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EXHIBIT 4.6
DISBURSEMENT AGREEMENT
DISBURSEMENT AGREEMENT (this "Agreement"), dated as of
December 30, 1997, among THE RESORT AT SUMMERLIN, LIMITED PARTNERSHIP (the
"Partnership"), THE RESORT AT SUMMERLIN, INC. ("Summerlin, Inc." and together
with the Partnership, the "Borrowers"), UNITED STATES TRUST COMPANY OF NEW YORK,
as Trustee (the "Trustee") on behalf of the holders of the Subordinated Notes
referred to below, THE RESORT AT SUMMERLIN, INC., as representative (the
"Representative") of the Partners referred to below, NATIONAL WESTMINSTER BANK
PLC, as Administrative Agent (the "Administrative Agent") under the Credit
Agreement hereinafter defined, FIRST SECURITY TRUST COMPANY OF NEVADA as the
Account Agent under the Mortgage Notes Proceeds Agreement referred to below (the
"MNPA Agent"), FIRST SECURITY TRUST COMPANY OF NEVADA as the Account Agent under
the Subordinated Notes Proceeds Agreement referred to below (the "SNPA Agent"),
FIRST SECURITY TRUST COMPANY OF NEVADA as the Account Agent under the
Partnership Funds Agreement referred to below (the "PFA Agent" and together with
the MNPA Agent and the SNPA Agent, the "Account Agents") and FIRST SECURITY
TRUST COMPANY OF NEVADA as Disbursement Agent (the "Disbursement Agent"). Except
as otherwise defined herein, terms used herein and defined in the Credit
Agreement shall be used herein as so defined.
W I T N E S S E T H :
WHEREAS, the Borrowers, the lenders (the "Lenders") from time
to time party thereto, Gleacher Natwest, Inc., as Arranging Agent, and the
Administrative Agent have entered into a Credit Agreement, dated as of December
30, 1997, providing for the making of loans as contemplated therein (as modified
or restated and in effect from time to time, the "Credit Agreement);
WHEREAS, all of the proceeds of Construction Loans made under
the Credit Agreement are to be directly deposited in the Mortgage Notes Proceeds
Account established pursuant to the Mortgage Notes Proceeds Agreement, prior to
any disbursement of such amounts to finance Project Costs;
WHEREAS, the Borrowers will issue 13% Senior Subordinated PIK
Notes (the "Subordinated Notes") in an aggregate principal amount of
$100,000,000 on the Closing Date;
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WHEREAS, all of the net proceeds of the Subordinated Notes are
to be directly deposited in the Subordinated Notes Proceeds Account established
pursuant to the Subordinated Notes Proceeds Agreement on the Closing Date, prior
to any disbursement of such amounts to finance Project Costs;
WHEREAS, the Partners will, on the Closing Date, deposit
$39,700,152 in immediately available funds in the Partnership Funds Account
established pursuant to the Partnership Funds Agreement to be available to
finance Project Costs and additional funds may thereafter be deposited in such
Account as provided for in the Partnership Funds Agreement;
WHEREAS, subject to and on the terms and conditions specified
in this Agreement the amounts on deposit in the Proceeds Accounts are to be
transferred to the Disbursement Account referred to below to finance Project
Costs when required;
WHEREAS, the amounts in the Proceeds Accounts that are
transferred to the Disbursement Account may be disbursed to or as directed by
the Borrowers (acting jointly through an Authorized Officer of the General
Partner), in each case from time to time upon the satisfaction of the applicable
conditions set forth in this Agreement;
NOW, THEREFORE, it is agreed:
SECTION 1. ESTABLISHMENT OF THE DISBURSEMENT ACCOUNT.
1.01 Establishment of Disbursement Account. The Disbursement
Agent has established in its own name for the benefit of the Lenders an account
(Account No. 702254) (the "Disbursement Account") for purposes of this
Agreement, which Disbursement Account is maintained at the Disbursement Agent's
office located at Las Vegas, Nevada (Wire transfers: First Security Bank of
Nevada, ABA 1224 01668). Subject to the provisions of this Agreement, the
Disbursement Account shall be under the sole dominion and control of the
Disbursement Agent and, except as expressly set forth in this Agreement, the
Disbursement Agent shall have the sole right to cause transfers to be made to,
and/or to make withdrawals from, the Disbursement Account and to exercise all
rights with respect to the Collateral (as defined below) from time to time
therein.
(b) The Disbursement Account will be utilized solely for the
purposes of (x) receiving all transfers ("Transfers") from the Proceeds Accounts
of funds to be disbursed to finance Project Costs and (y) funding disbursements
to finance Project Costs ("Disbursements").
1.02. Investment of Funds Deposited in the Bank Disbursement
Account. So long as any amounts remain in the Disbursement Account, the
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Disbursement Agent will from time to time, at the request of the General
Partner, invest funds on deposit in the Disbursement Account in Cash
Equivalents. All investments made pursuant to this Section 1.02 (and any
instruments evidencing same), and all proceeds thereof, shall be held in the
Disbursement Account as part of the Collateral. All such investments shall be
made in the name of the Disbursement Agent. All risk of loss in respect of
investments made pursuant to this section shall be on the Borrowers.
SECTION 2. PROCEDURES FOR TRANSFERS.
2.01. Transfers. All Transfers will be made from the
respective Proceeds Accounts, in the order provided below, to the Disbursement
Account on each Transfer Date (as defined below) upon receipt by the respective
Account Agent or Agents of written notice (or telephonic notice confirmed in
writing) (together with any notice given by the Disbursement Agent pursuant to
Section 2.05(b) or 2.08, each a "Transfer Notice") from the Disbursement Agent
specifying (x) that the Disbursement Agent has received a disbursement request
(as more fully described below, a "Disbursement Request") executed by an
Authorized Officer of the General Partner satisfying the requirements of Section
2.04 hereof in respect of such Transfer Date and (y) the total aggregate amount
of funds requested pursuant to such Disbursement Request (the "Requested
Amount") and the portion (each an "Account Agent's Portion"), if any, of the
Requested Amount to be transferred from the Proceeds Account held by the
respective Account Agent (i.e., the Requested Amount less the aggregate Account
Agent's Portions for those Account Agents, if any, that, under Section 2.02,
fund such Transfer prior to the respective Account Agent). On each Transfer Date
on which it has received a Transfer Notice, each Account Agent, in the order
specified in Section 2.02, will make a Transfer from its Proceeds Account to the
Disbursement Account equal to its Account Agent's Portion for such Transfer Date
(or, if less, the total amount on deposit in its Proceeds Account).
2.02. Funding Order. All Transfers shall be funded in the
following sequence: (i) first, from the Partnership Funds Account until
exhausted, (ii) second, from the Subordinated Notes Proceeds Account until
exhausted and (iii) third, from the Mortgage Notes Proceeds Account until
exhausted.
2.03. Procedures for Transfers. All Transfers shall be made
only for the purpose of paying Project Costs on a Line Item by Line Item basis
as specified in the Budget. In no event shall the Disbursement Agent be
obligated to request Transfers and/or make Disbursements for any Line Item of
Project Costs in an amount greater than the amount set forth for such Line Item
in the Budget as then in effect, provided that if a Noticed Event of Default (as
defined below) occurs and is continuing the Administrative Agent, acting at the
direction of the Required Lenders, may unilaterally modify the Budget by
increasing or decreasing existing Line Items and/or adding or subtracting Line
Items. The Disbursement Agent shall have no obligation to request any Transfer
or make any Disbursement
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unless all the conditions precedent contained in Section 2.06 are satisfied,
provided, that any such condition may be waived with the consent of the
Administrative Agent, [and, to the extent funds in the Subordinated Notes
Proceeds Account are to be transferred, the Trustee], it being agreed that any
such waiver shall not constitute a waiver of such conditions in respect of
future Transfers and/or Disbursements. In addition, any failure of the
Disbursement Agent to insist upon strict compliance with such conditions shall
not preclude the Disbursement Agent from thereafter insisting on such strict
compliance. Transfers will only be made on the 3rd day of a month (to the extent
occurring prior to the Completion Deadline) and on the Last Drawdown Date (each
such date a "Transfer Date"). Disbursements will only be made to finance Project
Costs when due provided that any amount that remains on deposit in the
Disbursement Account on the 30th day following the Commencement Date will be
returned to the Mortgage Note Proceeds Account unless waived by the
Administrative Agent, in which event such amount will be available to be
thereafter withdrawn from the Disbursement Account and used by the Partnership
for working capital purposes. Transfers and Disbursements will not be made in
respect of any Line Item constituting an unfunded reserve or working capital
earlier than ten Business Days prior to the Commencement Date. To the extent
required to make any Disbursement authorized by this Agreement, the Disbursement
Agent shall, and is hereby authorized to, liquidate Cash Equivalents on deposit
in the Disbursement Account pursuant to its customary practices for liquidating
such securities.
2.04 Disbursement Requests. (a) Each Disbursement Request
shall be in the form of Annex A attached hereto, shall be submitted at least
three Business Days prior to the related Transfer Date, and shall constitute a
representation by the Borrowers to the Disbursement Agent that (i) the work as
described in the Construction Contract (the "Work") for which payment is to be
made from the proceeds of the Transfer has been completed in full compliance
with the Plans and Specifications, and is due to the General Manager or such
other Person as of the date of such Transfer or will be due in the reasonable
judgment of the Borrowers to any of such Persons within 30 days after such
Transfer (with the maximum portion of any Transfer to be used to finance such
future Project Costs not to exceed $3,000,000 in the aggregate unless otherwise
agreed by the Administrative Agent), and (ii) all of the conditions precedent
set forth in this Agreement for the making of such Transfer have been satisfied.
The requesting or making of any Transfer and/or Disbursement by the Disbursement
Agent and/or any Account Agent shall not be deemed an approval or acceptance by
the Disbursement Agent or any Account Agent of any work performed, materials
delivered or of the fabrication of any system or component of the Project.
(b) Disbursements of funds in the Disbursement Account will
only be made for the purposes for which such funds were transferred from the
Proceeds Accounts as specified in the respective Disbursement Request or, if
future Project Costs funded by a Transfer are not actually made when
anticipated, to pay amounts due under the Construction Contract on the next
Transfer Date. Neither
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the Disbursement Agent nor any Account Agent shall have any liability whatsoever
to any Lender, the Trustee, any holder of Subordinated Notes or any other Person
as a result of any Transfer or Disbursement made following the receipt from the
General Partner of a Disbursement Request satisfactory to the Consultant
regardless of any subsequent determination that one or more of the conditions
specified herein to such Transfer or Disbursement were not satisfied.
2.05 Special Transfers. The Disbursement Agent shall have no
obligation to request a Transfer or make a Disbursement to finance materials not
yet incorporated into the Project unless one of the two following provisions is
satisfied:
(i) with respect to building materials and/or components or systems
which have been completed and are not otherwise subject to paragraph (ii) of
this Section 2.05(a), (A) such materials are stored in a secured area and are
protected from theft, vandalism and weather conditions to the reasonable
satisfaction of the Consultant, (B) the Borrowers shall have provided evidence
satisfactory to the Consultant that such materials are owned by the Partnership
and are insured as required by the Credit Agreement, (C) the Borrowers shall
have furnished to the Disbursement Agent a certified detailed inventory of such
stored materials and (D) such stored materials shall be subject to a perfected,
continuing first security interest in favor of the Collateral Agent for the
benefit of the Lenders; and
(ii) with respect to progress payments to a supplier of components or
systems to be used in the Project (A) the Disbursement Agent shall be furnished
with a copy of the purchase order or contract covering such component or system
(and all amendments thereto or modifications thereof), (B) the Partnership's
rights under such purchase orders or contracts shall be subject to a security
interest in favor of the Collateral agent for the benefit of the Lenders and (C)
the Borrowers shall have provided evidence satisfactory to the Consultant that
such components or systems are owned by the Partnership and are insured as
required by the Credit Agreement.
(b) Provided no Event of Default has occurred and is
continuing, the Administrative Agent shall have the right, on any day prior to
the Commencement Date on which interest is payable on the Construction Loans and
all such interest has not been paid by the Borrowers to request in writing that
the Disbursement Agent make a Disbursement, and the Disbursement Agent will make
such Disbursement, from the Disbursement Account in the amount of interest not
so paid to be paid to the Administrative Agent to be applied to such unpaid
interest. To the extent sufficient funds are not on deposit in the Disbursement
Account, the Disbursement Agent will request in writing a Transfer be made on
such date in the amount of the interest shortfall and the respective Account
Agents agree to make any such Transfer, in the order provided in Section 2.02,
to the Disbursement Account to be used to make a Disbursement to fund such
interest shortfall not withstanding whether such date is a Transfer Date.
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2.06 Conditions Precedent. (A) The Disbursement Agent and
Account Agents shall not be obligated to request or make any Transfer and/or to
make any Disbursement unless each of the following conditions shall have been
satisfied:
(I) Accuracy of Representations. All of the representations
and warranties in the Credit Agreement and in the relevant Budget Request shall
be true and correct in all material respects on and as of the date of such
Transfer or Disbursement with the same effect as if made on such date, it being
agreed that the conditions specified in this clause (I) and the following clause
(II) shall be deemed satisfied on the date of each Transfer or Disbursement
unless the Disbursement Agent has received a written notice from the
Administrative Agent or the Required Lenders stating that either or both such
conditions are no longer satisfied.
(II) No Event of Default. No Default or Event of Default shall
have occurred and be continuing on the date of such Transfer or Disbursement.
(III) Required Documentation. The Disbursement Agent shall
have received the following in connection with each Transfer:
(a) a Disbursement Request that is satisfactory to
the Consultant (with the Consultant indicating its satisfaction in
writing);
(b) a written title continuation report and an
endorsement to the Title Policy, in each case satisfactory to the
Collateral Agent indicating that since the preceding Transfer there has
been no change in the state of title (other than Permitted Liens and
such other changes approved by the Collateral Agent), regardless of
whether any such change may affect the priority of the Lien of the
Mortgage, which endorsement shall have the effect of increasing the
coverage of the Title Policy by an amount equal to the Transfer then
being made if such policy (x) does not by its terms provide for such an
increase or (y) has not already been increased to reflect the amount so
transferred;
(c) advice, in each case satisfactory to the
Collateral Agent, from the Title Insurer that a search of the
recorder's office and the [Secretary of State's] office that no leases
of personalty, financing statements or other security interests (other
than those created and perfected by the Credit Documents or otherwise
approved by the Collateral Agent) in any of the personal property
intended to be subjected to the Lien of the Mortgage have been filed
and/or recorded in favor of other parties;
(d) to the extent such information is not furnished
as part of a Disbursement Request, a certification from the General
Manager or the Architect, as appropriate, stating with respect to the
Construction Contract as of the date of such certification: (i) the
amount paid to date
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and the amount owed, whether currently payable or not, as of the date
of the certification; (ii) that the General Manager has been paid in
full (except for any amounts retained by the Borrowers pursuant to the
Construction Contract) for all work and materials theretofore furnished
with respect to the Improvements and/or the Project to the extent such
payments are due (except for the amount to be paid to the General
Contractor out of such Transfer); and (iii) all previous Transfers that
were to be used to make payments to the General Manager were applied
and disbursed in accordance with the Disbursement Request therefor;
(e) waivers of Lien (if not already delivered) from
the Architect and the General Manager, covering all work, labor and
materials previously performed and delivered for which payment has been
made and acceptable to the Consultant;
(f) a complete executed copy of any construction
contracts and all amendments to the Construction Contract, in each case
which have been entered into by or on behalf of the Borrowers since the
preceding Transfer, all of which shall be satisfactory to the
Consultant; and
(g) such additional documentation, data or
information with respect to the Improvements and/or the Project, or in
support of the Disbursement Request, as the Consultant shall reasonably
request.
(B) The initial Transfer from the Subordinated Note Proceeds
Account and/or the Mortgage Notes Proceeds Account will not be made unless each
of the following conditions shall have been satisfied: (i) the Construction
Consultants Certificate referenced in section 4.01 in the Credit Agreement.
(C) The Disbursement Agent will not request a Transfer be made
on or after the Last Drawdown Date (or, if prior thereto, that would reduce the
sum of (i) the aggregate amount on deposit in the Mortgage Notes Proceeds
Account and (ii) the unutilized MN Commitments at such time to less than
$10,000,000), even if the Project shall have been completed, unless and until
each of the following conditions shall have been satisfied:
(a) Consultant's Report. The Disbursement Agent shall have
received advice from the Consultant to the effect that the Project has been
fully completed in accordance with the Plans and Specifications (including any
punch-list items), that all utilities serving the Project have been connected
and are operating and the Project is available for normal use and occupancy.
(b) Final Survey; "As-Built" Plans. The Disbursement Agent
shall have received (a) a final survey showing the completed Improvements, and
(b) final Plans and Specifications and as-built mechanical drawings of
underground site
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work and of interior utility and other building systems, in each case
satisfactory to the Consultant.
(c) Certificates of Occupancy. The Disbursement Agent shall
have received a copy of final certificates of occupancy for all of the space in
the Project to the extent such final certificates of occupancy are a condition
to the lawful use and occupancy of such space in the Project.
2.07 Transfers After an Event of Default. After a Noticed
Event of Default shall have occurred and be continuing, the Disbursement Agent,
acting at the direction of the Administrative Agent will, without a Disbursement
Request having been made therefor, request in writing Transfers to be made (and
the Account Agents will comply with any such requests) whether or not on a
Transfer Date to fund Disbursements directly to the General Manager or any other
Person in payment for Project Costs (which Disbursements the Disbursement Agent
will make on receipt of such Transfers). The Borrowers hereby irrevocably
authorize the Disbursement Agent to make such requests, payments and
applications (and the funding of same by the Account Agents) and no further
authorizations from the Borrowers shall be necessary to permit such Transfers
and Disbursements, and all such Transfers and Disbursements shall be deemed to
have been made pursuant to this Agreement. The Disbursement Agent shall provide
the Borrowers with notice of any Transfer and Disbursement made pursuant to this
section promptly after its occurrence.
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SECTION 3. PLEDGE AND GRANT OF SECURITY INTEREST.
3.01 Pledge and Grant of Security Interest. As collateral
security to secure the full and prompt payment when due (whether at stated
maturity, by acceleration or otherwise) of the Obligations, each Borrower hereby
pledges and assigns to the Disbursement Agent, for the benefit of the Lenders, a
continuing possessory Lien and security interest in all of the right, title and
interest of such Borrower in and to the Disbursement Account, in all funds
deposited therein, in all investments from time to time therein, and in all cash
and non-cash proceeds of any of the foregoing (collectively, the "Collateral"),
from the date of the establishment of the Disbursement Account until the
termination thereof pursuant to the terms hereof. As used herein, "Obligations"
shall mean (i) the principal of and interest on the Loans made under the Credit
Agreement, (ii) all other obligations and indebtedness of each Borrower to the
Lenders now existing or hereafter incurred under, arising out of, or in
connection with the Credit Agreement and the other Credit Documents and the due
performance and compliance by each Borrower with all of the terms, conditions
and agreements contained in the Credit Agreement and the other Credit Documents,
(iii) any and all sums advanced by the Disbursement Agent in order to preserve
the Collateral or to preserve its security interest in the Collateral, (iv) in
the event of any proceeding for the collection or enforcement of any
indebtedness, obligations or liabilities of any Borrower referred to in clauses
(i), (ii) or (iii) above, after an Event of Default shall have occurred and be
continuing, the reasonable expenses of retaking, holding, preparing for sale or
lease, selling or otherwise disposing of or realizing on the Collateral, or of
any exercise by the Disbursement Agent of its rights hereunder, together with
reasonable attorneys' fees and court costs, and (v) all amounts paid by any
Indemnitee (as hereinafter defined) as to which such Indemnitee has the right to
reimbursement under Section 10 hereof.
SECTION 4. REMEDIES UPON A NOTICED EVENT OF DEFAULT;
APPLICATION OF PROCEEDS.
(a) If a Noticed Event of Default shall occur and be
continuing, if and to the extent directed to do so by the Administrative Agent
and notwithstanding any other provision of this Agreement, the Disbursement
Agent shall, subject to any mandatory requirements of applicable law (including
the Gaming Laws) (i) exercise in respect of all of the Collateral in addition to
other rights and remedies provided for herein or otherwise available to it under
applicable law, all of the rights and remedies of a secured party on default
under the Uniform Commercial Code then in effect in the State of New York or
Nevada, (ii) liquidate all Cash Equivalents pursuant to its customary practices
for liquidating such securities and/or (iii) withdraw the Collateral, if any,
from the Disbursement Account and pay the same to the Administrative Agent to be
applied pursuant to Section 7.4 of the Security Agreement executed by the
Partnership. A "Noticed Event of Default" shall mean (i) any Event of Default
arising under
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Section 8.05 of the Credit Agreement with respect to a Borrower and (ii) any
other Event of Default that has been specified as a "Noticed Event of Default"
in a writing from the Administrative Agent to the Borrowers.
(b) It is understood that each of the Borrowers shall remain
jointly and severally liable to the extent of any deficiency between the amount
of the proceeds of the Collateral applied as provided in this Section 4 and the
aggregate amount of the Obligations.
SECTION 5. FURTHER ASSURANCES.
Each Borrower agrees that it will, at any time and from time
to time, at its expense, promptly execute and deliver all further agreements,
instruments and other documents and take all further action that may be
necessary or that the Disbursement Agent or the Administrative Agent may
reasonably request in order to perfect and protect the security interest
purported to be created hereby or otherwise to enable the Disbursement Agent to
exercise and enforce its rights and remedies hereunder.
SECTION 6. TRANSFERS AND OTHER LIENS.
Each Borrower agrees that it will not create or suffer to
exist any Lien upon or with respect to any Collateral except for the security
interest purported to be created hereby.
SECTION 7. ATTORNEY-IN-FACT.
Each Borrower hereby irrevocably appoints, which appointment
shall be coupled with an interest, the Disbursement Agent its attorneys-in-fact,
with full power and authority after the occurrence of and during the continuance
of an Event of Default, in the place and stead of such Borrower and in the name
of such Borrower or otherwise, from time to time in the Disbursement Agent's
discretion to execute any instrument and to take any other action which the
Disbursement Agent may deem necessary or advisable to accomplish the purposes of
this Agreement or to facilitate the assignment or other transfer by the
Disbursement Agent of any or all of its rights hereunder.
SECTION 8. PERFORMANCE BY THE DISBURSEMENT AGENT.
If any Borrower fails to perform any agreement or obligation
contained herein, the Disbursement Agent itself may perform or cause performance
of such agreement or obligation, and the expenses of the Disbursement Agent
incurred in connection therewith shall be payable to the Disbursement Agent by
the Borrowers.
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SECTION 9. RESPONSIBILITY OF THE DISBURSEMENT AGENT AND
ADMINISTRATIVE AGENT.
(a) Neither the Disbursement Agent nor the Administrative
Agent nor any of their respective directors, officers, agents, employees,
affiliates, representatives and agents shall be liable for any failure to invest
or reinvest any cash in the Disbursement Account in accordance herewith or for
any losses incurred by reason of investments made by the Disbursement Agent
pursuant to Section 1.02 hereof. The Disbursement Agent and Administrative Agent
shall act hereunder on the same terms and conditions as are set forth in Annex B
hereto (i.e., Section 10 of the Credit Agreement) (which Annex B is incorporated
by reference herein with each reference therein to (x) "Agent" to include the
Disbursement Agent and Administrative Agent and (y) "Lenders" to include the
Lenders and the holders of the Subordinated Notes, and by accepting the benefits
hereof, each party hereto and each other beneficiary hereof (including all
holders of the Subordinated Notes and all Lenders) shall be deemed to have
agreed to such provisions as so incorporated, and shall hold the Collateral in
accordance with this Agreement and with only such obligations in respect thereof
as herein set forth.
(b) The Disbursement Agent acknowledges and agrees that (i)
all disbursements and releases made pursuant to this Agreement shall be made by
the Disbursement Agent irrespective of, and without deduction for, any
counterclaim, defense, recoupment or set-off and shall be final, (ii) all
service charges and fees with respect to this Agreement or the Disbursement
Account shall be paid by the Borrowers, (iii) it irrevocably waives and
renounces any pledge, security interest (whether consensual, statutory or
otherwise) or right of offset or compensation that it has or may ever have for
its own benefit with respect to the Disbursement Account, (iv) it shall maintain
appropriate books and records with respect to the Disbursement Account in which
shall be recorded all transactions related thereto including, without
limitation, all disbursements hereunder and any investments made by the
Disbursement Agent and shall permit the Administrative Agent or any of its
agents or representatives to inspect and to make copies of such books and
records, as is reasonable, at the Borrowers' sole cost and expense and (v) it
shall exercise its customary efforts and utilize prudence in performing its
duties hereunder in accordance with the terms of this Agreement.
SECTION 10. INDEMNITY.
10.1. Indemnity. (a) Each Borrower jointly and severally
agrees to indemnify, reimburse and hold the Disbursement Agent, each Account
Agent and, to the extent acting hereunder, the Administrative Agent and their
respective successors, assigns, employees, agents and servants (hereinafter in
this Section 10.1 referred to individually as "Indemnitee," and collectively as
"Indemnitees") harmless from any and all liabilities, obligations, damages,
injuries, penalties, claims, demands, actions, suits, judgments and any and all
costs, expenses or disbursements (including reasonable attorneys' fees and
expenses) (for the
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purposes of this Section 10.1 the foregoing are collectively called "expenses")
of whatsoever kind and nature imposed on, asserted against or incurred by any of
the Indemnitees in any way relating to or arising out of this Agreement, or any
other document executed in connection herewith or in any other way connected
with the administration of the transactions contemplated hereby or the
enforcement of any of the terms of, or the preservation of any rights under any
thereof, or in any way relating to or arising out of the use of the Collateral;
provided that no Indemnitee shall be indemnified pursuant to this Section
10.1(a) for expenses to the extent caused by the gross negligence or willful
misconduct of such Indemnitee.
(b) Without limiting the application of Section 10.1(a)
hereof, each Borrower jointly and severally agrees to pay, or reimburse the
Disbursement Agent, for any and all fees, costs and expenses of whatever kind or
nature incurred in connection with the creation, preservation or protection of
the Disbursement Agent's Liens on, and security interest in, the Collateral,
including, without limitation, all fees and taxes in connection with the
recording or filing of instruments and documents in public offices, payment or
discharge of any taxes or Liens upon or in respect of the Collateral, and all
other fees, costs and expenses in connection with protecting, maintaining or
preserving the Collateral and the Disbursement Agent's interest therein, whether
through judicial proceedings or otherwise, or in defending or prosecuting any
actions, suits or proceedings arising out of or relating to the Collateral.
(c) Without limiting the application of Section 10.1(a) or (b)
hereof, each Borrower jointly and severally agrees to pay, indemnify and hold
each Indemnitee harmless from and against any loss, costs, damages and expenses
which such Indemnitee may suffer, expend or incur in consequence of or growing
out of any misrepresentation by such Borrower in this Agreement or in any
writing contemplated by or made or delivered pursuant to or in connection with
this Agreement.
(d) If and to the extent that the obligations of any Borrower
under this Section 10.1 are unenforceable for any reason, such Borrower hereby
agrees to make the maximum contribution to the payment and satisfaction of such
obligations which is permissible under applicable law.
10.2. Indemnity Obligations Secured by Collateral; Survival.
Any amounts paid by any Indemnitee as to which such Indemnitee has the right to
reimbursement shall constitute Obligations secured by the Collateral. The
indemnity obligations of each Borrower contained in this Section 10 shall
continue in full force and effect notwithstanding the full payment of all
Obligations.
SECTION 11. NOTICES, ETC.
Except as otherwise specified herein, all notices, requests,
demands or other communications to or upon the respective parties hereto shall
be deemed
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13
to have been duly given or made when delivered to the party to which such
notice, request, demand or other communication is required or permitted to be
given or made under this Agreement, addressed as follows:
(a) if to the Partnership or the General Partner, at:
1160 Town Center Drive
Suite 200
Las Vegas, Nevada 89134
Attention: John Tipton
(b) if to the Disbursement Agent, at:
First Security Trust of NV
c/o First Security Bank
Trust Dept.
530 Las Vegas Blvd. South
Las Vegas, Nevada 89101
(c) if to the Administrative Agent, at:
175 Water Street
New York, NY 10038
Attention: Robert Karlovitz
(e) if to the Trustee, at:
114 West 47th St.
New York, NY 10036
Attention: Corporate Trust Department
(f) if to each Account Agent, at:
c/o First Security Bank
Trust Dept.
530 Las Vegas Blvd. South
Las Vegas, Nevada 89101
or at such other address as shall have been furnished in writing by any Person
described above to the party required to give notice hereunder.
SECTION 12. MISCELLANEOUS.
This Agreement and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the law of
the
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14
State of New York. This Agreement shall be binding upon each of the parties
hereto and their respective successors and assigns and shall inure to the
benefit of and be enforceable by the Disbursement Agent, the Administrative
Agent, the Account Agents, the Trustee and their respective successors and
assigns. The headings in this Agreement are for purposes of reference only and
shall not limit or define the meaning hereof. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of which
together shall constitute one instrument. Delivery of an executed counterpart of
the signature pages to this Agreement by telecopier shall be effective as
delivery of a manually executed counterpart of this Agreement. This Agreement
shall become effective on the date on which each of the parties shall have
executed and delivered a copy hereof. In the event that any provision of this
Agreement shall prove to be invalid or unenforceable, such provision shall be
deemed to be severable from the other provisions of this Agreement, which shall
remain binding on all parties hereto.
SECTION 13. WAIVER; AMENDMENT.
None of the terms and conditions of this Agreement may be
changed, waived, modified or varied in any manner whatsoever unless in writing
duly signed by each Borrower and the Administrative Agent, provided that (i) if
any such change, waiver or modification is adverse to the interests of the
Disbursement Agent in its capacity as such, then the consent of the Disbursement
Agent in such capacity shall also be required, and (ii) if any such change,
waiver or modification will adversely affect the interests of the holders of the
Subordinated Notes in a manner different than, and more adverse than, the affect
thereof on the Lenders, then the consent of the Trustee shall be required. Upon
the one time written request of the General Partner there may be appointed a new
Disbursement Agent (the "New Disbursement Agent') that is acceptable to the
Administrative Agent who would replace the original Disbursement Agent; provided
that (I) the New Disbursement Agent (x) concurrently replaces the original
Disbursement Agent as MNPA Agent, SNPA Agent and PFA Agent and (y) executes
documents satisfactory to the Administrative Agent pursuant to which it becomes
party to and bound by this Agreement and each of the Agreements governing the
Proceeds Accounts and (II) the original Disbursement Agent has been paid all
amounts owing it by the Partnership. Upon the effectiveness of such replacement,
the original Disbursement Agent will transfer to the new Disbursement Account
established by the New Disbursement Agent all amounts on deposit in the original
Disbursement Account.
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15
NATIONAL WESTMINISTER BANK
PLC, as Administrative Agent
By: /s/ Andrew Weinberg
----------------------------
Name: ANDREW WEINBERG
Title: SENIOR VICE PRESIDENT
FIRST SECURITY TRUST COMPANY
OF NEVADA, as MNPA Agent
By:
----------------------------
Name:
Title:
FIRST SECURITY TRUST COMPANY
OF NEVADA, as SNPA Agent
By:
----------------------------
Name:
Title:
FIRST SECURITY TRUST COMPANY
OF NEVADA, as PFA Agent
By:
----------------------------
Name:
Title:
FIRST SECURITY TRUST COMPANY
OF NEVADA, as Disbursement Agent
By:
----------------------------
Name:
Title:
16
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their duly authorized officers or
General Partners, as the case may be, as of the date first above written.
THE RESORT AT SUMMERLIN,
LIMITED PARTNERSHIP
By The Resort at Summerlin, Inc.,
its General Partner
By: /s/ illegible
------------------------------------
Name:
Title: SR VP [ILLEGIBLE]
THE RESORT AT SUMMERLIN, INC.
By: /s/ illegible
------------------------------------
Name:
Title: SR VP [ILLEGIBLE]
UNITED STATES TRUST COMPANY OF
NEW YORK, as Trustee
By: /s/LOUIS P. YOUNG
------------------------------------
Name: LOUIS P. YOUNG
Title: VICE PRESIDENT
THE RESORT AT SUMMERLIN, INC., as
Representative
By: /s/ illegible
------------------------------------
Name:
Title: SR VP [ILLEGIBLE]
17
NATIONAL WESTMINISTER BANK PLC,
as Administrative Agent
By: /s/ANDREW WEINBERG
------------------------------------
Name: ANDREW WEINBERG
Title: SENIOR VICE PRESIDENT
FIRST SECURITY TRUST COMPANY
OF NEVADA, as MNPA Agent
By: /s/MARK DRESCHLER
------------------------------------
Name: MARK DRESCHLER
Title: PRESIDENT
FIRST SECURITY TRUST COMPANY
OF NEVADA, as SNPA Agent
By: /s/MARK DRESCHLER
------------------------------------
Name: MARK DRESCHLER
Title: PRESIDENT
FIRST SECURITY TRUST COMPANY
OF NEVADA, as PFA Agent
By: /s/MARK DRESCHLER
------------------------------------
Name: MARK DRESCHLER
Title: PRESIDENT
FIRST SECURITY TRUST COMPANY
OF NEVADA, as Disbursement Agent
By: /s/MARK DRESCHLER
------------------------------------
Name: MARK DRESCHLER
Title: PRESIDENT
18
ANNEX A
DISBURSEMENT REQUEST
[Date]
- -----------------------
as Disbursement Agent
Attention: [ ]
re Disbursement Request for $[ ]
Gentlemen:
Reference is made to the Disbursement Agreement, dated as of
December 30, 1997 (the "Disbursement Agreement"), among THE RESORT AT SUMMERLIN,
LIMITED PARTNERSHIP (the "Partnership"), THE RESORT AT SUMMERLIN, INC.
("Summerlin, Inc." and together with the Partnership, the "Borrowers"), UNITED
STATES TRUST COMPANY OF NEW YORK, as Trustee, NATIONAL WESTMINSTER BANK PLC, as
Administrative Agent, FIRST SECURITY TRUST COMPANY OF NEVADA as MNPA Agent,
FIRST SECURITY TRUST COMPANY OF NEVADA as SNPA Agent, FIRST SECURITY TRUST
COMPANY OF NEVADA as PFA Agent and FIRST SECURITY TRUST COMPANY OF NEVADA as
Disbursement Agent. Except as otherwise defined herein, terms used herein and
defined in the Disbursement Agreement (or in the Credit Agreement referred to
therein) shall be used herein as so defined.
The Borrowers hereby request that $[ ] (the "Transfer") be
transferred from the applicable Proceeds Accounts into the Disbursement Account
for application by the Borrowers to pay for Project Costs. In connection with
the requested Transfer, the Borrowers hereby represent, warrant and certify as
follows:
1. The amount of the Transfer is no greater than the sum of
(a) the unpaid Work in place and the unpaid cost of materials for the Work
suitably stored on the Real Property on which the Project is located or will be
located (the "Premises") or elsewhere as provided in the Construction Contract
in respect of the Improvements to be constructed on such Real Property, less any
amounts permitted as of this date to be retained under such Construction
Contracts, (b) the following Project Costs not related to Work and materials for
Work that are now due and payable: [specify by Line Item] and (c) other amounts
required to be expended after [applicable Transfer Date] and prior to [next
Transfer Date] for Project Costs, as follows: [specify Line Items and when due].
2. The Work performed as of the date hereof is in accordance
with the Plans and Specifications and the Transfer is appropriate in light of
the percentage of Work completed
19
ANNEX A
Page 2
and the unpaid cost of stored materials. The undersigned has no reason to
believe that the Commencement Date will not occur on or prior to the Completion
Deadline Date.
3. The Borrowers have not received any notice and have no
knowledge of any Liens or claims of Lien either filed or threatened against the
Premises, except the Liens established pursuant to the Security Documents,
Permitted Liens and other Liens which have been insured by a title endorsement
or discharged by posting appropriate bonds.
4. All sums previously requisitioned pursuant to a
Disbursement Request have been applied for the purposes set forth in the
Disbursement Request or are being applied on [the relevant Transfer Date] to pay
for Work as permitted by Section 2.04(b) of the Disbursement Agreement.
5. The Budget accurately sets forth the anticipated Project
Costs to complete the Project, which in the aggregate are less than or equal to
the sum of (i) amounts on deposit in the Disbursement Account and in the
Proceeds Accounts and (ii) the unutilized MN Commitments under the Credit
Agreement.
6. After giving effect to the proposed uses of the funds to be
transferred to the Disbursement Account, the aggregate amount expended for each
Line Item will not exceed the amount specified for such Line Item in the Budget
as now in effect.
[7. If the Work for which payment is to be made from the
proceeds of the Transfer is for tenant improvement work required to be performed
by the Borrowers under any leases, the relevant tenant(s) has approved such
Work.]
8. On the date hereof, both before and after giving effect to
the application of the proceeds of the Transfer (i) there is no Default or Event
of Default under the Credit Agreement, and (ii) all representations and
warranties contained in the Credit Agreement and the other Credit Documents are
true and correct in all material respects with the same effect as though made on
the date hereof except to the extent that they expressly relate to an earlier
date.
THE RESORT AT SUMMERLIN, INC.,
as General Partner
By:
------------------------------------
Name:
Title:
20
ANNEX B
THE DISBURSEMENT AGENT
[SECTION 10 OF CREDIT AGREEMENT TO BE INSERTED HERE