $1.0 million or more;
(g) the Borrower or any of its Restricted Subsidiaries fails to pay final
judgments aggregating in excess of Five Million Dollars ($5,000,000), which
judgments are not paid, discharged or stayed for a period of sixty (60) days;
(h) (i) the Borrower or any of its Affiliates breaches any material
representation or warranty in the Hyatt Gaming Collateral Documents or any
certificates delivered in connection therewith, (ii) the Borrower or any of its
Affiliates fails after written notice thereof to comply with any material
covenant or agreement set forth in the Hyatt Gaming Collateral Documents, (iii)
the Borrower or its respective Affiliates repudiates any of its obligations
under the Hyatt Gaming Collateral Documents, (iv) the Hyatt Gaming Collateral
Documents become unenforceable against the Borrower or its Affiliates or
perfection or priority of the Liens granted by the Borrower or its Affiliates
thereunder is lost for any reason, which in the case of clauses (i) and (ii)
remains uncured for a period of thirty (30) days after written notice specifying
such breach or default;
(i) the Borrower or any of its Significant Subsidiaries or any group of
Subsidiaries that, taken as a whole, would constitute a Significant Subsidiary
pursuant to or within the meaning of Bankruptcy Law:
55
(i) commences a voluntary case,
(ii)consents to the entry of an order for relief against it in an
involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property,
(iv)makes a general assignment for the benefit of its creditors, or
(v) generally is not paying its debts as they become due;
(j)a court of competent jurisdiction enters an order or decree under any
Bankruptcy Law that:
(i) is for relief against the Borrower or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary in an involuntary case;
(ii) appoints a custodian of the Borrower or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary or for all or
substantially all of the property of the Borrower or any of its
Significant Subsidiaries or any group of Subsidiaries that, taken as
a whole, would constitute a Significant Subsidiary; or
(iii) orders the liquidation of the Borrower or any of its Significant
Subsidiaries or any group of Subsidiaries that, taken as a whole,
would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for sixty (60)
consecutive days;
(k) the revocation, termination, suspension or other cessation of
effectiveness for a period of more than ninety (90) consecutive days of any
Gaming License results in the cessation or suspension of gaming operations at
any Gaming Facility;
(l) the Casino fails to be Operating by the Operating Deadline or fails to
remain Operating thereafter, except (i) as the hours of operation of the Casino
may be limited by any Gaming Authority or Gaming Law or (ii) for a period of
time not to exceed thirty (30) days during any forty-five (45) day period and
not to exceed sixty (60) days during any one-year period; provided, however,
that, in any event, there shall not be an Event of Default under this clause if
the failure to remain Operating during such period results from an Event of Loss
pursuant to the terms of this Agreement;
(m) any court of competent jurisdiction (including without limitation the
U.S. Bankruptcy Courts) enjoins the construction of the Casino or enjoins or
prohibits the Borrower or the Lender or either of them from performing this
Agreement or any of the other Loan Documents, and such proceedings are not
discontinued or such decree is not vacated within sixty (60) days after the
granting thereof;
(n) the Management Agreement shall be terminated, and such termination is
not a result of a default by the Manager thereunder;
56
(o) an Event of Default (as defined in the Indenture) shall have occurred
under the Senior Loan Documents;
(p) the Borrower neglects, fails, or refuses to keep in full force and
effect any permit or approval necessary with respect to the construction,
occupation or use of the Casino or any Project License which materially affects
the operation of the Casino, and such neglect, failure or refusal continues for
a period of thirty (30) days; or
(q) any Borrower Loss of License Event or Non-Casino Loss of License Event
shall occur.
ARTICLE VII.
GENERAL CONDITIONS
7.1 Waivers. No waiver of any Default or Event of Default or breach by the
Borrower hereunder shall be implied from any delay or omission by the Lender to
take action on account of such Default or Event of Default, and no express
waiver shall affect any Default or Event of Default other than the Event of
Default specified in the waiver and it shall be operative only for the time and
to the extent therein stated. Waivers of any covenants, terms or conditions
contained herein must be in writing and shall not be construed as a waiver of
any subsequent breach of the same covenant, term or condition. The consent or
approval by the Lender to or of any act by the Borrower requiring further
consent or approval shall not be deemed to waive or render unnecessary the
consent or approval to or of any subsequent or similar act. No single or partial
exercise of any right or remedy of the Lender hereunder shall preclude any
further exercise thereof or the exercise of any other or different right or
remedy.
7.2 No Third Party Beneficiaries. This Agreement is made and entered into for
the sole protection and benefit of the Lender and the Borrower, their successors
and assigns, and no other Person shall under any circumstances be deemed to be a
beneficiary of any of the rights, remedies, terms and provisions of this
Agreement. No other Person shall have any right to action hereon or rights to
the Loan proceeds at any time, nor shall the Lender owe any duty whatsoever to
any claimant for labor performed or material furnished in connection with the
construction of the or to apply any undisbursed portion of the Loan to the
payment of any such claim, or to exercise any right or power of the Lender
hereunder or arising from any Default condition or Event of Default by the
Borrower.
7.3 Assignment. The terms hereof shall be binding upon and inure to the benefit
of the successors, assigns, and representatives of the parties hereto; provided,
however, that the Borrower shall not assign this Agreement any Loan Document or
any of its rights, interests, duties or obligations hereunder or thereunder or
any Loan proceeds or other monies to be advanced hereunder or thereunder in
whole or in part without the prior written consent of the Lender and that any
such assignment (whether voluntary or by operation of law) without said consent
shall be void.
7.4 Amendments. This Agreement shall not be amended except by a written
instrument signed by the parties hereto.
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7.5 Terms. Whenever the context and construction so require, all words used in
the singular number herein shall be deemed to have been used in the plural, and
vice versa, and the masculine gender shall include the feminine and neuter and
the neuter shall include the masculine and feminine.
7.6 Governing Law and Jurisdiction. This Agreement and the other Loan Documents
and all matters relating thereto shall be governed by and construed and
interpreted in accordance with the internal laws of the State of New York,
without reference to choice of law principles.
7.7 Waiver of Jury Trial. EACH OF THE BORROWER AND THE LENDER HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY
IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS
OF THE BORROWER OR THE LENDER. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE
LENDER MAKING THE LOAN EVIDENCED BY THE LOAN DOCUMENTS.
7.8 Savings Clause. Invalidation of any one or more of the provisions of this
Agreement shall in no way affect any of the other provisions hereof, which shall
remain in full force and effect.
7.9 Survival of Indenture Provisions. To the extent that definitions or
provisions of the Indenture are incorporated by reference into this Agreement,
such provisions shall survive, and continue to be incorporated herein,
notwithstanding the termination of the Indenture.
7.10 Entire Agreement. This Agreement, and the other agreements referenced
herein, constitute the entire agreement of the parties hereto with respect to
the subject matter hereof and thereof and supersedes all prior agreements, both
written and oral between the Borrower and the Lender with respect to the subject
matter hereof and thereof.
7.11 Execution in Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same instrument, and in making proof of this
Agreement, it shall not be necessary to produce or account for more than one
such counterpart.
7.12 Captions. The captions herein are inserted only as a matter of convenience
and for reference and in no way define, limit or describe the scope of this
Agreement.
7.13 Notices. Except as otherwise specified herein, all notices, requests,
demands or other communications to or upon the respective parties hereto shall
be deemed to have been duly given or made when delivered to the party to which
notice, request, demand or other communication is required or permitted to be
given or made under this Agreement, addressed as follows:
58
(a) if to the Lender, at:
Hyatt Gaming Management, Inc.
Madison Plaza - 39th Floor
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
(b) if to the Borrower at:
Windsor Woodmont Black Hawk Resort Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
or at such other address as shall have been furnished in writing by any
party described above to the party required to give notice hereunder.
7.14 No Right of Offset. No offset or claim that the Borrower or any Affiliate
of the Borrower now or may in the future have against the Lender, any of its
Affiliates, or any other Person, whether in connection with this Agreement, the
transactions contemplated herein or any unrelated transaction, shall relieve the
Borrower from paying any amounts owing hereunder.
7.15 Fees and Expenses. The Borrower shall reimburse the Lender concurrently
with execution of this Agreement for all of the Lender's attorneys' fees and
other costs and expenses in connection with the Loan, the Management Agreement
and otherwise in connection with the Casino transactions.
7.16 Attorneys' Fees. If any party hereto brings any judicial action or
proceeding to enforce its rights under this Agreement, the prevailing party
shall be entitled, in addition to any other remedy, to recover from the others,
regardless of whether such action or proceeding is prosecuted to judgment, all
costs and expenses, including without limitation reasonable attorneys' fees,
incurred therein by the prevailing party.
7.17 Indemnification. The Borrower hereby indemnifies and agrees to defend the
Lender and its Affiliates and to hold each of them harmless from any cost,
expense, liability, loss, or damage, including, without limitation, reasonable
attorneys' fees, incurred by any of them as a result of the making of the Loan
or the exercise of any rights or remedies under this Agreement; provided that
the Lender and its Affiliates shall not be indemnified for their bad faith,
gross negligence or willful misconduct.
7.18 Gaming Regulations. This Agreement, and any remedies contemplated hereby,
are and shall remain subject to the Colorado Limited Gaming Act, Colo. Rev.
Stat.ss.12-47.1-101, et. seq. (1997) and the rules and regulations thereunder
(as may be amended from time to time, collectively, the "Colorado Gaming
Regulations"), and the exercise of remedies hereunder will be subject to the
Colorado Gaming Regulations.
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7.19 Release of Collateral.
(a) Subject to subsections (b), (c) and (d) of this Section 7.19, Hyatt
Gaming Collateral may be released from the Lien and security interest created by
this Agreement and the Hyatt Gaming Collateral Documents at any time or from
time to time in accordance with the provisions of the Hyatt Gaming Collateral
Documents or as provided hereby. In addition, upon the request of the Borrower
pursuant to an Officers' Certificate certifying that all conditions precedent
hereunder have been met and stating whether or not such release is in connection
with an Asset Sale, and the Lender shall release (at the sole cost and expense
of the Borrower) (i) Hyatt Gaming Collateral that is sold, conveyed or disposed
of in compliance with the provisions of this Agreement; provided, that if such
sale, conveyance or disposition constitutes an Asset Sale, the Borrower shall
apply the Net Proceeds in accordance with Section 4.5(i) hereof. Upon receipt of
such Officers' Certificate the Lender shall execute, deliver or acknowledge any
necessary or proper instruments of termination, satisfaction or release to
evidence the release of any Hyatt Gaming Collateral permitted to be released
pursuant to this Indenture or the Hyatt Gaming Collateral Documents.
(b) No Hyatt Gaming Collateral shall be released from the Lien and security
interest created by the Hyatt Gaming Collateral Documents pursuant to the
provisions of the Hyatt Gaming Collateral Documents unless there shall have been
delivered to the Lender the certificate required by this Section 7.19.
(c) At any time when a Default or Event of Default shall have occurred and
be continuing and the maturity of the Note shall have been accelerated (whether
by declaration or otherwise) and the Lender shall have delivered a notice of
acceleration to the Borrower, no release of Hyatt Gaming Collateral pursuant to
the provisions of the Hyatt Gaming Collateral Documents shall be effective as
against the Lender.
(d) The release of any Hyatt Gaming Collateral from the terms of this
Agreement and the Hyatt Gaming Collateral Documents shall not be deemed to
impair the security under this Agreement in contravention of the provisions
hereof if and to the extent the Hyatt Gaming Collateral is released pursuant to
the terms hereof.
(e) Upon the payment in full of all Obligations of the Borrower under this
Agreement, the Collateral Documents, the Note and any other Loan Document,
Lender shall, at the request of the Borrower and at the Borrower's sole cost and
expense, deliver a certificate to the Borrower stating that such Obligations
have been paid in full, and take all actions necessary to release the Liens
pursuant to this Agreement and the Collateral Documents.
7.20 Certificate and Opinion Requirements. Each certificate or opinion with
respect to compliance with a condition or covenant provided for in this
Agreement shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
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(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been satisfied; and
(d) a statement as to whether or not, in the opinion of such Person, such
condition or covenant has been satisfied.
7.21 Lender's Investment Representation Regarding the Warrants. Lender
represents and warrants to, and agrees with, the Borrower that:
(a) Lender has received and reviewed the information concerning the
Company and any other matters relevant to its decision to receive the
Warrant that it has requested and has had an opportunity to discuss
the business, management and financial affairs of the Borrower, with
the Borrower and its representatives insofar as relevant to its
receipt of the Warrants. Lender understands that the Warrants are
being offered in a transaction not involving any public offering in
the United States within the meaning of the Securities Act, and that
the Warrants have not been registered under the Securities Act:
(b) The Warrants may be offered, resold, pledged or otherwise transferred
only:
(i) to a person in a transaction meeting the requirements of the
Securities Act, or in accordance with another exemption from the
registration requirements of the Securities Act;
(ii) to the Borrower; or
(iii) pursuant to an effective registration statement.
and, in each case, in accordance with any applicable
securities laws of any State of the United States or any other applicable
jurisdiction; and Lender will, and each subsequent holder is required to, notify
any subsequent purchaser from it of the resale restrictions set forth in (iii)
above.
(c) Lender confirms that Lender is not acquiring the Warrants with a view
to distribution of the Warrants in a transaction that would violate
the Securities Act or the securities laws of any State of the United
States or any other applicable jurisdiction.
(d) Lender has knowledge and experience in financial and business matters,
is capable of evaluating the merits and risks of purchasing the
Warrants and is able to bear the economic risks of its investment.
(e) Lender has received a copy of the Offering Memorandum and acknowledges
that it has had access to financial and other information and has been
afforded the opportunity to ask question of the Company's
representative and receive answers, as Lender deemed necessary in
connection with this decision to receive the Warrants.
[Signature Page Follows]
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IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Agreement as of the date first above written by their officers, all duly
authorized thereunto.
HYATT GAMING MANAGEMENT, INC., a
Nevada corporation
By: /s/ Xxxxxx X. Handelsmen
-----------------------------
Name: Xxxxxx X. Handelsmen
-----------------------------
Title: Vice President
-----------------------------
WINDSOR WOODMONT BLACK HAWK
RESORT CORP.,
a Colorado corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxxxx
-----------------------------
Title: Executive Vice President
-----------------------------
[Signature Page to Subordinated Loan Agreement]
EXHIBIT A
The counterpart of the Subordinated Promissory Note on which this legend
appears is, for the purposes of Title 38 of the Colorado Revised Statues, the
"original evidence of debt" secured by the Hyatt Gaming Deed of Trust, as
defined in the Loan Agreement (as defined herein).
This instrument is subject to the terms of a Intercreditor Subordination
and Collateral Agreement dated as of March 14, 2000 between The Sun Trust Bank,
as trustee, Hyatt Gaming Management, Inc. and Windsor Woodmont Black Hawk Resort
Corp. (as amended in accordance with its terms), which is incorporated herein by
reference. Notwithstanding any statement to the contrary contained in this
instrument, no payment on account of the obligations hereunder, whether of
principal or interest or otherwise, shall be made, paid, received or accepted
except in accordance with the express terms of the Intercreditor Subordination
and Collateral Agreement.
FORM OF SUBORDINATED PROMISSORY NOTE
------------------------------------
$7,500,000 Chicago, Illinois
March 14, 2000
FOR VALUE RECEIVED, the undersigned, WINDSOR WOODMONT BLACK HAWK RESORT
CORP., a Colorado corporation ("Maker"), promises to pay to the order of HYATT
GAMING MANAGEMENT, INC., a Nevada corporation ("Payee"), at Madison Plaza, 39th
Floor, 000 X. Xxxxxxx, Xxxxxxx, Xxxxxxxx 00000, or at such other place as the
holder hereof may from time to time designate, the principal sum of Seven
Million Five Hundred Thousand Dollars ($7,500,000) advanced by Payee pursuant to
that certain Subordinated Loan Agreement (the "Loan Agreement") effective as of
even date herewith, between Maker and Payee, with interest on the unpaid
principal balance from time to time outstanding, compounded quarterly, payable
semi-annually in arrears in accordance with the terms hereof, and computed on
the basis of a three hundred sixty (360) day year but for the actual number of
days outstanding, at a rate equal to fifteen and one-half percent (15.5%) per
annum (the "Interest Rate"); but in no event greater than the maximum rate
permitted by applicable law. Capitalized terms used herein but not otherwise
defined herein shall have the meanings set forth for such terms in the Loan
Agreement. Payment of principal and interest shall be made in the lawful money
of the United States which shall be legal tender for public and private debts at
the time of payment.
This note (the "Note") is issued pursuant to the Loan Agreement and is
secured by the Hyatt Gaming Deed of Trust and the other Hyatt Gaming Collateral
Documents.
Maker shall pay to Lender interest semi-annually in arrears on the 16th day
of March and the 16th day of September. Notwithstanding the foregoing, any
interest which comes due prior to the date on which the Casino is Operating
shall be deferred, accrued and bear interest due prior to the date on which the
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Casino is Operating shall be deferred, accrued and bear interest at the Interest
Rate, and on the date the Casino is Operating shall be added to the principal
amount owing on this Note.
To the extent that any amounts are available to be paid as a Restricted
Payment (as defined in the Indenture) by Maker as a result of an Event of Loss,
Asset Sale, Change of Control, Excess Cash Flow or otherwise under the terms of
the Indenture as in effect on the date hereof, Maker shall, on the first day
such payments may be made pursuant to the terms of the Indenture, make a
prepayment of principal on this Note in accordance with the terms of the Loan
Agreement.
To the extent that any amounts are permitted to be paid on this Note
pursuant to the terms of the Indenture as in effect on the date hereof, such
amounts shall first be applied to the payment of any amounts owing under the
Management Agreement, and then to any amounts owing on this Note.
All principal advanced on the date hereof and on any date hereafter
pursuant to the Loan Agreement by Payee shall be evidenced by this Note and
shall be due and payable in full on the date of Maturity.
This Note is (and all payments pursuant hereto are) subject to the terms of
(and subordinated in accordance with) the Subordination Agreement.
Subject to the terms of the Loan Agreement and the Subordination Agreement,
at the option of the holder hereof, this Note may be declared to be (in which
case this Note shall become) immediately due and payable, and all obligations of
the holder hereof to make any future advances shall terminate upon the
occurrence and during the continuance of any Event of Default.
If this Note is not paid when due, whether at maturity or by acceleration,
at such time as such payment is not prohibited by the terms of the Subordination
Agreement, the undersigned promises to pay all costs of collection, including
without limitation, reasonable attorneys' fees, and all expenses in connection
with the protection or realization of any collateral securing this Note incurred
by the holder on account of such collection, whether or not suit is filed
hereon; and such costs and expenses shall include without limitation all costs,
attorneys' fees and expenses incurred by the holder hereof in connection with
any insolvency, bankruptcy, reorganization, arrangement or other similar
proceedings involving Maker, which in any way affect the exercise by the holder
hereof of its rights and remedies under this Note. The amount of such costs and
expenses, together with interest at the Default Rate (as hereinafter defined)
shall be repaid to the holder hereof upon written demand therefor. Should
interest not be paid when due, it shall thereafter bear like interest as the
principal. Additionally, in the event of any default under this Note and for so
long as such default shall remain uncured, the interest rate at which this Note
shall bear interest shall immediately, without notice, increase to two percent
(2%) per annum above the otherwise applicable interest rate under this Note (the
"Default Rate"), but in no event shall the Default Rate be greater than the
Maximum Rate (as hereinafter defined); provided that no interest of other
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payments under this Note shall be due or payable (and the Default Rate shall not
apply) so long as Maker is prohibited from making payments hereon by the terms
of the Loan Agreement or the Subordination Agreement.
Anything in this Note or any of the documents executed in connection
herewith to the contrary notwithstanding, if at any time the rate of interest on
the Note together with all fees and charges, if any (collectively, the
"Charges"), contracted for, charged, received, taken or reserved by the holder
hereof which may be treated as interest under applicable law, computed over the
full term of the Note, exceeds the maximum legal limit (if any such limit is
applicable) under United States federal law or state law (to the extent not
preempted by federal law, if any), now or hereafter governing the interest
payable on the Note (the "Maximum Rate"), then the rate of interest on the Note,
together with all Charges, shall be limited to the Maximum Rate. If from any
circumstances, the holder hereof shall ever receive as interest an amount which
would exceed the Maximum Rate, such amount which would be excessive interest
shall be applied to the reduction of the unpaid principal balance hereunder
(whether or not due and payable) and not to the payment of interest.
Presentment, demand, protest, notices of protest, dishonor and non-payment
of this Note and all notices of every kind are hereby waived. To the extent
permitted by applicable law, the defense of the statute of limitations is hereby
waived by the Maker.
No single or partial exercise of any power hereunder shall preclude other
or further exercise thereof or the exercise of any other power. The holder
hereof shall at all times have the right to proceed against any portion of any
security held therefor in such order and in such manner, as the holder may deem
fit, without waiving any rights with respect to any other security. No delay or
omission on the part of the holder hereof in exercising any right hereunder
shall operate as a waiver of such right or of any other right under this Note.
No waiver of any breach of any of the covenants or conditions of this Note shall
be construed to be a waiver of or acquiescence in or a consent to any previous
or subsequent breach of the same or any other condition or covenant.
No right, power or remedy conferred upon or reserved to the holder hereof
by this Note is intended to be exclusive of any other right, power or remedy,
but each and every such right, power and remedy shall be cumulative and
concurrent and shall be in addition to any other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or by statute. Every
power or remedy given by this Note to the holder hereof or to which such holder
may be entitled may be exercised from time to time and as often as may be deemed
expedient by such holder, and such holder may pursue inconsistent remedies.
Subject to the terms of the Loan Agreement and the Subordination Agreement,
the undersigned may from time to time prepay in whole or in part without penalty
or premium the principal hereof. Any prepayment of principal shall be
accompanied by payment of accrued interest on such principal to the date of such
prepayment.
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This Note shall be governed by and construed in accordance with the laws of
the State of New York, except to the extent preempted by United States federal
law.
The address of the Maker and the Payee shall for all purposes be as set
forth below unless otherwise changed by the applicable party hereto by notice to
the other as provided herein.
Maker: Windsor Woodmont Black Hawk Resort Corp.
0000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx
Payee: Hyatt Gaming Management, Inc.
Madison Plaza - 39th Floor
000 Xxxx Xxxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
All notices or other communications required or permitted to be given
pursuant to the provisions of this Note shall be in writing and shall be
considered as properly given if mailed by certified United States mail, postage
prepaid, with return receipt requested, by overnight courier service, or by
facsimile transmission with reception confirmed. Notices hereunder in any manner
shall be effective only if and when received by the addressee. Certified mail
receipt or express courier receipt at the above addresses shall establish
receipt for purposes of notices under this Note. Either the Maker or the holder
hereof may from time to time, by notice in writing served upon the other as
aforesaid, designate a different mailing address to which, or a different person
to whose attention, all such notices or demands are thereafter to be addressed.
Subject to the terms of the Loan Agreement and the Subordination Agreement,
time is hereby declared to be of the essence of this Note and of every part
hereof. When the context and construction so require, all words used in the
singular herein shall be deemed to have been used in the plural and the
masculine shall include the feminine and the neuter and vice versa.
This Note may not be assigned by Maker without the prior written consent of
the holder hereof and any assignee shall (as a condition to any such assignment)
agree in writing to be bound by the terms of the Subordination Agreement.
Subject to the foregoing restriction, this Note shall inure to the benefit of
the holder hereof, its successors, assigns and representatives and shall bind
Maker, its successors, assigns and representatives. This Note may not be
modified, amended or terminated except by a written agreement signed by the
Maker and holder hereof.
If any provision of this Note or the application thereof to any person or
circumstance shall be invalid or unenforceable to any extent, the remainder of
this Note and the application of such provision to other persons or
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circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by law.
No offset or claim that Maker now or may in the future have against the
holder of this Note or any of its Affiliates shall relieve Maker from paying any
amounts owing hereunder.
Executed as of the date first above written.
"Maker"
WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation
By:
Name:
-----------------------
Title:
----------------------
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