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Preview Full Doc	2000	Account Agreement Account Agreement (16K) Doc #391737: Click preview link for longer preview. ACCOUNT AGREEMENT ----------------- THIS ACCOUNT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation ("Owner"), SUNTRUST BANK, a Georgia banking corporation, as trustee (in such capacity, together with its successors and assigns, the "Trustee") for itself and for the benefit of the Holders (as defined herein), pursuant to the Indenture (as defined herein), and NORWEST BANK MINNESOTA, N.A., a national association ("Norwest"), as securities intermediary (Norwest, in such capacity, together with its successors and assigns, the "Securities Intermediary"), upon the following terms and conditions: RECITALS A. Owner and the Trustee are parties to that certain Pledge and Assignment Agreement of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Pledge Agreement"), which has been acknowledged by the Securities Intermediary. B. Owner desires that the Securities Intermediary hold certain financial assets and perform certain services with respect to such financial assets. C. The Securities Intermediary is willing to hold such assets and to perform such services, subject to the terms and conditions of this Agreement and the Pledge Agreement. NOW, THEREFORE, for the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. All capitalized terms used herein without definition shall have the meanings given to them in the Pledge Agreement. Terms used but not otherwise defined herein that are defined in the Uniform Commercial Code (as defined in the Pledge Agreement) shall have the meanings given in the Uniform Commercial Code. 2. Establishment of Securities Accounts. (a) The Securities Intermediary hereby confirms and agrees that it has established Account No. 13645-100, in the name of Windsor Woodmont Black Hawk Resort Corp. Clearing Account ("Clearing Account"), Account No. 13645- 102, in the name of Windsor Woodmont Black Hawk Resort Corp. Trustee Construction Disbursement Account (the "Construction Disbursement Account"), Account No. 13645-103, in the name of Windsor Woodmont Black Hawk Resort Corp. Trustee Completion Reserve Account (the "Completion Reserve Account", together with the Construction Disbursement Account, the "Construction Accounts", together with the Clearing Account, the "Securities {PAGE} Accounts"), subject to the terms and conditions of this Agreement, the Cash Collateral and Disbursement Agreement among the Trustee, the Owner, Hyatt Gaming Management, Inc., Norwest, as disbursement agent (Norwest, in such capacity, together with its successors and assigns, the "Disbursement Agent"), First American Heritage Title Company, as the construction escrow agent, and RE TECH+, Inc., as the independent construction consultant (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Disbursement Agreement"), and the Pledge Agreement. The Securities Intermediary agrees (i) to maintain the Securities Accounts at its office at Midwest Plaza West Tower, 801 Nicollet Mall, Suite 700, Minneapolis, MN 55479-0065, (ii) not to change the name or account number of the Securities Accounts without the prior written consent of the Trustee and (iii) to close the Securities Accounts upon the occurrence of the Final Accounts Disbursement pursuant to the Disbursement Agreement. (b) The Securities Accounts are accounts in which financial assets are or may be credited and the Securities Intermediary shall hold such financial assets in accordance with this Agreement and the Pledge Agreement. The term "hold" shall include the deposit of any part of or all of the financial assets with the Depositary Trust Company, the Federal Reserve Book Entry System or any other centralized securities depositary system or financial intermediary, whether presently or hereafter organized. (c) Title to the financial assets held in the Securities Accounts shall be registered in the name of the Securities Intermediary who shall credit on its 391737	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Account Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – AGREEMENT ----------------- THIS ACCOUNT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation ("Owner"), SUNTRUST BANK, a Georgia banking corporation, as trustee (in such capacity, together with its successors and assigns, the "Trustee") for itself and for the benefit _____________ Windsor Woodmont Black Hawk Resort Corp. – in the Uniform Commercial Code. 2. Establishment of Securities Accounts. (a) The Securities Intermediary hereby confirms and agrees that it has established Account No. 13645-100, in the name of Windsor Woodmont Black Hawk Resort Corp. Clearing Account ("Clearing Account"), Account No. 13645- 102, in the name of Windsor Woodmont Black Hawk Resort Corp. Trustee Construction Disbursement Account (the "Construction Disbursement Account"), Account No. 13645- _____________ Windsor Woodmont Black Hawk Resort Corp. – that it has established Account No. 13645-100, in the name of Windsor Woodmont Black Hawk Resort Corp. Clearing Account ("Clearing Account"), Account No. 13645- 102, in the name of Windsor Woodmont Black Hawk Resort Corp. Trustee Construction Disbursement Account (the "Construction Disbursement Account"), Account No. 13645-103, in the name of Windsor Woodmont Black Hawk Resort Corp. Trustee Completion Reserve Account (the "Completion Reserve _____________ Windsor Woodmont Black Hawk Resort Corp. – Account No. 13645- 102, in the name of Windsor Woodmont Black Hawk Resort Corp. Trustee Construction Disbursement Account (the "Construction Disbursement Account"), Account No. 13645-103, in the name of Windsor Woodmont Black Hawk Resort Corp. Trustee Completion Reserve Account (the "Completion Reserve Account", together with the Construction Disbursement Account, the "Construction Accounts", together with the Clearing Account, the "Securities {PAGE} Accounts"), subject to the _____________ WINDSOR WOODMONT BLACK HAWK RESORT, CORP. – Remainder of page intentionally left blank; signatures on following page] - 5 - {PAGE} IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. OWNER: WINDSOR WOODMONT BLACK HAWK RESORT, CORP. , a Colorado corporation By: -------------------------------- Name: -------------------------------- Title: -------------------------------- TRUSTEE: SUNTRUST BANK, a Georgia banking corporation By: -------------------------------- Name: -------------------------------- Title: -------------------------------- SECURITIES INTERMEDIARY: NORWEST BANK MINNESOTA, N.A., a national association By: -------------------------------- Name: -------------------------------- Title: -------------------------------- {/ _____________ dt 1364691
Preview Full Doc	2004	Asset Purchase Agreement Asset Purchase Agreement (138K) Doc #391674: Click preview link for longer preview. ASSET PURCHASE AGREEMENT By and Between Windsor Woodmont Black Hawk Resort Corp. and Ameristar Casinos, Inc. Dated as of May 28, 2004 {PAGE} TABLE OF CONTENTS ARTICLE I DEFINITIONS.........................................................1 1.1 Definitions.................................................1 ARTICLE II TRANSACTION........................................................7 2.1 Acquired Assets.............................................7 2.2 Excluded Assets.............................................9 2.3 Assumption of Liabilities...................................10 2.4 Cure Amounts................................................11 2.5 Consideration...............................................11 2.6 Payment of Cash Purchase Price..............................12 2.7 Post-Closing Adjustment to Cash Purchase Price..............12 2.8 The Closing.................................................13 2.9 Deliveries at the Closing...................................14 2.10 Prorations..................................................14 2.11 Bankruptcy Court Approvals and Buyer Protections............14 ARTICLE III SELLER'S REPRESENTATIONS AND WARRANTIES...........................16 3.1 Organization................................................16 3.2 Authority Relative to Agreement.............................16 3.3 No Conflict.................................................17 3.4 Property....................................................17 3.5 Assigned Contracts..........................................18 3.6 Compliance with Laws........................................18 3.7 Litigation..................................................18 3.8 Taxes.......................................................18 3.9 Financial Statements........................................19 3.10 Assets Title................................................19 3.11 Absence of Changes..........................................19 3.12 Environmental Matters.......................................19 3.13 Brokers and Investment Advisors.............................19 ARTICLE IV BUYER'S REPRESENTATIONS AND WARRANTIES.............................20 4.1 Organization of Buyer.......................................20 4.2 Authority Relative to Agreement.............................20 4.3 Consents and Approvals; No Conflict; Required Filing and Consents................................................20 4.4 Brokers and Investment Advisors.............................20 4.5 Bankruptcy..................................................21 i {PAGE} 4.6 Litigation..................................................21 4.7 Sufficiency of Funds........................................21 4.8 No Ineligible Person........................................21 4.9 Acquired Assets "AS IS"; Buyer's Acknowledgment Regarding Same..............................................21 ARTICLE V COVENANTS...........................................................22 5.1 General.....................................................22 5.2 Bankruptcy Court Approval...................................22 5.3 Regulatory and Other Authorizations; Consents and Best Efforts................................................23 5.4 Operation of Business.......................................24 5.5 Compliance with Laws........................................24 5.6 Inspections by Buyer........................................25 5.7 Confidentiality.............................................25 5.8 Post-Closing Books and Records..............................25 5.9 Further Assurances..........................................26 5.10 Employee Matters............................................26 5.11 Allocation..................................................26 5.12 Ineligible Person...........................................26 5.13 Preliminary Title Report....................................27 ARTICLE VI CONDITIONS TO OBLIGATION TO CLOSE..................................28 6.1 Conditions to Buyer's and Seller's Obligation...............28 6.2 Conditions to Buyer's Obligation............................28 6.3 Conditions to Seller's Obligation...........................29 ARTICLE VII TERMINATION.......................................................30 7.1 Termination of Agreement....................................30 7.2 Effect of Termination.......................................32 7.3 Deposit.....................................................32 ARTICLE VIII INDEMNIFICATION..................................................32 8.1 Indemnification by Seller...................................32 8.2 Indemnification by Buyer....................................33 8.3 Indemnification Procedure...................................34 8.4 Payment of Indemnification..................................35 8.5 Treatment of Indemnity Payments.............................35 8.6 Insurance...................................................35 ii {PAGE} ARTICLE IX MISCELLANEOUS......................................................35 9.1 Survival....................................................35 9.2 Press Releases and Public Announcements.....................35 9.3 Third-Party Beneficiaries...................................36 9.4 Entire Agreement............................................36 9.5 Succession and Assignment...................................36 9.6 Headings....................................................36 9.7 Notices.....................................................36 9.8 Governing Law; Jurisdiction.................................37 9.9 Amendments and Waivers......................................38 9.10 Severability................................................38 9.11 Expenses....................................................38 9.12 Construction................................................38 9.13 Incorporation of Exhibits and Schedules.....................38 9.14 Tax Disclosure Authorization................................39 9.15 Counterparts and Facsimile Signatures.......................39 iii {PAGE} EXHIBITS -------- Exhibit A -- Matters to be Addressed in Confirmation Order Exhibit B -- Real Property Exhibit C -- Closing Deliveries SCHEDULES --------- Schedule 2.1(c) -- General Intangibles Schedule 2.1(d) -- Assigned Contracts Schedule 2.1(h) -- Intellectual Property Schedule 2.1(i) -- Seller Claims Schedule 2.2(l) -- Additional Excluded Assets Schedule 2.3(d) -- Employee Obligations Schedule 2.6(b) -- Base Net Asset Value Schedule 3.4 -- Liens Schedule 3.4(c) -- Tangible Property Schedule 3.7 -- Litigation Schedule 3.8 -- Taxes Schedule 3.9 -- Financial Statements Schedule 5.10 -- Employees Schedule 6.2(d) -- Material Adverse Effect iv {PAGE} ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT ("Agreement") is entered into as of May 28, 2004, by and between Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation ("Seller"), as debtor in possession in that certain proceeding entitled "In re Windsor Woodmont Black Hawk Resort Corporation," Case No. 02-28089-ABC, United States Bankruptcy Court, District of Colorado (the "Bankruptcy Case"), and Ameristar Casinos, Inc., a Nevada corporation ("Buyer"). RECITALS -------- A. WHEREAS, on or about November 7, 2002, Seller filed a voluntary petition for relief under Chapter 11 of Title 11 of the United States Code, 11 U.S.C. Section 101 et seq., thereby commencing the Bankruptcy Case in the United States Bankruptcy Court for the District of Colorado (the "Bankruptcy Court"); B. WHEREAS, Seller's business consists of the operation of the Mountain High Casino located in Black Hawk, Colorado (the "Business"); C. WHEREAS, subject to the terms and conditions set forth herein, Seller desires to sell, assign, transfer and convey to Buyer certain specified assets and liabilities of the Business; D. WHEREAS, subject to the terms and conditions set forth herein, Buyer desires to purchase and assume from Seller such assets and liabilities; and E. WHEREAS, in addition to other conditions set forth in this Agreement, the consummation of the transactions contemplated by this Agreement is subject to confirmation of the Plan by the Bankruptcy Court. NOW, THEREFORE, in consideration of the mutual promises herein made, and in consideration of the representations, warranties, and covenants herein contained, the parties agree as follows: ARTICLE I. DEFINITIONS ----------- 1.1 Definitions. ----------- As used in this Agreement, and unless the context requires a different meaning, the following terms have the meanings indicated: "Accounts Receivable" means all accounts, accounts receivable, contract rights to payment, notes, and notes receivable of Seller, other than any amounts owed to Seller by Hyatt Gaming Management, Inc. and the approximately $80,000 owed to Seller by Daniel P. Robinowitz. "Acquired Assets" has the meaning set forth in Section 2.1. {PAGE} "Ad Hoc Committee" means that ad hoc committee constituted of certain of the holders of Seller's 13% Series B First Mortgage Notes due 2007. "Affiliate" means any Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with the Person specified. "Antitrust Laws" has the meaning set forth in Section 5.3(a). "Assigned Contracts" means all Contracts set forth on Schedule 2.1(d). "Assumed Liabilities" has the meaning set forth in Section 2.3. "Avoidance Actions" means all rights or causes of action arising under Sections 506(c), 510, 544, 545, 547, 548, 549, 550, 551 and 553 of the Bankruptcy Code and all defenses and rights of offset/recoupment relating to proofs of claim asserted or deemed asserted in the Bankruptcy Case. "Bankruptcy Case" has the meaning set forth in the preface above. "Bankruptcy Code" means Chapter 11 of Title 11 of the United States Code, 11 U.S.C. ss.ss.101 et seq. "Bankruptcy Court" has the meaning set forth in the Recitals above. "Base Net Asset Value" has the meaning set forth in Section 2.6(b)(i)(B). "Books and Records" has the meaning set forth in Section 2.1(k). "Breakup Fee" has the meaning set forth in Section 2.11(e). "Business" has the meaning set forth in the Recitals above. "Buyer" has the meaning set forth in the preface above. "Buyer Protection Approval Motion" has the meaning set forth in Section 2.11(a). "Buyer Protection Order" has the meaning set forth in Section 2.11(a). "Cash" means cash (other than Casino Cash) and cash equivalents (including marketable securities and short-term investments). "Cash Purchase Price" has the meaning set forth in Section 2.5. "Casino Cash" means cash in cashiers' cages, vaults, carts, drawers, cash registers and gaming devices and machines. "Casino Liabilities" means net circulating chip and token float, ticket-in ticket-out liabilities, slot club liabilities, progressive jackpot liabilities, 2 {PAGE} slot machine and poker liabilities and outstanding coupons, outstanding accrued "Peak Shopper Points," accrued "Club Points" and unclaimed jackpot liabilities. "Claim" has the meaning set forth in Section 8.3(a). "CLGCC" means the Colorado Limited Gaming Control Commission. "Closing" has the meaning set forth in Section 2.8. "Closing Adjustment" has the meaning set forth in Section 2.7(b)(i). "Closing Date" has the meaning set forth in Section 2.8. "Closing Date Statement" has the meaning set forth in Section 2.7(b). "Closing Payment" has the meaning set forth in Section 2.6(b)(i). "Code" means the Internal Revenue Code of 1986, as amended. "Competing Transaction" has the meaning set forth in Section 2.11(b). "Confidential Information" means any information concerning the business and affairs of Seller that is not already generally available to the public. "Confirmation Order" means the order entered by the Bankruptcy Court in the Bankruptcy Case confirming the Plan, which order shall, at a minimum, contain the provisions set forth in Exhibit A and shall otherwise be reasonably acceptable to Buyer with respect to matters that affect Buyer's interest in the Agreement or the transactions contemplated hereby. "Consent" means any consent, waiver, approval, permit or authorization of any Person. "Contract" means any contract, agreement, purchase order, sale order, lease, license, note, instrument or obligation to which Seller is a party. "Cure Amounts" has the meaning set forth in Section 2.4. "Damages" means any demand, claim, action, suit, proceeding, loss, deficiency, liability, obligation, commitment, Tax, cost, expense or damage whatsoever, including costs and expenses of investigating or defending any of the foregoing or a party's right to indemnification with respect thereto, and including reasonable fees and expenses of attorneys, accountants and experts in connection therewith. "Deductible" has the meaning set forth in Section 8.1(c). "Deposit" has the meaning set forth in Section 2.6(a). "Disclosure Statement" means the written disclosure statement that relates to the Plan, as such disclosure statement may be amended, modified or supplemented from time to time. 3 {PAGE} "DOJ" has the meaning set forth in Section 5.3(a). "EBITDA" means, for any applicable period, earnings before interest, taxes, depreciation and amortization, such amounts to be calculated consistently with Buyer's past practice and, to the extent applicable, as reported in, or consistent with, the publicly-issued earnings press release of Buyer covering the earnings for such period. "Employees" has the meaning set forth in Section 5.10. "Environmental, Health and Safety Requirements" means all federal, state, local, and foreign laws, statutes, rules, regulations, ordinances, codes, plans, orders, decrees and settlements concerning public health and safety, worker health and safety, and pollution or protection of the environment, including all those relating to the presence, use, production, generation, handling, transportation, treatment, storage, disposal, distribution, labeling, testing, processing, discharge, release, threatened release, transportation, control, or cleanup of any hazardous or toxic materials, substances, wastes, pollutants, contaminants or chemicals, industrial, or hazardous or toxic wastes, as such 391674	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Asset Purchase Agreement: Windsor Woodmont Black Hawk Resort Corp. – {DOCUMENT} {TYPE}EX-10.1 {SEQUENCE}2 {FILENAME}windsor10-1.txt {DESCRIPTION}AGREEMENT {TEXT} EXHIBIT 10.1 ASSET PURCHASE AGREEMENT By and Between Windsor Woodmont Black Hawk Resort Corp. and Ameristar Casinos, Inc. Dated as of May 28, 2004 {PAGE} TABLE OF CONTENTS ARTICLE I DEFINITIONS.........................................................1 1.1 Definitions.................................................1 ARTICLE II TRANSACTION........................................................7 2.1 Acquired _____________ Windsor Woodmont Black Hawk Resort Corp. – 10 -- Employees Schedule 6.2(d) -- Material Adverse Effect iv {PAGE} ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT ("Agreement") is entered into as of May 28, 2004, by and between Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation ("Seller"), as debtor in possession in that certain proceeding entitled "In re Windsor Woodmont Black Hawk Resort Corporation," Case No. 02-28089-ABC, United States Bankruptcy _____________ Windsor Woodmont Black Hawk Resort Corp. – day after being sent to the recipient by facsimile transmission (provided receipt has been confirmed) or electronic mail, and addressed to the intended recipient as set forth below: To Seller: Windsor Woodmont Black Hawk Resort Corp. 111 Richman Street Black Hawk, Colorado 80422 Attention: Mike Armstrong Telephone: (720) 946-6673 Telecopier: (303) 582-3634 E-Mail: Mike.Armstrong@mhcasino.com 36 {PAGE} with copies to: _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – facsimile shall be deemed to be an original signature hereunder. 39 {PAGE} IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. SELLER: WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation By: -------------------------------- Name: Title: BUYER: AMERISTAR CASINOS, INC., a Nevada corporation By: -------------------------------- Name: Title: Solely with respect to Section 2.11(b) and Section 9.9 AD _____________ dt 1364673 ; Ameristar Ameristar Casinos, Inc. ( Casinos & Gaming ) As referenced in this Asset Purchase Agreement: Ameristar Casinos, Inc – DOCUMENT} {TYPE}EX-10.1 {SEQUENCE}2 {FILENAME}windsor10-1.txt {DESCRIPTION}AGREEMENT {TEXT} EXHIBIT 10.1 ASSET PURCHASE AGREEMENT By and Between Windsor Woodmont Black Hawk Resort Corp. and Ameristar Casinos, Inc . Dated as of May 28, 2004 {PAGE} TABLE OF CONTENTS ARTICLE I DEFINITIONS.........................................................1 1.1 Definitions.................................................1 ARTICLE II TRANSACTION........................................................7 2.1 Acquired Assets.............................................7 2.2 _____________ Ameristar Casinos, Inc – possession in that certain proceeding entitled "In re Windsor Woodmont Black Hawk Resort Corporation," Case No. 02-28089-ABC, United States Bankruptcy Court, District of Colorado (the "Bankruptcy Case"), and Ameristar Casinos, Inc ., a Nevada corporation ("Buyer"). RECITALS -------- A. WHEREAS, on or about November 7, 2002, Seller filed a voluntary petition for relief under Chapter 11 of Title 11 of the United _____________ Ameristar Casinos, Inc – Avenue of the Stars, Thirty-Third Floor Los Angeles, California 90067 Attention: Ronn S. Davids Telephone: (310) 407-4095 Telecopier: (310) 407-9090 E-Mail: RDavids@ktbslaw.com To Buyer: Ameristar Casinos, Inc . 3773 Howard Hughes Parkway, Suite 490S Las Vegas, Nevada 89109 Attention: Peter C. Walsh Telephone: (702) 567-7048 Telecopier: (702) 733-8478 E-Mail: Peter.Walsh@ameristarcasinos.com with _____________ AMERISTAR CASINOS, INC – WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. SELLER: WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation By: -------------------------------- Name: Title: BUYER: AMERISTAR CASINOS, INC ., a Nevada corporation By: -------------------------------- Name: Title: Solely with respect to Section 2.11(b) and Section 9.9 AD HOC COMMITTEE By: -------------------------------- Name: Title: {PAGE} AGREEMENT OF AD HOC _____________ dt 1397129 ;	Gibson Dunn Gibson, Dunn & Crutcher ( Legal ) As referenced in this Asset Purchase Agreement: Gibson, Dunn – Hughes Parkway, Suite 490S Las Vegas, Nevada 89109 Attention: Peter C. Walsh Telephone: (702) 567-7048 Telecopier: (702) 733-8478 E-Mail: Peter.Walsh@ameristarcasinos.com with a copy to: Gibson, Dunn & Crutcher LLP 2029 Century Park East Los Angeles, California 90067-3026 Attention: Jonathan K. Layne Telephone: (310) 552-8500 Telecopier: (310) 551-8741 E-Mail: jlayne@gibsondunn.com Any _____________ dt 1483553 ; Irell & Manella Irell & Manella ( Legal ) As referenced in this Asset Purchase Agreement: Irell & Manella – Corp. 111 Richman Street Black Hawk, Colorado 80422 Attention: Mike Armstrong Telephone: (720) 946-6673 Telecopier: (303) 582-3634 E-Mail: Mike.Armstrong@mhcasino.com 36 {PAGE} with copies to: Irell & Manella LLP 840 Newport Center Drive, Suite 400 Newport Beach, California 92660 Attention: William N. Lobel Telephone: (949) 760-0991 Telecopier: (949) 760-5200 E-Mail: wlobel@irell.com and to: _____________ dt 1552447
Preview Full Doc	2004	Asset Purchase Agreement Asset Purchase Agreement (141K) Doc #951737: Click preview link for longer preview. ASSET PURCHASE AGREEMENT BY AND BETWEEN WINDSOR WOODMONT BLACK HAWK RESORT CORP. AND AMERISTAR CASINOS, INC. DATED AS OF MAY 28, 2004 <PAGE> TABLE OF CONTENTS <TABLE> <S> <C> ARTICLE I DEFINITIONS.............................................. . . . 951737	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Asset Purchase Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – EXHIBIT 10.1 EXECUTION COPY ASSET PURCHASE AGREEMENT BY AND BETWEEN WINDSOR WOODMONT BLACK HAWK RESORT CORP. AND AMERISTAR CASINOS, INC. DATED AS OF MAY 28, 2004 TABLE OF CONTENTS ARTICLE I DEFINITIONS.................................................................................................. 1 1.1 Definitions.......................................................................................... 1 ARTICLE II TRANSACTION................................................................................................. 7 _____________ Windsor Woodmont Black Hawk Resort Corp. – 10 -- Employees Schedule 6.2(d) -- Material Adverse Effect iv ASSET PURCHASE AGREEMENT THIS ASSET PURCHASE AGREEMENT ("Agreement") is entered into as of May 28, 2004, by and between Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation ("Seller"), as debtor in possession in that certain proceeding entitled "In re Windsor Woodmont Black Hawk Resort Corporation," Case No. 02-28089-ABC, United States Bankruptcy _____________ Windsor Woodmont Black Hawk Resort Corp. – day after being sent to the recipient by facsimile transmission (provided receipt has been confirmed) or electronic mail, and addressed to the intended recipient as set forth below: To Seller: Windsor Woodmont Black Hawk Resort Corp. 111 Richman Street Black Hawk, Colorado 80422 Attention: Mike Armstrong Telephone: (720) 946-6673 Telecopier: (303) 582-3634 E-Mail: Mike.Armstrong@mhcasino.com 36 with copies to: _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – facsimile shall be deemed to be an original signature hereunder. 39 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. SELLER: WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation By: /s/ Jerry L. Dauderman -------------------------------------------- Name:Jerry L. Dauderman Title: CEO BUYER: AMERISTAR CASINOS, INC., a Nevada corporation By: /s/ Peter C. Walsh -------------------------------------------- Name: Peter C. _____________ dt 1866690 ; Ameristar Ameristar Casinos, Inc. ( Casinos & Gaming ) As referenced in this Asset Purchase Agreement: AMERISTAR CASINOS, INC – EXHIBIT 10.1 EXECUTION COPY ASSET PURCHASE AGREEMENT BY AND BETWEEN WINDSOR WOODMONT BLACK HAWK RESORT CORP. AND AMERISTAR CASINOS, INC . DATED AS OF MAY 28, 2004 TABLE OF CONTENTS ARTICLE I DEFINITIONS.................................................................................................. 1 1.1 Definitions.......................................................................................... 1 ARTICLE II TRANSACTION................................................................................................. 7 2.1 Acquired Assets...................................................................................... _____________ Ameristar Casinos, Inc – possession in that certain proceeding entitled "In re Windsor Woodmont Black Hawk Resort Corporation," Case No. 02-28089-ABC, United States Bankruptcy Court, District of Colorado (the "Bankruptcy Case"), and Ameristar Casinos, Inc ., a Nevada corporation ("Buyer"). RECITALS A. WHEREAS, on or about November 7, 2002, Seller filed a voluntary petition for relief under Chapter 11 of Title 11 of the United _____________ Ameristar Casinos, Inc – Avenue of the Stars, Thirty-Third Floor Los Angeles, California 90067 Attention: Ronn S. Davids Telephone: (310) 407-4095 Telecopier: (310) 407-9090 E-Mail: RDavids@ktbslaw.com To Buyer: Ameristar Casinos, Inc . 3773 Howard Hughes Parkway, Suite 490S Las Vegas, Nevada 89109 Attention: Peter C. Walsh Telephone: (702) 567-7048 Telecopier: (702) 733-8478 E-Mail: Peter.Walsh@ameristarcasinos.com with _____________ AMERISTAR CASINOS, INC – Agreement as of the date first above written. SELLER: WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation By: /s/ Jerry L. Dauderman -------------------------------------------- Name:Jerry L. Dauderman Title: CEO BUYER: AMERISTAR CASINOS, INC ., a Nevada corporation By: /s/ Peter C. Walsh -------------------------------------------- Name: Peter C. Walsh Title: Senior Vice President and General Counsel Solely with respect to Section 2.11(b) and Section _____________ dt 1869192 ;	Ableco Finance Ableco Finance LLC ( Financial ) As referenced in this Asset Purchase Agreement: ABLECO FINANCE LLC – the Ad Hoc Committee hereby agrees that such consents or approvals will not be unreasonably withheld or delayed. AD HOC COMMITTEE: By: /s/ Kevin Genda ---------------------------------------- Name: Kevin Genda Title: SVP - ABLECO FINANCE LLC 41 _____________ dt 1699405
Preview Full Doc	2004	Plan of Reorganization Plan of Reorganization (104K) Doc #391672: Click preview link for longer preview. PLAN OF REORGANIZATION Exhibit 2.1 IN THE UNITED STATES BANKRUPTCY COURT DISTRICT OF COLORADO In re Case No. 02-28089-ABC WINDSOR WOODMONT BLACK HAWK RESORT CORPORATION, a/k/a the Black Chapter 11 Hawk Casino by Hyatt, a Colorado Corporation, EIN 75-2720870, Debtor. --------- . . . 391672	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) ; Ameristar Ameristar Casinos, Inc. ( Casinos & Gaming ) As referenced in this Plan of Reorganization: Ameristar Casinos, Inc – interest on the Claim accruing after the Petition Date. Moreover, any portion of a Claim that is satisfied or released during the Case is not an Allowed Claim. "Ameristar" means Ameristar Casinos, Inc ., a Nevada corporation. "Ameristar Stock" means the common stock of Ameristar to be issued to the Debtor in accordance with Section 2.5(b) of the Asset Purchase Agreement _____________ dt 1005324 ; Paul Steelman Paul Steelman, Ltd. ( Miscellany ) As referenced in this Plan of Reorganization: Paul Steelman, Ltd – applicable, and as determined under Bankruptcy Code section 506(a). "Secured Tax Claim" means a governmental unit's Secured Claim for unpaid taxes arising before the Petition Date. "Steelman" means Paul Steelman, Ltd . and Paul Steelman, an individual, the architect for the Casino. "Steelman ADR" means the alternative dispute resolution proceedings between the Debtor and Steelman. "Substantial Contribution Claims" means the Claims _____________ dt 1019741 ;	Ableco Finance Ableco Finance LLC ( Financial ) As referenced in this Plan of Reorganization: Ableco Finance LLC – defined in sections 1.1 and 2.1 of the Asset Purchase Agreement. "Ad Hoc Committee" means the Ad Hoc Committee of First Mortgage Noteholders, comprised of the following members: Ableco Finance LLC , Farallon Capital Management, LLC, Credit Suisse Asset Management, LLC - Leveraged Investments, Highland Capital Management, LP, Post Advisory Group, TCW Leveraged Income Trust, LP, and Libra Securities. "Administrative Claim" means _____________ dt 1047986 ; Wells Fargo Bank Wells Fargo Bank, NA ( Financial ) As referenced in this Plan of Reorganization: Wells Fargo Bank, N – before the Effective Date, and any other right or related Claim or Interest with respect to the Existing Preferred Stock. "FF&E Lender" means David R. Belding, the assignee of Wells Fargo Bank, N .A. under the FF&E Loan. "FF&E Loan" means that loan pursuant to the Loan Agreement entered into between the Debtor and Wells Fargo, N.A., as agent _____________ dt 1024196 ; Irell & Manella Irell & Manella ( Legal ) As referenced in this Plan of Reorganization: Irell & Manella – reject the Plan. "Ballot Deadline" means the deadline established by the Court for the delivery of executed Ballots to the Ballot Tabulator. "Ballot Tabulator" means Elena Fedorov, a paralegal at Irell & Manella LLP (counsel to the Debtor), or any other person or entity designated by the Debtor to tabulate ballots. "Bankruptcy Code" or "Code" means Title 11 of the United States _____________ Irell & Manella, – Representative (including professional fees) shall not exceed $250,000 unless otherwise agreed to in writing by the Ad Hoc Committee. The Debtor expects that the Continuing Estate Representative will retain Irell & Manella, LLP (counsel to the Debtor during the Case) as its counsel. 3. Powers and Duties of the Continuing Estate Representative. On and after the Effective Date, the Continuing Estate _____________ dt 1016821
Full Doc	2000	Collateral Assignment Collateral Assignment (44K) Doc #391729: This document is immediately available for purchase, but does not have a preview available for viewing. 391729	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) ; Paul Steelman Paul Steelman, Ltd. ( Miscellany ) As referenced in this Collateral Assignment: Paul Steelman, Ltd – Standard Form of Architect's Services (AIA Document B141-1997, 1997 Edition Electronic Format), dated January 31, 2000, by and between Windsor Woodmont, L.L.C., as owner ("WWLLC"), and Paul Steelman, Ltd ., as architect ("Architect"). Settlement Agreement, dated as of even date herewith, by and among, inter alia, WWLLC and Architect. General Assignment, dated as of even date herewith, from WWLLC _____________ dt 1019747 ;	Windsor Woodmont Windsor Woodmont LLC ( Miscellany ) As referenced in this Collateral Assignment: Windsor Woodmont, L – Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services (AIA Document B141-1997, 1997 Edition Electronic Format), dated January 31, 2000, by and between Windsor Woodmont, L .L.C., as owner ("WWLLC"), and Paul Steelman, Ltd., as architect ("Architect"). Settlement Agreement, dated as of even date herewith, by and among, inter alia, WWLLC and Architect. General _____________ dt 1042159
Preview Full Doc	2000	Escrow Agreement Escrow Agreement (20K) Doc #143595: Click preview link for longer preview. ESCROW AGREEMENT THIS ESCROW AGREEMENT (this "Agreement") is entered into this 28th day of March, 2000, by D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner"); Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation ("WW"); and Norwest Bank Minnesota, N.A. ("Escrow Agent") (the above are at times referred to herein collectively as the "Parties"), and is effective upon execution and delivery by the Parties. RECITALS A. Blattner and Windsor Woodmont, L.L.C., as WW's predecesor-in-interest ("WW LLC"), entered into that certain: (i) Standard Form of Agreement Between Owner and Contractor (AIA Document A101/CMa), dated May 14, 1998, (ii) Supplement to AIA Document A101/CMa Standard Form of Agreement Between Owner and Contractor, dated May 14, 1998, (iii) Amendment, dated June 15, 1998, and (iv) Second Amendment to Standard Form of Agreement Between Owner and Contractor, dated December 31, 1999 (collectively, the "Contract"). B. Blattner and WW LLC have entered into that certain Settlement Agreement dated January 31, 2000, with respect to the Contract (the "Settlement Agreement"). C. WW LLC assigned all of its right, title and interest in and to the Contract and the Settlement Agreement to WW pursuant to that certain General Assignment, dated as of March 14, 2000. D. This Agreement is entered into pursuant to paragraph 1 of the Settlement Agreement pursuant to which WW is required to deposit the amount of $877,995.00 into escrow to secure payment to Blattner of Blattner's final payment request under the Contract. {PAGE} NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Appointment of Escrow Agent. Pursuant to the Settlement Agreement, WW and Blattner hereby appoint the Escrow Agent as escrow agent to establish an escrow for the benefit of Blattner (the "Escrow") and to accept and deposit into the Escrow, and distribute amounts from the Escrow, for the benefit of WW and Blattner, pursuant to the terms and conditions of this Escrow Agreement. 143595	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Escrow Agreement: Windsor Woodmont Black Hawk – ESCROW AGREEMENT (this "Agreement") is entered into this 28th day of March, 2000, by D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner"); Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation ("WW"); and Norwest Bank Minnesota, N.A. ("Escrow Agent") (the above are at times referred to herein collectively _____________ Windsor Woodmont Black Hawk – Ms. Deborah L. Moreyra Hyatt Gaming Management, Inc. Madison Plaza, 39th Floor 200 W. Madison Street Chicago, IL 60606 Attention: General Counsel Re: Windsor Woodmont Black Hawk Resort Corp. ---------------------------------------- Ladies and Gentlemen: This letter of direction ("Letter of Direction") is delivered to you pursuant to that certain Escrow Agreement, dated _____________ Windsor Woodmont Black Hawk – Agreement, dated as of March 28, 2000 (the "Escrow Agreement"), by and among D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner") and Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the "WW"), and Norwest Bank Minnesota, N.A., a national banking association ("Escrow Agent"). All initial capitalized terms _____________ Windsor Woodmont Black Hawk – Ms. Deborah L. Moreyra Hyatt Gaming Management, Inc. Madison Plaza, 39th Floor 200 W. Madison Street Chicago, IL 60606 Attention: General Counsel Re: Windsor Woodmont Black Hawk Resort Corp. ---------------------------------------------- Ladies and Gentlemen: This letter of direction ("Letter of Direction") is delivered to you pursuant to that certain Escrow Agreement, dated _____________ Windsor Woodmont Black Hawk – Agreement, dated as of March 28, 2000 (the "Escrow Agreement"), by and among D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner") and Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the "WW"), and Norwest Bank Minnesota, N.A., a national banking association ("Escrow Agent"). All initial capitalized terms _____________ dt 90276 ; D.H. Blattner D.H. Blattner & Sons, Inc. As referenced in this Escrow Agreement: D.H. BLATTNER – thereunder. B-1 {PAGE} D. H. Blattner & Sons, Inc. By: Name: Title: B-2 {PAGE} Schedule A WINDSOR WOODMONT BLACK HAWK RESORT CORPORATION D.H. BLATTNER & SONS, INC. ESCROE FEE SHCEDULE ACCEPTANCE FEE: $1,500.00 For initial services including examination of the Escrow Agreement and all supporting _____________ dt 90298 ; Windsor Woodmont Windsor Woodmont LLC ( Miscellany ) As referenced in this Escrow Agreement: Windsor Woodmont – ESCROW AGREEMENT (this "Agreement") is entered into this 28th day of March, 2000, by D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner"); Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation ("WW"); and Norwest Bank Minnesota, N.A. ("Escrow Agent") (the above are at times referred to _____________ Windsor Woodmont, – at times referred to herein collectively as the "Parties"), and is effective upon execution and delivery by the Parties. RECITALS A. Blattner and Windsor Woodmont, L.L.C., as WW's predecesor-in-interest ("WW LLC"), entered into that certain: (i) Standard Form of Agreement Between Owner _____________ WINDSOR WOODMONT – to treat such signatures as originals, and then to exchange promptly thereafter manually executed originals of this Agreement. D. H. BLATTNER & SONS, INC., WINDSOR WOODMONT BLACK a Minnesota corporation HAWK RESORT CORP., a Colorado corporation By: /s/ David H. Blattner, Jr. By: /s/ Michael Armstrong ---------------------------------- ------------------------------ David H. Blattner, _____________ Windsor Woodmont – Ms. Deborah L. Moreyra Hyatt Gaming Management, Inc. Madison Plaza, 39th Floor 200 W. Madison Street Chicago, IL 60606 Attention: General Counsel Re: Windsor Woodmont Black Hawk Resort Corp. ---------------------------------------- Ladies and Gentlemen: This letter of direction ("Letter of Direction") is delivered to you pursuant to that certain Escrow _____________ Windsor Woodmont – Agreement, dated as of March 28, 2000 (the "Escrow Agreement"), by and among D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner") and Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the "WW"), and Norwest Bank Minnesota, N.A., a national banking association ("Escrow Agent"). All initial _____________ dt 90284 ;	D. H. Blattner & Sons, Inc.; Norwest Bank Minnesota, N.A.
Preview Full Doc	2000	Escrow Agreement Escrow Agreement (14K) Doc #391710: Click preview link for longer preview. ESCROW AGREEMENT THIS ESCROW AGREEMENT is made and entered into as of this 29th day of March, 2000, by and between the CITY OF BLACK HAWK, COLORADO (the "City"), WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation (the "Developer"), and NORWEST BANK MINNESOTA, N.A. (the "Escrow Agent"). R E C I T A L S: ---------------- A. The City and Developer have entered into a Site Improvement Agreement pursuant to Section 18-241(3) of the City of Black Hawk Municipal Code. B. Pursuant to paragraph 2 of the Site Improvement Agreement and Section 18-241(3) of the City of Black Hawk Municipal Code, the Developer is required to provide Completion Funds to the City in the amount of Five Million Seven Hundred Ninety-four Thousand Five Hundred Twenty-two and 80/100 Dollars ($5,794,522.80), which amount constitutes 110% of the amount necessary to complete the Excavation Project which is the subject matter of the Site Improvement Agreement. C. The Completion Funds are to be held in escrow for the benefit of the City to be utilized and disbursed pursuant to the terms of this Escrow Agreement. D. The Escrow Agent has agreed to hold the funds in escrow, as provided in the Site Improvement Agreement and pursuant to this Escrow Agreement. NOW, THEREFORE, in consideration of the above Recitals, which are a material part of this Agreement, and the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows: 1. The Developer has deposited the sum of Five Million Seven Hundred Ninety-four Thousand Five Hundred Twenty-two and 80/100 Dollars ($5,794,522.80) (the "Completion Funds") in Account No. 13650800, at Norwest Bank Minnesota, N.A. (the "Escrow Account"), to be held in the name of Escrow Agent for the use and benefit of the Developer and the City, pursuant to the terms set forth below. 2. The Completion Funds are to be used solely and exclusively for the completion of an excavation project to be performed by D.H. Blattner & Sons, Inc. (the "Excavation Contractor") for the Developer on a development project in the City commonly known and referred to as Black Hawk Casino by Hyatt. The Excavation Contractor and Developer have entered into the Standard Form of Agreement between Owner and Contractor dated May 14, 1998, as amended by an Amendment dated June 15, 1998 and by a Second Amendment dated December 31, 1999 (collectively the "Excavation Contract"). The Excavation Contract is incorporated herein by reference. {PAGE} -2- 3. The Escrow Agent is directed and authorized to disburse the Completion Funds from the Escrow Account to the Excavation Contractor upon the satisfaction of the following requirements: (A) Receipt of an Application for Payment from the Excavation Contractor (which Application shall be made no more than once per month and shall be tied to progress toward completion of the excavation project, as identified in the Application), approved for payment by the Developer, and RE Tech & Incorporated, as the Independent Construction Consultant (the AICC@), pursuant to that certain Cash Collateral and Disbursement Agreement among Sun Trust Bank, Hyatt Gaming Management, Inc., First American Heritage Title Company, RE Tech & Incorporated, and Developer dated as of March 14, 2000 (the ACCDA@); and (B) Written acknowledgment from the Development Coordinator of the City that the Application for Payment may be paid. The City's affirmation shall not constitute approval by the City of the Excavation Project, or any portion thereof. 4. Upon approval of an Application for Payment from the Excavation Contractor by the Developer, Developer shall provide a complete copy of the Application for Payment to the City together with written notice that the Developer has approved the same. Upon receipt of the Application for Payment and Developer=s notice of approval, the City shall have five (5) business days within which to provide the acknowledgment referenced in paragraph 3(B) above to the Escrow Agent. Such acknowledgment shall not be unreasonably denied or withheld by the City. 5. Upon completion of the Excavation Contract by the Developer, as provided 391710	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Escrow Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – 27 ESCROW AGREEMENT THIS ESCROW AGREEMENT is made and entered into as of this 29th day of March, 2000, by and between the CITY OF BLACK HAWK, COLORADO (the "City"), WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation (the "Developer"), and NORWEST BANK MINNESOTA, N.A. (the "Escrow Agent"). R E C I T A L S: ---------------- A. The City and Developer have entered _____________ Windsor Woodmont Black Hawk Resort Corp. – to: James S. Maloney, Esq. Black Hawk City Attorney Hayes, Phillips & Maloney, P.C. 1350 Seventeenth Street, Suite 450 Denver, Colorado 80202 Fax No.: (303) 825-1629 Notice to Developer: Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street Dallas, Texas 75207 Attention: Daniel P. Robinowitz Fax No.: (214) 631-4945 {PAGE} -4- With a copy to: Scott D. Albertson, Esq. Holley, Albertson & Polk, P. _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Eccker, Mayor ATTEST: By: /s/ Deborah S. Yancy -------------------------------- Deborah S. Yancy, CMC, City Clerk APPROVED AS TO FORM: By: /s/ James S. Maloney -------------------------------- James S. Maloney, City Attorney {PAGE} -5- WINDSOR WOODMONT BLACK HAWK RESORT CORP. BY: /s/ Daniel P. Robinowitz --------------------------------- Daniel P. Robinowitz, President STATE OF Colorado ) ) SS. COUNTY OF Jefferson) The foregoing instrument was acknowledged before me this 29th day of March, 2000 _____________ Windsor Woodmont Black Hawk Resort Corp. – P. Robinowitz, President STATE OF Colorado ) ) SS. COUNTY OF Jefferson) The foregoing instrument was acknowledged before me this 29th day of March, 2000 by Daniel P. Robinowitz, as President of Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation. My commission expires: 4/12/2004 WITNESS my hand and official seal. By: /s/ Kathleen W. Cooper ------------------------------------ Kathleen W. Cooper Notary Public NORWEST BANK MINNESOTA, N. _____________ dt 1364680 ;	D.H. Blattner D.H. Blattner & Sons, Inc. As referenced in this Escrow Agreement: D.H. Blattner – City, pursuant to the terms set forth below. 2. The Completion Funds are to be used solely and exclusively for the completion of an excavation project to be performed by D.H. Blattner & Sons, Inc. (the "Excavation Contractor") for the Developer on a development project in the City commonly known and referred to as Black Hawk Casino by Hyatt. The Excavation Contractor _____________ dt 1026127
Preview Full Doc	2000	Escrow Agreement Escrow Agreement (20K) Doc #391712: Click preview link for longer preview. ESCROW AGREEMENT THIS ESCROW AGREEMENT (this "Agreement") is entered into this 28th day of March, 2000, by D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner"); Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation ("WW"); and Norwest Bank Minnesota, N.A. ("Escrow Agent") (the above are at times referred to herein collectively as the "Parties"), and is effective upon execution and delivery by the Parties. RECITALS A. Blattner and Windsor Woodmont, L.L.C., as WW's predecesor-in-interest ("WW LLC"), entered into that certain: (i) Standard Form of Agreement Between Owner and Contractor (AIA Document A101/CMa), dated May 14, 1998, (ii) Supplement to AIA Document A101/CMa Standard Form of Agreement Between Owner and Contractor, dated May 14, 1998, (iii) Amendment, dated June 15, 1998, and (iv) Second Amendment to Standard Form of Agreement Between Owner and Contractor, dated December 31, 1999 (collectively, the "Contract"). B. Blattner and WW LLC have entered into that certain Settlement Agreement dated January 31, 2000, with respect to the Contract (the "Settlement Agreement"). C. WW LLC assigned all of its right, title and interest in and to the Contract and the Settlement Agreement to WW pursuant to that certain General Assignment, dated as of March 14, 2000. D. This Agreement is entered into pursuant to paragraph 1 of the Settlement Agreement pursuant to which WW is required to deposit the amount of $877,995.00 into escrow to secure payment to Blattner of Blattner's final payment request under the Contract. {PAGE} NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Appointment of Escrow Agent. Pursuant to the Settlement Agreement, WW and Blattner hereby appoint the Escrow Agent as escrow agent to establish an escrow for the benefit of Blattner (the "Escrow") and to accept and deposit into the Escrow, and distribute amounts from the Escrow, for the benefit of WW and Blattner, pursuant to the terms and conditions of this Escrow Agreement. 2. Amounts to be Deposited. WW shall deliver to the Escrow Agent, and the Escrow Agent shall deposit into the Escrow, the amount of $877,995.00 (which amount, together with all interest thereon, is referred to herein as the "Escrow Funds"), to be held in the Escrow for the benefit of WW and Blattner and disbursed by the Escrow Agent pursuant to the terms of this Agreement. 4. Disbursement of Escrow Funds. (a) WW and Blattner agree that the Escrow Agent is hereby authorized and directed to disburse the Escrow Funds upon receipt of written notice from David H. Blattner, Jr. - Vice President - General Counsel of Blattner in the form of "Exhibit A" attached hereto and made a part hereof (a "Letter of Direction"), together with a mechanics lien waiver as set forth in Paragraph 4(c). (b) Blattner agrees that it will issue a Letter of Direction to the Escrow Agent directing the Escrow Agent to disburse all or a portion of the Escrow Funds from the Escrow if, and only if, (i) Blattner has submitted a complete Application for Payment to WW pursuant to paragraph 11 of the Second Amendment to the Contract, (ii) Blattner has not received a written notice from 2 {PAGE} WW contesting the amount of the payment due under the applicable Application for Payment (the "Delinquent Payment") on or prior to the due date as provided under paragraph 11 of the Second Amendment to the Contract, (iii) Blattner has provided written notice to WW that Blattner has not received the Delinquent Payment (a "Non-Payment Notice"), and (iv) Blattner has not received the Delinquent Payment within five (5) business days after delivery of the Non-Payment Notice to WW. Notwithstanding the foregoing, the Letter of Direction shall not request any Escrow Funds in excess of the amount of the Delinquent Payment. (c) Blattner shall deliver a mechanic's lien waiver to WW waiving any lien rights for the work performed as set forth in the Application for Payment and in an amount equivalent to the Delinquent Payment or the total Escrow Funds, whichever is less, as a condition to the disbursement of the Escrow Funds pursuant to the Letter of Direction. (d) In addition to all other remedies available to Blattner under the Contract, Blattner shall have the right to demand that prior to resuming work 391712	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Escrow Agreement: Windsor Woodmont Black Hawk Resort Corp. – TEXT} Exhibit 10.29 ESCROW AGREEMENT THIS ESCROW AGREEMENT (this "Agreement") is entered into this 28th day of March, 2000, by D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner"); Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation ("WW"); and Norwest Bank Minnesota, N.A. ("Escrow Agent") (the above are at times referred to herein collectively as the "Parties"), and is effective upon execution _____________ Windsor Woodmont Black Hawk Resort Corp. – Street, Suite 250 Orlando, FL 32801 Attention: Ms. Deborah L. Moreyra Hyatt Gaming Management, Inc. Madison Plaza, 39th Floor 200 W. Madison Street Chicago, IL 60606 Attention: General Counsel Re: Windsor Woodmont Black Hawk Resort Corp. ---------------------------------------- Ladies and Gentlemen: This letter of direction ("Letter of Direction") is delivered to you pursuant to that certain Escrow Agreement, dated as of March 28, 2000 (the "Escrow Agreement"), _____________ Windsor Woodmont Black Hawk Resort Corp. – to you pursuant to that certain Escrow Agreement, dated as of March 28, 2000 (the "Escrow Agreement"), by and among D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner") and Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "WW"), and Norwest Bank Minnesota, N.A., a national banking association ("Escrow Agent"). All initial capitalized terms used, but not defined, herein shall have the _____________ Windsor Woodmont Black Hawk Resort Corp. – Street, Suite 250 Orlando, FL 32801 Attention: Ms. Deborah L. Moreyra Hyatt Gaming Management, Inc. Madison Plaza, 39th Floor 200 W. Madison Street Chicago, IL 60606 Attention: General Counsel Re: Windsor Woodmont Black Hawk Resort Corp. ---------------------------------------------- Ladies and Gentlemen: This letter of direction ("Letter of Direction") is delivered to you pursuant to that certain Escrow Agreement, dated as of March 28, 2000 (the "Escrow Agreement"), _____________ Windsor Woodmont Black Hawk Resort Corp. – to you pursuant to that certain Escrow Agreement, dated as of March 28, 2000 (the "Escrow Agreement"), by and among D. H. Blattner & Sons, Inc., a Minnesota corporation ("Blattner") and Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "WW"), and Norwest Bank Minnesota, N.A., a national banking association ("Escrow Agent"). All initial capitalized terms used, but not defined, herein shall have the _____________ dt 1364681 ; D.H. Blattner D.H. Blattner & Sons, Inc. As referenced in this Escrow Agreement: D.H. BLATTNER – Funds thereunder, and performing their respective obligations thereunder. B-1 {PAGE} D. H. Blattner & Sons, Inc. By: Name: Title: B-2 {PAGE} Schedule A WINDSOR WOODMONT BLACK HAWK RESORT CORPORATION D.H. BLATTNER & SONS, INC. ESCROE FEE SHCEDULE ACCEPTANCE FEE: $1,500.00 For initial services including examination of the Escrow Agreement and all supporting documents. This is a one-time fee _____________ dt 1026129 ;	Windsor Woodmont Windsor Woodmont LLC ( Miscellany ) As referenced in this Escrow Agreement: Windsor Woodmont, L – N.A. ("Escrow Agent") (the above are at times referred to herein collectively as the "Parties"), and is effective upon execution and delivery by the Parties. RECITALS A. Blattner and Windsor Woodmont, L .L.C., as WW's predecesor-in-interest ("WW LLC"), entered into that certain: (i) Standard Form of Agreement Between Owner and Contractor (AIA Document A101/CMa), dated May _____________ dt 1042158
Full Doc	2000	Incentive Stock Option Plan Incentive Stock Option Plan (23K) Doc #391743: This document is immediately available for purchase, but does not have a preview available for viewing. 391743	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming )
Preview Full Doc	2000	Indenture Indenture (516K) Doc #391721: Click preview link for longer preview. WINDSOR WOODMONT BLACK HAWK RESORT CORP. $100,000,000 13% FIRST MORTGAGE NOTES DUE 2005 --------------------------- INDENTURE Dated as of March 14, 2000 --------------------------- SunTrust Bank Trustee ================================================================================ {PAGE} Windsor Woodmont Black Hawk Resort Corp. Reconciliation and tie between Trust Indenture Act of 1939 and Indenture dated as of March 14, 2000 ---------------------------------------------- Trust Indenture Act Section Indenture Section ----------- ----------------- (S) 310(a)(1) 7.10 (S) 310(a)(2) 7.10 (S) 310(b) 7.03 (S) 311 7.03; 7.11 (S) 312(a) 2.05 (S) 312(b) 11.03 (S) 312(c) 11.03 (S) 313(a) 7.06 (S) 313(b) 7.06; 7.07 (S) 313(c) 7.06 (S) 314(a) 4.03 (S) 314(a)(4) 4.04 (S) 314(b) 10.02(b) and (c) (S) 314(c) 11.04 (S) 314(d) 10.03; 10.04 (S) 314(e) 11.05 (S) 315(a) 7.02 (S) 315(b) 7.05 (S) 315(c) 7.01(a) (S) 315(d) 7.01(d) (S) 315(e) 6.11 (S) 316(a)(1)(A) 6.05 (S) 316(a)(1)(B) 6.04 (S) 316(b) 6.07 (S) 317(a)(1) 6.08 (S) 317(a)(2). 6.09 (S) 317(b) 2.04 (S) 318(a) 11.01 (S) 318(c) 11.01 Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Indenture. {PAGE} TABLE OF CONTENTS Page No. -------- ARTICLE 1. DEFINITIONS AND INCORPORATION BY REFERENCE............................1 Section 1.01. Definitions...........................................1 Section 1.02 Incorporation by Reference of Trust Indenture Act....26 Section 1.03. Rules of Construction................................27 ARTICLE 2. THE NOTES............................................................27 Section 2.01 Form and Dating......................................27 Section 2.02 Execution and Authentication ........................28 Section 2.03. Registrar and Paying Agent...........................29 Section 2.04. Paying Agent to Hold Money in Trust..................30 Section 2.05. Holder Lists.........................................30 Section 2.06. Transfer and Exchange................................30 Section 2.07. Replacement Notes....................................44 Section 2.08. Outstanding Notes....................................44 Section 2.09. Treasury Notes.......................................45 Section 2.10. Temporary Notes......................................45 Section 2.11. Cancellation.........................................45 Section 2.12. Defaulted Interest...................................45 Section 2.13. CUSIP Number.........................................46 Section 2.14. Exchange Registration................................46 ARTICLE 3. REDEMPTION AND PREPAYMENT............................................46 Section 3.01 Notices to Trustee...................................46 Section 3.02. Selection of Notes to Be Redeemed....................46 Section 3.03. Notice of Redemption.................................47 Section 3.04. Effect of Notice of Redemption.......................47 Section 3.05. Deposit of Redemption Price..........................48 Section 3.06. Notes Redeemed in Part...............................48 Section 3.07. Optional Redemption..................................48 Section 3.08 Mandatory Redemption.................................49 Section 3.09. Gaming Redemption....................................49 Section 3.10. Offer to Purchase by Application of Excess Proceeds .50 ARTICLE 4. COVENANTS............................................................52 Section 4.01. Payment of Notes.....................................52 Section 4.02. Maintenance of Office or Agency......................52 i {PAGE} Section 4.03. Reports..............................................53 Section 4.04. Compliance Certificate...............................53 Section 4.05. Taxes................................................54 Section 4.06. Stay, Extension and Usury Laws.......................54 Section 4.07. Restricted Payments..................................54 Section 4.08. Dividend and Other Payment Restrictions Affecting Subsidiaries .......................................58 Section 4.09. Incurrence of Indebtedness and Issuance of Preferred Stock.....................................59 Section 4.10. Asset Sales..........................................63 Section 4.11. Transactions with Affiliates.........................65 Section 4.12. Liens................................................67 Section 4.13. Line of Business.....................................67 Section 4.14. Corporate Existence..................................67 Section 4.15. Articles of Incorporation............................67 Section 4.16. Limitation on Sale and Leaseback Transactions .......67 Section 4.17. Limitation on Formation of Subsidiaries and Issuances and Sales of Equity Interests in Wholly Owned Subsidiaries...........................68 Section 4.18. Advances to Subsidiaries.............................68 Section 4.19. Payments for Consent.................................68 Section 4.20. Additional Subsidiary Guarantees.....................69 Section 4.21. Insurance ...........................................69 Section 4.22. Limitation on Status as Investment Company...........70 Section 4.23. Further Assurances...................................70 Section 4.24. Construction.........................................71 Section 4.25. Limitation on Use of Proceeds........................71 Section 4.26. Right of First Offer with Respect to Hotel Additional Notes..............................71 Section 4.27. Restriction on Payment of Management Fees............72 Section 4.28. Event of Loss........................................73 Section 4.29. Excess Cash Purchase Offers .........................75 Section 4.30. Approvals Under Management Agreement.................76 Section 4.31. Extension of Subdivision Agreement...................76 Section 4.32. Deposit of Funds into Construction Disbursement Accounts...............................76 ARTICLE 5. SUCCESSORS...........................................................76 Section 5.01. Merger, Consolidation, or Sale of Assets.............76 Section 5.02. Successor Corporation Substituted....................77 ARTICLE 6. DEFAULTS AND REMEDIES................................................78 Section 6.01. Events of Default....................................78 Section 6.02. Acceleration, Etc....................................80 Section 6.03. Other Remedies.......................................80 Section 6.04. Waiver of Past Defaults..............................81 Section 6.05. Control by Majority..................................81 ii {PAGE} Section 6.06. Limitation on Suits..................................81 Section 6.07. Rights of Holders of Notes to Receive Payment .......82 Section 6.08. Collection Suit by Trustee...........................82 Section 6.09. Trustee May File Proofs of Claim.....................82 Section 6.10. Priorities...........................................83 Section 6.11. Undertaking for Costs................................83 ARTICLE 7. TRUSTEE..............................................................84 Section 7.01. Duties of Trustee....................................84 Section 7.02. Rights of Trustee....................................85 Section 7.03. Individual Rights of Trustee ........................85 Section 7.04. Trustee's Disclaimer.................................86 391721	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Indenture: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Exhibit 4.1 THIS INDENTURE IS, FOR PURPOSES OF TITLE 38 OF THE COLORADO REVISED STATUTES, THE "ORIGINAL EVIDENCE OF INDEBTEDNESS" SECURED BY THE DEED OF TRUST (AS DEFINED HEREIN). ================================================================================ WINDSOR WOODMONT BLACK HAWK RESORT CORP. $100,000,000 13% FIRST MORTGAGE NOTES DUE 2005 --------------------------- INDENTURE Dated as of March 14, 2000 --------------------------- SunTrust Bank Trustee ================================================================================ {PAGE} Windsor Woodmont Black Hawk Resort Corp. Reconciliation and tie _____________ Windsor Woodmont Black Hawk Resort Corp. – TRUST (AS DEFINED HEREIN). ================================================================================ WINDSOR WOODMONT BLACK HAWK RESORT CORP. $100,000,000 13% FIRST MORTGAGE NOTES DUE 2005 --------------------------- INDENTURE Dated as of March 14, 2000 --------------------------- SunTrust Bank Trustee ================================================================================ {PAGE} Windsor Woodmont Black Hawk Resort Corp. Reconciliation and tie between Trust Indenture Act of 1939 and Indenture dated as of March 14, 2000 ---------------------------------------------- Trust Indenture Act Section Indenture Section ----------- ----------------- (S) 310(a)(1) 7.10 ( _____________ Windsor Woodmont Black Hawk Resort Corp. – OF TITLE 38 OF THE COLORADO REVISED STATUTES, THE "ORIGINAL EVIDENCE OF INDEBTEDNESS" SECURED BY THE DEED OF TRUST (AS DEFINED HEREIN). INDENTURE dated as of March 14, 2000, between Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "Company"), and SunTrust Bank, as trustee (the "Trustee"). The Company and the Trustee agree as follows for the benefit of each other and for the _____________ Windsor Woodmont Black Hawk Resort Corp. – financing statements and fixture filings, and any other agreements, instruments, documents, pledges or filings that evidence, set forth or limit the Lien of the Trustee in the Collateral. "Company" means Windsor Woodmont Black Hawk Resort Corp. and any and all successors thereto. "Completion Reserve Account" means the account to be maintained by the Disbursement Agent and pledged to the Trustee pursuant to the terms of _____________ Windsor Woodmont Black Hawk Resort Corp. – or mailed by first class mail (registered or certified, return receipt requested), telex, telecopier or overnight air courier guaranteeing next day delivery, to the others' address: If to the Company: Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street Dallas, Texas 75207 Facsimile: (213) 630-1261 Attention: Daniel P. Robinowitz With a copy to: Paul, Hastings, Janofsky & Walker LLP 399 Park Avenue New York, New _____________ dt 1364682 ; Windsor Woodmont Windsor Woodmont LLC ( Miscellany ) As referenced in this Indenture: Windsor Woodmont, L – authority to regulate any liquor licensed operation (or proposed liquor licensed operation) owned by the Company or any of its Subsidiaries and managed or operated by Hyatt Gaming. "LLC" means Windsor Woodmont, L .L.C., a Colorado limited liability company. "Management Agreement" means the Management Agreement dated as of February 2, 2000 between the Company and Hyatt Gaming relating to the management _____________ Windsor Woodmont, L – or its nominee, issued in a denomination equal to the outstanding principal amount of the Notes initially sold in reliance on Rule 903 of Regulation S. "Related Party" means (i) Windsor Woodmont, L LC, and (ii) Daniel P. Robinowitz, Normandy, Inc., Irving Deal and Patricia Deal and any trust formed for the benefit of such individual, his/her spouse or his/her children _____________ dt 1533738 ;	Ableco Finance Ableco Finance LLC ( Financial ) As referenced in this Indenture: Ableco Finance LLC – Offer with Respect to Hotel Additional Notes. ----------------------------------------------------------- (a) In the event the Company elects to issue any Hotel Additional Notes pursuant to Section 2.02(b), the Company shall provide Ableco Finance LLC and its Affiliates ("Ableco"), on behalf of itself, its Affiliates and its accounts, the right to purchase some or all of such Hotel Additional Notes in accordance with this _____________ dt 1338079 ; Cede Cede & Co. ( Financial ) As referenced in this Indenture: CEDE & CO. – WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE _____________ CEDE & CO. – CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY _____________ CEDE & CO. – BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO. , HAS AN INTEREST HEREIN.] Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated. 1. Interest. Windsor Woodmont Black _____________ dt 1629079
Preview Full Doc	2000	Management Agreement Management Agreement (203K) Doc #391701: Click preview link for longer preview. MANAGEMENT AGREEMENT between HYATT GAMING MANAGEMENT, INC. and WINDSOR WOODMONT BLACK HAWK RESORT CORP. DATED: February 2, 2000 {PAGE} TABLE OF CONTENTS AGREEMENT --------- Page SECTION 1. CONSTRUCTION, FURNISHING AND EQUIPPING, PRE-OPENING AND OPENING OF CASINO........................................... 1 1.1 Construction ........................................... 1 1.2 Furnishings and Equipment and Operating Equipment ...... 2 1.3 First Class Casino Standard Defined .................... 2 1.4 Plans and Specifications ............................... 2 1.5 Technical Assistance Services Respecting Improvements .. 3 1.6 Plan and Design Changes ................................ 4 1.7 Budgets ................................................ 4 1.8 Construction Commencement Date and Opening Date ........ 7 1.9 Termination by Owner ................................... 7 1.10 Termination by Hyatt Gaming ............................ 9 SECTION 2. TERM......................................................... 10 2.1 Original Term. ......................................... 10 2.2 Renewal Terms .......................................... 10 2.3 Conditions of Renewal .................................. 11 2.4 Owner Termination Rights ............................... 11 2.5 Definition of Term ..................................... 12 SECTION 3. USE AND OPERATION OF THE CASINO.............................. 12 3.1 Use and Standard of Operation .......................... 12 3.2 Leases and Concessions ................................. 18 3.3 Bank Accounts .......................................... 18 i {PAGE} 3.4 Owner / Manager Relationship ........................... 19 3.5 Forecasts .............................................. 19 3.6 Agency Coupled with an Interest ........................ 23 3.7 No Implied Rights ...................................... 23 3.8 Irrevocability of Contract ............................. 23 SECTION 4. MANAGEMENT FEES AND REMITTANCES TO OWNER .................... 24 4.1 Fiscal Year ............................................ 24 4.2 Hyatt Gaming's Management Fee .......................... 24 4.3 Remittances to Owner ................................... 26 4.4 Supplemental Payment ................................... 26 SECTION 5. DETERMINATION OF AVAILABLE CASH FLOW AND GROSS RECEIPTS...... 26 5.1 Books and Records ...................................... 26 5.2 Financial Definitions .................................. 26 5.3 Definition of Gross Receipts ........................... 28 5.4 Fund for Replacement of and Additions to Furnishings and Equipment ........................... 29 SECTION 6. REPAIRS AND CHANGES; LEGAL REQUIREMENTS...................... 30 6.1 Repairs and Maintenance ................................ 30 6.2 Compliance with Legal Requirements ..................... 31 6.3 Alterations and Additions .............................. 31 SECTION 7. GENERAL COVENANTS OF HYATT GAMING AND OWNER.................. 31 7.1 Working Capital ........................................ 31 7.2 Chain Services; Hyatt Systems Costs .................... 32 7.3 Right of Inspection and Review ......................... 32 7.4 Financial Reports ...................................... 32 ii {PAGE} 7.5 Owner"s Warranties as to Title ......................... 33 7.6 Payment of Taxes ....................................... 34 7.7 Bankruptcy ............................................. 34 7.8 Hotel .................................................. 34 SECTION 8. INSURANCE.................................................... 34 8.1 Insurance to be Maintained Prior to the Commencement of Term .............................. 35 8.2 Insurance to be Maintained During Term ................. 35 8.3 Notice of Cancellation or Change ....................... 37 8.4 Evidence of Insurance Coverage ......................... 37 8.5 Self-Insurance ......................................... 37 8.6 Waiver of Subrogation .................................. 37 SECTION 9. INDEMNIFICATION OF OWNER..................................... 37 9.1 Indemnity .............................................. 37 9.2 Limitation ............................................. 38 SECTION 10. DAMAGE TO AND DESTRUCTION OF CASINO; CONDEMNATION........... 38 10.1 Owner's Duty of Restoration ............................ 38 10.2 Owner's Election Not to Restore ........................ 39 10.3 Condemnation ........................................... 39 SECTION 11. INTEREST ON OVERDUE SUMS.................................... 39 SECTION 12. EVENTS OF DEFAULT........................................... 39 12.1 Events of Defaults ..................................... 39 12.2 Termination ............................................ 41 SECTION 13. TRADE NAME; INTELLECTUAL PROPERTY........................... 41 13.1 Trade Name ............................................. 41 13.2 Intellectual Property .................................. 42 iii {PAGE} 13.3 New Developments ....................................... 42 SECTION 14. ARBITRATION................................................. 42 SECTION 15. SUCCESSORS AND ASSIGNS...................................... 43 15.1 Assignment by Hyatt Gaming ............................. 43 15.2 Assignment by Owner .................................... 44 15.3 Binding on Successors .................................. 45 SECTION 16. NOTICES..................................................... 45 SECTION 17. DEEDS OF TRUST; MORTGAGES................................... 46 SECTION 18. FURTHER INSTRUMENTS......................................... 46 18.1 Further Agreements ..................................... 46 18.2 Estoppel ............................................... 46 SECTION 19. INDEMNIFICATION OF HYATT GAMING AND HYATT GAMING AFFILIATES.................................... 47 19.1 Indemnity .............................................. 47 19.2 Specific Indemnities ................................... 47 SECTION 20. APPLICABLE LAW.............................................. 48 SECTION 21. PAYMENT OF AMOUNTS DUE TO HYATT GAMING...................... 48 SECTION 22. SURVIVAL AND CONTINUATION................................... 48 SECTION 23. APPROVALS................................................... 48 23.1 Procedure .............................................. 48 23.2 No Implied Approvals ................................... 49 23.3 No Opinions ............................................ 49 23.4 No Third Party Beneficiary ............................. 49 iv {PAGE} SECTION 24. SALE OF SECURITIES.......................................... 49 SECTION 25. CONFIDENTIALITY; COOPERATION................................ 50 SECTION 26. OWNER NON-COMPETITION....................................... 51 26.1 Adjustment of Renewal Threshold ........................ 51 26.2.....Right to Manage New Casino ......................... 51 SECTION 27. HYATT GAMING NON-COMPETITION................................ 52 SECTION 28. RELATED ENTITIES............................................ 52 SECTION 29. TRANSITION MATTERS.......................................... 52 29.1 Employment Matters ..................................... 52 29.2 Insurance .............................................. 53 29.3 Receivables ............................................ 54 29.4 Protected Names and Protected Marks .................... 54 29.5 Other Proprietary Interests ............................ 54 29.6 Service Contracts....................................... 55 SECTION 30. DEVELOPMENT OFFICE.......................................... 56 SECTION 31. DEFINED TERMS............................................... 56 v {PAGE} MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (the "Agreement") is executed in counterparts as of the 2nd day of February, 2000, by and between WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation (hereinafter called "Owner"), and HYATT GAMING MANAGEMENT, INC., a Nevada corporation (hereinafter called "Hyatt Gaming"). RECITALS A. Owner owns that certain real property located in the City of Black Hawk, State of Colorado (the "Site") which Site is more specifically described on Exhibit A attached hereto and by this reference incorporated herein. B. Owner intends to develop, design, construct, furnish and equip a first-class gaming facility upon the Site, which facility will include (i) a parking structure capable of handling a minimum of 800 passenger vehicles, (ii) an approximately 57,000 square foot casino facility, and (iii) various entertainment, retail and other amenities. C. Owner wishes to engage Hyatt Gaming to manage the foregoing for the account of Owner. D. Owner and Hyatt Gaming desire to enter into this Agreement respecting the construction and furnishing of a first-class casino on the Site and the management thereof by Hyatt Gaming upon the terms and conditions hereinafter set forth. AGREEMENT --------- NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and adequacy of which the parties hereby acknowledge, the parties hereto hereby agree as follows: SECTION 1. CONSTRUCTION, FURNISHING AND EQUIPPING, PRE-OPENING AND OPENING OF CASINO 1.1. Construction ------------ Owner has submitted to Hyatt Gaming preliminary design plans and renderings, as described on Schedule 1.1 attached hereto and by this reference incorporated herein, subject to any qualifications described therein (the preliminary design plans are referred to herein as the "Preliminary Design Plans", and the renderings are referred to herein as the "Renderings"), and with reasonable diligence, cause a casino and associated facilities (the "Improvements") to be constructed upon the Site meeting the First Class Casino Standard and in accordance with the Preliminary Design Plans and the Renderings. Hyatt Gaming has waived its right to approve the Preliminary Design Plans and {PAGE} the Renderings in accordance with Section 23.4 hereof. The Improvements shall include buildings (collectively, the "Building") containing (i) a parking structure capable of handling approximately 800 passenger vehicles, (ii) various entertainment, retail and other amenities and (iii) an approximately 57,000 391701	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Management Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – {DOCUMENT} {TYPE}EX-10.1 {SEQUENCE}5 {FILENAME}0005.txt {DESCRIPTION}MANAGEMENT AGREEMENT {TEXT} Exhibit 10.1 MANAGEMENT AGREEMENT between HYATT GAMING MANAGEMENT, INC. and WINDSOR WOODMONT BLACK HAWK RESORT CORP. DATED: February 2, 2000 {PAGE} TABLE OF CONTENTS AGREEMENT --------- Page SECTION 1. CONSTRUCTION, FURNISHING AND EQUIPPING, PRE-OPENING AND OPENING OF CASINO........................................... 1 1.1 Construction ........................................... 1 1.2 _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – 56 SECTION 31. DEFINED TERMS............................................... 56 v {PAGE} MANAGEMENT AGREEMENT THIS MANAGEMENT AGREEMENT (the "Agreement") is executed in counterparts as of the 2nd day of February, 2000, by and between WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation (hereinafter called "Owner"), and HYATT GAMING MANAGEMENT, INC., a Nevada corporation (hereinafter called "Hyatt Gaming"). RECITALS A. Owner owns that certain real property located in the _____________ Windsor Woodmont Black Hawk Resort Corp. – if mailed, shall be deemed received two (2) business days after the postmarked date thereof), with postage prepaid, registered or certified, and, if intended for Owner, delivered or addressed to: Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street Dallas, Texas 75207 Attention: Daniel Robinowitz Facsimile: (214)-630-1261 with a copy to: Paul, Hastings, Janofsky & Walker LLP 555 S. Flower Street " 23rd Floor Los _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – WHEREOF, OWNER AND HYATT GAMING HAVE EXECUTED THIS AGREEMENT AS OF THE DAY AND YEAR FIRST ABOVE SET FORTH. HYATT GAMING MANAGEMENT, INC., a Nevada corporation By: /s/ -------------------------------------- Name: ------------------------------------- Title: ------------------------------------ WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation By: ------------------------------------- Name: ------------------------------------ Title: ----------------------------------- [Signature Page to Management Agreement dated as of February 2, 2000 by and between Windsor Woodmont Black Hawk Resort Corp. and Hyatt Gaming _____________ Windsor Woodmont Black Hawk Resort Corp. – By: /s/ -------------------------------------- Name: ------------------------------------- Title: ------------------------------------ WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation By: ------------------------------------- Name: ------------------------------------ Title: ----------------------------------- [Signature Page to Management Agreement dated as of February 2, 2000 by and between Windsor Woodmont Black Hawk Resort Corp. and Hyatt Gaming Management, Inc.] {PAGE} FIRST AMENDMENT TO MANAGEMENT AGREEMENT -------------------- THIS FIRST AMENDMENT TO MANAGEMENT AGREEMENT (the "Amendment") is executed in counterparts as of the ___ day of _____________ dt 1364676 ; Latham & Watkins Latham & Watkins ( Legal ) As referenced in this Management Agreement: Latham & Watkins – delivered or addressed to: Hyatt Gaming Management, Inc. Madison Plaza " 39th Floor 200 West Madison Street Chicago, Illinois 60606 Attention: General Counsel Facsimile: 312-750-8084 with a copy to: Latham & Watkins Sears Tower 5800 Chicago, IL 60606 Attention: George A. Rice Facsimile: (312) 993-9767 45 {PAGE} Either party hereto may change the address for notices hereunder by such party _____________ dt 1339091 ;	Paul Hastings Paul, Hastings, Janofsky & Walker ( Legal ) As referenced in this Management Agreement: Paul, Hastings – intended for Owner, delivered or addressed to: Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street Dallas, Texas 75207 Attention: Daniel Robinowitz Facsimile: (214)-630-1261 with a copy to: Paul, Hastings , Janofsky & Walker LLP 555 S. Flower Street " 23rd Floor Los Angeles, CA 90071-2371 Attn: Rick S. Kirkbride Facsimile: (213) 627-0705 and if intended for Hyatt Gaming or _____________ dt 1397588
Preview Full Doc	2000	Interim Interest Reserve Account Agreement Interim Interest Reserve Account Agreement (15K) Doc #391738: Click preview link for longer preview. INTERIM INTEREST RESERVE ACCOUNT AGREEMENT ----------------- THIS ACCOUNT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation ("Owner"), SUNTRUST BANK, a Georgia banking corporation, as trustee (in such capacity, together with its successors and assigns, the "Trustee") for itself and for the benefit of the Holders (as defined herein), pursuant to the Indenture (as defined herein), and NORWEST BANK MINNESOTA, N.A., a national association ("Norwest"), as securities intermediary (in such capacity, together with its successors and assigns, the "Securities Intermediary"), upon the following terms and conditions: RECITALS A. Owner and the Trustee are parties to that certain Pledge and Assignment Agreement of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Pledge Agreement"), which has been acknowledged by the Securities Intermediary. B. Owner desires that the Securities Intermediary hold certain financial assets and perform certain services with respect to such financial assets. C. The Securities Intermediary is willing to hold such assets and to perform such services, subject to the terms and conditions of this Agreement and the Pledge Agreement. NOW, THEREFORE, for the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. All capitalized terms used herein without definition shall have the meanings given to them in the Pledge Agreement. Terms used but not otherwise defined herein that are defined in the Uniform Commercial Code (as defined in the Pledge Agreement) shall have the meanings given in the Uniform Commercial Code. 2. Establishment of Securities Account. (a) The Securities Intermediary hereby confirms and agrees that it has established Account No. 13645-101, in the name of Windsor Woodmont Black Hawk Resort Corp. Interest Reserve Account ("Securities Account"), subject to the terms and conditions of this Agreement, the Cash Collateral and Disbursement Agreement among the Trustee, the Owner, Hyatt Gaming Management, Inc., Norwest, as disbursement agent, First American Heritage Title Company, as the construction escrow agent, and RE TECH+, Inc., as the independent construction consultant (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Disbursement Agreement"), and the Pledge Agreement. The Securities Intermediary agrees (i) to {PAGE} maintain the Securities Account at its office at Midwest Plaza West Tower, 801 Nicollet Mall, Suite 700, Minneapolis, MN 55479-0065, (ii) not to change the name or account number of the Securities Account without the prior written consent of the Trustee and (iii) to close the Securities Account after the free delivery of the financial assets to SunTrust Bank, acting as a securities intermediary (SunTrust, in such capacity, together with its successors and assigns, the "Interest Securities Intermediary"), as directed by the Trustee pursuant to the Disbursement Agreement. (b) The Securities Account is an account in which financial assets are or may be credited and the Securities Intermediary shall hold such financial assets in accordance with this Agreement and the Pledge Agreement. The term "hold" shall include the deposit of any part of or all of the financial assets with the Depositary Trust Company, the Federal Reserve Book Entry System or any other centralized securities depositary system or financial intermediary, whether presently or hereafter organized. (c) Title to the financial assets held in the Securities Account shall be registered in the name of the Securities Intermediary who shall credit on its books and records such financial assets as being held for the account of the Trustee and for the benefit of the Trustee (subject to the subordinated interest of Hyatt Gaming as set forth in the Hyatt Gaming Pledge and Assignment Agreement of even date herewith by the Owner in favor of Hyatt Gaming (as amended, 391738	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Interim Interest Reserve Account Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – AGREEMENT ----------------- THIS ACCOUNT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation ("Owner"), SUNTRUST BANK, a Georgia banking corporation, as trustee (in such capacity, together with its successors and assigns, the "Trustee") for itself and for the benefit _____________ Windsor Woodmont Black Hawk Resort Corp. – in the Uniform Commercial Code. 2. Establishment of Securities Account. (a) The Securities Intermediary hereby confirms and agrees that it has established Account No. 13645-101, in the name of Windsor Woodmont Black Hawk Resort Corp. Interest Reserve Account ("Securities Account"), subject to the terms and conditions of this Agreement, the Cash Collateral and Disbursement Agreement among the Trustee, the Owner, Hyatt Gaming Management, Inc., _____________ WINDSOR WOODMONT BLACK HAWK RESORT, CORP. – Remainder of page intentionally left blank; signatures on following page] - 5 - {PAGE} IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. OWNER: WINDSOR WOODMONT BLACK HAWK RESORT, CORP. , a Colorado corporation By: ------------------------------------- Name: ------------------------------------- Title: ------------------------------------- TRUSTEE: SUNTRUST BANK, a Georgia banking corporation By: ------------------------------------- Name: ------------------------------------- Title: ------------------------------------- SECURITIES INTERMEDIARY: NORWEST BANK MINNESOTA, N.A., a national association By: ------------------------------------- Name: ------------------------------------- Title: ------------------------------------- {/ _____________ dt 1364692
Preview Full Doc	2000	Interest Reserve Account Agreement Interest Reserve Account Agreement (15K) Doc #391739: Click preview link for longer preview. INTEREST RESERVE ACCOUNT AGREEMENT ----------------- THIS ACCOUNT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation ("Owner"), SUNTRUST BANK, a Georgia banking corporation ("SunTrust"), as trustee (SunTrust, in such capacity, together with its successors and assigns, the "Trustee") for itself and for the benefit of the Holders (as defined herein), pursuant to the Indenture (as defined herein), and as securities intermediary (SunTrust, in such capacity, together with its successors and assigns, the "Securities Intermediary"), upon the following terms and conditions: RECITALS A. Owner and the Trustee are parties to that certain Pledge and Assignment Agreement of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Pledge Agreement"), which has been acknowledged by the Securities Intermediary. B. Owner desires that the Securities Intermediary hold certain financial assets and perform certain services with respect to such financial assets. C. The Securities Intermediary is willing to hold such assets and to perform such services, subject to the terms and conditions of this Agreement and the Pledge Agreement. NOW, THEREFORE, for the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Definitions. All capitalized terms used herein without definition shall have the meanings given to them in the Pledge Agreement. Terms used but not otherwise defined herein that are defined in the Uniform Commercial Code (as defined in the Pledge Agreement) shall have the meanings given in the Uniform Commercial Code. 2. Establishment of Securities Account. (a) The Securities Intermediary hereby confirms and agrees that it has established Account No. 6797500, in the name of Windsor Woodmont Black Hawk Resort Corp. Capitalized Interest Fund ("Securities Account"), subject to the terms and conditions of this Agreement, the Cash Collateral and Disbursement Agreement among the Trustee, the Owner, Hyatt Gaming Management, Inc., Norwest Bank Minnesota, N.A., as disbursement agent, First American Heritage Title Company, as the construction escrow agent, and RE TECH+, Inc., as the independent construction consultant (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Disbursement Agreement"), and the Pledge Agreement. The Securities Intermediary agrees (i) to maintain the Securities Account at its office at 225 East {PAGE} Robinson Street, Suite 250, Orlando, Florida 32801, (ii) not to change the name or account number of the Securities Account without the prior written consent of the Trustee and (iii) to close the Securities Account upon the occurrence of the Final Accounts Disbursement pursuant to the Disbursement Agreement. (b) The Securities Account is an account in which financial assets are or may be credited and the Securities Intermediary shall hold such financial assets in accordance with this Agreement and the Pledge Agreement. The term "hold" shall include the deposit of any part of or all of the financial assets with the Depositary Trust Company, the Federal Reserve Book Entry System or any other centralized securities depositary system or financial intermediary, whether presently or hereafter organized. (c) Title to the financial assets held in the Securities Account shall be registered in the name of the Securities Intermediary who shall credit on its books and records such financial assets as being held for the account of the Trustee and for the benefit of the Trustee (subject to the subordinated interest of Hyatt Gaming as set forth in the Hyatt Gaming Pledge and Assignment Agreement of even date herewith by the Owner in favor of Hyatt Gaming (as amended, restated, supplemented or otherwise modified from time to the, the "Hyatt Gaming Pledge Agreement")) in accordance with the provisions set forth in the Pledge Agreement and the Securities Intermediary agrees that in no event shall any 391739	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Interest Reserve Account Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – AGREEMENT ----------------- THIS ACCOUNT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), by and among WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation ("Owner"), SUNTRUST BANK, a Georgia banking corporation ("SunTrust"), as trustee (SunTrust, in such capacity, together with its successors and assigns, the "Trustee") for itself and for _____________ Windsor Woodmont Black Hawk Resort Corp. – given in the Uniform Commercial Code. 2. Establishment of Securities Account. (a) The Securities Intermediary hereby confirms and agrees that it has established Account No. 6797500, in the name of Windsor Woodmont Black Hawk Resort Corp. Capitalized Interest Fund ("Securities Account"), subject to the terms and conditions of this Agreement, the Cash Collateral and Disbursement Agreement among the Trustee, the Owner, Hyatt Gaming Management, Inc., _____________ WINDSOR WOODMONT BLACK HAWK RESORT, CORP. – Remainder of page intentionally left blank; signatures on following page] - 4 - {PAGE} IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. OWNER: WINDSOR WOODMONT BLACK HAWK RESORT, CORP. , a Colorado corporation By: ---------------------------------- Name: ---------------------------------- Title: ---------------------------------- TRUSTEE: SUNTRUST BANK, a Georgia banking corporation By: ---------------------------------- Name: ---------------------------------- Title: ---------------------------------- SECURITIES INTERMEDIARY: SUNTRUST BANK, a Georgia banking corporation By: ---------------------------------- Name: ---------------------------------- Title: ---------------------------------- {/TEXT} {/DOCUMENT} _____________ dt 1364693
Preview Full Doc	2000	Intercreditor Subordination and Collateral Agreement Intercreditor Subordination and Collateral Agreement (57K) Doc #391735: Click preview link for longer preview. INTERCREDITOR SUBORDINATION AND COLLATERAL AGREEMENT This INTERCREDITOR SUBORDINATION AND COLLATERAL AGREEMENT (this "Agreement") is made as of March 14, 2000, by and among SunTrust Bank, a Georgia banking corporation, as trustee (in such capacity, together with its successors and assigns, for the benefit of itself and the holders of the Notes (as defined below), the "Trustee"), Hyatt Gaming Management, Inc., a Nevada corporation ("Hyatt Gaming"), and Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the "Company"). RECITALS 1. On the date hereof, the Company and the Trustee are entering into that certain Indenture of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Indenture") pursuant to which the Company is issuing (a) its 13% Series A First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof, the "Series A Notes", and (b) will issue its 13% Series B First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Series B Notes" and together with the Series A Notes, the "Initial Notes"), in the original aggregate principal amount of One Hundred Million Dollars ($100,000,000) and pursuant to which the Company may issue up to an additional Thirty Five Million ($35,000,000) aggregate principal amount of notes in the same series as the Initial Notes (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Additional Notes" and, together with the Initial Notes, the "Notes"). All terms used and not otherwise defined herein shall have the meanings given in the Indenture. 2. On the date hereof, Hyatt Gaming will make available to the Company a subordinated loan in the aggregate principal amount of $7,500,000 evidenced by that certain Subordinated Promissory Note (the "Hyatt Gaming Note") and made pursuant to that certain Subordinated Loan Agreement dated as of even date herewith (as amended, supplemented or otherwise modified from time to time, the "Subordinated Loan Agreement"), by and between the Company and Hyatt Gaming. 3. As a condition to the purchase of the Notes, the parties have agreed to enter into this Agreement. AGREEMENT NOW, THEREFORE, in consideration of the foregoing recitals and the provisions set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Trustee, Hyatt Gaming and the Company agree as follows: {PAGE} 1. Definitions. Capitalized terms used but not otherwise defined herein shall have the meanings given in the Indenture. In addition the following terms shall have the following meanings when used: "Advance Disbursement Account" shall mean the Advance Disbursement Account as defined in the Cash Collateral and Disbursement Agreement. "Hyatt Gaming Accounts" shall mean the Hyatt Gaming Construction Disbursement Account and the Hyatt Gaming Completion Reserve Account. "Hyatt Gaming Accounts Security Agreement" shall mean the Security Agreement which grants the Hyatt Gaming First Lien. "Hyatt Gaming First Lien" shall mean the Lien of Hyatt Gaming on the Hyatt Gaming Accounts. "Hyatt Gaming First Lien Debt" shall mean any amount of the Hyatt Gaming Note secured by the Hyatt Gaming First Lien. Notwithstanding the foregoing, "Hyatt Gaming First Lien Debt" shall mean $0 if all amounts in the Hyatt Gaming Accounts have been disbursed in accordance with the provisions of the Cash Collateral and Disbursement Agreement. "Proceeding" shall mean any insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment, composition, foreclosure or other similar proceeding, any dissolution, liquidation or winding up proceeding, any assignment for the benefit of creditors or any proceeding for the marshaling of assets (in each case whether voluntary or involuntary with respect to the Company). "Senior Collateral Documents" means, collectively, the Deed of Trust by the Company to the Public Trustee of Gilpin Colorado, the Security Agreement by the Company in favor of the Trustee, the Collateral Assignment by the Company in favor of the Trustee, the Cash Collateral and Disbursement Agreement, the Pledge Agreement by the DPR 1992 Trust in favor of the Trustee, the Pledge Agreement by APR 21st Century Trust in favor of the Trustee, the Pledge Agreement by AMR 21st Century Trust in favor of the Trustee, the Advance Disbursement Account Agreement among the Company, the Trustee and Norwest Bank Minnesota, N.A., the Pledge and Assignment by the Company in favor of the Trustee, the Account Agreement among the Company, the Trustee and Norwest Bank Minnesota, N.A., the Manager Subordination Agreement, the Uniform Commercial Code financing statements and fixture filings, and any other agreements, instruments, documents, pledges or filings that evidence, set forth or limit the Lien of the Trustee in the Collateral. "Senior Debt" means (a) all indebtedness, liabilities and obligations of every kind or nature, absolute or contingent, now existing or hereafter arising, of the Company, its successors and assigns, under the Indenture, the Notes, any Senior Collateral Documents or any other documents, 2 {PAGE} instruments or agreements executed in connection with any of the foregoing (the foregoing, collectively, the "Senior Transaction Documents"), to the Trustee or any holder of Notes and their successors and assigns and, subject to Section 4.3 of the Subordinated Loan Agreement, any Person who extends credit to the Company 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 with respect to the Company and any interest which would have accrued but for the commencement of any such Proceeding whether or not allowed as a claim in that Proceeding ), and all premiums, fees, charges, expenses and indemnities arising under or in connection with the Senior Transaction Documents; and (b) any modifications, amendments, refundings, renewals or extensions of any indebtedness or obligation described in clause (a) of this definition. "Subordinated Collateral Documents" means, collectively, the Hyatt Gaming Deed of Trust by the Company to the Public Trustee of Gilpin Colorado, the Hyatt Gaming Security Agreement by the Company in favor of Hyatt Gaming, the Hyatt Gaming Collateral Assignment by the Company in favor of Hyatt Gaming, the Hyatt Gaming Pledge Agreement by the DPR 1992 Trust in favor of Hyatt Gaming, the Hyatt Gaming Pledge Agreement by APR 21st Century Trust in favor of the Trustee, the Hyatt Gaming Pledge Agreement by AMR 21st Century Trust in favor of Hyatt Gaming, the Hyatt Gaming Pledge and Assignment by the Company in favor of Hyatt Gaming, the Hyatt Gaming Account Agreement among the Company, the Trustee and Norwest Bank Minnesota, N.A., the Uniform Commercial Code financing statements and fixture filings, and any other agreements, instruments, documents, pledges or filings that evidence, set forth or limit the Lien of the Trustee in the Collateral. "Subordinated Debt" means (a) all indebtedness, liabilities and obligations of every kind or nature, absolute or contingent, now existing or hereafter arising or advanced, of the Company, its successors and assigns, under the Subordinated Loan Agreement or the Subordinated Collateral Documents (the foregoing, collectively, the "Subordinated Transaction Documents"), to Hyatt Gaming and its successors and assigns and any Person who extends credit to the Company 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 with respect to the Company and any interest which would have accrued but for the commencement of any such Proceeding whether or not allowed as a claim in that Proceeding ), and all premiums, fees, charges, expenses and indemnities arising under or in connection with the Subordinated Transaction Documents; and (b) any modifications, amendments, refundings, renewals or extensions of any indebtedness or obligation described in clause (a) of this definition; provided that Hyatt Gaming shall have a first Lien on the Hyatt Gaming Accounts pursuant to the Hyatt Gaming Accounts Security Agreement, and any amounts secured by or recoverable from such Hyatt Gaming Accounts shall be excluded from this definition of Subordinated Debt. 3 {PAGE} 2. Subordination. ------------- 2.1 Notwithstanding any other provision of the Subordinated Loan Agreement, the Subordinated Debt shall be subordinate and junior in right of payment and lien rights, to the extent and in the manner set forth in this Agreement, to the prior indefeasible payment in full in cash of all Senior Debt (whether outstanding on the date hereof or hereafter created, incurred, assumed or guaranteed), and that the subordination is for the benefit of the holders of Senior Debt. 2.2 Following an Event of Default under the Senior Debt or in the event of any distribution, division or application, partial or complete, voluntary or involuntary, by operation of law or otherwise, of all or any part of the assets of the Company or the proceeds thereof (including any assets now or hereafter securing any Subordinated Debt) to creditors of the Company or upon any Indebtedness of the Company, by reason of any Proceeding with respect to the Company, or any readjustment of Indebtedness, arrangements, reorganizations, compositions or extensions, or sale of all or substantially all of the assets of the Company, then and in any such event: (a) The holders of Senior Debt shall thereafter be entitled to receive payment in full in cash of all Senior Debt before Hyatt Gaming shall be entitled to receive any payment or other distributions on, or with respect to, the Subordinated Debt; (b) Any payment or distribution of any kind or character, whether in cash, securities or other property, which but for this Agreement would thereafter be payable or deliverable upon or with respect to the Subordinated Debt shall instead be paid or delivered directly to the Trustee for the benefit of the holders of the Senior Debt for application on the Senior Debt, whether then due or not due, until the Senior Debt shall have first been fully and indefeasibly paid in cash; (c) In the event that Hyatt Gaming fails (i) to demand, sue for, collect and receive any payment or distribution with respect to the Subordinated Debt at least 15 days before the expiration of the applicable statute of limitations or (ii) to file or vote any claim in any Proceeding with respect to the Subordinated Debt at least 15 days before the expiration of the applicable period of time for filing or voting such claim, Hyatt Gaming hereby irrevocably authorizes and empowers the Trustee, and appoints the Trustee as attorney-in-fact, with respect to any such actions Hyatt Gaming has failed timely to take, to (provided that the holders of a majority in aggregate principal amount of the Notes shall so direct in accordance with the terms of the Indenture) demand, sue for, collect and receive every such payment or distribution and give acquittance therefor, and to file and vote claims (in Proceedings or otherwise) and take such other actions, in the Trustee's own name or otherwise, as Hyatt Gaming shall have failed timely to take and as the Trustee may deem necessary or advisable for the enforcement of this Agreement. Hyatt Gaming shall duly and promptly take such action as may be reasonably requested by the Trustee to assist in the 4 {PAGE} collection of the Subordinated Debt for the account of any holder of the Senior Debt, and to file appropriate proofs of claim with respect to the Subordinated Debt and to vote the same, and to execute and deliver to the Trustee on demand such powers of attorney, proofs of claim, assignments of claim or other instruments as may be reasonably requested by the Trustee to enable the Trustee or any other holder of the Senior Debt in accordance with this Agreement to enforce any and all claims upon or with respect to the Subordinated Debt and to collect and receive any and all payments or distributions which may be payable or deliverable at any time after an Event of Default on the Senior Debt shall occur and be continuing upon or with respect to the Subordinated Debt. In addition, Hyatt Gaming shall take no action (whether oral, written or otherwise) in contravention of any action of the Trustee duly taken and permitted hereunder; Such appointment as attorney-in-fact pursuant to this Section 2.2(c) is irrevocable and coupled with an interest until payment in full and complete performance of all the Senior Debt. The Trustee may appoint a substitute attorney-in-fact. Hyatt Gaming ratifies all actions taken by the attorney-in-fact in accordance with this Agreement but, nevertheless, if the Trustee requests, Hyatt Gaming will specifically ratify any action taken by the attorney-in-fact by executing and delivering to the attorney-in-fact or to any entity designated by the attorney-in-fact all documents necessary to effect such ratification; (d) Should any direct or indirect payment be made to Hyatt Gaming upon or with respect to the Subordinated Debt after an Event of Default on the Senior Debt should occur and be continuing and prior to the payment in full of the Senior Debt in accordance with this Agreement, Hyatt Gaming will forthwith deliver the same to the Trustee in precisely the form received (together with for the endorsement or assignment of Hyatt Gaming where necessary) for application on the Senior Debt. Until so delivered, any such payment or distribution shall be held in trust by Hyatt Gaming as property of the holders of the Senior Debt. 2.3 Permitted Payments. Subject to the provisions of this Agreement including, without limitation, Section 4.1 and 5(b), the Company may pay to, and Hyatt Gaming may accept payment of, amounts due under the Subordinated Loan Agreement. The Company and Hyatt Gaming shall not change, alter, amend, waive or otherwise modify the Subordinated Loan Agreement without the prior written consent of the holders of a majority in aggregate principal amount of the Notes then outstanding except as would not adversely affect the holders of Notes. 3. Priority of Liens. ----------------- 3.1 Except for the Hyatt Gaming First Lien, any Lien of Hyatt Gaming on any assets or property of the Company or any proceeds or revenues therefrom which Hyatt Gaming may have at any time as security for any Subordinated Debt shall be, and hereby is, subordinated and inferior in every respect to all Liens, security interests, or encumbrances now or hereafter granted to the Trustee by the Company or by law, whether now existing or hereafter acquired or arising, that the Trustee now has or hereafter acquires as 5 {PAGE} security for the Senior Debt. The priorities specified herein are applicable irrespective of (i) the time, manner or order of attachment or perfection, or lack of perfection, of any security interests or liens granted by the Company, (ii) the time, manner or order of filing of, or any failure to file, financing statements or other instruments, (iii) whether any Collateral is in the possession of the Trustee or Hyatt Gaming or any of their respective agents or representatives or (iv) any provision of the Uniform Commercial Code or any other applicable law. 3.2 Following an Event of Default under the Senior Debt which has occurred and is continuing, the Trustee may, at its option, take any action to foreclose or realize upon or enforce any of its rights with respect to the Collateral without the prior consent of Hyatt Gaming; provided that upon the foreclosure or realization on or enforcement of rights against the Collateral by the Trustee, the proceeds from the disposition of the Collateral (after deducting the expenses of the sale or other disposition) shall be applied first to the payment in full in cash of the Senior Debt and then to the payment of the Subordinated Debt in accordance with Section 2 hereof. Hyatt Gaming hereby agrees that any such foreclosure, realization or enforcement of so much of the Collateral for the Senior Debt as is necessary to satisfy in full in cash all of the Senior Debt shall be free and clear of any security interest granted to Hyatt Gaming. Hyatt Gaming retains all of its rights as a junior secured creditor to participate in any foreclosure proceedings or realization or enforcement of rights against the Collateral in which the Trustee is participating and to protect its interests with respect to the surplus, if any, arising from any such disposition of the Collateral for the Senior Debt and otherwise with respect to its position as a junior secured creditor. Hyatt Gaming shall cooperate with the Trustee in any such foreclosure, realization, enforcement or disposition, and upon the Trustee's request, Hyatt Gaming shall execute and deliver any releases (including execution of termination and partial release statements) or other documents and agreements that the Trustee in its reasonable discretion deems necessary to dispose of the Collateral for the Senior Debt, subject to Hyatt Gaming's right in any surplus or otherwise as a junior secured creditor. 3.3 Upon request, the Trustee shall render accountings to Hyatt Gaming giving effect to the application of proceeds of the Collateral as provided herein. 3.4 The Trustee shall give to Hyatt Gaming copies of any notice of foreclosure or other enforcement or collection action sent to the Company. 3.5 If the Senior Debt is indefeasibly paid in full in cash and the Trustee thereafter acquires possession of any Collateral or receives any proceeds of the Collateral, the Trustee shall promptly deliver such Collateral and proceeds to Hyatt Gaming, unless it is otherwise required to deliver the Collateral and proceeds according to applicable law, and the Company hereby consents to such payment by the Trustee. 6 {PAGE} 3.6 Subject to Section 4 hereof, in the event the Hyatt Gaming First Lien Debt exceeds $0, the Company and the Trustee agree that: (a) Nothing herein shall restrict Hyatt Gaming's rights to take any actions with respect to the Hyatt Gaming First Lien or otherwise exercise its rights under the Hyatt Gaming Accounts Security Agreement with respect to the Hyatt Gaming First Lien Debt. (b) The Company and the Trustee shall not hinder, obstruct or interfere with any such action or exercise of rights by Hyatt Gaming referred to in paragraph (a) of this Section 3.6. (c) The Company and the Trustee shall cooperate with Hyatt Gaming in connection with any such action or exercise of rights by Hyatt Gaming referred to in paragraph (a) of this Section 3.6. (d) The Trustee's Lien on the Hyatt Gaming Accounts shall be junior and subordinate to the Hyatt Gaming First Lien. (e) The Hyatt Gaming First Lien shall not be impaired if any of the following events shall occur (provided that nothing in this Section 3.6(e) shall be construed to permit any such event prohibited by the Subordinated Loan Agreement, the Hyatt Gaming Note or the Hyatt Gaming Accounts Security Agreement, or any other agreement, instrument or document relating to the Hyatt Gaming First Lien Debt, as applicable): (i) The time for the Company's performance of, or compliance with, any of its agreements contained in the Subordinated Loan Agreement, the Hyatt Gaming Note, or the Hyatt Gaming Accounts Security Agreement, or any other agreement, instrument or document relating to the Hyatt Gaming First Lien Debt, may be modified or extended or such performance or compliance may be waived (other than modifications or extensions that adversely affect the holders of Senior Debt or are not permitted by the Indenture); (ii) Hyatt Gaming may exercise or refrain from exercising any rights under the Subordinated Loan Agreement, the Hyatt Gaming Note, or the Hyatt Gaming Accounts Security Agreement, or any other agreement, instrument or document relating to the Hyatt Gaming First Lien Debt; and (iii) The Hyatt Gaming Accounts Security Agreement may be revised, amended or otherwise modified for the purpose of adding or changing any provisions thereof, or changing in any manner the rights of Hyatt Gaming (other 7 {PAGE} than revisions, amendments or modifications that adversely affect the holders of Senior Debt or are not permitted by the Indenture). (f) Should any direct or indirect payment or distribution be made to the Trustee from the Hyatt Gaming Accounts, the Trustee shall forthwith deliver the same to the Hyatt Gaming Accounts, and until so delivered, any such payment or distribution shall be held in trust by the Trustee as property of the Hyatt Gaming Accounts. (g) Any Lien of the Trustee with respect to the Hyatt Gaming Accounts shall be, and hereby is, subordinated and inferior in every respect to the Hyatt Gaming First Lien. The priorities specified herein are applicable irrespective of (i) the time, manner or order of attachment or perfection, or lack of perfection, of any security interests or liens granted by the Company with respect to the Hyatt Gaming Accounts, (ii) the time, manner or order of filing of, or any failure to file, financing statements or other instruments with respect to the Hyatt Gaming Accounts, (iii) whether any funds from the Hyatt Gaming Disbursement Account are in the possession of the Trustee or Hyatt Gaming or any of their respective agents or representatives or (iv) any provision of the Uniform Commercial Code or any other applicable law. (h) Following an Event of Default under the Subordinated Loan Agreement which has occurred and is continuing after the expiration of any applicable Hold-off Period has expired, upon Hyatt Gaming's written request, the Trustee shall execute and deliver any releases (including execution of termination and partial release statements) or other documents and agreements that Hyatt Gaming in its reasonable discretion deems necessary to dispose of the funds in the Hyatt Gaming Accounts for application to the Hyatt Gaming First Lien Debt, subject to the Trustee's right in any surplus or otherwise as a junior secured creditor with respect to the Hyatt Gaming Accounts. (i) Until Hyatt Gaming has received payment in full in cash of the Hyatt Gaming First Lien Debt, the Trustee agrees that the Trustee will not assert or seek to enforce against the Company any interest of the Trustee in the Hyatt Gaming Accounts for any portion of the Senior Debt, subject to the Trustee's right to participate in any foreclosure proceedings or realization or enforcement of rights against the Hyatt Gaming Accounts in which Hyatt Gaming is participating and to protect its interests with respect to any surplus and otherwise with respect to its position as a junior secured creditor with respect to the Hyatt Gaming Accounts. 8 {PAGE} (j) Upon request, Hyatt Gaming shall render an accounting to the Trustee giving effect to the application of proceeds of the Hyatt Gaming Accounts as provided herein. (k) Hyatt Gaming shall give to the Trustee copies of any notice of foreclosure or other enforcement or collection action sent to the Company pursuant to the Hyatt Gaming Accounts Security Agreement. (l) No right of Hyatt Gaming to enforce the subordination of the Senior Debt to the Hyatt Gaming First Lien shall be impaired by any act or failure to act by the Company or by its failure to comply with this Agreement. (m) Following an Event of Default under the Subordinated Loan Agreement which has occurred and is continuing after the expiration of any applicable Hold-off Period, the Trustee shall duly and promptly take such action as may be reasonably requested by Hyatt Gaming to assist in the collection of the Hyatt Gaming First Lien Debt for the account of Hyatt Gaming, and to file appropriate proofs of claim with respect to the Hyatt Gaming First Lien Debt to vote the same, and to execute and deliver to Hyatt Gaming on demand such proofs of claim, assignments of claim or other instruments as may be reasonably requested by Hyatt Gaming to enable Hyatt Gaming to enforce any and all claims upon or with respect to the Hyatt Gaming First Lien Debt and to collect and receive any and all payments or distributions which may be payable or deliverable with respect to the Hyatt Gaming First Lien Debt. Hyatt Gaming shall be responsible for any fees and expenses reasonably incurred by the Trustee in following such directions or taking such actions as requested by Hyatt Gaming; provided that the Trustee shall give Hyatt Gaming prior written notice to the extent any such costs and expenses may exceed One Thousand Dollars ($1,000). In addition, the Trustee shall take no action (whether oral, written or otherwise) in contravention of any action of Hyatt Gaming duly taken and permitted hereunder with respect to the Hyatt Gaming First Lien Debt. (n) Following an Event of Default under the Subordinated Loan Agreement, but subject to the provisions of Section 4 of this Agreement, Hyatt Gaming may, at its option, take any action to foreclose or realize upon or enforce any of its rights with respect to the Hyatt Gaming First Lien upon five (5) day's notice to the Trustee (but without the prior consent of the Trustee); provided that upon the foreclosure or realization on or enforcement of rights against the Hyatt Gaming First Lien (after deducting the expenses of the sale or other disposition) shall be applied first to the payment in full in cash of the Hyatt Gaming First Lien Debt and then to the payment of the Senior Debt. The Trustee retains all of its rights as a junior secured creditor to (provided that the holders of a majority in aggregate principal amount of the Notes shall so direct in accordance with the terms of the Indenture) 9 {PAGE} participate in any foreclosure proceedings or realization or enforcement of rights against the Hyatt Gaming Accounts in which the Trustee is participating and to protect its interests with respect to the surplus, if any, arising from any such disposition of the Hyatt Gaming Accounts and otherwise with respect to its position as a junior secured creditor with respect to the Hyatt Gaming Accounts. Subject to the provisions of Section 4 of this Agreement, the Trustee shall cooperate with the Hyatt Gaming in any such foreclosure, realization, enforcement or disposition with respect to the Hyatt Gaming Accounts, and upon the Hyatt Gaming's request, the Trustee shall execute and deliver any releases (including execution of termination and partial release statements) or other documents and agreements that Hyatt Gaming in its reasonable discretion deems necessary to dispose of the Hyatt Gaming Accounts, subject to the Trustee's right in any surplus or otherwise as a junior secured creditor with respect to the Hyatt Gaming Accounts. (o) The Trustee hereby waives, and agrees not to assert any right, now or hereafter existing, to require Hyatt Gaming to proceed against or exhaust the Hyatt Gaming Accounts or to marshal any assets in favor of the Trustee or any other holder of any Senior Debt prior to proceeding against the Hyatt Gaming Accounts. 3.7 Notwithstanding anything to the contrary contained in this Agreement or any Senior Collateral Document or Subordinated Collateral Document, to the extent the Trustee shall receive any proceeds from the exercise of its remedies with respect to the Advance Disbursement Account, the Trustee agrees promptly to distribute any such proceeds to the holders of the Notes and to Hyatt Gaming, pro rata according to the amounts funded into such Advance Disbursement Account by Hyatt Gaming from the Hyatt Gaming Construction Disbursement Account and by the Trustee from the Trustee Construction Disbursement Account, respectively. 3.8 Notwithstanding anything to the contrary contained in this Agreement or any Senior Collateral Document or Subordinated Collateral Document, to the extent the Trustee shall receive any proceeds from the exercise of its remedies with respect to the Trust Account No. 13645100, the Trustee agrees promptly to distribute any such proceeds to the holders of the Notes and to Hyatt Gaming, pro rata according to the amounts funded into such Trust Account No. 13645100. 4. Defaults; Hold-off Period; Right to Cure. ---------------------------------------- 4.1 In the event that any Default or Event of Default shall occur and be continuing with respect to any Senior Debt, or if any payment of Subordinated Debt would create a Default or Event of Default, unless and until all Senior Debt shall have been indefeasibly paid in full in cash, the right of Hyatt Gaming to receive any payments or other distributions with respect to Subordinated Debt shall be suspended during the continuance of such Default or Event of Default and until such payment or other distribution would no longer constitute an Event of Default. Hyatt Gaming covenants that upon the occurrence of any default under the Subordinated Transaction Documents, it shall not take 10 {PAGE} any action to accelerate the Subordinated Debt or commence any collection action against the Company or take any action to foreclose or enforce its rights against or realize upon the Collateral (including any set off or offset rights or any rights under bankers' liens) unless such default includes the failure to pay any principal due and payable with respect to the Subordinated Debt until the first to occur of (a) such Hyatt Gaming Default exists uncured for a period of 360 consecutive days or (b) the Trustee, the Company or any other party (other than Hyatt Gaming or any of its Affiliates) shall initiate a Proceeding or the Trustee shall initiate foreclosure proceedings or realization or enforcement rights against any Collateral (the earlier of each such period described in (a) or (b), the "Hold-off Period"). In any exercise of rights after the Hold-off Period, Hyatt Gaming may act to protect its interest as a junior secured creditor. 4.2 The Trustee may, at the direction of a majority of the Noteholders and not from its own funds, at any time during a Hold-off Period elect to cure a Hyatt Gaming Default by paying to Hyatt Gaming all amounts necessary to cure such default, and Hyatt Gaming shall accept such payments in satisfaction of such Hyatt Gaming Default. The Trustee shall be subrogated to the rights of Hyatt Gaming with respect to the amount of such payments in accordance with the provisions of Section 9 hereof. 4.3 Notwithstanding the provisions of this Section 4, if Hyatt Gaming shall receive, while any Event of Default under the Senior Debt has occurred and is continuing, any payment or distribution of any kind with respect to Subordinated Debt (whether from any Collateral or otherwise), such payment or distribution shall be received in trust for, and shall be delivered to the Trustee promptly in precisely the form received (except for the endorsement or assignment of Hyatt Gaming where necessary) for application on the Senior Debt, whether then due or not due. Until so delivered, the payment or distribution shall be held in trust by Hyatt Gaming as property of the holders of Senior Debt. 4.4 If the Trustee delivers to the Company a notice of Default with respect to which the Company has an opportunity to cure, the Trustee shall concurrently deliver a copy of such notice to Hyatt Gaming. Hyatt Gaming shall have the right (but shall not be obligated) to cure the Default prior to the expiration of the applicable cure period. At any time, Hyatt Gaming may, upon notice to the Trustee, but without any liability, discontinue curing any Default. The principal amount of the Subordinated Debt shall be increased by the amounts advanced by Hyatt Gaming to cure any such Default and the reasonable fees, expenses and costs associated with any cure of a Default made by Hyatt Gaming. 5. No Acceleration or Exercise of Remedies. So long as any Senior Debt remains unpaid, Hyatt Gaming will not (a) cause any portion of the Subordinated Debt to become due prior to the due date for such Subordinated Debt as set forth in the Subordinated Loan Agreement and the Hyatt Gaming Note; (b) except to the extent permitted in the Indenture and in accordance with the asset sale, and excess cash flow redemption provisions set forth in the Subordinated Loan Agreement as in effect on the date hereof, accept any payment, prepayment or defeasance of any portion of the Subordinated Debt prior to the due date for such Subordinated Debt as set forth in the Subordinated Loan Agreement; (c) 11 {PAGE} accept any payment, prepayment or defeasance of any portion of the Subordinated Debt in violation of this Agreement; (d) modify or alter in any way the provisions of the Subordinated Loan Agreement if the effect of such is to accelerate the payments of Subordinated Debt due thereon; or (e) except as set forth in Sections 3.2, 3.3 and 4.1, exercise any remedies with respect to the Subordinated Debt or any Collateral at any time securing payment or performance thereof unless and until, in each such case, all of the Senior Debt shall have been indefeasibly paid in full in cash, or the Trustee shall have otherwise consented in writing; provided, however, that the foregoing shall not limit Hyatt Gaming's right to seek injunctive relief or specific performance of the covenants set forth in the Subordinated Loan Agreement to prevent any payment to the Company or its Affiliates or other transactions between the Company and its Affiliates or to participate in any Proceeding or realization or enforcement of rights against the Collateral in which the Trustee is participating and to protect its interest as a junior secured creditor. Except as and to the extent provided hereinafter, Hyatt Gaming will not ask, demand, sue for, take or receive from the Company, by set-off or in any other manner, direct or indirect payment (whether in cash or property), of the whole or any part of the Subordinated Debt or any transfer of any property in payment of or as security therefor, so long as there exists an Event of Default under the Indenture. 6. Bankruptcy. Until the Senior Debt shall have been indefeasibly paid in full in cash, Hyatt Gaming will not, without the prior consent of the Trustee, commence, or join with any other person in commencing, any Proceeding against any Person with respect to the Subordinated Debt under any bankruptcy, reorganization, readjustment of debt, dissolution, receivership, liquidation or insolvency law or statute now or hereafter in effect in any jurisdiction but, subject to the provisions of Section 2.2, Hyatt Gaming shall have the right to appear and participate in any Proceeding initiated by the Trustee, the Borrowers or other parties. 7. Continuing Subordination. The subordination effected by this Agreement is a continuing subordination and may not be modified or terminated by Hyatt Gaming or any other holder of any Subordinated Debt until all of the Senior Debt shall have been indefeasibly paid in full in cash. At any time and from time to time if an Event of Default under the Senior Debt has occurred and is continuing, without consent of or notice to Hyatt Gaming or any other holder of Subordinated Debt, and without impairing or affecting the obligations of any of them hereunder: (a) The time for the Company's performance of, or compliance with, any of its agreements contained in the Indenture, the Notes or the other Senior Transaction Documents, or any other agreement, instrument or document relating to the Senior Debt, may be modified or extended or such performance or compliance may be waived; (b) The Trustee may exercise or refrain from exercising any rights under the Indenture, the Notes or the other Senior Transaction Documents, or any other agreement, instrument or document relating to the Senior Debt; 12 {PAGE} (c) Subject to Section 4.3 of the Subordinated Loan Agreement, the Indenture, the Notes or the other Senior Transaction Documents, or any other agreement, instrument or document relating to the Senior Debt, may otherwise be revised, amended or otherwise modified for the purpose of adding or changing any provisions thereof, or changing in any manner the rights of the Trustee or the Company; (d) Payment of the Senior Debt or any portion thereof may be extended or refunded or any notes evidencing such Senior Debt may be renewed in whole or in part; (e) The maturity of the Senior Debt may be accelerated, and any Collateral or any other rights of the Trustee may be exchanged, sold, surrendered, released or otherwise dealt with in accordance with the terms of any present or future agreement with the Company and any other agreement of subordination (and the debt covered thereby) may be surrendered, released or discharged, or the terms thereof modified or otherwise dealt with in any manner; and (f) Any person liable in any manner for payment of the Senior Debt may be released by holders of Senior Debt. 8. Waivers. Hyatt Gaming hereby waives, and agrees not to assert (a) any right, now or hereafter existing, to require the Trustee to proceed against or exhaust any Collateral at any time securing the Senior Debt, or to marshal any assets in favor of Hyatt Gaming or any other holder of any Subordinated Debt; (b) any notice of the incurrence of Senior Debt, it being understood that advances may be made under the Indenture, or any other agreement, document or instrument now or hereafter relating to the Senior Debt, without notice to or authorization of Hyatt Gaming. 9. Subrogation. Except with respect to the Hyatt Gaming First Lien, Hyatt Gaming hereby subordinates all rights of subrogation to the rights of the holders of Senior Debt to receive payments or distributions, and any rights of subrogation to any Collateral for the Senior Debt, until the Senior Debt shall have been indefeasibly paid in full in cash. Upon such payment in full, Hyatt Gaming shall be subrogated to all rights of the holders of Senior Debt. 10. Subordination Not Impaired by the Company. No right of any holder of Senior Debt to enforce the subordination of the Subordinated Debt shall be impaired by any act or failure to act by the Company or by its failure to comply with this Agreement. 11. No Third Party Beneficiaries. This Agreement is not intended to give or confer any rights to any Person other than the holders of the Senior Debt. No other party, including the Company, is intended to be a third party beneficiary of this Agreement. 13 {PAGE} 12. Legend; Further Assurances. -------------------------- (a) The Company, Hyatt Gaming and the Trustee shall cause each note or other instrument which now or hereafter evidences all or any portion of the Subordinated Debt or the Senior Debt to be conspicuously marked with the following legend: "This instrument is subject to the terms of a Intercreditor Subordination and Collateral Agreement dated as of March 14, 2000, between SunTrust 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." Upon request, the Company, Hyatt Gaming and the Trustee shall execute all documents and instruments reasonably necessary to evidence or carry out the provisions of this Agreement. 13. No Impairment of the Company's Obligations. Nothing contained in this Agreement shall impair, as between the Company and the Trustee or Hyatt Gaming, the obligations of the Company, which are unconditional and absolute, to pay the Senior Debt, the Subordinated Debt and the Hyatt Gaming First Lien Debt as and when all or any portion thereof shall become due and payable in accordance with its terms or prevent the Trustee or Hyatt Gaming (subject to the terms hereof) from exercising all of their respective rights, powers and remedies provided by agreement, applicable law or otherwise. 14. Duration; Subordinated Transaction Documents Amendment. This Agreement is of a continuing nature, and it shall continue in force so long as any portion of the Subordinated Debt or Hyatt Gaming First Lien Debt remains unpaid. As between Hyatt Gaming and the Trustee, Hyatt Gaming may not, without the prior written consent of the Trustee or the holders of a majority of the Notes then outstanding, amend, modify, extend or renew the terms of the Subordinated Transaction Documents and the Subordinated Debt if any such change would (i) increase the aggregate principal amount of the indebtedness thereunder in excess of $7,500,000 outstanding at any one time (including the face amount of all undrawn letters of credit), (ii) increase the interest rate or rates per annum, (iii) increase the fees payable with respect to such indebtedness, (iv) change any principal or interest payment dates, or (v) otherwise adversely affect the Senior Debt. 14 {PAGE} 15. Representations and Warranties. ------------------------------ 15.1 Hyatt Gaming hereby represents and warrants that (a) the execution and delivery of this Agreement and the performance by Hyatt Gaming of its obligations hereunder have received all necessary approvals and do not and will not contravene or conflict with any provision of law or of any indenture, instrument or other agreement to which Hyatt Gaming is a party or by which it or its property may be bound or affected or result in or require the creation or imposition of any mortgage, Lien, pledge, security interest, charge or other encumbrance in, upon or of any of its properties or assets under any such indenture, instrument or other agreement, (b) Hyatt Gaming has full power, authority and legal right to make and perform this Agreement, (c) Hyatt Gaming has not assigned or transferred any indebtedness owing by the Company or any of the Collateral for the Subordinated Debt and that Hyatt Gaming will not assign or transfer same, (d) this Agreement is the legal, valid and binding obligation of Hyatt Gaming, enforceable against Hyatt Gaming in accordance with its terms, and (e) the Subordinated Debt is not subject to any other subordination agreement. 15.2 The Company hereby represents and warrants that (a) the execution and delivery of this Agreement and the performance by the Company of its obligations hereunder have received all necessary approvals and do not and will not contravene or conflict with any provision of law or of any indenture, instrument or other agreement to which the Company is a party or by which it or its property may be bound or affected or result in or require the creation or imposition of any mortgage, Lien, pledge, security interest, charge or other encumbrance in, upon or of any of its properties or assets under any such indenture, instrument or other agreement, (b) the Company has full power, authority and legal right to make and perform this Agreement, (c) this Agreement is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, (d) the Subordinated Debt is not subject to any other subordination agreement, and (e) the Hyatt Gaming First Lien Debt is not subject to any other subordination agreement. 15.3 The Trustee hereby represents and warrants that (a) the execution and delivery of this Agreement and the performance by the Trustee of its obligations hereunder have received all necessary approvals and do not and will not contravene or conflict with any provision of law or of any indenture, instrument or other agreement to which the Trustee is a party or by which it or its property may be bound or affected or result in or require the creation or imposition of any mortgage, Lien, pledge, security interest, charge or other encumbrance in, upon or of any of its properties or assets under any such indenture, instrument or other agreement, (b) the Trustee has full power, authority and legal right to make and perform this Agreement, (c) the Trustee has not assigned or transferred any indebtedness owing by the Company or any of the Collateral for the Senior Debt and that the Trustee will not assign or transfer same, and (d) this Agreement is the legal, valid and binding obligation of the Trustee, enforceable against the Trustee in accordance with its terms. 16. No Waiver. No failure on the part of the Trustee or Hyatt Gaming to exercise, no delay in exercising, and no course of dealing with respect to, any right or remedy hereunder will operate as a waiver thereof; nor will any single 15 3 {PAGE} or partial exercise of any right or remedy hereunder preclude any other or further exercise thereof or the exercise of any other right or remedy. This Agreement may not be amended or modified except by written agreement of the Trustee, Hyatt Gaming, and the Company. 17. Successors and Assigns. This Agreement, and the terms, covenants and conditions hereof, shall be binding upon and inure to the benefit of the parties hereto, the holders of Notes and their respective successors and assigns; provided that this Agreement may not be assigned to any party other than successors or assigns of the holders of the Notes or the holder of the Hyatt Gaming Note. 18. Order of Precedence. Notwithstanding anything herein to the contrary, if there is a conflict between this Agreement and the Subordination, Non-Disturbance and Attornment Agreement dated as of even date herewith by and between the Trustee and Hyatt Gaming (the "Other Agreement"), this Agreement shall control with respect to matters relating to the Subordinated Debt, the Subordinated Transaction Documents and the Collateral, and the Other Agreement shall control with respect to matters relating to the Subordinated Obligations, the Unsubordinated Obligations and the Management Agreement, as such terms are defined in the Other Agreement. 19. GOVERNING LAW. THIS AGREEMENT WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAW OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CHOICE OF LAW PRINCIPLES. 20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 21. Severability. The invalidity, illegality or unenforceability in any jurisdiction of any provision in or obligation under this Agreement shall not affect or impair the validity, legality or enforceability of the remaining provisions or obligations under this Agreement or of such provision or obligation in any other jurisdiction. 22. Trustee's Duties. The Trustee's duties hereunder are governed by the Indenture. The Trustee will be governed in its actions hereunder by direction of a majority of the holders of the Senior Notes. * * * * * 16 {PAGE} IN WITNESS WHEREOF, this Intercreditor Subordination and Collateral Agreement has been duly executed as of the day and year first above written. SUNTRUST BANK, a Georgia banking corporation By: /s/ Debbie Moreyra ----------------------------- Name: Debbie Moreyra ----------------------------- Title: First Vice Presedent ----------------------------- HYATT GAMING MANAGEMENT, INC., a Nevada corporation By: /s/ Richard L. Schulze ----------------------------- Name: Richard L. Schulze ----------------------------- Title: Authorized Signatory ----------------------------- WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation By: /s/ Michael L. Armstrong ----------------------------- Name: Michael L. Armstrong ----------------------------- Title: Executive Vice President ----------------------------- [Signature Page to Intercreditor Subordination and Collateral Agreement] 391735	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Intercreditor Subordination and Collateral Agreement: Windsor Woodmont Black Hawk Resort Corp. – its successors and assigns, for the benefit of itself and the holders of the Notes (as defined below), the "Trustee"), Hyatt Gaming Management, Inc., a Nevada corporation ("Hyatt Gaming"), and Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "Company"). RECITALS 1. On the date hereof, the Company and the Trustee are entering into that certain Indenture of even date herewith (as the same _____________ Windsor Woodmont Black Hawk Resort Corp. – This instrument is subject to the terms of a Intercreditor Subordination and Collateral Agreement dated as of March 14, 2000, between SunTrust 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 _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – By: /s/ Debbie Moreyra ----------------------------- Name: Debbie Moreyra ----------------------------- Title: First Vice Presedent ----------------------------- HYATT GAMING MANAGEMENT, INC., a Nevada corporation By: /s/ Richard L. Schulze ----------------------------- Name: Richard L. Schulze ----------------------------- Title: Authorized Signatory ----------------------------- WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation By: /s/ Michael L. Armstrong ----------------------------- Name: Michael L. Armstrong ----------------------------- Title: Executive Vice President ----------------------------- [Signature Page to Intercreditor Subordination and Collateral Agreement] {/TEXT} {/DOCUMENT} _____________ dt 1364689
Preview Full Doc	2000	Cash Collateral and Disbursement Agreement Cash Collateral and Disbursement Agreement (181K) Doc #391736: Click preview link for longer preview. CASH COLLATERAL AND DISBURSEMENT AGREEMENT among SUNTRUST BANK, as the Trustee, HYATT GAMING MANAGEMENT, INC., as Hyatt Gaming NORWEST BANK MINNESOTA, N.A., as the Disbursement Agent, FIRST AMERICAN HERITAGE TITLE COMPANY, as the Construction Escrow Agent, RE TECH+, INC., as the Independent Construction Consultant, and WINDSOR WOODMONT BLACK HAWK RESORT CORP., as the Company Dated as of March 14, 2000 {PAGE} CASH COLLATERAL AND DISBURSEMENT AGREEMENT ------------------------------------------ THIS CASH COLLATERAL AND DISBURSEMENT AGREEMENT (as amended, supplemented or otherwise modified from time to time, the "Agreement") is dated as of March 14, 2000, by and among SUNTRUST BANK, a Georgia bank, as trustee for the senior lenders (the "Trustee") under the Indenture (as defined herein), HYATT GAMING MANAGEMENT, INC., a Nevada corporation, as the subordinated lender ("Hyatt Gaming"), NORWEST BANK MINNESOTA, N.A., a national association, as disbursement agent for the Trustee and Hyatt Gaming (the "Disbursement Agent"), FIRST AMERICAN HERITAGE TITLE COMPANY, a Colorado corporation, as the construction escrow agent (the "Construction Escrow Agent"), RE TECH+, INC., a Colorado corporation, as independent construction consultant under the Indenture (the "Independent Construction Consultant"), and WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation (the "Company"). (Each of the foregoing are referred to herein individually as a "Party" and collectively as the "Parties".) RECITALS A. Senior Notes. On the date hereof, the Trustee and the Company are entering into that certain Indenture dated as of the date hereof (as the same may be amended, restated, supplemented or modified from time to time, the "Indenture") pursuant to which the Company (i) is issuing its 13% Series A First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Series A Notes"), and (ii) will issue its 13% Series B First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Series B Notes", and together with the Series A Notes, the "Original Senior Notes"), in the original aggregate principal amount of One Hundred Million Dollars ($100,000,000), and pursuant to which the Company may issue additional notes in the same series as the Original Notes up to an aggregate principal amount of Thirty Five Million Dollars ($35,000,000) (such notes, together with any notes issued in replacement thereof or in exchanges therefor, the "Additional Senior Notes", and together with the Original Senior Notes, the "Senior Notes"). The Trustee will make available to the Company the proceeds from the issuance of the Original Senior Notes in the aggregate principal amount of $100,000,000. B. Subordinated Notes. On the date hereof, Hyatt Gaming will make available to the Company a subordinated loan in the aggregate principal amount of Seven Million Five Hundred Thousand Dollars ($7,500,000) as evidenced by that certain Subordinated Promissory Note (the "Subordinated Note"), and made pursuant to the provisions of a Subordinated Loan Agreement (as amended, supplemented or otherwise modified from time to time, the "Subordinated Loan Agreement") dated the date hereof, between the Company and Hyatt Gaming. C. Proceeds from the Notes. A portion of the proceeds from the Senior Notes and the Subordinated Note (collectively, the "Notes") shall be deposited in the following accounts: {PAGE} 1. Proceeds from the issuance of the Original Senior Notes in the amount of Twenty Four Million One Hundred Forty One Thousand and no/100 Dollars ($24,141,000.00) (the "Interest Reserve Proceeds"), will be deposited into an account held at the offices of the Trustee in the name of the Trustee (said account, or any substitute account selected in accordance with the terms of this Agreement, is referred to herein as the "Interest Reserve Account"), in accordance with this Agreement, to be maintained by the Trustee pursuant to Section 2 of this Agreement. 2. Proceeds from the issuance of the Original Senior Notes in the amount of Fifty Three Million Three Hundred Fifty One Thousand Three Hundred Seventy Two and 88/100 Dollars ($53,351,372.88) (the "Trustee Construction Proceeds") will be deposited into an account held at the offices of the Disbursement Agent in the name of the Trustee (said account, or any substitute account selected in accordance with the terms of this Agreement, is referred to herein as the "Trustee Construction Disbursement Account"), in accordance with this Agreement, to be maintained by the Disbursement Agent pursuant to Section 2 of this Agreement. 3. Proceeds from the issuance of the Original Senior Notes in the amount of Six Million Four Hundred Fifty Seven Thousand Three Hundred Sixty and no/100 Dollars ($6,457,360.00) (the "Trustee Completion Reserve Proceeds" which, together with the Trustee Construction Proceeds and the Trustee Interest Reserve Proceeds, shall be referred to herein as the "Senior Notes Proceeds"), will be deposited into an account held at the offices of the Disbursement Agent in the name of the Trustee (said account, or any substitute account selected in accordance with the terms of this Agreement, is referred to herein as the "Trustee Completion Reserve Account"), in accordance with this Agreement, to be maintained by the Disbursement Agent pursuant to Section 2 of this Agreement. 4. Proceeds from the issuance of the Subordinated Notes in the amount of Five Million Two Hundred Seventy Six Thousand Five Hundred Nine and 41/100 Dollars ($5,276,509.41) (the "Hyatt Gaming Construction Proceeds"), will be deposited into an account held at the offices of the Disbursement Agent in the name of Hyatt Gaming (said account, or any substitute account selected in accordance with the terms of this Agreement, is referred to herein as the "Hyatt Gaming Construction Disbursement Account"), in accordance with this Agreement, to be maintained by the Disbursement Agent pursuant to Section 2 of this Agreement. 5. Proceeds from the issuance of the Subordinated Notes in the amount of Six Hundred Thirty Eight Thousand Six Hundred Forty and no/100 Dollars ($638,640.00) (the "Hyatt Gaming Completion Reserve Proceeds" which, together with the Hyatt Gaming Construction Proceeds, shall be referred to herein as the "Hyatt Gaming Proceeds"), will be deposited into an account held at the offices of the Disbursement Agent in the name of Hyatt Gaming (said account, or any substitute account selected in accordance with the - 2 - {PAGE} terms of this Agreement, is referred to herein as the "Hyatt Gaming Completion Reserve Account"), in accordance with this Agreement, to be maintained by the Disbursement Agent pursuant to Section 2 of this Agreement. D. Collateral and Collateral Assignment. As security for its obligations under the Notes, the Company has granted the following collateral: 1. The Company has granted senior security interests to the Trustee, on behalf of itself and the holders of Senior Notes, in certain assets and has collaterally assigned certain contracts to the Trustee. As further security for its obligations under the Senior Notes and the Indenture, the Company also has granted to the Trustee, on behalf of itself and the holders of the Senior Notes, pursuant to that certain Pledge and Assignment Agreement, dated as of even date herewith, between the Company and the Trustee (the "Senior Pledge and Assignment Agreement") (i) a senior security interest in all of the Company's right, title and interest in the Trustee Accounts and any Proceeds or other amounts held in any such Trustee Accounts, and (ii) a subordinated security interest in all of the Company's right, title and interest in the Hyatt Gaming Accounts and any Proceeds or other amounts held in any such Hyatt Gaming Accounts. 2. The Company has granted subordinated security interests to Hyatt Gaming in certain assets and has collaterally assigned certain contracts to Hyatt Gaming. As further security for its obligations under the Subordinated Note and the Subordinated Loan Agreement, the Company also has granted to Hyatt Gaming pursuant to that certain Hyatt Gaming Pledge and Assignment Agreement, dated as of even date herewith, between the Company and Hyatt Gaming (the "Hyatt Gaming Pledge and Assignment Agreement") (i) a senior security interest in all of the Company's right, title and interest in the Hyatt Gaming Accounts and any Proceeds or other amounts held in any such Hyatt Gaming Accounts, and (ii) a subordinated security interest in all of the Company's right, title and interest in the Trustee Accounts and any Proceeds or other amounts held in any such Trustee Accounts. E. Purpose. The parties intend that portions of the Proceeds and the other amounts deposited from time to time in (i) the Interest Reserve Account be used to pay interest on the Senior Notes on each Interest Payment Date, and (ii) the Accounts (other then the Interest Reserve Account) be used to develop, design, construct and equip the Project (as defined herein) and provide for working capital and operating funds for the Company, all in accordance with the Indenture and the Subordinated Loan Agreement. The parties have entered into this Agreement in order to set forth the conditions upon which, and the manner in which, funds will be disbursed in order to permit the Company to develop, design, construct and equip the Project, and to permit the Company to conduct its operations. - 3 - {PAGE} AGREEMENT NOW, THEREFORE, for the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows: 1. Definitions. ----------- 1.1 Defined Terms. In addition to the parties defined in the introduction, the following terms shall have the meanings set forth in this Section for the purposes of this Agreement: "Account Agreements" means, collectively, the Interest Reserve Account Agreement, the Trustee Account Agreement, the Hyatt Gaming Account Agreement, and the Advance Account Agreement. "Accounts" means, collectively, the Interest Reserve Account, the Trustee Construction Disbursement Account, the Trustee Completion Reserve Account, the Hyatt Gaming Construction Disbursement Account, the Hyatt Gaming Completion Reserve Account and the Advance Disbursement Account. "Additional Debt" means any additional indebtedness incurred by the Company pursuant to the Additional Senior Notes. "Additional Revenue" means as of any date of determination all revenue (including, without limitation, investment income (loss), less any losses or costs associated therewith, earned on amounts in the Construction Disbursement Accounts and the Completion Reserve Accounts) generated by, or other funds of, the Company (other than from disposition of its assets) as of such date, but only to the extent that such revenue is held by the Company, free and clear of any claims of any other Person whatsoever, other than claims of the Trustee and holders of the Senior Notes and/or Hyatt Gaming; provided, however, that as of any date of determination, Additional Revenue also shall include investment income (loss), less any losses or costs associated therewith, which the Company reasonably determines (with the reasonable concurrence of the Disbursement Agent (acting in its sole discretion exercised in good faith)) will be earned on funds in the Construction Disbursement Accounts and the Completion Reserve Accounts through the anticipated date that the Project becomes Operating, taking into account the current and future anticipated rates of return on the Investment Grade Securities in the Construction Disbursement Accounts and the Completion Reserve Accounts and the anticipated times and amounts of draws therefrom for the payment of Construction Expenses or in connection with permitted amendments to the Construction Disbursement Budget (as applicable). "Additional Senior Notes" has the meaning set forth in the Recital A. - 4 - {PAGE} "Advance Account Agreement" means that certain Account Agreement, dated of even date herewith, by and among the company, the Trustee, Hyatt Gaming and the Investment Agent. "Advance Disbursement" means a disbursement from the Construction Disbursement Accounts to the Company pursuant to an Advance Disbursement Request. "Advance Disbursement Account" means the account established at the offices of the Disbursement Agent in the name of the Company (or any substitute account selected in accordance with this Agreement) to be maintained for the purpose of disbursements of any Advance Disbursement, together with any substitute account selected in accordance with the terms of this Agreement. "Advance Disbursement Request" has the meaning set forth in Section 7.1. "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 beneficial ownership of 10% or more of the Voting Stock of a Person shall be deemed to be control. "Applicable Law" means all applicable statutes, laws, rules, regulations, ordinances, codes and other legal requirements or any Governmental Agency or quasi-Governmental Agency having jurisdiction over the Company or the Project, including, without limitation, all applicable building codes and the American With Disabilities Act of 1990, and environmental laws, and any judgment, injunction, order or other judicial or regulatory requirement of any court or Governmental Agency having competent jurisdiction with respect to the Person or property in question. "Architect" means Steelman Ltd. and its successors identified by notice from the Company to the Disbursement Agent and the Construction Escrow Agent. "Architect Agreement" means that certain (i) Standard Form of Agreement Between Owner and Architect with Standard Form of Architect's Services (AIA Document B141-1997, 1997 Edition Electronic Format), dated January 31, 2000, by and between WWLLC and the Architect, and (ii) Settlement Agreement, dated as of even date herewith, by and among, inter alia, WWLLC and Architect, as assigned pursuant to that certain General Assignment, dated as of even date herewith, from WWLLC to the Company, and as amended, modified or supplemented from time to time. "Available Funds" means, at any given time, the sum of: (a) the Proceeds held in or credited to the Construction Disbursement Accounts and the Completion - 5 - {PAGE} Reserve Accounts, (b) Additional Revenue (so long as there is no Default or Event of Default), (c) actual or anticipated FF&E Financing (to the extent permitted under the Indenture), (d) City Improvement Bonds (to the extent permitted under the Indenture), and (e) any Additional Debt (to the extent funds from such indebtedness are then available to the Company). "Board of Directors" means: (i) with respect to a corporation, the board of directors of the corporation; (ii) with respect to a partnership, the Board of Directors of the general partner of the partnership; and (iii) with respect to any other Person, the board or committee of such Person serving a similar function. "Business Day" means any day other than Saturday, Sunday or any day on 391736	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Cash Collateral and Disbursement Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Hyatt Gaming NORWEST BANK MINNESOTA, N.A., as the Disbursement Agent, FIRST AMERICAN HERITAGE TITLE COMPANY, as the Construction Escrow Agent, RE TECH+, INC., as the Independent Construction Consultant, and WINDSOR WOODMONT BLACK HAWK RESORT CORP. , as the Company Dated as of March 14, 2000 {PAGE} CASH COLLATERAL AND DISBURSEMENT AGREEMENT ------------------------------------------ THIS CASH COLLATERAL AND DISBURSEMENT AGREEMENT (as amended, supplemented or otherwise modified from time _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – a Colorado corporation, as the construction escrow agent (the "Construction Escrow Agent"), RE TECH+, INC., a Colorado corporation, as independent construction consultant under the Indenture (the "Independent Construction Consultant"), and WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation (the "Company"). (Each of the foregoing are referred to herein individually as a "Party" and collectively as the "Parties".) RECITALS A. Senior Notes. On the date _____________ Windsor Woodmont Black Hawk Resort Corp. – PAGE} To the Independent Construction Consultant: Re Tech+, Inc. 621 17th Street, Suite 2250 Denver, CO 80293 Attention: Mr. James Von Tongeln Fax No.: (303) 296-0639 To the Company: -------------- Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street Dallas, TX 75207 Attention: Mr. Daniel Robinowitz Fax No.: (214) 630-1261 or at such other address as the specified entity most recently may have designated _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Title: -------------------------------------------- HYATT GAMING MANAGEMENT, INC. By: ---------------------------------------------- Name: ---------------------------------------------- Title: --------------------------------------------- NORWEST BANK MINNESOTA, N.A. By: ------------------------------------------------ Name: ---------------------------------------------- Title: ---------------------------------------------- FIRST AMERICAN HERITAGE TITLE COMPANY By: ------------------------------------------------ Name: ---------------------------------------------- Title: ---------------------------------------------- RE TECH+, INC. By: ------------------------------------------------ Name: ---------------------------------------------- Title: ---------------------------------------------- WINDSOR WOODMONT BLACK HAWK RESORT CORP. By: ------------------------------------------------ Name: ---------------------------------------------- Title: ---------------------------------------------- - 56 - {PAGE} INVESTMENT AGENT ---------------- NORWEST INVESTMENT SERVICES, INC., acting in its capacity as the investment agent pursuant to the Cash Collateral and Disbursement Agreement attached hereto, _____________ dt 1364690 ;	Windsor Woodmont Windsor Woodmont LLC ( Miscellany ) As referenced in this Cash Collateral and Disbursement Agreement: Windsor Woodmont, L – Company in connection with the Project, limited, prior to when the Project is first Operating, as contemplated in and to the extent permitted by the Construction Disbursement Budget. "WWLLC" means Windsor Woodmont, L .L.C., a Colorado limited liability company. 1.2 Rules of Interpretation. The following rules of interpretation shall apply herein. (a) The singular includes the plural and the plural _____________ dt 1533740
Preview Full Doc	2000	Registration Rights Agreement Registration Rights Agreement (75K) Doc #391725: Click preview link for longer preview. A/B EXCHANGE REGISTRATION RIGHTS AGREEMENT Dated as of March 14, 2000 by and among Windsor Woodmont Black Hawk Resort Corp. and Each of the Purchasers Named on the Signature Pages Hereto This Registration Rights Agreement (this "Agreement") is made and entered into as of March 14, 2000, by and among Windsor Woodmont Black Hawk Resort Corp., a . . . 391725	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Registration Rights Agreement: Windsor Woodmont Black Hawk Resort Corp. – 8 {FILENAME}0008.txt {DESCRIPTION}A/B EXCHANGE REGISTRATION RIGHTS AGREEMENT {TEXT} Exhibit 4.7 A/B EXCHANGE REGISTRATION RIGHTS AGREEMENT Dated as of March 14, 2000 by and among Windsor Woodmont Black Hawk Resort Corp. and Each of the Purchasers Named on the Signature Pages Hereto {PAGE} This Registration Rights Agreement (this "Agreement") is made and entered into as of March 14, 2000, by _____________ Windsor Woodmont Black Hawk Resort Corp. – Each of the Purchasers Named on the Signature Pages Hereto {PAGE} This Registration Rights Agreement (this "Agreement") is made and entered into as of March 14, 2000, by and among Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "Company"), and each of the Purchasers named on the signature pages hereto (each a "Purchaser" and, collectively, the "Purchasers"), each of whom has agreed to _____________ Windsor Woodmont Black Hawk Resort Corp. – a Holder, at the address set forth on the records of the Registrar under the Indenture, with a copy to the Registrar under the Indenture; and if to the Company: Windsor Woodmont Black Hawk Resort Corp. Address: 2231 Valdina Street Dallas, Texas 75207 Facsimile: (214) 630-1261 Attention: Daniel P. Robinowitz with a copy to: Paul, Hastings, Janofsky & Walker LLP Address: 399 Park Avenue New _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – parties with respect to such subject matter. 19 {PAGE} IN WITNESS WHEREOF, the parties have executed this A/B Exchange Registration Rights Agreement as of the date first written above. WINDSOR WOODMONT BLACK HAWK RESORT CORP. By: /s/ Daniel P. Robinowitz ------------------------------------- Name: Daniel P. Robinowitz Title: President By: /s/ Mirhael L. Armstrong ------------------------------------- Name: Michael L. Armstrong Title: Executive Vice President 20 {PAGE} [Signature Page to _____________ dt 1364684 ; Paul Hastings Paul, Hastings, Janofsky & Walker ( Legal ) As referenced in this Registration Rights Agreement: Paul, Hastings – and if to the Company: Windsor Woodmont Black Hawk Resort Corp. Address: 2231 Valdina Street Dallas, Texas 75207 Facsimile: (214) 630-1261 Attention: Daniel P. Robinowitz with a copy to: Paul, Hastings , Janofsky & Walker LLP Address: 399 Park Avenue New York, New York 10022-4697 Facsimile: (212) 319-4090 Attention: William F. Schwitter, Esq. 18 {PAGE} All such notices and communications _____________ dt 1021341 ;	Shearman Shearman & Sterling ( Legal ) As referenced in this Registration Rights Agreement: Shearman & Sterling – the Commission enunciated in Morgan Stanley and Co., Inc. (available June 5, 1991) and Exxon Capital Holdings Corporation (available May 13, 1988), as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993, and similar no-action letters (including, if applicable, any no-action letter obtained pursuant to clause (i) above), and (2) must comply with the registration and _____________ Shearman & Sterling – of the Commission enunciated in Exxon Capital Holdings Corporation (available May 13, 1988), Morgan Stanley and Co., Inc. (available June 5, 1991) as interpreted in the Commission's letter to Shearman & Sterling dated July 2, 1993, and, if applicable, any no-action letter obtained pursuant to clause (i) above, (B) including a representation that the Company has not entered into any arrangement _____________ dt 1000641
Full Doc	2003	Notification of Late Filing Notification of Late Filing (6K) Doc #391679: This document is immediately available for purchase, but does not have a preview available for viewing. 391679	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming )
Preview Full Doc	2000	Pledge and Assignment Agreement Pledge and Assignment Agreement (53K) Doc #391728: Click preview link for longer preview. PLEDGE AND ASSIGNMENT AGREEMENT THIS PLEDGE AND ASSIGNMENT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), is made by WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation, as pledgor ("Pledgor"), in favor of SUNTRUST BANK, a Georgia banking corporation ("SunTrust"), as trustee (SunTrust, in such capacity, together with its successors and assigns, the "Trustee") for the benefit of the Holders (as hereinafter defined). RECITALS WHEREAS, the Pledgor and the Trustee are, contemporaneously with the execution and delivery of this Agreement, entering into that certain Indenture of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Indenture"), pursuant to which Pledgor (a) is issuing its 13% Series A First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Series A Notes"), and (b) will issue its 13% Series B First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Series B Notes" and, together with the Series A Notes, the "Initial Notes"), in the original aggregate principal amount of $100,000,000, and pursuant to which the Pledgor may issue up to an additional $35,000,000 aggregate principal amount of notes in the same series as the Initial Notes (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Additional Notes" and, together with the Initial Notes, the "Senior Notes"). WHEREAS, the Pledgor and Hyatt Gaming Management, Inc., a Nevada corporation ("Hyatt Gaming"), are, contemporaneously with the execution and delivery of this Agreement, entering into that certain Subordinated Loan Agreement of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Subordinated Loan Agreement"), pursuant to which Hyatt Gaming is loaning Pledgor the original aggregate principal amount of $7,500,000, evidenced by that certain Subordinated Promissory Note dated as of March 14, 2000 (such note, together with any notes issued in replacement thereof or in exchange therefor, the "Second Mortgage Notes"; together with the Senior Notes, collectively, the "Notes"). WHEREAS, the Pledgor, the Trustee, Hyatt Gaming, Norwest Bank Minnesota, N.A., a national association ("Norwest"), as disbursement agent for the Trustee (in such capacity, the "Disbursement Agent"), First American Heritage Title Company, as the construction escrow agent, and RE TECH+, Inc., as independent construction consultant, are, contemporaneously with the execution and delivery of this Agreement, entering into that certain Cash Collateral and Disbursement Agreement of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Disbursement Agreement") pursuant to which the net proceeds of the Senior Notes (the "Senior Notes Proceeds") and the Second Mortgage Notes (the "Hyatt Gaming Proceeds" which, together with the Senior Notes Proceeds shall be referred to herein as the "Note Proceeds") will be administered and maintained, including {PAGE} the investment of certain portions of such proceeds in Government Securities and Investment Grade Securities in accordance with the Indenture and the Disbursement Agreement and such other investments as provided in the Clearing Account Letter Agreement. WHEREAS, Pledgor is the legal and beneficial owner of the securities listed in Schedule I hereto and will be the legal and beneficial owner of all securities purchased by or on behalf of Pledgor from time to time with the Note Proceeds and/or other amounts deposited or accruing in the Pledged Collateral Accounts, as defined below (all of the foregoing securities, collectively, the "Securities"). WHEREAS, it is a condition precedent to the purchase of the Initial Notes that Pledgor shall have executed and delivered this Agreement to the Trustee for itself and the ratable benefit of the holders from time to time of the Senior Notes (the "Holders) to secure the payment and performance of the Obligations (as hereinafter defined). NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and in order to induce the Holders to purchase the Initial Notes, the Pledgor agrees as follows: Section 1. Definitions. Terms used but not otherwise defined herein that are defined in the Uniform Commercial Code (as defined herein) shall have the meanings given in the Uniform Commercial Code. Capitalized terms used but not otherwise defined herein shall have the meanings given in the Indenture. In addition the following terms shall have the following meanings when used herein. "Account Agreement" means that certain Account Agreement dated as of even date herewith by and among Pledgor, the Trustee and the Securities Intermediary (as amended, restated, supplemented or otherwise modified from time to time). "Advance Disbursement Account" shall have the meaning assigned to such term under subsection 2(c). "Advance Disbursement Account Agreement" means that certain Advance Disbursement Account Agreement dated as of even date herewith by and among Pledgor, the Trustee, Hyatt Gaming and Norwest. "Book-Entry Securities" means securities issued by the United States of America or any agency or instrumentality thereof maintained through registration on the books of a Federal Reserve Bank pursuant to applicable Federal book-entry regulations. "Clearing Account" shall have the meaning assigned to such term under subsection 2(c). 391728	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Pledge and Assignment Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – PLEDGE AND ASSIGNMENT AGREEMENT, dated as of March 14, 2000 (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Agreement"), is made by WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation, as pledgor ("Pledgor"), in favor of SUNTRUST BANK, a Georgia banking corporation ("SunTrust"), as trustee (SunTrust, in such capacity, together with its successors and assigns, the " _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed and delivered by its duly authorized officer as of the date first above written. PLEDGOR: WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation By: /s/ David P. Robinowitz ------------------------------- Name: David P. Robinowitz Title: President TRUSTEE: SUNTRUST BANK, a Georgia banking corporation By: /s/ Deborah Moreyra ------------------------------------- Name: Deborah Moreyra Title: _____________ dt 1364687
Preview Full Doc	2000	Security Agreement Security Agreement (80K) Doc #391727: Click preview link for longer preview. SECURITY AGREEMENT THIS SECURITY AGREEMENT, dated as of March 14, 2000 (herein as amended, restated, supplemented or otherwise modified from time to time, called this "Security Agreement"), is between Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (herein called the "Debtor"), and SunTrust Bank, a Georgia banking corporation, as trustee (herein, together with its successors and assigns in such capacity, called the "Trustee") for the benefit of itself and the Holders (as hereinafter defined). Capitalized terms used but not otherwise defined herein shall have the meanings given in the Indenture (as hereinafter defined). W I T N E S S E T H: -------------------- RECITALS WHEREAS, the Debtor and the Trustee are, contemporaneously with the execution and delivery of this Security Agreement, entering into that certain Indenture of even date herewith (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Indenture"), pursuant to which Debtor (a) is issuing its 13% Series A First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Series A Notes"), and (b) will issue its 13% Series B First Mortgage Notes due 2005 (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Series B Notes"and, together with the Series A Notes, the "Initial Notes"), in the original aggregate principal amount of $100,000,000, and pursuant to which the Debtor may issue up to an additional $35,000,000 aggregate principal amount of notes in the same series as the Initial Notes (such notes, together with any notes issued in replacement thereof or in exchange therefor, the "Additional Notes" and, together with the Initial Notes, the "Notes"). WHEREAS, it is a condition precedent to the purchase of the Initial Notes that Debtor shall have executed and delivered this Security Agreement to the Trustee for itself and the ratable benefit of the holders from time to time of the Notes (the "Holders") to secure the due and punctual payment and performance of the Obligations (as hereinafter defined). NOW, THEREFORE, in consideration of the foregoing premises and in order to induce the Trustee to enter into the Indenture and to induce the Holders to purchase the Notes, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Debtor hereby agrees, for the benefit of the Trustee and for the ratable benefit of the Holders as follows: SECTION 1 Definitions. When used herein, (a) the terms Account, Chattel Paper, Deposit Account, Document, Equipment, Fixture, General Intangibles, Goods, Instruments, Investment Property and Inventory shall have the respective meanings assigned to such terms in the Uniform Commercial Code (as defined below) and (b) the following terms shall have the following meanings: {PAGE} "Account Debtor" shall mean the party who is obligated on or under any Account Receivable or Contract Right of the Debtor or, if appropriate, any General Intangible of the Debtor. "Account Receivable" shall mean an Account. "Additional Debtor" shall have the meaning assigned to such term under subsection 9.12. "Advance Disbursement Account" shall mean that certain account number 0404017634 at Norwest Bank Minnesota, N.A. "Amendment" shall have the meaning assigned to such term under subsection 9.12. "Assignee Deposit Account" shall have the meaning assigned to such term under Section 4. "Black Hawk Casino" shall mean the pending project to develop, construct, equip and operate the Debtor's casino and related amenities. "Cash Collateral and Disbursement Agreement" shall mean the Cash Collateral and Disbursement Agreement among the Debtor, the Trustee, Hyatt Gaming, RE TECH+, Inc., as independent construction consultant, First American Heritage Title Company, as the construction escrow agent, and the Disbursement Agent (as amended, restated, supplemented or otherwise modified from time to time). "Collateral" shall mean all property or rights in which a security interest is granted hereunder. "Computer Hardware and Software" shall mean (i) all computer and other electronic data processing hardware, whether now owned, licensed or leased or hereafter acquired by the Debtor, including, without limitation, all integrated computer systems, central features, computer elements, card processing units, memory units, display terminals, printers, readers, tape drives, hard and soft disk drives, cables, electrical supply hardware, generators, power equalizers, accessories and all peripheral devices and other related computer hardware; (ii) all software programs, whether now owned, licensed or leased or hereafter acquired by the Debtor, designed for use on the computers and electronic data processing hardware described in clause (i) above, including, without limitation, all operating system software, utilities and application programs in whatsoever form (source code and object code in magnetic tape, disk or hard copy format or any other listings whatsoever); (iii) all firmware associated therewith, whether now owned, licensed or leased or hereafter acquired by the Debtor; and (iv) all documentation for such hardware, software and firmware described in the preceding clauses (i), (ii) and (iii) above, whether now owned, licensed or leased or hereafter acquired by the Debtor, including, without limitation, flow charts, logic diagrams, manuals, specifications, training materials, charts and pseudo codes. -2- {PAGE} "Contract Right" shall mean any right of the Debtor to payment under a contract for the sale or lease of Goods or the rendering of services, which right is at the time of determination not yet earned by performance. "Debtor" shall have the meaning assigned to such term in the Preamble. "Disbursement Agent" shall mean Norwest Bank Minnesota, N.A., a national association, as disbursement agent. "Excluded Assets" shall have the meaning assigned to such term in Section 2. "FF&E" shall mean furniture, fixtures or equipment used in the ordinary course of the business of the Debtor and its Subsidiaries. "FF&E Financing" shall mean the incurrence of indebtedness, the proceeds of which are utilized solely to finance or refinance the acquisition of (or entry into a capital lease by the Debtor or a Subsidiary with respect to ) FF&E to the extent permitted by the Indenture. "Gaming Authority" shall mean any agency, authority, board, bureau, commission, department, office or instrumentality of any nature whatsoever of the United States federal or any 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 Debtor or any of its Subsidiaries and managed or operated by Hyatt Gaming or any of its Subsidiaries. "Gaming Business" shall mean 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. "Gaming Laws" shall mean the gaming laws of any jurisdiction or jurisdictions to which the Debtor or any of its Subsidiaries is, or may at any time after the date of the Indenture, be subject. "Gaming License" shall mean any license, permit, franchise or other authorization from any Gaming Authority required on the date of the Indenture or at any time thereafter to own, lease, operate or otherwise conduct the Gaming 391727	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Security Agreement: Windsor Woodmont Black Hawk Resort Corp. – 9 SECURITY AGREEMENT THIS SECURITY AGREEMENT, dated as of March 14, 2000 (herein as amended, restated, supplemented or otherwise modified from time to time, called this "Security Agreement"), is between Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (herein called the "Debtor"), and SunTrust Bank, a Georgia banking corporation, as trustee (herein, together with its successors and assigns in such capacity, called the "Trustee") _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – of page intentionally left blank; signature page follows] -19- {PAGE} IN WITNESS WHEREOF, this Security Agreement has been duly executed as of the day and year first above written. DEBTOR ------ WINDSOR WOODMONT BLACK HAWK RESORT CORP. By: /s/ Michael L. Armstrong --------------------------------- Name: Michael L. Armstrong Title: Executive Vice President TRUSTEE ------- SUNTRUST BANK, as Trustee By: /s/ Deborah M. --------------------------------- Name: Deborah M. Title: First Vice President { _____________ [Windsor Woodmont Black Hawk Resort Corp. – the Holders (as defined in the Security Agreement as hereinafter defined), pursuant to the Indenture (as hereinafter defined). WHEREAS, pursuant to that Indenture dated as of March 14, 2000 between [Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation ("Black Hawk")/Grantor] and the Trustee, (as the same may be amended, restated, supplemented or otherwise modified from time to time, the "Indenture"), certain notes were _____________ Windsor Woodmont Black Hawk Resort Corp. – as of ___________, ____, relates to the Security Agreement dated as of March 14, 2000, (as amended, restated, supplemented or otherwise modified from time to time, the "Agreement") executed by Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation ("Debtor") and SunTrust Bank, as trustee (in such capacity, together with its successors and assigns, the "Trustee"), for the benefit of itself and the Holders (as _____________ dt 1364686 ;	NWB National Westminster Bank plc ( Financial ) As referenced in this Security Agreement: National Westminster Bank, PLC – S-III/1 {PAGE} SCHEDULE IV ----------- GOVERNMENT CONTRACTS None. S-IV/1 {PAGE} SCHEDULE V LIENS TO BE RELEASED AT CLOSING Financing Statement Number 9800143835 filed July 14, 1998 by National Westminster Bank, PLC with the Texas Secretary of State Financing Statement Number 3656 filed July 14, 1998 by National Westminster Bank, PLC filed with the County Clerk of Dallas County, TX Financing Statement _____________ National Westminster Bank, PLC – AT CLOSING Financing Statement Number 9800143835 filed July 14, 1998 by National Westminster Bank, PLC with the Texas Secretary of State Financing Statement Number 3656 filed July 14, 1998 by National Westminster Bank, PLC filed with the County Clerk of Dallas County, TX Financing Statement Number 2454 filed October 6, 1997 by Kennedy Funding Inc. filed with the Colorado Secretary of State Financing Statement _____________ National Westminster Bank, PLC – of State Financing Statement Number 19972085890 filed October 7, 1997 by Kennedy Funding Inc. filed with the Colorado Secretary of State Financing Statement Number 2527 filed October 7, 1998 by National Westminster Bank, PLC filed with the Colorado Secretary of State Financing Statement Number 2528 filed October 7, 1998 by National Westminster Bank, PLC filed with the Colorado Secretary of State Financing Statement Number _____________ National Westminster Bank, PLC – State Financing Statement Number 2527 filed October 7, 1998 by National Westminster Bank, PLC filed with the Colorado Secretary of State Financing Statement Number 2528 filed October 7, 1998 by National Westminster Bank, PLC filed with the Colorado Secretary of State Financing Statement Number 2529 filed October 7, 1998 by Natwest Capital Markets Limited filed with the Colorado Secretary of State S-V/1 { _____________ dt 1396629
Preview Full Doc	2004	Settlement and Release Agreement Settlement and Release Agreement (42K) Doc #391676: Click preview link for longer preview. SETTLEMENT AND RELEASE AGREEMENT This Settlement and Release Agreement ("Agreement"), dated April 10, 2003, is made and entered into by and between Windsor Woodmont Black Hawk Resort Corporation, a Colorado corporation ("Windsor Woodmont"), on the one hand, and Hyatt Gaming Management, Inc. ("Hyatt"), on the other hand. Windsor Woodmont and Hyatt are referred to herein as the "Parties." RECITALS A. On November 7, 2002 (the "Petition Date"), Windsor Woodmont filed a voluntary petition under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Colorado (the "Bankruptcy Court") commencing its Chapter 11 case, Case No. 02-28089-ABC (the "Bankruptcy Case"). B. Windsor Woodmont is the developer and owner of the Black Hawk Casino by Hyatt (the "Casino") located in Black Hawk, Colorado. C. On February 2, 2000, Windsor Woodmont and Hyatt entered into a Management Agreement pursuant to which Hyatt was retained by Windsor Woodmont to manage the Casino (the "Management Agreement"). The Management Agreement has an initial 15-year term (commencing December 20, 2001), with Hyatt having the option to extend such term for up to two additional 5-year periods if certain conditions specified in the Management Agreement are met. D. Pursuant to Section 4.2 of the Management Agreement, Hyatt is to receive a management fee for managing the Casino. The fee is made up of two components: (i) a "basic fee" equal to 3% of the Adjusted Gross Receipts (as defined in the Management Agreement) of the Casino for each fiscal year (the "Basic Fee") and (ii) a "contingent incentive fee" equal to 5% of positive EBITDA (as defined in the Management Agreement) for each fiscal year (the "Contingent Incentive Fee," and together with the Basic Fee, the "Management Fee"). E. On March 14, 2000, Windsor Woodmont and SunTrust Bank, as trustee, entered into an Indenture, pursuant to which Windsor Woodmont obtained $100 million in financing for the construction and development of the Casino through the issuance of 13% First Mortgage Notes with a maturity date of March 15, 2005 (the "First Mortgage Notes"). The First Mortgage Notes provide, with certain exclusions set forth therein including, without limitation, the liens of the FF&E Lender (as such term is defined below), that they are secured by a first priority lien on substantially all of Windsor Woodmont's assets. The Parties are informed and believe that the First Mortgage Notes are currently substantially held by Ableco Finance, LLC, Farallon Capital Management, Credit Suisse Fixed Income, Credit Suisse Leveraged Instruments, Highland Capital Management, MW Post Advisory Group, Trust Company of the West and Libra Securities (collectively, the "First Mortgage Noteholders"). F. On October 2, 2001, Windsor Woodmont and Wells Fargo Bank, as the administrative and collateral agent for a consortium of lenders, entered into a loan {PAGE} agreement pursuant to which Windsor Woodmont obtained $20.8 million in financing for the purpose of acquiring furniture, fixtures and equipment to be used in connection with the development and operation of the Casino (the "FF&E Loan"). The FF&E Loan is secured by a first priority lien on all of the furniture, fixtures and equipment (including gaming equipment) purchased with the FF&E Loan proceeds. The maturity date of the FF&E Loan is January 1, 2005. The FF&E Loan has been assigned in its entirety to David R. Belding (the "FF&E Lender"). G. On March 14, 2000, Windsor Woodmont and Hyatt entered into a loan agreement pursuant to which Windsor Woodmont obtained $7.5 million for the purpose of financing a portion of the construction and development of the Casino (the "Second Mortgage Note"). The Second Mortgage Note provides that it is secured by the same assets that secure the First Mortgage Note, but is subordinate to the liens of the First Mortgage Noteholders and the FF&E Lender. The maturity date of the Second Mortgage Note is March 15, 2010. H. On or about December 23, 2002, Windsor Woodmont filed its Motion for Court Approval of Debtor Rejection of Hyatt Management Agreement (the "Rejection Motion"). On or about January 10, 2003, the First Mortgage Noteholders filed an objection to the Rejection Motion which was joined by SunTrust Bank on January 13, 2003. On or about January 15, 2003, Hyatt filed an objection to the Rejection Motion. Extensive discovery in connection with the Rejection Motion was undertaken in February and March, 2003. The hearing on the Rejection Motion is currently scheduled for April 7 and 8, 2003. I. On January 22, 2003, Hyatt filed a proof of claim (the "Proof of Claim") in the Bankruptcy Case asserting (i) a secured claim evidenced by the Second Mortgage Note in the amount of $11,702,794.65 (comprised of principal in the amount of $9,840,232.99 and interest in the amount of $1,862,561.66), and (ii) an unsecured claim in the amount of $2,128,028.42 (comprised of $1,176,192.57 in unreimbursed pre-opening costs from October 2000 through June 2002 and $951,835.85 in unreimbursed post-opening operational costs from March 2002 through November 2002). J. Windsor Woodmont disputes the amount and priority of Hyatt's claims set forth in the Proof of Claim and, in the absence of this Agreement, would dispute the assertion by Hyatt of any damage claim that Hyatt could assert against Windsor Woodmont upon the rejection of the Management Agreement in the Bankruptcy Case (the "Rejection Damage Claim"). K. Hyatt currently has control over certain funds from the operations of the Casino (the "Funds"). Windsor Woodmont has made demand on Hyatt to turn over such Funds to Windsor Woodmont in accordance with the terms of the Management Agreement. Hyatt claims an interest in the Funds and to date has refused to turn over the Funds to Windsor Woodmont. Windsor Woodmont has also made demand on Hyatt to refund that portion of Hyatt's Basic Fee in 2002 that Windsor Woodmont alleges was improperly calculated on player loyalty point redemptions, coupon redemptions, and direct mail cash coupons (the "Disputed Management Fees"). Hyatt disputes any and all Windsor Woodmont claims of Management Fee overcharges. - 2 - {PAGE} L. It is the intention and desire of the Parties to settle, compromise and resolve all of the differences, disagreements and disputes which have existed and may now exist between them and to enter into the releases set forth herein, all on the terms and conditions hereinafter set forth. AGREEMENT NOW, THEREFORE, in consideration of the promises and releases contained herein, and to avoid the cost, uncertainty and risk of litigation, the Parties hereby agree as follows: 1. Incorporation of Recitals. All of the Recitals set forth in paragraphs A through L, inclusive, are incorporated herein by this reference as though set forth in full at this place. 2. Bankruptcy Court Approval. The terms of the settlement set forth herein are expressly conditioned on the Parties' execution of this Agreement and the entry of a final order of the Bankruptcy Court approving this Agreement (the "Approval Order"). For purposes of this Agreement, a final order shall mean an order as to which no appeal has been timely brought or, if an appeal has been timely brought, as to which no stay has been obtained. The Parties shall fully cooperate to have the terms of this Agreement approved by the Bankruptcy Court as soon as reasonably possible, including making a joint request to the Bankruptcy Court to schedule an expedited hearing on the approval of this Agreement. Upon the entry of the Approval Order, the Management Agreement will be deemed rejected on the terms and conditions set forth in this Agreement (the "Rejection Date") and the hearing on the Rejection Motion will be taken off the Bankruptcy Court's calendar. Until the entry of the Approval Order, the Parties acknowledge that the Management Agreement shall remain in full force and effect, subject to the provisions of P. 8 hereof, and any and all rights to payment that accrue prior to the Rejection Date shall, subject to the provisions P. 7 hereof, be unaffected by the terms of this Agreement. In the event that this Agreement is not approved by the Bankruptcy Court, (i) this Agreement shall be void ab initio, (ii) nothing herein shall be deemed an admission by any Party, (iii) this Agreement shall not be admissible in the Bankruptcy Court or in any other court or proceeding, and (iv) each Party shall retain all of its rights which existed immediately prior to the Parties' agreement to settle their disputes as provided in this Agreement. 3. Allowance of Claim in the Bankruptcy Case. Hyatt shall hold an allowed pre-petition claim in the Bankruptcy Case in the total amount of $18,318,368.49 (the "Allowed Unsecured Claim"), which amount is broken down as follows: a. Allowed Rejection Damage Claim. The Parties agree that Hyatt shall hold an allowed pre-petition unsecured Rejection Damage Claim in the Bankruptcy Case in the amount of $5,000,000. b. Allowed Second Mortgage Note Claim. The Parties agree that Hyatt shall hold an allowed pre-petition unsecured claim in the Bankruptcy Case based on the Second Mortgage Note in the amount of $10,877,790.74; provided, however, that, in the event that the - 3 - {PAGE} collateral that secures the Second Mortgage Note claim is determined by the Bankruptcy Court to have a value in excess of the liens senior to the Second Mortgage Note claim (including, without limitation, the liens of the FF&E Lender and the First Mortgage Noteholders), Hyatt's claim based on the Second Mortgage Note shall be secured to the extent of the value of Hyatt's collateral, with the balance of such claim being unsecured. c. Allowed Claim for Pre-Opening Casino Expenses. The Parties agree that Hyatt shall hold an allowed pre-petition unsecured claim in the Bankruptcy Case based on unreimbursed pre-opening Casino expenses in the amount of $1,532,920.67. d. Allowed Claim for Post-Opening Casino Expenses. The Parties agree that Hyatt shall hold an allowed pre-petition unsecured claim in the Bankruptcy Case based on unreimbursed post-opening Casino expenses in the amount of $907,657.08. 4. Treatment of Allowed Unsecured Claim Under a Plan of Reorganization and Support for Plan of Reorganization. Windsor Woodmont shall use its best efforts to propose, and Hyatt shall support, a plan of reorganization ("Plan") in the Bankruptcy Case that provides the following treatment on account of Hyatt's Allowed Unsecured Claim. Commencing one (1) month after the effective date of the Plan, Windsor Woodmont shall commence making monthly interest-only payments in arrears on the unpaid portion of Hyatt's Allowed Unsecured Claim at a rate of six percent (6%) per annum (the "Interest Only Payments"). The Interest Only Payments will continue until Windsor Woodmont generates Excess Cash Flow (defined below), from and after which time Windsor Woodmont shall make, in addition to the Interest Only Payments, monthly principal payments to Hyatt on account of the Allowed Unsecured Claim (due on or before the fifth business day of the month) in the amount of all Excess Cash Flow generated during the previous month until such time as the Allowed Unsecured Claim is indefeasibly paid in full; provided, however, that in any event Windsor Woodmont must repay the Allowed Unsecured Claim in full in cash on or before the seventh anniversary of the effective date of the Plan. For purposes of this Section 4, "Excess Cash Flow" shall mean the Consolidated Cash Flow of Windsor Woodmont (as defined in Section 1.29 of the Second Mortgage Note as in effect on the Petition Date) for any month minus all 391676	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) ; Paul Steelman Paul Steelman, Ltd. ( Miscellany ) As referenced in this Settlement and Release Agreement: Paul Steelman, Ltd – including, without limitation, in connection with any merger or consolidation involving Windsor Woodmont) any Equity Interests (this subparagraph 5(ii) shall not prohibit a redemption of the stock held by Paul Steelman, Ltd . ("Steelman") as part of any settlement of Windsor Woodmont's claims against Steelman where such settlement does not provide for the payment of cash by Windsor Woodmont); (iii) make _____________ dt 1482876 ; Ableco Finance Ableco Finance LLC ( Financial ) As referenced in this Settlement and Release Agreement: Ableco Finance, LLC – secured by a first priority lien on substantially all of Windsor Woodmont's assets. The Parties are informed and believe that the First Mortgage Notes are currently substantially held by Ableco Finance, LLC , Farallon Capital Management, Credit Suisse Fixed Income, Credit Suisse Leveraged Instruments, Highland Capital Management, MW Post Advisory Group, Trust Company of the West and Libra Securities (collectively, the "First _____________ dt 1338078 ;	Irell & Manella Irell & Manella ( Legal ) As referenced in this Settlement and Release Agreement: Irell & Manella – Street Black Hawk, CO 80422 Attention: Timothy Rose Fax: (303) 582-3634 And Jerry Dauderman 3 Hillsborough Newport Beach, CA 92660 Fax: (949) 720-3933 And William N. Lobel, Esq. Irell & Manella LLP 840 Newport Center Drive, Suite 400 Newport Beach, CA 92660 Fax: (949) 760-5200 - 11 - {PAGE} To Hyatt: Hyatt Gaming Management, Inc. 200 West Madison, 42nd Floor Chicago, Illinois _____________ dt 1552448 ; Latham & Watkins Latham & Watkins ( Legal ) As referenced in this Settlement and Release Agreement: Latham & Watkins – 5200 - 11 - {PAGE} To Hyatt: Hyatt Gaming Management, Inc. 200 West Madison, 42nd Floor Chicago, Illinois 60606 Attention: Ernest East, General Counsel Fax: (312) 920-2342 And David Heller, Esq. Latham & Watkins Illinois LLC Sears Tower, Suite 5800 233 South Wacker Drive Chicago, IL 60606 Fax: (312) 993-9767 Any Party to this Agreement may change the address to which any _____________ dt 1339090
Preview Full Doc	2000	Shareholders' Agreement Shareholders' Agreement (45K) Doc #391741: Click preview link for longer preview. SHAREHOLDERS' AGREEMENT Dated as of March 14, 2000 among WINDSOR WOODMONT BLACK HAWK RESORT CORP. and THE SHAREHOLDERS LISTED ON SCHEDULE A HERETO SHAREHOLDERS' AGREEMENT This SHAREHOLDERS' AGREEMENT (this "Agreement"), is entered into as of March 14, 2000, among Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the . . . 391741	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Shareholders' Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – {DOCUMENT} {TYPE}EX-10.24 {SEQUENCE}24 {FILENAME}0024.txt {DESCRIPTION}SHAREHOLDERS' AGREEMENT {TEXT} Exhibit 10.24 SHAREHOLDERS' AGREEMENT Dated as of March 14, 2000 among WINDSOR WOODMONT BLACK HAWK RESORT CORP. and THE SHAREHOLDERS LISTED ON SCHEDULE A HERETO {PAGE} SHAREHOLDERS' AGREEMENT This SHAREHOLDERS' AGREEMENT (this "Agreement"), is entered into as of March 14, 2000, among Windsor Woodmont Black Hawk _____________ Windsor Woodmont Black Hawk Resort Corp. – WOODMONT BLACK HAWK RESORT CORP. and THE SHAREHOLDERS LISTED ON SCHEDULE A HERETO {PAGE} SHAREHOLDERS' AGREEMENT This SHAREHOLDERS' AGREEMENT (this "Agreement"), is entered into as of March 14, 2000, among Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "Company"), and those shareholders listed on Schedule A hereto (each, a "Shareholder" and, collectively, the "Shareholders"). WHEREAS, the Shareholders have agreed to purchase an aggregate _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. * * * -13- {PAGE} IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed and delivered as of the date first above written. WINDSOR WOODMONT BLACK HAWK RESORT CORP. By: -------------------------------- Name: Title: By: -------------------------------- Name: Title: SHAREHOLDERS: -14- {PAGE} {TABLE} {CAPTION} Schedule A SHAREHOLDERS Number of Shares Name Address Subscribed For ---- ------- -------------- {S} {C} {C} Maureen Connolly Brinker, 9410 Alva _____________ dt 1364694 ;	U.S. Bancorp U.S. Bancorp ( Money Center Banks ) As referenced in this Shareholders' Agreement: U.S. Bancorp – means the Securities and Exchange Commission. "Securities Act" means the Securities Act of 1933, as amended. "Warrant Holders" means the purchasers of the Company's units, Hyatt Gaming Management, Inc., U.S. Bancorp Libra and the purchasers of the Company's Series B preferred stock who acquire Warrants on the date hereof. "Warrants" means the warrants to purchase Shares to be issued on _____________ dt 1298319
Preview Full Doc	2000	Site Improvement Agreement Site Improvement Agreement (14K) Doc #391709: Click preview link for longer preview. SITE IMPROVEMENT AGREEMENT THIS AGREEMENT is made this _______ day of _______________, 2000, by and between the CITY OF BLACK HAWK, COLORADO (the "City"), and WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation (the "Developer"). RECITALS: A. The Developer is the owner of certain real property located in the City of Black Hawk known as Black Hawk Casino By Hyatt which is more particularly described in Exhibit A attached hereto and made a part hereof (the "Property"). B. The Developer desires to obtain an Excavation Permit within the meaning of Section 18-242 of the City of Black Hawk Municipal Code to perform an Excavation Project, and must therefore provide Completion Funds within the meaning of Sections 18-241 and 18-252 of the City of Black Hawk Municipal Code. C. The City and the Developer desire to enter into this Site Improvement Agreement as required by Section 18-241(3) in order specify the terms and conditions upon which the Completions Funds shall be disbursed, drawn upon and/or used by the City for completion of the Excavation Project or Site rehabilitation. AGREEMENT: NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which are mutually acknowledged, the parties hereto agree as follows: 1. Purpose. The purpose of this Agreement is to set forth the terms and conditions of the use of the Completion Funds submitted by the Developer to the City in order to secure an Excavation Permit for an Excavation Project for which Completion Funds are required within the meaning of Section 18-241(3) of the City of Black Hawk Municipal Code. All conditions contained herein are in addition to any and all requirements of the City of Black Hawk Subdivision Ordinance and Zoning Ordinance, the City of Black Hawk Territorial Charter, any and all state statutes, and any other sections of the City of Black Hawk Municipal Code, and are not intended to supersede any requirements contained therein. To the extent terms are contained herein which are otherwise undefined, such terms shall be defined as set forth in Article XII of Chapter 18 of the City of Black Hawk Municipal Code, as amended. 2. Amount of Completion Funds. The Developer hereby agrees to submit to the City prior to the issuance of an Excavation Permit for the Property, funds in the amount of Five Million, Seven Hundred Ninety-Four Thousand, Five Hundred and 1 {PAGE} Twenty-Two Dollars and 80/100 ($5,794,522.80), which amount constitutes one hundred and ten percent (110%) of the amount necessary to complete the Excavation Project as set forth in Section 18-241(3) of the City of Black Hawk Municipal Code based on an actual bid attached hereto as Exhibit B, and incorporated herein by this reference (the "Completion Funds") which shall be provided pursuant to an Escrow Agreement, in the form which is attached as Exhibit C and incorporated by this reference and Five Hundred Twenty-Six Thousand Seven Hundred Seventy-Five Dollars and 20/100 ($526,775.20), constituting an additional ten percent (10%) of the total cost of the Excavation Project as Site Rehabilitation Security within the meaning of Section 18-251 of the City of Black Hawk Municipal Code, which shall be provided to the City in the form of cash or irrevocable letter of credit prior to the issuance of an excavation permit. 3. Use of Completion Funds. In the event work is stopped on the Excavation Project, for a period of ten (10) consecutive days or more, other than for a demonstrated force majeure, the City shall draw upon the Completion Funds and, at its sole discretion, either complete the Excavation Project or otherwise rehabilitate the Property in accordance with the Site Rehabilitation standards set forth in City of Black Hawk Municipal Code ss.18-241(8). Upon completion of the Excavation Project or the Site Rehabilitation, the City shall release any remaining Completion Funds to the Developer within thirty (30) calendar days of 391709	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Site Improvement Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – AGREEMENT {TEXT} Exhibit 10.26 SITE IMPROVEMENT AGREEMENT THIS AGREEMENT is made this _______ day of _______________, 2000, by and between the CITY OF BLACK HAWK, COLORADO (the "City"), and WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation (the "Developer"). RECITALS: A. The Developer is the owner of certain real property located in the City of Black Hawk known as Black Hawk Casino By _____________ Windsor Woodmont Black Hawk Resort Corp. – With copy to: James S. Maloney Black Hawk City Attorney Hayes, Phillips & Maloney, P.C. 1350 17th Street, Suite 450 Denver, Colorado 80202 Notice to Developer: Daniel P. Robinowitz, Esq. Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street Dallas, Texas 75207 With copy to: Scott D. Albertson Holley, Albertson & Polk, P.C. 1667 Cole Blvd. #100 Golden, CO 80401 17. Approvals. Whenever approval or _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – above-written. CITY OF BLACK HAWK, COLORADO By: -------------------------------- Kathryn E. Eccker, Mayor ATTEST: ----------------------------------- Deborah S. Yancy, CMC City Clerk APPROVED AS TO FORM: ----------------------------------- James S. Maloney, City Attorney 5 {PAGE} WINDSOR WOODMONT BLACK HAWK RESORT CORP. By:_______________________________ Name:_____________________________ Title:____________________________ STATE OF COLORADO ) ) ss. COUNTY OF _________________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this _______ day of _______________________, _____________ Windsor Woodmont Black Hawk Resort Corp. – STATE OF COLORADO ) ) ss. COUNTY OF _________________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this _______ day of _______________________, 20__, by ________________________________ as the _______________________________ of Windsor Woodmont Black Hawk Resort Corp. My commission expires: __________________________ (S E A L) ------------------------------ Notary Public {/TEXT} {/DOCUMENT} _____________ dt 1364679
Preview Full Doc	2000	Standard Form of Agreement Between Owner and Contractor Standard Form of Agreement Between Owner and Contractor (229K) Doc #391694: Click preview link for longer preview. Standard Form of Agreement Between Owner and Contractor THIS AGREEMENT is made as of the 25th day of January, 2000. BETWEEN the Owner Windsor Woodmont, LLC And the Contractor PCL Construction Services, Inc. The Project is: The construction of a casino and a garage building, as depicted on Exhibit "C" and Exhibit "H." The Project site is located in Blackhawk, . . . 391694	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) ; Paul Steelman Paul Steelman, Ltd. ( Miscellany ) As referenced in this Standard Form of Agreement Between Owner and Contractor: Paul Steelman, Ltd – garage building, as depicted on Exhibit "C" and Exhibit "H." The Project site is located in Blackhawk, Colorado, and is legally described on Exhibit "A" attached hereto. The Architect is: Paul Steelman, Ltd ., or such other architect as Owner shall designate Exhibits: Exhibit "A" Legal Description of Project Site Exhibits "A-l" through "A-S" Renderings Exhibit "B" Architect Document Production Schedule _____________ dt 1482877 ;	U.S. Bancorp U.S. Bancorp ( Money Center Banks ) As referenced in this Standard Form of Agreement Between Owner and Contractor: U.S. Bancorp – any property owned by the Owner. 16.3 Owner's and Contractor's obligations under this Agreement shall be conditioned upon the closing of escrow of the bond financing with U.S. Bancorp by April 30th, 2000, whereby if such closing does not occur by such time, either Owner or Contractor shall have the right to terminate this Agreement by giving written _____________ dt 1442619
Preview Full Doc	2000	Subdivision Agreement Subdivision Agreement (53K) Doc #391705: Click preview link for longer preview. SUBDIVISION AGREEMENT THIS AGREEMENT is made this 29 day of December, 1997, between the CITY OF BLACK HAWK, COLORADO, a home rule municipal corporation (the "City"), and WINDSOR - WOODMONT, L.L.C. (the "Developer"). RECITALS: A. The Developer is the owner of certain real property located in the City of Black Hawk known as St. Moritz Resort and Casino, Filing No. 1, which is more particularly described in Exhibit A attached hereto and made a part hereof (the "Property"). B. On December 29, 1997, the Board of Aldermen of the City of Black Hawk, after holding all necessary public hearings and having received a recommendation of approval from the Black Hawk Planning Commission, approved the final plat for the Property. A copy of the final plat is attached hereto as Exhibit B and incorporated herein. C. The approvals cited above are contingent upon the express condition that all duties created by this Agreement are faithfully performed by the Developer. AGREEMENT: NOW, THEREFORE, for and in consideration of the mutual promises and covenants contained herein, the sufficiency of which are mutually acknowledged, the parties hereto agree as follows: 1. Purpose. The purpose of this Agreement is to set forth the terms, conditions, and fees to be paid by the Developer upon subdivision of the Property. All conditions contained herein are in addition to any and all requirements of the City of Black Hawk Subdivision Ordinance and Zoning Ordinance, the City of Black Hawk Charter, the rules and regulations of the District, any and all state statutes, and any other sections of the City of Black Hawk Municipal Code, and are not intended to supersede any requirements contained therein. 2. Fees. The Developer hereby agrees to pay the City the actual cost to the City for engineering, hydrological, surveying, and legal services (the "Actual Costs") rendered in connection with the review of the subdivision of the Property, including related administrative fees not to exceed fifteen percent (15%) of the Actual Costs. In addition, the Developer shall reimburse the City {PAGE} for the costs of making corrections or additions to the master copy of the official City map and for the fee for recording the final plat and accompanying documents with the Gilpin County Clerk and Recorder. 3. Specific Conditions. The Developer hereby agrees: a. The Developer shall construct the Richman Street improvements which shall include, but not be limited to, the construction of three (3) twelve (12) foot vehicular lanes with 1-1/2 foot curb and gutter on both sides of the street along the entire length of the property from State Highway 119 to the northerly property boundary line; construct rock faced retaining walls and erosion control as required by the City and its Drainage Consultant along the east side of the Richman Street improvements and adjacent to the Four Mile Gulch drainage channel; sidewalks averaging eight (8) feet wide and ranging in width from approximately twenty (20) feet at the southerly end of Richman Street and five (5) feet on the northerly end of Richman Street as shown on the Geometry Plan for the Property dated November 3, 1997; street lighting, striping, signage, and other necessary improvements to Richman Street as determined by the City and constructed according to construction plans approved by the City. The Developer shall dedicate and convey by special warranty deed, free and clear of all liens and encumbrances, sufficient additional right-of-way for Richman Street such that Richman Street consists of a fourty foot (40') wide right-of-way, as depicted on the St. Moritz Resort and Casino Filing No. 1 Minor Subdivision Plat ("New Richman Street"). The right-of-way dedication for New Richman Street is shown on the plat of St. Moritz Resort and Casino, Filing No. 1, Minor Subdivision Plat. The City shall convey to the Developer, after the City accepts the Public Improvements described herein, that portion of existing Richman Street that is located between Richman Street as realigned and the real property described in Exhibit A ("Existing Richman Street"). Upon such conveyance the City shall adopt an ordinance vacating Existing Richman Street. The City - 2 - {PAGE} further agrees to convey to the Developer rockbolt easements for Existing Richman Street and New Richman Street, to the extent necessary for the Developer's Project and to the extent that such rockbolt easements do not interfere with the City's use of Existing Richman Street and New Richman Street. b. The Developer shall construct the signals necessary at the intersection of Richman Street and State Highway 119 as determined by the City and according to standards of the City of Black Hawk and the Colorado Department of Transportation. c. The Developer shall construct public improvements within the State Highway 119 right-of-way that shall include, but not be limited to, all in accordance with the approvals and requirements of the Colorado Department of Transportation and concurrence with the City of Black Hawk Public Works Department, an accel/decel lane along the southerly length of the property abutting the highway right-of-way; a right turn in/right turn out entrance/exit to the parking garage; Highway 119 improvements and lane construction in accordance with the Colorado Department of Transportation and the City of Black Hawk's Traffic Consultants requirements; construction of curb and gutter along the highway frontage; construction of minimal sidewalks at the entrance to the casino and pedestrian crossing at Highway 119 and Richman Streets with a commitment for construction of a future ten (10) foot wide sidewalk solely at the Developer's cost along the highway frontage when requested by the City; and other necessary improvements along the Highway 119 frontage as determined by the City and according to construction plans approved by the City. d. The Developer shall construct and install landscaping along the Richman Street and State Highway 119 frontage including, but not limited to, trees, shrubs, berms, lawns, and necessary amenities in accordance with the Landscaping Plan approved by the City of Black Hawk. e. The Developer shall construct and maintain for perpetuity drainage improvements which shall include, but not be limited to, 18" and 24" reinforced concrete pipe subsurface storm - 3 - {PAGE} drainage collection system along the Richman Street and State Highway 119 frontages consisting of approximately seven hundred fifty (750) feet of pipe, catch basins, manholes, highway crossing and connection to the North Clear Creek box culvert installed for the Black Hawk/Jacobs development; mitigation of impacts determined in the offsite and construction level drainage plans as reviewed and approved by the City of Black Hawk and its Drainage Consultant; compliance with all requirements of FEMA in accordance with the CLOMR review and approval; and other necessary improvements as determined by the City and constructed in accordance with the construction plans approved by the City. f. In addition to those Public Improvements specified herein, the 391705	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Subdivision Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – ADDENDUM TO SUBDIVISION AGREEMENT --------------------------------------- THIS THIRD ADDENDUM TO SUBDIVISION AGREEMENT is made this ____ day of March, 2000, by and between the CITY OF BLACK HAWK, COLORADO (the "City") and WINDSOR WOODMONT BLACK HAWK RESORT CORP. , (the "Developer"). RECITALS: --------- On December 29, 1997, the City and the Developer entered into a Subdivision Agreement (the "Agreement"). On March 25, 1998, the City and Developer entered into _____________ Windsor Woodmont Black Hawk Resort Corp, – Third Addendum to extend the date for completion of the public improvements described in the Subdivision Agreement and approve the assignment of the Subdivision Agreement from Windsor-Woodmont, LLC to Windsor Woodmont Black Hawk Resort Corp, which is now the current owner of the Property. NOW, THEREFORE, the City and the Developer, for the consideration recited in the Subdivision Agreement, agree to amend the Subdivision _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – date stated above. CITY OF BLACK HAWK, COLORADO By:______________________________ Kathryn E. Eccker, Mayor ATTEST: ------------------------------ Deborah S. Yancy, CMC, City Clerk APPROVED AS TO FORM: ------------------------------ James S. Maloney, City Attorney WINDSOR WOODMONT BLACK HAWK RESORT CORP. By:______________________________ STATE OF COLORADO ) ) ss. COUNTY OF _________________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this _______ day of _______________________, 2000, by _________________________________________ as _____________ Windsor Woodmont Black Hawk Resort Corp. – STATE OF COLORADO ) ) ss. COUNTY OF _________________ ) The foregoing instrument was subscribed, sworn to, and acknowledged before me this _______ day of _______________________, 2000, by _________________________________________ as the _______________________________ of Windsor Woodmont Black Hawk Resort Corp. Witness my hand and official seal. My commission expires: __________________________ (S E A L) --------------------------------- Notary Public -2- {/TEXT} {/DOCUMENT} _____________ dt 1364678 ;	Windsor Woodmont Windsor Woodmont LLC ( Miscellany ) As referenced in this Subdivision Agreement: WINDSOR - WOODMONT, L – Exhibit 10.7 SUBDIVISION AGREEMENT THIS AGREEMENT is made this 29 day of December, 1997, between the CITY OF BLACK HAWK, COLORADO, a home rule municipal corporation (the "City"), and WINDSOR - WOODMONT, L .L.C. (the "Developer"). RECITALS: A. The Developer is the owner of certain real property located in the City of Black Hawk known as St. Moritz Resort and Casino, _____________ Windsor - Woodmont, L – Hawk, Colorado 80422 With copy to: James S. Maloney, Esq. Black Hawk City Attorney Hayes, Phillips & Maloney, P.C. 350 17th Street, Suite 450 Denver, Colorado 80202 Notice to Developer: Windsor - Woodmont, L .L.C. 4144 N. Central Expressway Suite 1200 Dallas, Texas 75204 Attention: Daniel P. Rowbinowitz 22. Force Majeure. Whenever the Developer is required to complete the construction, repair, or _____________ WINDSOR - WOODMONT, L – covenant running with the Property in order to put prospective purchasers or other interested parties on notice as to the terms and provisions hereof. 26. Title and Authority. The Developer, WINDSOR - WOODMONT, L .L.C., expressly warrants and represents to the City that it is the record owner of the property constituting the Property and further represents and warrants, together with the _____________ WINDSOR - WOODMONT, L – above-written. CITY OF BLACK HAWK, COLORADO By:______________________________ Kathryn E. Eccker, Mayor ATTEST: ------------------------------ Penny Round, City Clerk APPROVED AS TO FORM: ------------------------------ James S. Maloney, City Attorney - 12 - {PAGE} DEVELOPER: WINDSOR - WOODMONT, L .L.C. By:_______________________________ Name:_____________________________ Title:____________________________ STATE OF COLORADO ) ) ss. COUNTY OF _________________) The foregoing instrument was subscribed, sworn to, and acknowledged before me this _______ day _____________ Windsor - Woodmont, L – STATE OF COLORADO ) ) ss. COUNTY OF _________________) The foregoing instrument was subscribed, sworn to, and acknowledged before me this _______ day of _______________________, 1997, by _________________________________________ as the _______________________________ of Windsor - Woodmont, L .L.C. Witness my hand and official seal. My commission expires: __________________________ (S E A L) ______________________________ Notary Public - 13 - {PAGE} FIRST ADDENDUM TO SUBDIVISION AGREEMENT --------------------------------------- THIS SUBDIVISION AGREEMENT _____________ dt 1533737
Preview Full Doc	2000	Subordinated Loan Agreement Subordinated Loan Agreement (231K) Doc #391730: Click preview link for longer preview. 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 {PAGE} TABLE OF CONTENTS Page ---- 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 {PAGE} (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 {PAGE} 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 {PAGE} TABLE OF EXHIBITS Exhibit A. Form of Subordinated Promissory Note iv {PAGE} 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. {PAGE} 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. 2 {PAGE} 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 391730	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Subordinated Loan Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – {DOCUMENT} {TYPE}EX-10.12 {SEQUENCE}13 {FILENAME}0013.txt {DESCRIPTION}SUBORDINATED LOAN AGREEMENT {TEXT} 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 {PAGE} TABLE OF CONTENTS Page ---- ARTICLE I. Definitions.........................................................1 ARTICLE II. The Loan..........................................................25 _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Exhibit A. Form of Subordinated Promissory Note iv {PAGE} 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 _____________ Windsor Woodmont Black Hawk Resort Corp. – 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 _____________ Windsor Woodmont Black Hawk Resort Corp. – 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 John Martin, as amended by the letter agreement between such parties dated March 14, 2000; (iii) that certain Windsor Woodmont _____________ Windsor Woodmont Black Hawk Resort Corp. – Hawk Resort Corp. Subscription Agreement, dated as of March 14, 2000, by John Martin, 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 Robert E. Martin, as amended by the letter agreement between such parties dated March 14, 2000; (iv) that certain Windsor _____________ dt 1364688 ; Windsor Woodmont Windsor Woodmont LLC ( Miscellany ) As referenced in this Subordinated Loan Agreement: Windsor Woodmont, L – 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 _____________ Windsor Woodmont, L – 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 Jerry Dauderman, as amended by the letter agreement between such parties accepted by Borrower March 14, 2000; (ii) that certain Subordinated Replacement Promissory Note Conversion Agreement, _____________ Windsor Woodmont, L – 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 Robert W. Martin, as amended by the letter agreement between such parties accepted by Borrower March 14, 2000; (iii) that certain Subordinated Replacement Promissory Note Conversion _____________ Windsor Woodmont, L – 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 Robert E. Martin, as amended by the letter agreement between such parties accepted by Borrower March 14, 2000; (iv) that certain Subordinated Replacement Promissory Note Conversion _____________ Windsor Woodmont, L – 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 John M. Martin, as amended by the letter agreement between such parties accepted by Borrower March 14, 2000; (v) that certain Subordinated Replacement Promissory Note Conversion _____________ dt 1533739 ;	Paul Hastings Paul, Hastings, Janofsky & Walker ( Legal ) As referenced in this Subordinated Loan Agreement: Paul, Hastings – 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 , Janofsky & Walker LLP, counsel for the Borrower, in form satisfactory to the Lender; (b) An opinion of Holley, Albertson & Polk, P.C., Colorado real estate counsel and corporate counsel _____________ dt 1397592
Preview Full Doc	2000	Subordination, Non-Disturbance and Attornment Agreement Subordination, Non-Disturbance and Attornment Agreement (52K) Doc #391702: Click preview link for longer preview. SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT ------------------------------------------------------- THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (as amended, supplemented or otherwise modified from time to time, this "Agreement") is made as of ____________, 2000, by and among _______________________________, a _________________________________, as trustee (the "Trustee", which term shall include any affiliate, designee or a nominee of the Trustee acting at the direction or on behalf of the Trustee from time to time) for the benefit of itself and the holders (the "Holders") of the Notes (as defined below), and HYATT GAMING MANAGEMENT, INC., a Nevada corporation (the "Manager"). RECITALS A. Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the "Company") will issue One Hundred Million Dollars ($100,000,000) principal amount of its _______% First Mortgage Notes due ____________, 2006, together with any notes issued in replacement thereof or exchange therefor as any of the foregoing may be amended, supplemented, modified, renewed or extended from time to time, the "Notes") pursuant to that certain Indenture dated as of ____________, 2000 (as amended, supplemented or otherwise modified from time to time, the "Indenture"), by and between the Company and the Trustee. (All initial capitalized terms used, but not defined, in this Agreement shall have the meaning set forth in the Indenture). B. The Manager and the Company are parties to that certain Management Agreement dated as of February 1, 2000 (as amended, supplemented or otherwise modified from time to time in accordance with the terms hereof, the "Management Agreement"), pursuant to which the Company shall pay the Manager a management fee in consideration of the Manager's services relating to the management and operation of the Casino. C. It is a condition to the purchase of the Notes by the Holders and the execution and delivery of the Management Agreement by the Manager and the Company that the parties enter into this Agreement. AGREEMENT --------- NOW, THEREFORE, in consideration of the above recitals and the provisions set forth herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, the Trustee, the Manager and the Company hereby agree as follows: 1. Definitions. As used in this Agreement, the following initial capitalized terms shall have the respective meanings set forth below: (a) "Lien" shall means any lien, encumbrance, security interest, charge or claim of any Person with respect to any property. 1 {PAGE} (b) "Post-Default Transfer" shall mean a transfer by foreclosure of the Deed of Trust, power of sale or other similar proceedings brought to enforce the rights of the holder thereof, by deed or assignment in lieu of foreclosure or by any other similar method, or through a bankruptcy sale following the occurrence of an Event of Default. (c) "Prior Owner" shall mean Company or any other "Owner" under the Management Agreement prior to Purchaser. (d) "Purchaser" shall mean the Trustee or any other Person who becomes the owner of, or succeeds to the interest of the Company in, all or any portion of the real property comprising a portion of the Trust Property pursuant to, or in connection with, a Post-Default Transfer. (e) "Person" shall mean an individual, partnership, corporation, business trust, joint stock company, trust, unincorporated association, limited liability company, joint venture, governmental authority or other entity of any kind, whether acting in its own or a representative capacity. (f) "Restricted Payment" means any payment in respect of a Subordinated Obligation to the extent such payment is prohibited under the Indenture. (g) "Senior Loan Documents" means the Notes, the Indenture, the Deed of Trust and the other Collateral Documents, or any other documents, instruments or agreements executed by the Company in connection with any of the foregoing to the Trustee or any holder of Notes and their successors and assigns. (h) "Senior Debt" means (A) all indebtedness, liabilities and obligations of every kind or nature, absolute or contingent, now existing or hereafter arising, of the Company, its successors and assigns, under the Senior Loan Documents and all premiums, fees, charges, expenses and indemnities arising under or in connection with the Indenture, the Notes or any other Senior Loan Document, and (B) any modifications or amendments, of any indebtedness or obligation described in clause (A) above. (i) "Subordinated Obligations" means (i) the Incentive Fee (as defined in the Management Agreement), and (ii) any insurance proceeds or condemnation awards paid to Owner to the extent the same is payable to the Trustee and/or the Holders under the Senior Loan Documents. (j) "Unsubordinated Obligations" shall mean the Basic Fee (as defined in the Management Agreement) and any other amounts due to the Manager pursuant to the Management Agreement other than the Subordinated Obligations. 2 {PAGE} 2. Consent. The Manager hereby consents to (i) the financing contemplated by the Senior Loan Documents, and (ii) the assignment by the Company to the Trustee, pursuant to the Deed of Trust and certain other of the Collateral Documents, of the Management Agreement and all right, title and interest of the Company thereunder, as security for the Senior Debt. 3. Subordination of Management Agreement ------------------------------------- (a) The Manager hereby acknowledges and agrees that the Management Agreement, including, without limitation, (i) any right of the Manager to the payment of any amounts under the Management Agreement, (ii) any other rights and remedies of the Manager under the Management Agreement, and (iii) any Lien or other interest the Manager may now or hereafter have against all or any portion of the Trust Property (as defined in the Deed of Trust) and/or the rents, issues, profits and income therefrom, is and shall be subject and subordinate to the Indenture, the Deed of Trust and the other Senior Loan Documents, including, without limitation, (A) any right of the Trustee or the Holders to the indefeasible payment in full in cash of the Senior Debt, (B) any Lien created by any Senior Loan Documents, and any other interest the Trustee or the Holders may now or hereafter have against all or any portion of the Trust Property and/or the rents, issues, profits and income therefrom, (C) any right of the Holders or the Trustee to receive any insurance proceeds or condemnation awards, and (D) any other rights and remedies of the Trustee or the Holders under the Senior Loan Documents. (b) Notwithstanding the foregoing in Section 3(a), the Company may pay to the Manager, and the Manager may accept payment of, any amounts required to be paid to the Manager under the Management Agreement when such amounts become due and payable; provided, however, no such amounts shall be paid to the Manager in respect of any Subordinated Obligations to the extent such payment would constitute a Restricted Payment at such time, and the Manager shall not (i) not ask, demand, sue for, take or receive from the Company, by set-off or in any other manner, direct or indirect payment (whether in cash or property), of all or any portion of such Subordinated Obligations, or any transfer of any property in payment of or as security for any such Subordinated Obligations, (ii) cause all or any portion of such Subordinated Obligations to become due under the Management Agreement, (iii) accept any payment, prepayment, defeasance of all or any portion of such Subordinated Obligations prior to the date such Subordinated Obligations otherwise would be due and payable under the Management Agreement, or (iv) exercise any rights or remedies under the Management Agreement, at law or in equity, to accelerate the payment of all or any portion of such Subordinated Obligations. Any Subordination Obligations not paid to the Manager pursuant to this Section 3(b) shall accrue, together with interest thereon at the Interest Rate (as defined in the Subordinated Loan Agreement) from the first date such Subordinated Obligations otherwise would have been due and payable to the Manager under the Management Agreement until such Subordinated Obligation is 391702	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Subordination, Non-Disturbance and Attornment Agreement: Windsor Woodmont Black Hawk Resort Corp. – to time) for the benefit of itself and the holders (the "Holders") of the Notes (as defined below), and HYATT GAMING MANAGEMENT, INC., a Nevada corporation (the "Manager"). RECITALS A. Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "Company") will issue One Hundred Million Dollars ($100,000,000) principal amount of its _______% First Mortgage Notes due ____________, 2006, together with any notes _____________ Windsor Woodmont Black Hawk Resort Corp. – Madison Plaza - 39th Floor 200 W. Madison Street Chicago, IL 60606 Attention: General Counsel Facsimile No. ------------------------------ (b) if to the Trustee at: -------------------------------------------- -------------------------------------------- -------------------------------------------- -------------------------------------------- Facsimile No. ------------------------------ (c) if to the Company at: Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street Dallas, TX 75207 Attention: Daniel Robinowitz Facsimile No. ------------------------------ or at such other address or facsimile number as shall have been delivered in writing by any Person _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – above written. "Trustee" By: ------------------------------------------------- Name: ----------------------------------------------- Title: ---------------------------------------------- "Manager" HYATT GAMING MANAGEMENT, INC., a Nevada corporation By: ------------------------------------------------- Name: ----------------------------------------------- Title: ---------------------------------------------- Acknowledged and Agreed to as of this _____ day of ______________, 2000. "Company" WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation By: --------------------------------------- Name: ------------------------------------- Title: ------------------------------------ S-1 {PAGE} EXHIBIT A --------- MANAGEMENT AGREEMENT A-1 {/TEXT} {/DOCUMENT} _____________ dt 1364677
Preview Full Doc	2000	Warrant Agreement [No. 1] Warrant Agreement [No. 1] (208K) Doc #391723: Click preview link for longer preview. First Warrant Agreement Dated as of March 14, 2000 among Windsor Woodmont Black Hawk Resort Corp. and SunTrust Bank, as Warrant Agent -------------------------------------------------------------------------------- {PAGE} TABLE OF CONTENTS ----------------- Page 1. Appointment of Warrant Agent..........................................1 2. Warrant Certificates..................................................2 3. Execution of Warrant Certificates.....................................2 4. Registration and Countersignature.....................................3 5. Registration of Transfers and Exchanges...............................3 6. Terms and Exercise of Warrants.......................................18 7. Payment of Taxes.....................................................20 8. Mutilated or Missing Warrant Certificates............................21 9. Reservation of Warrant Shares........................................21 10. Initial Public Offering and Stock Exchange Listings..................22 11. Adjustment of Number of Warrant Shares Issuable......................22 12. Anti-Dilution........................................................33 13. Fractional Interests.................................................33 14. Put Provision. .....................................................33 15. Tag-Along and Drag-Along Rights......................................34 16. Notices to Holders of Warrants and the Warrant Agent................37 17. Merger, Consolidation or Change of Name of Warrant Agent.............38 18. Warrant Agent........................................................39 19. Resignation and Removal of Warrant Agent.............................41 20. Registration.........................................................42 21. Reports..............................................................42 i {PAGE} 22. Notices to the Company and Warrant Agent.............................43 23. Supplements and Amendments...........................................44 24. Successors...........................................................44 25. Termination..........................................................44 26. GOVERNING LAW........................................................44 27. Benefits of This Agreement...........................................44 28. Counterparts.........................................................45 29. Initial Public Offering..............................................45 30. Compliance With Laws.................................................45 ii {PAGE} FIRST WARRANT AGREEMENT ----------------------- THIS FIRST WARRANT AGREEMENT ("Agreement"), dated as of March 14, 2000 (the "Closing Date"), is by and between Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the "Company"), and SunTrust Bank, as warrant agent (the "Warrant Agent"). WHEREAS, the Company has entered into a Purchase Agreement (the "Purchase Agreement") dated as of March 14, 2000, with the purchasers set forth on the signature pages thereto (each, a "Unit Purchaser" and collectively, the "Unit Purchasers") under which the Company has agreed to sell to the Unit Purchasers 100,000 of the Company's units (the "Units"), each Unit consisting of $1,000 principal amount of the Company's 13% First Mortgage Notes due 2006 (each, a "Series A Note" and collectively, the "Series A Notes", and, together with any notes issued in exchange therefor, the "Notes") and one warrant (each, a "Warrant" and collectively, the "Warrants" and, together with the Units, the Notes (as defined herein) and the shares of common stock issuable upon exercise of the Warrants, the "Securities") to purchase 342,744 shares ("Warrant Shares") of the Company's common stock, $0.01 par value per share (the "Common Stock"), of the Company, subject to the terms and conditions set forth herein; WHEREAS, the Company has entered into a Subordinated Loan Agreement dated as of March 14, 2000, with Hyatt Gaming Management, Inc. ("Hyatt Gaming") under which the Company has agreed to sell Warrants to purchase 33,887 Warrant Shares to Hyatt Gaming in connection with the issuance and sale to Hyatt Gaming of $7.5 million aggregate principal amount of the Company's 15.5% Second Mortgage Notes due 2010 (the "Second Mortgage Notes"), subject to the terms and conditions set forth herein; WHEREAS, the Company has agreed to sell Warrants to U. S. Bancorp Libra ("Libra") to purchase 80,031 Warrant Shares in connection with Libra acting as placement agent with respect to the offering of the Units, subject to the terms and conditions set forth herein; WHEREAS, the Company desires the Warrant Agent to assist the Company in connection with the issuance, exchange, cancellation, replacement and exercise of the Warrants, and in this Agreement wishes to set forth, among other things, the terms and conditions on which the Warrants may be issued, exchanged, canceled, replaced and exercised; NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth, the parties hereto agree as follows: 1. Appointment of Warrant Agent. ---------------------------- The Company hereby appoints the Warrant Agent to act as agent for the Company in accordance with the instructions set forth hereinafter in this Agreement, and the Warrant Agent hereby accepts such appointment. {PAGE} 2. Warrant Certificates. -------------------- The certificates evidencing the Warrants (the "Warrant Certificates") shall be in registered form only and shall be substantially in the form set forth in Exhibit A attached hereto. Each Warrant Certificate to be issued in global form (a "Global Warrant") shall represent such of the outstanding Warrants as shall be specified therein and shall provide that it shall represent the aggregate amount of outstanding Warrants from time to time endorsed thereon and that the aggregate amount of outstanding Warrants represented thereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and exercises. Any endorsement of a Global Warrant to reflect the amount of any increase or decrease in the amount of outstanding Warrants represented thereby shall be made by the Warrant Agent or the depositary with respect to the Global Warrants (the "Depositary") in accordance with instructions given by the holder thereof. The Company initially appoints The Depository Trust Company ("DTC") to act as Depositary with respect to the Global Warrants. Beneficial owners of interests in a Global Warrant may receive Warrants in definitive form (the "Definitive Warrants"), substantially in the form of Exhibit A attached hereto (but without the text referred to in footnote 1 thereto) in the name of such beneficial owners in accordance with the procedures of the Warrant Agent and the Depositary. In connection with the execution and delivery of such Definitive Warrants, the Warrant Agent shall reflect on its books and records a decrease in the amount of the Warrants represented by the relevant Global Warrant equal to the amount of such Definitive Warrants and the Company shall execute and the Warrant Agent shall countersign and deliver one or more Definitive Warrants in an aggregate amount equal to the amount of such decrease. Definitive Warrants shall initially be issued to Hyatt Gaming and Libra. Each of Hyatt Gaming and Libra may deliver its Definitive Warrant to the Warrant Agent and may request that the Warrant Agent reflect such holder's interests in such holder's Warrants in the form of a Global Warrant. 3. Execution of Warrant Certificates. --------------------------------- (a) Warrant Certificates shall be signed on behalf of the Company by its Chairman of the Board, Chief Executive Officer, its President or a Vice President and by its Secretary or an Assistant Secretary. Each such signature upon the Warrant Certificates may be in the form of a facsimile signature of the present or any future Chairman of the Board, Chief Executive Officer, President, Vice President, Secretary or Assistant Secretary and may be imprinted or otherwise reproduced on the Warrant Certificates and for that purpose the Company may adopt and use the facsimile signature of any person who shall have been Chairman of the Board, Chief Executive Officer, President, Vice President, Secretary or Assistant Secretary, notwithstanding the fact that at the time the Warrant Certificates shall be countersigned and delivered or disposed of such person shall have ceased to hold such office. The seal of the Company may be in the form of a facsimile thereof and may be impressed, affixed, imprinted or otherwise reproduced on the Warrant Certificates. 2 {PAGE} (b) In case any officer of the Company who shall have signed any of the 391723	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Warrant Agreement [No. 1]: Windsor Woodmont Black Hawk Resort Corp. – {DOCUMENT} {TYPE}EX-4.5 {SEQUENCE}6 {FILENAME}0006.txt {DESCRIPTION}FIRST WARRANT AGREEMENT {TEXT} Exhibit 4.5 -------------------------------------------------------------------------------- First Warrant Agreement Dated as of March 14, 2000 among Windsor Woodmont Black Hawk Resort Corp. and SunTrust Bank, as Warrant Agent -------------------------------------------------------------------------------- {PAGE} TABLE OF CONTENTS ----------------- Page 1. Appointment of Warrant Agent..........................................1 2. Warrant Certificates..................................................2 3. Execution of Warrant Certificates.....................................2 4. Registration _____________ Windsor Woodmont Black Hawk Resort Corp. – Offering..............................................45 30. Compliance With Laws.................................................45 ii {PAGE} FIRST WARRANT AGREEMENT ----------------------- THIS FIRST WARRANT AGREEMENT ("Agreement"), dated as of March 14, 2000 (the "Closing Date"), is by and between Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "Company"), and SunTrust Bank, as warrant agent (the "Warrant Agent"). WHEREAS, the Company has entered into a Purchase Agreement (the "Purchase Agreement") dated as of _____________ Windsor Woodmont Black Hawk Resort Corp. – when and if deposited in the mail, first class or registered, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent) as follows: Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street, Dallas, Texas 75207 Attn: Daniel P. Robinowitz With a copy (which shall not constitute notice) to: Paul, Hastings, Janofsky & Walker LLP 399 Park Avenue New York, _____________ Windsor Woodmont Black Hawk Resort Corp. – Signature Page Follows] 45 {PAGE} IN WITNESS WHEREOF, the parties hereto have caused this First Warrant Agreement to be duly executed, as of the day and year first above written. Windsor Woodmont Black Hawk Resort Corp. By: /s/ Michael L. Armstrong ------------------------------------- Name: Michael L. Armstrong Title: Executive Vice President SunTrust Bank, as Warrant Agent By: /s/ Deborah Moreyra ------------------------------------- Name: Deborah Moreyra Title: First Vice-President _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Notes 342,744 20.000% Libra 80,031 4.670% Hyatt Gaming 33,887 1.977% S-I {PAGE} EXHIBIT A [FORM OF WARRANT] [Face of Warrant Certificate] WARRANT CERTIFICATE WINDSOR WOODMONT BLACK HAWK RESORT CORP. No. [ ] [ ] Warrants ("Warrant Number") -------------- CUSIP Number [ ] This Warrant Certificate certifies that [ ], or registered assigns, is the registered holder of ________________ (_______) warrants (the "Warrants") to purchase shares of common _____________ dt 1364683 ; Cede Cede & Co. ( Financial ) As referenced in this Warrant Agreement [No. 1]: Cede & Co. – Trust Company, a New York corporation ("DTC"), to the issuer or its agent for registration of transfer, exchange or payment, and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or such other entity as is requested by an _____________ Cede & Co. – and any certificate issued is registered in the name of Cede & Co. or such other name as requested by an authorized representative of DTC (and any payment is made to Cede & Co. or such other entity as is requested by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person _____________ Cede & Co. – by an authorized representative of DTC), any transfer, pledge or other use hereof for value or otherwise by or to any person is wrongful inasmuch as the registered owner hereof, Cede & Co. , has an interest herein.]2 "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE 'ACT'), AND, ACCORDINGLY, MAY NOT BE OFFERED, _____________ dt 1629080 ;	Paul Hastings Paul, Hastings, Janofsky & Walker ( Legal ) As referenced in this Warrant Agreement [No. 1]: Paul, Hastings – the Warrant Agent) as follows: Windsor Woodmont Black Hawk Resort Corp. 2231 Valdina Street, Dallas, Texas 75207 Attn: Daniel P. Robinowitz With a copy (which shall not constitute notice) to: Paul, Hastings , Janofsky & Walker LLP 399 Park Avenue New York, New York 10022 Attn: William F. Schwitter, Esq. In case the Company shall fail to maintain such office or agency or _____________ dt 1397590
Preview Full Doc	2000	Warrant Certificate Warrant Certificate (17K) Doc #391698: Click preview link for longer preview. WARRANT CERTIFICATE WINDSOR WOODMONT BLACK HAWK RESORT CORP. No. A-____ ________ Warrant Shares ("Warrant Number") -------------- This Warrant Certificate certifies that ____________________________, or registered assigns, is the registered holder of warrants (the "Warrants") to purchase ______________________ (______) shares of common stock, subject to adjustment (the "Common Stock"), $0.01 par value per share, of WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation ( . . . 391698	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Warrant Certificate: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – {DOCUMENT} {TYPE}EX-4.3 {SEQUENCE}2 {FILENAME}0002.txt {DESCRIPTION}WARRANT CERTIFICATE (A) {TEXT} Exhibit 4.3 WARRANT CERTIFICATE WINDSOR WOODMONT BLACK HAWK RESORT CORP. No. A-____ ________ Warrant Shares ("Warrant Number") -------------- This Warrant Certificate certifies that ____________________________, or registered assigns, is the registered holder of warrants (the "Warrants") to purchase ______________________ (______) _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – assigns, is the registered holder of warrants (the "Warrants") to purchase ______________________ (______) shares of common stock, subject to adjustment (the "Common Stock"), $0.01 par value per share, of WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation (the "Company"). Each Warrant entitles the holder upon exercise to receive from the Company commencing on the Warrant Exercise Commencement Date (as defined in the Warrant _____________ Windsor Woodmont Black Hawk Resort Corp. – used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York. {PAGE} IN WITNESS WHEREOF, Windsor Woodmont Black Hawk Resort Corp. has caused this Warrant Certificate to be signed by its authorized officers and may cause its corporate seal to be affixed hereunto or imprinted hereon. Dated: ________________ WINDSOR WOODMONT _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Hawk Resort Corp. has caused this Warrant Certificate to be signed by its authorized officers and may cause its corporate seal to be affixed hereunto or imprinted hereon. Dated: ________________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. By:________________________________ Name:_________________________ Title:________________________ By:________________________________ Name:_________________________ Title:________________________ Countersigned: SunTrust Bank, as Warrant Agent By:___________________________ Authorized Signatory {PAGE} THIS SECURITY HAS NOT BEEN REGISTERED _____________ dt 1364674
Preview Full Doc	2000	Warrant Certificate Warrant Certificate (17K) Doc #391699: Click preview link for longer preview. WARRANT CERTIFICATE WINDSOR WOODMONT BLACK HAWK RESORT CORP. No. B-____ ______ Warrant Shares ("Warrant Number") -------------- This Warrant Certificate certifies that ____________________________, or registered assigns, is the registered holder of warrants (the "Warrants") to purchase _______________ (____) shares of common stock, subject to adjustment (the "Common Stock"), $0.01 par value per share, of WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado . . . 391699	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Warrant Certificate: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – {DOCUMENT} {TYPE}EX-4.4 {SEQUENCE}3 {FILENAME}0003.txt {DESCRIPTION}WARRANT CERTIFICATE (B) {TEXT} Exhibit 4.4 WARRANT CERTIFICATE WINDSOR WOODMONT BLACK HAWK RESORT CORP. No. B-____ ______ Warrant Shares ("Warrant Number") -------------- This Warrant Certificate certifies that ____________________________, or registered assigns, is the registered holder of warrants (the "Warrants") to purchase _______________ (____) _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – assigns, is the registered holder of warrants (the "Warrants") to purchase _______________ (____) shares of common stock, subject to adjustment (the "Common Stock"), $0.01 par value per share, of WINDSOR WOODMONT BLACK HAWK RESORT CORP. , a Colorado corporation (the "Company"). Each Warrant entitles the holder upon exercise to receive from the Company commencing on the Warrant Exercise Commencement Date (as defined in the Warrant _____________ Windsor Woodmont Black Hawk Resort Corp. – used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York. {PAGE} IN WITNESS WHEREOF, Windsor Woodmont Black Hawk Resort Corp. has caused this Warrant Certificate to be signed by its authorized officers and may cause its corporate seal to be affixed hereunto or imprinted hereon. Dated: _______________ WINDSOR WOODMONT _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – Hawk Resort Corp. has caused this Warrant Certificate to be signed by its authorized officers and may cause its corporate seal to be affixed hereunto or imprinted hereon. Dated: _______________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. By:________________________________ Name:_________________________ Title:________________________ By:________________________________ Name:_________________________ Title:________________________ Countersigned: SunTrust Bank, as Warrant Agent By:____________________________________ Authorized Signatory {PAGE} THIS SECURITY HAS NOT BEEN REGISTERED _____________ dt 1364675
Preview Full Doc	2000	Warrant Registration Rights Agreement Warrant Registration Rights Agreement (92K) Doc #391726: Click preview link for longer preview. WARRANT REGISTRATION RIGHTS AGREEMENT among WINDSOR WOODMONT BLACK HAWK RESORT CORP. and THE UNIT PURCHASERS (AS DEFINED HEREIN), HYATT GAMING MANAGEMENT, INC., THE PREFERRED STOCK PURCHASERS (AS DEFINED HEREIN), AND U.S. BANCORP LIBRA dated as of MARCH 14, 2000 {PAGE} TABLE OF CONTENTS Page ---- SECTION 1. Definitions.................................................1 SECTION 2. Registration Rights...............................................6 2.1 (a) Warrant Shelf Registration Statement...............6 (b) Blue Sky...........................................6 (c) Accuracy of Disclosure.............................6 (d) Liquidated Damages.................................7 (e) Additional Acts. ..................................7 2.2 (a) Piggy-Back Registration............................7 (b) Priority in Piggy-Back Registration................8 (c) Restrictions on Sale by Holder.....................9 2.3 Demand Registrations.......................................10 (a) Requests for Registration.........................10 (b) Preservation of Demand Registration...............10 (c) Continued Effectiveness...........................10 (d) Blue Sky..........................................11 (e) Additional Acts...................................11 2.4 Limitations, Conditions and Qualifications to Obligations Under Registration Covenants...............................11 2.5 Restrictions on Sale by the Company and Others.............12 2.6 Rule 144 and Rule 144A.....................................12 2.7 Underwritten Registrations.................................13 SECTION 3. Registration Procedures..........................................13 SECTION 4. (a) Indemnification and Contribution...........................18 SECTION 5. Miscellaneous....................................................21 5.1 Remedies...................................................21 5.2 No Inconsistent Agreement..................................22 5.3 Amendments and Waivers.....................................22 5.4 Notices....................................................22 5.5 Successors and Assigns.....................................23 5.6 Counterparts...............................................23 5.7 Governing Law..............................................23 5.8 Severability...............................................23 5.9 Headings...................................................23 5.10 Entire Agreement...........................................23 5.11 Securities Held by the Company or Its Affiliates...........23 -i- {PAGE} WARRANT REGISTRATION RIGHTS AGREEMENT This WARRANT REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as of March 14, 2000, among Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the "Company"), the Unit Purchasers (as defined herein), Hyatt Gaming Management, Inc. ("Hyatt Gaming"), the Preferred Stock Purchasers (as defined herein) and U.S. Bancorp Libra ("Libra" and, together with Hyatt Gaming, the Preferred Stock Purchasers and the Unit Purchasers, the "Purchasers"). WHEREAS, the Company has entered into the First Warrant Agreement dated as of March 14, 2000 (the "First Warrant Agreement") with SunTrust Bank, as warrant agent (the "Warrant Agent"), in connection with (i) the issuance to the purchasers of the Company's units (the "Unit Purchasers") consisting of 13% First Mortgage Notes due 2005 (the "Notes") and warrants (each, a "Tranche A Warrant" and collectively, the "Tranche A Warrants") for the purchase of 342,774 shares ("Tranche A Warrant Shares") of common stock, $0.01 par value ("Common Stock"), of the Company, (ii) the issuance to Hyatt Gaming of Tranche A Warrants to purchase 33,887 Tranche A Warrant Shares; and (iii) the issuance to Libra of Tranche A Warrants to purchase 80,031 Warrant Shares; and WHEREAS, the Company has entered into the Second Warrant Agreement dated as of March 14, 2000 (the "Second Warrant Agreement" and, together with the First Warrant Agreement, the "Warrant Agreements" and each, a "Warrant Agreement"), with the Warrant Agent in connection with the issuance to the purchasers of the Company's Series B preferred stock, $.01 par value per share (the "Preferred Stock Purchasers"), of warrants (each a "Tranche B Warrant" and collectively, the "Tranche B Warrants" and, together with the Tranche A Warrants, the "Warrants") to purchase 257,058 shares of Common Stock ("Tranche B Warrant Shares" and together with the Tranche A Warrant Shares, the "Warrant Shares"). NOW, THEREFORE, in consideration of the foregoing and the premises and the mutual agreements herein set forth, the parties hereto agree as follows: SECTION 1. Definitions. As used in this Agreement, the following defined terms shall have the following meanings: "Advice" has the meaning ascribed to such term in Section 3 hereof. "Agreement" shall have the meaning ascribed to such term in the preamble hereto. "Business Day" shall mean a day that is not a Legal Holiday. "Capital Stock" shall mean, with respect to any Person, any and all shares, interests, partnership interests, participations, rights in or other equivalents (however designated and whether voting or non-voting) of such person's capital stock, and any rights (other than debt securities convertible into capital stock), warrants or options exchangeable for or convertible into such capital stock, whether outstanding on the Issue Date or issued after the Issue Date. {PAGE} "Change of Control" shall have the meaning ascribed to such term in the Indenture. "Company" shall have the meaning ascribed to such term in the preamble hereto and shall also include the Company's permitted successors and assigns. "Common Stock" shall have the meaning ascribed to such term in the preamble hereto. "Demand Registration Notice" shall have the meaning ascribed to such term in Section 2.3(a) hereof. "Demand Registration Request" shall have the meaning ascribed to such term in Section 2.3(a) hereof. "Demand Registration Statement" shall have the meaning ascribed to such term in Section 2.3(a) hereof. "Demand Right" shall have the meaning ascribed to such term in Section 2.3(a) hereof. "DTC" shall have the meaning ascribed to such term in Section 3(i) hereof. "Effectiveness Period" shall mean the respective periods for which the Company is obligated to keep a Registration Statement effective pursuant to Sections 2.1(a), 2.2(a) and 2.3(c) hereof. "Equity Offering" means a public offering (other than a public offering registered on Form S-8 under the Securities Act) or private placement of Common Stock of the Company that results in gross proceeds of at least $25.0 million to the Company. "Exchange Act" shall mean the Securities Exchange Act of 1934, as amended from time to time. "Exercise Date" shall mean the date of issuance of the Warrants. "First Warrant Agreement" shall have the meaning ascribed to such term in the preamble hereto. "Holder" shall mean each holder of any Registrable Securities, and each of their successors, assigns and direct and indirect transferees who become registered owners of such Registrable Securities. "Hyatt Gaming" shall have the meaning ascribed to such term in the preamble hereto. -2- {PAGE} "indemnified party" and "indemnifying party" shall have the respective meanings ascribed to such terms in Section 4(c). "Indenture" shall mean the Indenture, dated as of the date hereof, between the Company and SunTrust Bank, as Trustee, pursuant to which the Notes are issued. "Inspectors" shall have the meaning ascribed to such term in Section 4(m) hereof. "Issue Date" shall mean the date of initial issuance of the Warrants. "Legal Holiday" shall mean a Saturday, a Sunday or a day on which (i) banking institutions in the City of New York are required or authorized by law or other government action to be closed and (ii) the principal U.S. securities exchange or market, if any, on which any Common Stock is listed or admitted to trading and the principal U.S. securities exchange or market, if any, on which the Warrants are listed or admitted to trading are closed for business. "Liquidated Damages" shall have the meaning ascribed to such term in Section 2.1(d) hereof. "Notes" shall have the meaning ascribed to such term in the preamble hereto. "Other Registration Rights" shall have the meaning ascribed to such term in Section 2.3(a) hereof. "Person" shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof or any other entity, including any predecessor of any such entity. "Piggy-Back Registration" shall have the meaning ascribed to such term in Section 2.2(a) hereof. "Piggy-Back Registration Statement" shall have the meaning ascribed to such term in Section 2.2(c) hereof. "Preferred Stock Purchasers" has the meaning ascribed to such term in the preamble hereto. "Prospectus" shall mean the prospectus included in any Registration Statement (including, without limitation, any prospectus subject to completion and a prospectus that includes any information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated under the Securities Act), as amended or supplemented by any prospectus supplement, and all other amendments and supplements to the -3- {PAGE} Prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus. "Purchase Agreements" shall mean the Preferred Stock Purchase Agreement and the Unit Purchase Agreement. "Preferred Stock Purchase Agreement" shall mean the Purchase Agreement, dated as of the date hereof, among the Company and the Preferred Stock Purchasers. "Registrable Securities" shall mean any of (i) the Warrants, (ii) the Warrant Shares and (iii) any other securities issued or issuable with respect to the Warrants or Warrant Shares by way of stock dividend or stock split or in connection with a combination of shares, recapitalization, merger, consolidation or other reorganization or otherwise. As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when (a) a registration statement with respect to the offering of such securities by the holder thereof shall have been declared effective under the Securities Act and such securities shall have been disposed of by such holder pursuant to such 391726	Windsor Woodmont Windsor Woodmont Black Hawk Resort Corp. ( Casinos & Gaming ) As referenced in this Warrant Registration Rights Agreement: WINDSOR WOODMONT BLACK HAWK RESORT CORP. – {DOCUMENT} {TYPE}EX-4.8 {SEQUENCE}9 {FILENAME}0009.txt {DESCRIPTION}WARRANT REGISTRATION RIGHTS AGREEMENT {TEXT} Exhibit 4.8 WARRANT REGISTRATION RIGHTS AGREEMENT among WINDSOR WOODMONT BLACK HAWK RESORT CORP. and THE UNIT PURCHASERS (AS DEFINED HEREIN), HYATT GAMING MANAGEMENT, INC., THE PREFERRED STOCK PURCHASERS (AS DEFINED HEREIN), AND U.S. BANCORP LIBRA dated as of MARCH 14, 2000 { _____________ Windsor Woodmont Black Hawk Resort Corp. – the Company or Its Affiliates...........23 -i- {PAGE} WARRANT REGISTRATION RIGHTS AGREEMENT This WARRANT REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered into as of March 14, 2000, among Windsor Woodmont Black Hawk Resort Corp. , a Colorado corporation (the "Company"), the Unit Purchasers (as defined herein), Hyatt Gaming Management, Inc. ("Hyatt Gaming"), the Preferred Stock Purchasers (as defined herein) and U.S. Bancorp Libra (" _____________ Windsor Woodmont Black Hawk Resort Corp. – if to Hyatt Gaming, Hyatt Gaming Management, Inc., Madison Plaza, 39th Floor, 200 West Madison Street, Chicago, IL 60606, Attention: General Counsel and (iii) if to the Company, initially to Windsor Woodmont Black Hawk Resort Corp. , 2231 Valdina Street, Dallas, Texas 75207, Attention: Daniel P. Robinowitz, facsimile no.: (214) 630-1261, and thereafter at such other address, notice of which is given in accordance with _____________ WINDSOR WOODMONT BLACK HAWK RESORT CORP. – required percentage. [Signature Pages Follow] -24- {PAGE} [Signature Page to Warrant Registration Rights Agreement] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. WINDSOR WOODMONT BLACK HAWK RESORT CORP. By /s/ Michael Armstrong ------------------------------------ Name: Title: Confirmed and accepted as of the date first above written: US. BANCORP LIBRA By: -------------------------------------- Name: Title: HYATT GAMING MANAGEMENT, INC., a Nevada corporation _____________ dt 1364685 ; U.S. Bancorp U.S. Bancorp ( Money Center Banks ) As referenced in this Warrant Registration Rights Agreement: U.S. BANCORP – WARRANT REGISTRATION RIGHTS AGREEMENT among WINDSOR WOODMONT BLACK HAWK RESORT CORP. and THE UNIT PURCHASERS (AS DEFINED HEREIN), HYATT GAMING MANAGEMENT, INC., THE PREFERRED STOCK PURCHASERS (AS DEFINED HEREIN), AND U.S. BANCORP LIBRA dated as of MARCH 14, 2000 {PAGE} TABLE OF CONTENTS Page ---- SECTION 1. Definitions.................................................1 SECTION 2. Registration Rights...............................................6 2.1 (a) Warrant Shelf Registration Statement...............6 (b) _____________ U.S. Bancorp – Woodmont Black Hawk Resort Corp., a Colorado corporation (the "Company"), the Unit Purchasers (as defined herein), Hyatt Gaming Management, Inc. ("Hyatt Gaming"), the Preferred Stock Purchasers (as defined herein) and U.S. Bancorp Libra ("Libra" and, together with Hyatt Gaming, the Preferred Stock Purchasers and the Unit Purchasers, the "Purchasers"). WHEREAS, the Company has entered into the First Warrant Agreement dated as of _____________ US. BANCORP – Agreement as of the date first written above. WINDSOR WOODMONT BLACK HAWK RESORT CORP. By /s/ Michael Armstrong ------------------------------------ Name: Title: Confirmed and accepted as of the date first above written: US. BANCORP LIBRA By: -------------------------

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