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U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
[X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the fiscal year ended: December 31, 2003
[ ] TRANSITION REPORT PURSANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from _______________ to __________________
Commission file number 0-31737
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(Exact name of registrant as specified in its charter)
Colorado 75-2740870
- -------------------------------------- -------------------------------------
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
111 Richman St.
Black Hawk, Colorado 80422
-------------------------------------
(Address of principal executive office)
Registrant's Telephone Number: (303) 582-3600
Securities registered under Section 12(b) of the Act: None
Securities registered under Section 12(g) of the Act: Common Stock, $0.01 par
value (Title of class)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes [X] No [ ]
Indicate by check mark if disclosure of delinquent filers in response to Item
405 of Regulation S-K (Section 229.405 of this chapter) is not contained herein,
and will not be contained, to the best of registrant's knowledge, in definitive
proxy or information statements incorporated by reference in Part III of this
Form 10-K or any amendment to this Form 10-K.
[ ]
Indicate by check mark whether the registrant is an accelerated filer (as
defined in Rule 12b-2 of the Act).
Yes [ ] No [X]
We are unable to determine the aggregate market value for the 580,767 shares of
the common stock, $0.01 par value per share, held by non-affiliates because
there is no trading market for our common stock.
The number of shares of common stock of the registrant outstanding as of April
12, 2004 was 1,000,000.
While the registrant is currently involved in Chapter 11 Bankruptcy proceedings,
no securities have been distributed under a plan confirmed by the court.
Document incorporated by reference:
Document Part of Form 10-K into which Incorporated
-------- -----------------------------------------
Windsor Woodmont Black Hawk Resort Corp.'s Part III
Definitive Proxy Statement for its Annual Meeting
of Stockholders to be held May 26, 2004
TABLE OF CONTENTS
PAGE
PART I
Item 1. Business............................................................................... 1
Item 2. Property............................................................................... 21
Item 3. Legal Proceedings...................................................................... 22
Item 4. Submission of Matters to a Vote of Security Holders.................................... 22
PART II
Item 5. Market for Registrant's Common Equity and Related Stockholder Matters.................. 23
Item 6. Selected Financial Data................................................................ 23
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations................................................................ 24
Item 7A. Quantitative and Qualitative Disclosures About Market Risk............................. 29
Item 8. Financial Statements................................................................... 29
Item 9. Changes in and Disagreements With Accountants
on Accounting and Financial Disclosure............................................... 29
Item 9A. Controls and Procedures................................................................ 30
PART III
Item 10. Directors, Executive Officers, Promoters and Control Persons;
Compliance with Section 16(a) of the Exchange Act.................................... 30
Item 11. Executive Compensation................................................................. 30
Item 12. Security Ownership of Certain Beneficial Owners and Management......................... 30
Item 13. Certain Relationships and Related Transactions......................................... 30
Item 14. Principal Accountant Fees and Services................................................. 30
PART IV
Item 15. Exhibits, Financial Statement Schedules and Reports on Form 8-K........................ 30
SIGNATURES............................................................................................... 32
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PART I
ITEM 1. BUSINESS
Except for historical information contained herein, the following
discussion contains forward-looking statements that involve risks and
uncertainties. Such forward-looking statements include, but are not limited to,
statements regarding future events and the Company's plans and expectations. The
Company's actual results could differ materially from those discussed herein.
Factors that could cause or contribute to such differences include, but are not
limited to, those discussed below under "Factors That May Affect Future
Results," as well as those discussed elsewhere in this Form 10-K.
We have based the Black Hawk market data and other statistical
information in this Annual Report, including parking data, on information
supplied by the Colorado Division of Gaming (the "Division of Gaming"), the City
of Black Hawk and various public announcements and filings made by some of the
casinos in the Black Hawk market. We have also relied on other sources that we
believe are reliable. While we believe that the information is accurate, we have
not independently verified any of this information or such announcements and
filings, and it is possible they may not be accurate in all material respects.
In addition, the gaming markets in Colorado and in Black Hawk are subject to
continual changes, including changes in the number and size of casinos in such
markets. Because of these changes, our estimates of the Casino's expected
position in Colorado and in Black Hawk in terms of size, comparable amenities,
parking and nearby competition could become inaccurate at any time.
As used in this Annual Report, the terms "our company," "we" and "us"
refer to Windsor Woodmont Black Hawk Resort Corp., the term "First Mortgage
Notes" refers to the $100 million principal amount of 13% First Mortgage Notes
due 2005 which we issued under an indenture dated March 14, 2000. "Second
Mortgage Notes" refers to the $9,840,233 principal amount subordinated
indebtedness comprised of the second mortgage notes held by Hyatt Gaming,
defined below. "Hyatt Management Agreement" refers to the casino management
agreement between the Company and Hyatt Gaming dated February 2, 2000, as
amended on March 14, 2000. The term "Casino" refers to the integrated casino,
entertainment and parking facility constructed in Black Hawk, Colorado, operated
under the trade name "Mountain High Casino."
OVERVIEW
Windsor Woodmont Black Hawk Resort Corp. ("Windsor Woodmont" or the
"Company") was incorporated in the State of Colorado on January 9, 1998. The
Company owns the Mountain High Casino, an upscale, integrated gaming,
entertainment and parking facility located in Black Hawk, Colorado,
approximately 40 miles from Denver (the "Casino"). The Casino opened on December
20, 2001. The Casino is located at 111 Richman Street, Black Hawk, Colorado, at
the intersection of Highway 119 and Richman Street in the center of the Black
Hawk gaming district. From opening until May 14, 2003, the Casino was managed by
Hyatt Gaming Management, Inc. ("Hyatt Gaming") pursuant to a professional
management agreement. On May 14, 2003, the Company assumed management of the
Casino.
As described below, on November 7, 2002 (the "Petition Date"), we filed
a voluntary petition for relief under chapter 11 of the United States Bankruptcy
Code (the "Bankruptcy Code"), in the United States Bankruptcy Court for the
District of Colorado (the "Bankruptcy Court") as Case No. 02-28089-ABC (the
"Chapter 11 Case"). We filed the Chapter 11 Case because we were experiencing
difficulties generating sufficient cash flow from operations to meet our
financial obligations under the First Mortgage Notes and the Second Mortgage
Note, pursuant to the applicable agreements. We are currently acting as a
debtor-in-possession on behalf of the bankruptcy estate.
PROCEEDINGS UNDER CHAPTER 11 OF THE BANKRUPTCY CODE
Our failure to pay the interest on the First Mortgage Notes and the
Second Mortgage Note when due on October 15, 2002 constituted an "Event of
Default" under such agreements. On October 23, 2002, we received notice from
SunTrust Bank ("SunTrust"), as Trustee under the indenture governing the First
Mortgage Notes, that the First Mortgage Notes were due and payable immediately.
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On November 1, 2002, SunTrust, as Trustee under the indenture governing
the First Mortgage Notes, obtained a court order for the appointment of a
receiver. The receiver operated the Company from November 1, 2002 until the
filing of the Chapter 11 Case.
On November 7, 2002, we filed the Chapter 11 Case. As of the Petition
Date, the Bankruptcy Court assumed jurisdiction over the assets and liabilities
of the Company. The receiver was removed and we are currently acting as a
debtor-in-possession on behalf of the bankruptcy estate and, as such, are
authorized to operate the business subject to Bankruptcy Court supervision. On
or about March 17, 2003, the Office of the United States Trustee appointed the
Official Committee of Unsecured Creditors (the "Unsecured Creditors Committee")
to represent the interests of general unsecured creditors in the Chapter 11
Case.
The holders of the First Mortgage Notes, SunTrust, as Trustee under the
indenture governing the First Mortgage Notes, Hyatt Gaming and the Unsecured
Creditors Committee, among other creditor constituencies, are represented by
counsel in the Chapter 11 Case, receive notice of all actions taken by the
Company in the Chapter 11 Case, and have been actively involved in the Chapter
11 Case.
Prior to the Petition Date we retained Irell & Manella LLP as our lead
reorganization counsel in the Chapter 11 Case. We retained Alvarez & Marsal,
Inc. as our financial advisor in connection with the Chapter 11 Case and for the
preparation of a plan of reorganization. Other professionals have been retained
by us in our Chapter 11 Case. All professionals have been employed pursuant to
orders of the Bankruptcy Court. The payment of the fees and expenses of the
professionals employed by us in the Chapter 11 Case are subject to review and
approval by the Bankruptcy Court, after notice and an opportunity for a hearing.
We have incurred, and will continue to incur, significant costs associated with
our Chapter 11 Case.
As a debtor-in-possession, we are authorized to continue to operate as
an ongoing business, but may not engage in transactions outside the ordinary
course of business without the approval of the Bankruptcy Court, after notice
and an opportunity for a hearing. Under the Bankruptcy Code, actions to collect
pre-petition indebtedness or enforce pre-petition contractual obligations, as
well as most other pending actions against us or property of our estate, are
stayed.
On December 6, 2002, we filed with the Bankruptcy Court our Schedules
of Assets and Liabilities and Statements of Financial Affairs, which were
amended on or about March 12, 2003 (the "Schedules"). The Schedules set forth,
among other things, our assets and liabilities as shown by our books and
records, subject to the assumptions contained in certain notes filed in
connection therewith. All of the Schedules are subject to further amendment or
modification with notice to those impacted by the amendment or modification. In
the Schedules, we listed over 250 disputed and undisputed pre-petition claims
against our bankruptcy estate reflecting claims of approximately $149 million.
Thereafter, the Bankruptcy Court set the deadline for filing proofs of claim and
interests with the Bankruptcy Court as January 23, 2003, and subsequently set a
supplemental bar date of March 17, 2003 for certain creditors and interested
parties who did not receive notice of the prior bar date. Accordingly, with the
exception of a general 30-day bar date for claims arising from the rejection of
executory contracts and unexpired leases, the deadlines for filing proofs of
claim against us has passed. The claims register prepared and maintained by the
Bankruptcy Court reflects that, as of November 18, 2003, 126 proofs of claim
have been filed in the Chapter 11 Case in an aggregate amount in excess of $160
million. We also may face additional claims in the future, including, without
limitation, claims arising from our rejection of executory contracts and/or
unexpired leases.
Under the Bankruptcy Code, we may assume or reject executory contracts
or unexpired leases subject to the approval of the Bankruptcy Court and our
satisfaction of certain other requirements. In the event we choose to reject any
executory contracts or unexpired leases, parties affected by these rejections
may file claims with the Bankruptcy Court as provided by the Bankruptcy Code
and/or orders of the Bankruptcy Court. Unless otherwise agreed, the assumption
of an executory contract or unexpired lease will require us to cure all prior
defaults under such executory contract or unexpired lease, including all
pre-petition liabilities, some of which may be significant. In addition, we
expect that liabilities that will be subject to compromise through the Chapter
11 process will arise in the future as a result of the rejection of executory
contracts or unexpired leases and from the determination by the Bankruptcy Court
(or agreement by parties in interest) of allowed claims for items that we now
claim as contingent or disputed. Conversely, we would expect that the assumption
of executory contracts or unexpired leases may
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convert some liabilities shown on our financial statements as subject to
compromise to post-petition liabilities. Due to the uncertain nature of many of
the potential claims, we are unable to project the magnitude of such claims with
any degree of certainty.
On December 13, 2002, we filed a motion for court approval of the
rejection of the management agreement with Hyatt Gaming (the "Hyatt Management
Agreement"). On April 10, 2003, the Company executed a settlement agreement with
Hyatt Gaming (the "Hyatt Settlement and Release Agreement"), which provided for
the rejection of the Hyatt Management Agreement, the transition of management of
the Casino to the Company, the fixing of the amount and priority of Hyatt
Gaming's claims in the Chapter 11 Case (including the claims based on the Second
Mortage Note and the rejection of the Hyatt Management Agreement), and the
treatment of Hyatt Gaming's claims under a plan of reorganization.
Pursuant to the Hyatt Settlement and Release Agreement, Hyatt Gaming
holds an allowed unsecured claim in the Chapter 11 Case in the aggregate amount
of $18,413,243.68 (the amount of $18,318,368.49 set forth in the Hyatt
Settlement and Release Agreement plus an additional $94,875.19 in incentive
management fees from the Petition Date through May 13, 2003); provided, however,
that in the event that the value of the Company's assets exceed the value of the
liens senior to the Second Mortgage Note (including the liens of the Black Hawk
BID, PCL, the FF&E Lender and the First Mortgage Noteholders), Hyatt Gaming's
claim based on the Second Mortgage Note will be secured to such extent. On April
25, 2003, the Bankruptcy Court entered an order approving the Hyatt Settlement
and Release Agreement. On May 14, 2003, we assumed management of the Casino and
the Casino name was changed to the Mountain High Casino. The treatment of Hyatt
Gaming's allowed claim (including certain changes to such treatment that Hyatt
Gaming asserts are in violation of the Hyatt Settlement Agreement and to which
Hyatt Gaming has not consented) is reflected in the Plan of Reorganization (as
defined below). Hyatt Gaming has indicated that, in addition to its pre-petition
claims against the Company, it may assert an administrative claim in the Chapter
11 Case for damages arising from alleged breaches of the terms of the Hyatt
Settlement and Release Agreement.
On or about February 19, 2003, we entered into a stipulation with David
R. Belding, our furniture, fixture and equipment lender (the "FF&E Lender")
pursuant to which all issues between the Company and the FF&E Lender concerning
the amount and priority of the FF&E Lender's claim and the treatment of such
claim under a plan of reorganization were resolved. On February 19, 2003, the
Company filed its Motion to Approve Stipulation Regarding (1) Allowance and
Payment of Secured Claim of David R. Belding; and (2) Mutual Release of Claims
Relating to Disputes Over Funds in Wells Fargo Bank Account (the "FF&E
Stipulation"). Thereafter, objections to the FF&E Stipulation were filed by the
First Mortgage Noteholders and PCL (as defined below), and SunTrust and the
Unsecured Creditors Committee filed joinders to the objection filed by the First
Mortgage Noteholders (PCL later withdrew its objection to the FF&E Stipulation).
The objections asserted, among other things, that the initiation of an adversary
proceeding may be required to obtain the relief sought in the FF&E Stipulation.
The Company, the FF&E Lender, and the objecting parties agreed to
proceed with the issues raised in connection with the FF&E Stipulation and the
objections thereto by way of an adversary proceeding and such matter was
converted to an adversary proceeding. Thereafter, the parties reached an
agreement whereby the adversary proceeding on the FF&E Stipulation was held in
abeyance and the issues relating to the FF&E Stipulation were resolved or
reserved for a later date. On June 24, 2003, the Company filed an Amended
Stipulation Regarding (1) Allowance and Payment of Secured Claim of David R.
Belding; and (2) Mutual Release of Claims Relating to Disputes Over Funds in
Wells Fargo Bank Account (the "FF&E Settlement Agreement"), which was approved
by the Bankruptcy Court by order entered June 30, 2003. The FF&E Settlement
Agreement provides, among other things, that the FF&E Lender will receive
payments of up to $500,000 per month during the Chapter 11 Case and will be paid
certain amounts on the effective date of a plan of reorgnaization. After the
approval of the FF&E Settlement Agreement, the Company and the FF&E Lender
agreed to more favorable treatment to the Company, including a reduction in the
required effective date payment to the FF&E Lender and a one-year extension on
the repayment of the amounts due to the FF&E Lender, which treatment is
reflected in the Plan of Reorganization (as defined below).
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PCL Construction Services, Inc. ("PCL") was the general contractor in
the construction of the Casino. Pursuant to its contract with the Company, PCL
was obligated to prepare construction schedules for completion of the Casino
within the time limits of the contract, to revise the schedules to the extent
required, to provide for timely completion of the contract, and to otherwise
perform and act in the capacity of general contractor.
On May 29, 2002, we filed a complaint in Gilpin County District Court,
Colorado, seeking damages from PCL for (1) fraudulent misrepresentation, (2)
fraudulent concealment, (3) negligent misrepresentation, (4) constructive fraud,
and (5) breach of contract (the "Casino Action"). On June 19, 2002, PCL filed an
answer and filed its own complaint against the Debtor and 20 other defendants
(including numerous subcontractors) also in Gilpin County District Court,
Colorado (the "PCL Action"). On August 22, 2002, the Debtor filed an answer to
the complaint in the PCL Action. Prior to the Petition Date, the Casino Action
and the PCL Action were consolidated into one case.
The claims of PCL and its subcontractors against the Debtor aggregated
approximately $10,000,000 and the Debtor's claims against PCL were in the
approximate amount of $5,000,000. The claims on the part of both PCL and the
Debtor were contingent and unliquidated, however, PCL's claims included claims
for the foreclosure of mechanic's liens on the Casino property and PCL asserted
that the mechanic's liens were first priority liens on the Casino property,
superior in priority to the deed of trust of SunTrust, as trustee for the First
Mortgage Noteholders.
Following extensive settlement discussions, on May 15, 2003, we entered
into a Settlement and Release Agreement with PCL, on behalf of itself and the
PCL Subcontractors (the "PCL Settlement Agreement"). Pursuant to the PCL
Settlement Agreement, we agreed to pay PCL a total of $4,500,000, with a
$2,300,000 down payment, a $1,400,000 payment on the earlier of January 15, 2004
or ten (10) days after the effective date of the Plan of Reorganization (defined
below), $400,000 on October 15, 2004 and $400,000 on April 15, 2005. The
Bankruptcy Court approved the PCL Settlement Agreement on July 7, 2003. The
required $2,300,000 down payment was paid to PCL on July 28, 2003 and the
$1,400,000 payment was made on or about January 15, 2004.
As provided by the Bankruptcy Code, we had an initial period of 120
days from the Petition Date to file a plan of reorganization and an initial
period of 180 days from the Petition Date to solicit and obtain acceptances to
such plan. During 2003, we petitioned the Bankruptcy Court and were granted
extensions of time with respect to our exclusive right to file a plan and
solicit and obtain acceptances thereto.
On August 6, 2003, we filed a plan of reorganization and accompanying
disclosure statement with the Bankruptcy Court. On November 20, 2003, we filed
an amended plan of reorganization (the "Plan of Reorganization") and
accompanying amended disclosure statement (the "Disclosure Statement") with the
Bankruptcy Court. An objection to the Disclosure Statement was filed by First
Place LLC. By stipulations between the First Mortgage Noteholders, Sun Trust and
the Unsecured Creditors Committee and orders thereon, the hearing on approval of
the Disclosure Statement has been continued on several occasions and is
currently scheduled for May 4, 2004. By those same stipulations and orders, the
current objection deadline relative to the Disclosure Statement has been
extended to April 26, 2004 for the First Mortgage Noteholders, Sun Trust, Hyatt
Gaming and the Unsecured Creditors Committee. At the hearing on the Disclosure
Statement, the Bankruptcy Court will also consider granting an extension of
exclusivity period for us to solicit and obtain acceptances to the Plan of
Reorganization.
If the Plan of Reorganization is confirmed by the Bankruptcy Court,
substantially all pre-petition liabilities will be subject to restructuring. Any
plan of reorganization is voted upon by creditors and equity holders and is
subject to the approval of the Bankruptcy Court. A plan of reorganization must
be confirmed by the Bankruptcy Court upon certain findings being made by the
Bankruptcy Court as required by the Bankruptcy Code. The Bankruptcy Court may
confirm a plan or reorganization notwithstanding the non-acceptance of the plan
by an impaired class of creditors or equity security holders if certain
requirements of the Bankruptcy Code are met. There can be no assurance that the
Plan of Reorganization will be confirmed by the Bankruptcy Court, or that any
such plan will be consummated.
During the Chapter 11 Case, we continue to operate our business in the
ordinary course without interruption and without material impact on our
employees, customers and suppliers. As of December 31, 2003, we
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had approximately $8,283,104 million in cash available. Based upon such cash
availability, we do not require, and do not expect to obtain,
debtor-in-possession financing in our Chapter 11 Case.
At this time it is not possible to predict the effect of the Chapter 11
Case on our business, various creditors and equity security holders or when we
will be able to conclude our Chapter 11 Case. Our future results are dependent
upon, among other things, the confirmation and implementation of a plan of
reorganization.
The Financial Statements contained herein have been prepared on a going
concern basis, which assumes continuity of operations and realization of assets
and satisfaction of liabilities in the ordinary course of business, and in
accordance with Statement of Position 90-7 ("SOP 90-7"), "Financial Reporting by
Entities in Reorganization Under the Bankruptcy Code." Our ability to continue
as a going concern, as described above, is predicated upon, among other things,
the confirmation of a reorganization plan and the ability to generate cash flow
from operations sufficient to satisfy our future obligations under a plan.
COMPANY BACKGROUND
During 1997 and 1998, Windsor Woodmont, LLC purchased 48 separate
parcels of land in Black Hawk, Colorado, to assemble a 106 acre tract of land
with approximately 119,000 gross gaming-zoned square feet. Windsor Woodmont, LLC
is a Colorado limited liability company that was formed for the purpose of
assembling and developing the land on which the Casino is built. In March 2000,
Windsor Woodmont LLC contributed the real property owned by it in Black Hawk and
assigned all its rights under certain agreements entered into in connection with
the Casino to the Company. The Company then issued the $100 million principal
amount First Mortgage Notes. The proceeds were used to finance the development
and construction of the Casino.
DESCRIPTION OF CASINO
GENERAL. The Casino is an upscale gaming facility providing patrons
with a broad selection of gaming activities, dining and entertainment. The
Casino is built on the largest single parcel of real estate ever assembled for
casino development in Black Hawk. It is the largest casino in Black Hawk, with
approximately 425,000 square feet, 57,000 of which is used for gaming. The
Casino features the largest number of gaming machines in Black Hawk with 996
state of the art slot machines and 24 table games. The interior decor resembles
the Rocky Mountain surroundings by using rocks, wood, and landscapes natural to
Colorado as part of the interior design.
RESTAURANTS. The Casino features a full array of dining options.
Restaurants available include: the Steakhouse at Mountain High Casino, a steak
and seafood restaurant, the Mountain High Buffet, a high quality action-station
buffet and a food court featuring: Wolfgang Puck's Express restaurant and the
Mountain High Grill. Krispy Kreme donuts that are delivered fresh daily and a
Starbucks Coffee Bar is located on the Sun Fire Deck, an indoor/outdoor plaza
area.
PARKING. The Casino includes an approximately 300,000 square foot
parking garage, with the capacity to park approximately 800 vehicles in covered
parking spaces, 650 adjacent valet spaces, and is able to accommodate buses and
motor coaches. This represents one of the largest on-site parking facilities in
Black Hawk. The Casino also features Black Hawk's largest porte cochere leading
directly into the Casino.
ENTERTAINMENT. Our non-gaming amenities are located throughout the
gaming floor. The focal point is the Winner's Circle Lounge, a 5,000 square foot
area surrounded by four, seven-story tall two-sided fireplaces. The center of
the circular bar features a stage for showcasing live entertainment. The area
also has four retractable large-screen televisions for special sports or other
broadcast venues. The Casino includes a Margarita Bar on the gaming floor and
televisions in the food court to entertain guests. The Casino also contains the
Vista Gallery, a stationary exhibit gallery on the second floor overlooking the
gaming floor.
BUSINESS STRATEGY
Our business strategy is to complete our restructuring under the
Chapter 11 Case as expeditiously as possible. During the course of the Chapter
11 Case, we intend to initiate a broad strategic and operational restructuring,
improve our business discipline and reduce our cost structure, all with the goal
of developing positive
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cash flow from operations. Key elements to our restructuring will be to reduce
our expenses, continue to improve in our slot product, focus our marketing
efforts to high worth casino player segments and a complete re-positioning of
the property resulting in a prominent position in Black Hawk by offering patrons
a quality entertainment experience through superior customer service in an
up-scale, friendly and exciting environment.
We are dedicated to providing a high level of customer satisfaction and
loyalty by offering a spacious, single-floor Las Vegas style casino featuring
both gaming and non-gaming entertainment using a upscale and distinctive design.
We recognize that consistent quality and a comfortable atmosphere can
differentiate the Casino and offer us a competitive advantage. We believe the
distinctive design of the Casino combined with a complete new re-positioning and
its comprehensive amenities attracts a wider cross section of Denver
metropolitan area residents.
MARKETING STRATEGY
We believe that the Casino has an excellent location and offers
sufficient and convenient parking. In addition, the Casino has an opportunity to
expand the Black Hawk market by way of numbers of patrons and to reach
higher-spending patrons by offering a higher level of quality and service than
currently exists in Black Hawk. Additionally, the size of the Casino will allow
us to better absorb peak period demand. Our marketing strategy emphasizes the
following elements:
TARGETED CUSTOMER BASE. We target potential customers with
above-average household income levels in the Denver metropolitan area who tend
to have disposable income for gaming and entertainment purposes as well as other
recreational gaming customers. We exploit this customer base through our
Winner's Advantage Club, preferred player recognition program. The Winner's
Advantage Club allows members to receive valuable rewards and exciting
promotional offers in conjunction with their casino play. Rewards include:
complementary meals, cash back, special mail offers, invitations to special
events and parties, and tickets to sporting events.
EFFECTIVE DIRECT MARKETING. We attract customers to the Casino by
marketing in the Colorado market through the use of radio and print
advertisements, billboards, our Winners Advantage Club, on-going promotions,
gaming tournaments, sweepstakes and most importantly an increased focus on
direct mail marketing. The marketing emphasizes the Casino's gaming, quality
dining facilities, varied entertainment activities and on-site parking. We also
utilize the Casino's web site located at www.mtnhighcasino.com to enhance its
marketing programs.
CUSTOMER SERVICE. The Casino has a management team committed to
superior service, quality and innovation. We promote repeat business by
designing and implementing marketing and promotional programs that encourage
patron loyalty. These programs are designed to attract new customers to the
Casino and maintain high recognition of our brand name. Colorado hosts
approximately 23 million visitors annually. We believe that future development
of a hotel and casino patronage from such visitors will have a beneficial impact
on the Casino.
ADDITIONAL MARKETING STRATEGIES. Other marketing strategies include:
database management/direct mail marketing, innovative slot and table game
merchandising and quantifiable drive-in marketing programs. We believe that when
provided with upscale amenities, customers will stay in the Casino longer and
spend more than existing Black Hawk customers currently spend. We believe that
effective use of database marketing is among the most efficient means to
communicate with active and potential customers.
EMPLOYEES
As of March 31, 2004, Windsor Woodmont employed 473 full-time, paid
employees including cashiers, dealers, food and beverage service personnel,
facilities maintenance staff, security, accounting and marketing personnel. No
labor unions represent any employee group.
COMPETITION
The information contained in this discussion of competition has been
derived from publicly available data, except where otherwise stated. While we
regard these sources as reliable, no assurances can be made regarding the
accuracy of such information.
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The casino industry in Black Hawk is highly competitive. We believe the
primary competitive factors in Black Hawk are location, availability and
convenience of parking, type and layout as well as the number of slot machines
and gaming tables, types and pricing of restaurants and other amenities, name
recognition, customer service, experienced management and overall atmosphere.
Certain of our current and future competitors have or may have more gaming
experience than us and/or greater financial resources.
Of the 22 gaming facilities operating in Black Hawk, six have over 700
gaming positions. We consider these larger gaming facilities to be our main
competitors. These larger gaming facilities have on-site or nearby parking and
have brand names established in the local market, such as the Isle of Capri, The
Lodge at Black Hawk, Colorado Central Station, the Riviera Black Hawk, and the
Mardi Gras Casino. The Riviera Black Hawk, which opened in early February 2000,
features approximately 985 gaming machines, and the Mardi Gras Casino, which
opened in early March 2000, features approximately 700 gaming machines. Colorado
Central Station, opened in December 1993 and has traditionally been one of the
most successful casinos in Colorado, is located near the Casino and has
approximately 750 gaming machines and approximately 700 valet parking spaces.
The Isle of Capri, which opened in December 1998, is located near the Casino and
features approximately 1,070 gaming machines and 1,100 parking spaces. Smaller
competitors in the Black Hawk market include the Gilpin Hotel Casino, Canyon
Casino, Fitzgerald's and Bullwhackers.
Casinos offering hotel accommodations for overnight stay may have a
competitive advantage over the Casino. Currently two casinos offer hotel
accommodations, with the total number of hotel rooms in Black Hawk being 287.
The Lodge at Black Hawk provides 50 and the Isle of Capri provides 237 rooms. In
addition, Fortune Valley Hotel & Casino located in Central City, has 118 hotel
rooms.
On April 22, 2003, Isle of Capri Black Hawk, L.L.C. acquired
CCSC/Blackhawk, Inc., which owns and operates the Colorado Central Station
casino in Black Hawk, Colorado, and Colorado Grande Enterprises, Inc., which
owns and operates the Colorado Grande casino in Cripple Creek, Colorado. On
November 5, 2003, Nevada Gold & Casino's, Inc., in a joint venture with Isle of
Capri, announced an expansion project, which has begun, at the Colorado Central
Station Casino adding casino space and hotel rooms with completion of the
project by the end of 2005. This expansion could attract gaming patrons and
customers who are currently patrons of the Casino. If this happens, it could
have a material adverse effect upon the Casino.
We also face increased competition from casinos in Central City.
Historically, Black Hawk has enjoyed an advantage over Central City because the
majority of customers have to drive by and through Black Hawk to reach Central
City. On November 2, 1999, the voters in Central City granted authority to the
Business Improvement District for the sale of approximately $45.2 million in
bonds which would be allocated towards the planning, design and construction of
a nine mile roadway directly connecting Central City with Interstate 70. These
bonds were sold on June 18, 2003 and on October 3, 2003 construction began on a
new four-lane road from I-70 at the Hidden Valley exit directly into downtown
Central City. This roadway allows drivers to reach Central City without driving
through Clear Creek Canyon and Black Hawk. While Black Hawk is only one mile
away from Central City, the new roadway may attract patrons and customers of the
Casino to casinos located in Central City. This may have a material adverse
effect upon the Casino.
The Casino also competes, to a limited extent, with the casinos located
in Cripple Creek, because both Black Hawk and Cripple Creek compete for patrons
from Denver. Cripple Creek is located approximately 110 miles to the south of
Black Hawk and 45 miles west of Colorado Springs.
Currently, limited stakes gaming in Colorado is constitutionally
authorized in Central City, Black Hawk, Cripple Creek and two Native American
reservations in southwest Colorado. However, gaming could be approved in other
Colorado communities in the future. On November 4, 2003, Colorado voters
rejected an amendment to the Colorado constitution that would have allowed video
lottery terminals in five racetracks located along the front range in Colorado.
The legalization of gaming closer to Denver would likely have a material adverse
impact on our future operating results. The Casino will also indirectly face
competition from other forms of gaming, including the Colorado state-run
lottery, the Power Ball multi-state lottery, charitable bingo, horse and dog
racing, as well as other forms of entertainment. For additional information
concerning competition see "Factors that May Affect Our Future Results - We Face
Competition From Other Gaming Operations That Could Have a Material
7
Adverse Effect on our Future Operations" and "Additional Legalization of Gaming
in Colorado or the Imposition of a Tax on Gaming Revenues Could Adversely Effect
our Business."
OPERATING RESTRICTIONS
An amendment to the Colorado State Constitution permits limited gaming
in the cities of Central City, Black Hawk and Cripple Creek, Colorado. The
amendment defines "limited gaming" as the use of slot machines and the card
games of blackjack and poker, each with a maximum single bet of $5.00. The
amendment restricts limited gaming to the commercial districts of Black Hawk,
Central City and Cripple Creek, as such commercial districts were defined in
city ordinances on specific dates. Limited gaming is governed by the amendment
and the regulations of the Colorado Gaming Commission and Colorado Revised
Statutes Section 12-47.1-101, et seq., ("hereinafter referred to as the Colorado
Limited Gaming Act"). In the case of the City of Black Hawk, limited gaming is
restricted by the amendment to the commercial district of Black Hawk as it
existed on May 4, 1978. The amendment also restricts gaming to structures that
conform to the architectural styles and designs that were common to the areas
prior to World War I and that conform to applicable city ordinances. Under the
amendment, no more than 35% of the square footage of any building and no more
than 50% of any one floor of such building may be used for gaming. Gaming
operations may be conducted 365 days a year but are prohibited between the hours
of 2:00 a.m. and 8:00 a.m. Pursuant to the Colorado Limited Gaming Act, no
limits are imposed on total patron losses and casinos are not allowed to extend
credit to the patrons. Persons under the age of 21 are prohibited from
participating in gaming or lingering in gaming areas.
Colorado law requires licensees to maintain detailed books and records
that accurately account for all monies and business transactions. Books and
records must be furnished upon demand to the Colorado Gaming Commission or the
Division of Gaming. Detailed and extensive playing procedures, standards,
requirements and rules of play are established for poker, blackjack and slot
machines. Licensees must adopt comprehensive internal control procedures
governing their gaming operations. Such procedures must be approved in advance
by the Division of Gaming and, in certain cases, the Colorado Gaming Commission,
and include the areas of accounting, surveillance, security, cashier operations,
key control and fill and drop procedures, among others.
No gaming may be conducted in Colorado unless all appropriate licenses
are approved by and obtained from the Colorado Gaming Commission. Violations of
Colorado gaming laws or regulations may be criminal offenses and the person or
entity violating such laws and regulations may be subject to criminal penalties
and/or administrative fines, and may have its gaming license suspended or
revoked.
REGULATORY STRUCTURE
COLORADO REGULATORY AGENCIES. The Colorado Division of Gaming (the
"Division of Gaming"), a division of the Colorado Department of Revenue, is
responsible for the regulation and enforcement of limited gaming in Colorado.
The Division of Gaming licenses, implements, regulates and supervises the
conduct of limited gaming under Colorado Constitution Article XVIII, Section 9,
the Colorado Limited Gaming Act. The Division of Gaming has broad authority to
sanction, fine, suspend and revoke a gaming license for violations of the
Colorado Limited Gaming Act and the rules and regulations promulgated by the
Limited Gaming Control Commission (the "Colorado Gaming Commission"). Violations
of several provisions of the Colorado Gaming Regulations also can result in
criminal penalties. The Colorado Limited Gaming Act created the Colorado Gaming
Commission to promulgate the rules and regulations governing the licensing,
conducting and operating of limited gaming and to ensure compliance with such
gaming rules and regulations.
GAMING LICENSES. All applicants for Colorado gaming licenses must
complete comprehensive applications and forms, pay required fees and provide all
information required by the Colorado Gaming Commission and the Division of
Gaming. The Division of Gaming requires an extensive background investigation of
each applicant and persons or entities associated with the applicant. The
Division of Gaming may enter into agreements with the Colorado Bureau of
Investigation and state and local law enforcement agencies for the conduct of
investigation, identification, or registration of applicants, criminal records
checks and investigation of violations of the Colorado Limited Gaming Act. The
investigation may cover the background, personal history, financial
associations, past associations with casino owners and operators, character,
record and reputation of the applicant and its associated persons. The applicant
pays the full cost of the background investigation. There is no limit on the
cost or duration
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of the background investigation and the length or delay in the approval process
may have a material, adverse impact on the ability of the applicant and the
associated gaming establishment to timely obtain its gaming license. Applicants
who do not provide all requested information during a background investigation
may be denied a gaming license. In addition, all persons loaning monies, goods
or real or personal property to a licensee or applicant, or entering into any
agreement with a licensee or applicant, must provide any information requested
by the Division of Gaming or the Colorado Gaming Commission; and in the
discretion of the Division of Gaming or the Colorado Gaming Commission, these
persons must supply all information relevant to a determination of any such
person's suitability for licensure and must submit to a full background
investigation if ordered by the Colorado Gaming Commission. Failure to promptly
provide all information requested or to submit to a suitability or background
investigation may result in:
- the denial of a gaming license application;
- the suspension or revocation of an existing license;
- termination of any lease, note arrangement or agreement
between the applicant or licensee and the person requested to
provide the information; and
- other sanctions such as the imposition of fines.
Applicants and licensees may be required by the Colorado Gaming
Commission to pay the costs of background, suitability or other investigations
associated with the applicant or licensee. Investigations for suitability,
background or any other reason may delay the license application or the
performance under any agreement with a licensee. All agreements, contracts,
leases and arrangements in violation of the Colorado Limited Gaming Act or the
rules are void and unenforceable. If the Colorado Gaming Commission determines
that a person or entity is unsuitable to own interests in the gaming licensee,
then the applicant and/or licensee could be sanctioned, which may include the
loss by the casino of approvals or licenses.
In addition, the Colorado regulations prohibit a licensee or affiliated
company thereof from paying dividends, interest or other remuneration to any
unsuitable person, or recognizing the exercise of any voting rights by any
unsuitable person. Further, the Casino may repurchase the shares of anyone found
unsuitable at the lesser of cost or fair market value with indebtedness
subordinated to the First Mortgage Notes and the Second Mortgage Notes held by
Hyatt Gaming.
In addition to its authority to deny an application for a license based
on suitability, the Colorado Gaming Commission has jurisdiction to disapprove a
change in corporate position of the licensee and may have such authority with
respect to any entity or person which is required to be found suitable by the
Colorado Gaming Commission. The Colorado Gaming Commission has the power to
require the licensee to suspend or dismiss managers, officers, directors and
other key employees, or sever relationships with other persons who refuse to
file appropriate applications or to whom the authorities find unsuitable to act
in such capacity; and may have such power with respect to any entity which is
required to be found suitable. Specifically, it should be noted that there are
limited exceptions applicable to licensees that are publicly traded entities
and, generally speaking, no person, including persons who may acquire an
interest in a licensee in a foreclosure, may sell, lease, purchase, convey or
acquire any interest in a retail gaming or operator license or business without
the prior approval of the Colorado Gaming Commission after investigation by the
Division of Gaming.
Persons found unsuitable by the Colorado Gaming Commission may be
required to terminate immediately any interest in, association or agreement
with, or relationship to a licensee. A finding of unsuitability with respect to
any officer, director, employee, associate, lender or beneficial owner of a
licensee or applicant also may jeopardize the licensee's license or the
applicant's application. The grant of a license may be conditioned upon the
termination of any relationship with unsuitable persons.
Licensees have a continuing duty to report to the Colorado Gaming
Commission and the Division of Gaming information concerning persons, including
identifying those who have a 5% or greater ownership interest, financial or
equity interest in the licensee, or who have the ability to control or exercise
a significant influence over the licensee, or who loan money to the licensee.
Therefore, the requisite information regarding the holders of the
9
notes and warrants will have to be periodically reported to the Colorado Gaming
Commission and the Division of Gaming. Any person licensed by the Colorado
Gaming Commission and any associated person of a licensee must report criminal
convictions and criminal charges to the Colorado Gaming Commission.
Under Colorado law, it is a criminal violation for any person to have a
legal, beneficial, voting or equitable interest, or right to receive profits, in
more than three retail gaming licenses in Colorado. The Colorado Gaming
Commission has defined when a person is considered to have an interest in a
licensee for purposes of this multiple-license prohibition.
No manufacturer or distributor of slot machines or associated
equipment, may, without notification being provided to the Division within ten
days, knowingly have an interest in any casino operator, allow any of its
officers or any other person with a substantial interest in such business to
have such an interest, employ any person if that person is employed by a casino
operator, or allow any casino operator or person with a substantial interest in
a operator to have an interest in the manufacture's or distributor's business. A
"substantial interest" means the lesser of (i) as large an interest in an entity
as any other person or (ii) any financial or equity interest equal to or greater
than 5%.
SUPPORT OR KEY EMPLOYEE LICENSE. Gaming employees must hold either a
support or key employee license issued by the Division of Gaming. Every retail
gaming licensee must have a key employee in charge of all limited stakes gaming
activities when limited stakes gaming is being conducted. All persons employed
by the Casino and involved, directly or indirectly, in gaming operations in
Colorado are required to obtain a gaming license. All licenses must be renewed
annually except for key and support employees which must be renewed every two
years.
CONVEYANCE. With limited exceptions applicable to licensees that are
publicly traded entities, no person may sell, lease, purchase, convey or acquire
any interest in a retail gaming or operator license or business without the
prior approval of the Colorado Gaming Commission. Also, no person may own gaming
equipment without being licensed. Such prohibition could impair the ability of
the holders of the First Mortgage Notes to liquidate our assets upon any
foreclosure of the liens securing the First Mortgage Notes.
There cannot be a change in our control without the Colorado Gaming
Commission's prior approval. Also, there can be no change in our capital stock
without the Colorado Gaming Commission's prior approval.
All agreements, contracts, leases or arrangements in violation of
applicable Colorado law or regulations are void and unenforceable. The Colorado
Gaming Commission or the Director of the Division of Gaming may require changes
in gaming contracts (which are any agreements with a licensee, such as the
indenture governing the First Mortgage Notes) or termination of a gaming
contract.
PUBLICLY TRADED CORPORATIONS. In addition to the other requirements of
the gaming laws, the Colorado Gaming Commission has enacted a special rule, Rule
4.5, which establishes reporting procedures and approval requirements for
transfers of interest and other involvement with publicly traded corporations
directly or indirectly involved in gaming in Colorado. We are deemed to be a
"publicly traded corporation" under Rule 4.5 and we are required to file
periodic reports under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). While we are deemed "publicly traded" for purposes of Rule 4.5,
the following provisions apply.
Under Rule 4.5, licensees to whom Rule 4.5 applies must include in
their articles of organization or similar charter documents certain specified
provisions that:
- restrict the rights of the licensee to issue voting interests
or securities except in accordance with the Colorado gaming
laws;
- limit the rights of persons to transfer voting interests or
securities of a licensee except in accordance with the
Colorado gaming laws; and
- provide that holders of voting interests or securities of a
licensee found unsuitable by the Colorado Gaming Commission
may be required to sell their interests or securities back to
the issuer at the lesser
10
of, in general terms, the holder's investment or the market
price as of the date of the finding of unsuitability.
Alternatively, and with authorization by the Colorado Gaming
Commission, the holder may, in limited circumstances, transfer
the voting interests or securities to a suitable person as
determined by the Colorado Gaming Commission. Until the voting
interests or securities are held by suitable persons:
- the issuer may not pay dividends or interest on them;
- the interests or securities may not be voted or
entitled to any vote and they may not be included in
the voting of securities of the issuer; and
- the issuer may not pay any remuneration in any form
to the holder of the securities or interests.
Our Amended and Restated Articles of Incorporation contain these provisions:
Under Rule 4.5 persons who acquire direct or indirect beneficial
ownership of: (i) 5% or more of any class of voting securities of a publicly
traded corporation involved in gaming in Colorado; or (ii) 5% or more of the
beneficial interest in a gaming licensee directly or indirectly through any
class of voting securities of any holding company or intermediary company of a
licensee must notify the Colorado gaming authorities within 10 days of such
acquisition, are required to submit all requested information and are subject to
a finding of suitability. All persons who fall under these requirements are
referred to in this discussion as "qualifying persons." Licensees must notify
any qualifying persons of these requirements. A qualifying person whose
interests equal 10% or more must apply to the Colorado Gaming Commission for a
finding of suitability within 45 days after acquiring these securities.
Licensees must also notify any qualifying persons of these requirements. Whether
or not notified, qualifying persons are responsible for complying with these
requirements.
A qualifying person who is an institutional investor under Rule 4.5 and
whose interests equal 15% or more must apply to the Colorado Gaming Commission
for a finding of suitability within 45 days after acquiring the interests. A
qualifying person who is an institutional investor and whose interests equal 10%
or more, but less than 15%, may not be required to apply for suitability,
provided the person fulfills certain reporting requirements.
Rule 4.5 requires persons found unsuitable by the Colorado Gaming
Commission to be removed from any position as an officer, director, shareholder
or employee of a licensee, or from a holding or intermediary company of a
licensee. Unsuitable persons also are prohibited from any beneficial ownership
of the voting securities of any of those entities. Licensees, or affiliated
entities of licensees, are subject to loss of license or other disciplinary
action for paying dividends to persons found unsuitable by the Colorado Gaming
Commission, or for recognizing voting rights of, or paying a salary or any
remuneration for services to, unsuitable persons. Licensees or their affiliated
entities also face disciplinary action for failing to pursue efforts to require
unsuitable persons to relinquish their interests. The Colorado Gaming Commission
may determine that anyone with a material relationship to a licensee, or
affiliated company, must apply for a finding of suitability.
TAXES. The Amendment to the Colorado State Constitution further
provides that, in addition to any other applicable license fees, up to a maximum
of 40% of the adjusted gross proceeds of gaming operations may be payable by a
licensee for the privilege of conducting limited gaming in the State of
Colorado. Adjusted gross proceeds of gaming operations is generally defined as
the total amounts wagered, less all payments to players. With respect to games
of poker and other table games, adjusted gross proceeds of gaming operations
means those sums wagered in a hand retained by the licensee as compensation,
which must be consistent with the minimum and maximum amounts established by the
Colorado Gaming Commission. Currently the gaming tax on adjusted gross proceeds
of gaming operations is .25% on adjusted gross gaming proceeds of up to and
including $2 million, 2% over $2 million up to and including $4 million, 4% over
$4 million up to and including $5 million, 11% over $5 million up to and
including $10 million, 16% over $10 million up to and including $15 million, and
20% over $15 million. The gaming tax is paid monthly with licensees required to
file returns by the 15th of the following month. Gaming taxes are established as
of July 1st for the following 12 months.
ANNUAL DEVICE FEES. The municipalities of Central City, Black Hawk and
Cripple Creek assess and collect their own device fees. The current annual
device fee in Black Hawk is $750 per device. A credit is extended
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for the first fifty (50) gaming devices. As of April 2, 2004, we had a total of
1,020 gaming devices and pay the annual device fee for 970 gaming devices. There
is no statutory limit on state or city device fees, which may be increased at
the discretion of the State or the applicable city. Local device fees may be
prorated according to device usage; Black Hawk currently prorates device fees
such that any device used at any time during a calendar month is subject to the
device fee for such calendar month. In addition, a business improvement fee of
approximately $90 per device and a transportation impact fee of approximately
$106 per device also may apply, depending upon the location of the licensed
premises. In the past, the Colorado Gaming Commission has assessed an annual
state device fee, however the Colorado Gaming Commission has eliminated its
annual device fee for gaming machines. We cannot be certain the Colorado Gaming
Commission will not, in the future, decide to assess this fee. Should the state
impose an annual device fee, it may have a significant effect on business.
ADDITIONAL TAXES AND FEES. Black Hawk also imposes taxes and fees on
other aspects of the business of gaming licensees, such as parking, alcoholic
beverage licenses and other municipal taxes and fees. Black Hawk may impose
increases or additional fees at its discretion which may have a significant
effect upon our operations.
ALCOHOL. The sale of alcoholic beverages in gaming establishments is
subject to strict licensing, control and regulation by state and local
authorities. Alcoholic beverage licenses are revocable and non-transferable.
State and local licensing authorities have full power to deny, limit, condition,
suspend or revoke any such licenses. Persons or entities which directly or
indirectly own 10% or more of a licensee will be required to complete
applications and submit certain personal and financial information and be
subject to investigation. Violation of the state alcoholic beverage laws may
constitute a criminal offense and violators may be subject to criminal
prosecution, incarceration and fines.
There are various classes of retail liquor licenses under the Colorado
State Liquor Code. A retail gaming tavern license or restaurant liquor license
may be issued to persons who are licensed as a limited gaming establishment
under Colorado law. A retail gaming tavern licensee may sell malt, vinous or
spirituous liquors only by individual drinks for consumption on the premises,
and must also make available sandwiches or light snacks or contract with
concessionaires to provide food services within the same building as the
licensed premises. A restaurant liquor license requires the service of meals and
that at least 25% of the total of food and beverage sales come from the sale of
food. In no event may any person hold, or have an interest in, more than three
retail gaming tavern licenses. Also, a person may not have an interest in more
than one class of liquor license. An application for an alcoholic beverage
license in Colorado requires notice, posting and a public hearing before and
approval by the local liquor licensing authority. In Black Hawk, the licensing
authority is the Black Hawk Board of Aldermen. The Colorado Department of
Revenue, through its Liquor Enforcement Division, also must approve the
application. The Casino has been approved by both the local licensing authority
and the State Division of Liquor Enforcement.
MATERIAL AGREEMENTS
HYATT SETTLEMENT AND RELEASE AGREEMENT.
On December 13, 2002, we filed a motion for court approval of the
rejection of the Hyatt Management Agreement. On April 10, 2003, the Company
executed the Hyatt Settlement and Release Agreement with Hyatt Gaming, which
provided for the rejection of the Hyatt Management Agreement, the transition of
management of the Casino to the Company, the fixing of the amount and priority
of Hyatt Gaming's claims in the Chapter 11 Case (including the claims based on
the Second Mortage Note and the rejection of the Hyatt Management Agreement),
and the treatment of Hyatt Gaming's claims under a plan of reorganization.
Pursuant to the Hyatt Settlement and Release Agreement, Hyatt Gaming
holds an allowed unsecured claim in the Chapter 11 Case in the aggregate amount
of $18,413,243.68 (the amount of $18,318,368.49 set forth in the Hyatt
Settlement and Release Agreement plus an additional $94,875.19 in incentive
management fees from the Petition Date through May 13, 2003); provided, however,
that in the event that the value of the Company's assets exceed the value of the
liens senior to the Second Mortgage Note (including the liens of the Black Hawk
BID, PCL, the FF&E Lender and the First Mortgage Noteholders), Hyatt Gaming's
claim based on the Second Mortgage Note will be secured to such extent. On April
25, 2003, the Bankruptcy Court entered an order approving the Hyatt Settlement
and Release Agreement. On May 14, 2003, we assumed management of the Casino and
the Casino name was changed to the Mountain High Casino. The treatment of Hyatt
Gaming's allowed claim (including certain
12
changes to such treatment that Hyatt Gaming asserts are in violation of the
Hyatt Settlement Agreement and to which Hyatt Gaming has not consented) is
reflected in the Plan of Reorganization (as defined below). Hyatt Gaming has
indicated that, in addition to its pre-petition claims against the Company, it
may assert an administrative claim in the Chapter 11 Case for damages arising
from alleged breaches of the terms of the Hyatt Settlement and Release
Agreement. A copy of the Hyatt Settlement and Release Agreement is attached
hereto as Exhibit 10.31.
FF&E SETTLEMENT AGREEMENT
On or about February 19, 2003, we entered into the FF&E Stipulation
with the FF&E Lender pursuant to which all issues between the Company and the
FF&E Lender concerning the amount and priority of the FF&E Lender's claim and
the treatment of such claim under a plan of reorganization were resolved. On
June 24, 2003, the Company filed an Amended Stipulation Regarding (1) Allowance
and Payment of Secured Claim of David R. Belding; and (2) Mutual Release of
Claims Relating to Disputes Over Funds in Wells Fargo Bank Account (the "FF&E
Settlement Agreement"), which was approved by the Bankruptcy Court by order
entered June 30, 2003. The FF&E Settlement Agreement provides, among other
things, that the FF&E Lender will receive payments of up to $500,000 per month
during the Chapter 11 Case and will be paid certain amounts on the effective
date of a plan of reorganization. After the approval of the FF&E Settlement
Agreement by the Bankruptcy Court, the Company and the FF&E Lender agreed to
more favorable treatment to the Company, including a reduction in the required
effective date payment to the FF&E Lender and a one-year extension on the
repayment of the amounts due to the FF&E Lender, which treatment is reflected in
the Plan of Reorganization.
FACTORS THAT MAY AFFECT OUR FUTURE RESULTS
You should carefully consider the following risks, together with all
other information included in this Annual Report. The realization of any of the
risks described below could have a material adverse effect on our business,
results of operations and future prospects.
IMPORTANT FACTORS RELATED TO FORWARD-LOOKING STATEMENTS AND ASSOCIATED
RISKS. This Annual Report contains forward-looking statements within the meaning
of Section 27A of the Securities Act of 1933, as amended (the "Securities Act")
and Section 21E of the Exchange Act. In addition, we may from time to time make
written or oral forward-looking statements. Written forward-looking statements
may appear in documents filed with the Securities and Exchange Commission (the
"Commission"), in press releases and in reports to shareholders. The
forward-looking statements included in this Annual Report are based on current
expectations that involve a number of risks and uncertainties. These
forward-looking statements are based on the following assumptions: the Plan of
Reorganization or a plan substantially similar thereto submitted by us will be
approved by the Bankruptcy Court, market conditions affecting the Casino will
not change materially or adversely, that we will retain key management
personnel, that our forecasts will accurately anticipate market demand and that
there will be no further material adverse change in our operations or business.
Assumptions relating to the foregoing involve judgments with respect to, among
other things, future economic, competitive and market conditions and future
business decisions, all of which are difficult or impossible to predict
accurately and many of which are beyond our control. Although management
believes that the assumptions underlying the forward-looking statements are
reasonable, any of the assumptions could prove inaccurate and, therefore, there
can be no assurance that the results contemplated in forward-looking information
will be realized. We undertake no obligation to publicly update or revise any
forward-looking statements, whether as a result of new information, future
events or otherwise.
In addition, as disclosed elsewhere under other risk factors, our
business and operations are subject to substantial risks, which increase the
uncertainty inherent in such forward-looking statements. In light of the
significant uncertainties inherent in the forward-looking information included
herein, the inclusion of such information should not be regarded as a
representation by us or any other person that our objectives or plans will be
achieved. The Private Securities Litigation Reform Act of 1995 contains a safe
harbor for forward-looking statements on which we rely in making such
disclosures. In connection with this safe harbor we are hereby identifying
important factors that could cause actual results to differ materially from
those contained in any forward-looking statements made by or on our behalf. Any
such statement is qualified by reference to the cautionary statements included
in this Annual Report.
CERTAIN BANKRUPTCY CONSIDERATIONS
13
WE FACE SIGNIFICANT CHALLENGES IN CONNECTION WITH OUR BANKRUPTCY
REORGANIZATION. On November 7, 2002, we filed a voluntary petition for relief
under Chapter 11 of the Bankruptcy Code in the Bankruptcy Court. Since the
Petition Date, we have been operating the Casino as debtor-in-possession
pursuant to the Bankruptcy Code. There can be no assurance that we will be
successful in reorganizing under the Chapter 11 Case. If we are not successful
in reorganizing under the Chapter 11 Case, we could face liquidation.
WE HAVE FILED A PLAN OF REORGANIZATION WITH THE BANKRUPTCY COURT WHICH
REQUIRES APPROVAL TO EMERGE FROM CHAPTER 11. On November 20, 2003 we filed the
Plan of Reorganization with the Bankruptcy Court. The Plan of Reorganization is
subject to Bankruptcy Court approval, as well as the acceptance by our creditors
and equity holders. The Plan of Reorganization may not receive the requisite
acceptance by creditors and equity holders or the Bankruptcy Court may not
confirm the proposed plan. Moreover, even if the Plan of Reorganization receives
the requisite acceptance by creditors and equity holders and is ultimately
approved by the Bankruptcy Court, the Plan of Reorganization may not be viable.
In addition, due to the nature of the reorganization process, actions may be
taken by creditors or other parties in interest that may have the effect of
preventing or unduly delaying confirmation of the Plan of Reorganization.
Accordingly, there can be no assurance as to whether or when the Plan of
Reorganization may be approved by the creditors or equity holders or confirmed
by the Bankruptcy Court in the Chapter 11 Case.
WE MAY NOT RECEIVE THE APPROVALS NECESSARY TO CONFIRM THE PLAN. Section
1129 of the Bankruptcy Code, which sets forth the requirements for confirmation
of the Plan of Reorganization, requires, among other things, a finding by a
Bankruptcy Court that:
- the confirmation of a plan is not likely to be followed by the
need for further reorganization;
- all claims and interests have been classified in compliance
with the provisions of section 1122 of the Bankruptcy Code;
and
- each holder of a claim or equity interest within each impaired
class has voted to accept the plan or has received or retained
under the plan, cash or property of a value, as of the date
the plan becomes effective, that is not less than the value
such holders would receive or retain if the debtor were
liquidated under Chapter 7 of the Bankruptcy Code.
We can give no assurance that the Bankruptcy Court will conclude that
these tests and the other requirements of section 1129 of the Bankruptcy Code
have been met with respect to the Plan of Reorganization. We can also give no
assurance that further modifications to the Plan of Reorganization would not be
required for confirmation, or that such modifications would not require us to
recirculate the Plan of Reorganization to solicit approval of the modified Plan
of Reorganization. Any requirement to resolicit approvals would delay
implementation of the Plan of Reorganization, which we believe would adversely
affect our investors.
We believe that the Plan of Reorganization meets all of the
requirements for confirmation thereof, including, in particular, that if the
Plan of Reorganization is confirmed it will not be followed by the need for
further financial reorganization of the Company and that our creditors and
investors whose interests are considered impaired will receive value under the
Plan of Reorganization that is greater than the value they would receive if we
were liquidated under chapter 7 of the Bankruptcy Code. However, we can give no
assurance that the Bankruptcy Court will reach the same conclusions.
In addition, the confirmation and effectiveness of the Plan of
Reorganization is also subject to certain conditions. We can give no assurances
that these conditions will be satisfied or waived or that any necessary consent
will be obtained.
Failure of confirmation of the Plan of Reorganization by the Bankruptcy
Court would likely result in a sale of some or all of our business operations, a
conversion of the Chapter 11 Case to a case under Chapter 7 of the Bankruptcy
Code or the proposal of a different plan of reorganization.
14
OUR FINANCIAL STATEMENTS ASSUME WE WILL CONTINUE AS A "GOING CONCERN."
Based on current and anticipated levels of operations and assuming confirmation
of the Plan of Reorganization, we believe that we will continue as a "going
concern." Accordingly, our financial statements included herein have been
prepared assuming we will continue as a "going concern." The continuation of the
Company as a "going concern" is contingent upon, among other things, (i) the
approval of the Plan of Reorganization by parties required by the Bankruptcy
Code and be confirmed by the Bankruptcy Court, and (ii) our ability to generate
sufficient cash flows from operations to meet future obligations. These matters
create substantial doubt about our ability to continue as a "going concern." If
the "going concern" basis was not appropriate for the Company's financial
statements, then significant adjustments would be necessary in the carrying
value of assets and liabilities, the revenues and expenses reported, and the
balance sheet classifications used.
The amounts reported in the financial statements included elsewhere in
this Annual Report do not reflect all of the adjustments to the carrying value
of assets or the amount and classification of liabilities that ultimately may be
necessary as the result of the adoption of a plan of reorganization. Adjustments
necessitated by the Plan of Reorganization could materially change the amounts
reported in the financial statements included herein.
WE ARE SUBJECT TO RESTRICTIONS ON THE CONDUCT OF OUR BUSINESS. We
currently operate the Casino as a debtor-in-possession pursuant to the
Bankruptcy Code. Under applicable bankruptcy law, during the pendency of the
Chapter 11 Case, we are required to obtain the approval of the Bankruptcy Court
for any transaction outside the ordinary course of business. In connection with
any such approval, creditors and other parties in interest may raise objections
to such approval and may appear and be heard at any hearing with respect to any
such approval. The Bankruptcy Court may also have the authority to oversee and
exert control over our ordinary course of operations. As a result of these
restrictions, our ability to respond to changing business and economic
conditions may be significantly restricted, and we may be prevented from
engaging in transactions that might otherwise be considered beneficial.
THE CHAPTER 11 CASE MAY HAVE A MATERIAL ADVERSE EFFECT ON RELATIONSHIPS
WITH SUPPLIERS OR VENDORS. While we have not experienced any significant
disruption in our relationships with our suppliers or vendors, we may have
difficulty maintaining existing or creating new relationships with suppliers or
vendors as a result of the Chapter 11 Case. Suppliers and vendors could stop
providing supplies or services or provide such supplies or services only on
"cash on delivery," "cash on order," or other terms that could have an adverse
impact on our short-term cash flows.
THE ADEQUACY OF OUR CAPITAL RESOURCES IS LIMITED AND WE HAVE LIMITED
ACCESS TO ADDITIONAL FINANCING. In addition to the cash requirements necessary
to fund ongoing operations, we currently are incurring and anticipate that we
will continue to incur significant professional fees and other restructuring
costs in connection with the Chapter 11 Case and the restructuring of our
operations. However, as a result of the uncertainty surrounding our current
circumstances, it is difficult to predict our actual liquidity needs at this
time. Although, based on current and anticipated levels of operations, and
efforts to increase the number of gaming patrons and customers to the Casino, we
believe that our cash flow from operations will be adequate to meet our
anticipated cash requirements during the pendency of the Chapter 11 Case,
ultimately such amounts may not be sufficient to fund operations until such time
as a plan of reorganization is confirmed by the Bankruptcy Court. In the event
that cash flows are insufficient to meet future cash requirements, we may be
required to reduce planned capital expenditures or seek additional financing. We
can provide no assurance that reductions in planned capital expenditures would
be sufficient to cover shortfalls or that additional financing would be
available or, if available, offered on acceptable terms. As a result of the
Chapter 11 Case and the circumstances leading to the filing thereof, our access
to additional financing is, and for the foreseeable future will likely continue
to be limited. As the foregoing indicates, our long-term liquidity requirements
and the adequacy of our capital resources are difficult to predict at this time,
and ultimately cannot be determined until a plan of reorganization is confirmed
by the Bankruptcy Court in the Chapter 11 Case.
THE REORGANIZATION WILL REQUIRE SUBSTANTIAL EFFORT BY MANAGEMENT. Our
senior management has been and will continue to be required to expend a
substantial amount of time and effort in connection with the reorganization
process. By expending time focusing upon the reorganization effort, management
is unable to focus 100% on our operations which could have a disruptive effect
upon operation of our business.
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IF THE REORGANIZATION PLAN IS APPROVED BY CREDITORS AND EQUITY HOLDERS
AND SUBSEQUENTLY CONFIRMED BY THE BANKRUPTCY COURT, WE WILL STILL REQUIRE A
SIGNIFICANT AMOUNT OF CASH TO SERVICE OUR DEBT AND CONTINUE OPERATIONS. In the
Chapter 11 Case there have been 126 proofs of claim filed, representing in
excess of $160 million in claims against us. Our inability to generate adequate
cash prior to and after the approval of the Plan of Reorganization may impact
our ability to repay our restructured debt obligations. Our ability to make
payments on our restructured debt obligations will depend on our ability to
generate cash and secure financing if needed in the future.
Our ability to generate cash will depend upon, among other things:
- future operating performance;
- demand for gaming and entertainment;
- general state of the economy;
- competition, particularly in Black Hawk; and
- regulatory and other factors affecting our operations and
business.
Many of these factors are beyond our control. If we are unable to
successfully restructure our debt and generate sufficient cash flow through
operations, we may be forced to reduce, delay or cancel planned capital
expenditures, or obtain additional equity capital if available, or even
liquidate.
FACTORS RELATED TO OUR OPERATIONS
WE MAY NOT BE ABLE TO MAINTAIN OUR GAMING LICENSE REQUIRED BY THE
COLORADO GAMING COMMISSION TO OPERATE THE CASINO. The Colorado Gaming Commission
approved the issuance of the appropriate and necessary gaming licenses for
operation of the Casino to us and Hyatt Gaming on September 20, 2001. The
licenses were physically issued to us and Hyatt Gaming immediately prior to
opening of our Casino on December 20, 2001. The operation of a Casino gaming
facility in Colorado requires a Colorado Limited Gaming License. A Colorado
gaming license is a non-transferable, revocable privilege in which the licensee
acquires no vested interest. The Colorado Gaming Commission could choose not to
renew that license if it has concerns about our management, operations, business
practices or associations. Our failure to maintain all required licenses to
conduct limited gaming on our premises would have a material, adverse effect
upon our operations. Additionally, any violation of gaming laws or regulations,
could result in the assessment of substantial fines against us and the persons
involved. The suspension, revocation or non-renewal of any of our licenses or
the levy on us of substantial fines could have a material adverse effect on our
business.
WE MAY BE UNABLE TO MAINTAIN OUR LIQUOR LICENSE. In addition to a
gaming license, regulatory approval is necessary to maintain our liquor licenses
from the City of Black Hawk and the State of Colorado. Although we do not
anticipate any problem in maintaining our liquor license, our inability to
obtain any required permit or approval could prevent us from operating the
Casino.
UNDER COLORADO GAMING LAWS, NOTE HOLDERS MAY BE REQUIRED TO SUBMIT TO A
BACKGROUND INVESTIGATION REGARDING THEIR SUITABILITY AS A NOTE HOLDER OR WARRANT
HOLDER WHICH COULD DELAY ANY APPLICATIONS FOR LICENSES, PERMITS OR OTHER
AUTHORIZATIONS. The current policy of the Colorado Gaming Commission and the
Division of Gaming does not require note holders to submit to a background
investigation for a suitability determination. The Colorado Gaming Commission
and the Division of Gaming could change that policy at any time and require note
holders to undergo a background investigation.
In addition, note holders who are also holders of our common stock,
whether by the exercise of a detachable warrant or by any other means, will at
least be required to submit a limited owner application, which will be reviewed
by the Colorado Gaming Commission and the Division of Gaming. The current policy
of the Colorado Gaming Commission and the Division of Gaming does not require
shareholders who are institutional investors to submit to a full background
investigation regarding their suitability. The Colorado Gaming Commission and
the
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Division of Gaming could change that policy at any time and require
institutional investors to undergo background investigations.
Holders of our common stock are required to submit owner applications,
which are reviewed by the Colorado Gaming Commission and the Division of Gaming.
Despite current policy, the Colorado Gaming Commission and the Division of
Gaming have the authority to require any person who is one of our shareholders
and any of our executive employees or agents having the power to exercise a
significant influence over decisions concerning any part of the operation of the
Casino to undergo a full background investigation, regardless of whether the
shareholder is an institutional investor and regardless of the number of shares
held, which could further delay the gaming application process.
WE COULD INCUR LOSSES WHICH WOULD NOT BE COVERED BY INSURANCE. Although
we have obtained all insurance customary and appropriate for our business, we
cannot assure you that this insurance will be adequate to cover all perils to
which our business or our assets might be subjected. Any losses we incur that
are in excess of our coverages or are not covered by insurance consequently
increase our operating costs.
WE FACE COMPETITION FROM OTHER GAMING OPERATIONS AND OTHER FORMS OF
GAMING THAT COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR FUTURE OPERATIONS. As
described under "Competition," we operate in a very competitive environment.
Certain of our current and future competitors have or may have more gaming
experience than we do.
Casinos offering hotel accommodations for overnight stay may have a
competitive advantage over the Casino. The number of hotel rooms currently in
Black Hawk is approximately 287, with the Lodge at Black Hawk providing 50 and
the Isle of Capri providing 237. In addition, Fortune Valley Hotel and Casino,
located in Central City, has 118 hotel rooms. Isle of Capri recently announced
plans to expand the Colorado Central Station Casino, adding casino space and
hotel rooms with the completion of the project scheduled for the end of 2005.
This expansion could attract gaming patrons and customers who are currently
patrons of the Casino. If this happens, it could material adverse effect upon
the Casino.
Currently, limited stakes gaming in Colorado is constitutionally
authorized in Central City, Black Hawk, Cripple Creek and two Native American
reservations in southwest Colorado. However, gaming could be approved in other
Colorado communities in the future. The legalization of gaming closer to Denver
would likely have a material adverse impact on our future operating results.
The Casino will also indirectly face competition from other forms of
gaming, including the Colorado state-run lottery, multi-state lottery, online
computer gaming, charitable bingo and horse and dog racing, as well as other
forms of entertainment. See "Additional Legalization of Gaming in Colorado or
the Imposition of a Tax on Gaming Revenues Could Adversely Effect our Business."
CONSTRUCTION OF NEW ROADWAY FROM CENTRAL CITY OF INTERSTATE 70,
Historically, Black Hawk has enjoyed an advantage over Central City because the
majority of customers have to drive by and through Black Hawk to reach Central
City. However, on October 3, 2003, Central City began construction of a new
four-lane road from Interstate 70 at hidden valley directly into downtown
Central City. Upon completion, this roadway will allow drivers to reach Central
City without driving through Clear Creek Canyon and Black Hawk. The new roadway
may attract patrons and customers of the Casino to casinos located in Central
City, which may have a material adverse effect upon us.
WE HAVE NO EXPERIENCE IN THE OPERATION OF A CASINO. From December 21,
2001 until May 14, 2003, Hyatt Gaming managed the Casino. On May 14, 2003, we
assumed management of the Casino. Prior to this date, we had no experience in
the operation of a casino. While we have several employees including Timothy G.
Rose, the president of Windsor Woodmont and our recently hired general manager
Sean Sullivan of the Casino, both who have significant experience in the
operations of casinos, Windsor Woodmont, as an entity, has no experience in the
operations of a casino. If we are unable to continue to efficiently manage the
operations of the Casino it will have a material adverse effect upon us.
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DEPENDENCE UPON REPEAT CORE CUSTOMERS. Management of the Company
believes that approximately 90% of our business is from repeat core customers.
There can be no assurance that these customers will continue to come to the
Casino or game at current levels in the future. The loss of a significant number
of these repeat core customers, or a significant reduction in their gaming
activities at the Casino, would have a material adverse effect upon the Company.
WE MAY FACE DIFFICULTIES IN ATTRACTING AND RETAINING QUALIFIED
EMPLOYEES FOR THE CASINO. The operation of the Casino requires qualified
executives, managers and skilled employees with gaming industry experience and
qualifications to obtain the requisite licenses. Currently, there is a shortage
of skilled labor in the gaming industry. We believe this shortage will make it
increasingly difficult and expensive for the manager of the Casino to attract
and retain qualified employees. Increasing competition in Black Hawk and
competing markets may lead to higher costs in order to retain and attract
qualified employees. We may incur higher labor costs in order for the Casino
management to attract qualified employees from existing gaming facilities. While
we believe that we will be able to attract and retain qualified employees, we
may have difficulty attracting a satisfactory number, and we may incur higher
costs than expected as a result.
THE RISK OF THEFT COULD ADVERSELY AFFECT CASINO OPERATIONS. The nature
of the Casino's operation entrusts management and other persons working in the
Casino in various positions to handle large amounts of cash, casino chips and
tokens. Although our internal controls and security and surveillance policies
and procedures are designed to limit our exposure to theft and the associated
risk of loss, we cannot assure you that such theft does not occur or that we
will discover any such theft promptly, if at all. We cannot assure you we will
have adequate insurance coverage, in the event of any such theft. Any theft by
our employees or otherwise could have an adverse affect on the results of
operations.
ADVERSE WEATHER, ROAD CONDITIONS AND INFRASTRUCTURE LIMITATIONS AFFECT
OUR ABILITY TO ATTRACT CUSTOMERS. BECAUSE THE HIGHEST LEVEL OF CUSTOMER VISITS
OCCUR IN THE SUMMER, A POOR SUMMER SEASON COULD ADVERSELY AFFECT OUR BUSINESS.
The location of the Casino in the Rocky Mountains creates a risk that it will be
subject to inclement weather, particularly snow. Severe weather conditions could
cause significant physical damage to the Casino or result in reduced hours of
operation or access to the Casino. Black Hawk is served by winding mountain
roads that require cautious driving, particularly in bad weather, and are
subject to driving restrictions and closure. Congestion on the roads leading to
Black Hawk is common during the peak summer season, holidays and other times and
may discourage potential customers from traveling to the Casino, particularly if
road construction is in process.
The highest level of customer visits occur during the summer months,
because of the more favorable weather conditions. A poor summer season, due to
any reason, including events outside our control, would adversely affect our
business.
LOCAL ECONOMIC AND COMPETITIVE CONDITIONS, AS WELL AS OTHER CONDITIONS
AND CIRCUMSTANCES BEYOND OUR CONTROL COULD ADVERSELY AFFECT OUR BUSINESS. We are
entirely dependent upon the Casino for all of our cash flow. Therefore, we are
subject to greater risks than a geographically diversified gaming company. These
greater risks include those caused by any of the risks described in this
section, including:
- local economic and competitive conditions;
- inaccessibility due to road construction or closure on primary
access routes;
- changes in local and state governmental laws and regulations;
- natural and other disasters;
- a decline in the number of residents near or visitors to Black
Hawk; or
- a decrease in gaming activities in Black Hawk.
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Any of the factors outlined above could adversely affect our ability to
reorganize in our Chapter 11 Case and to generate sufficient cash flow to
continue to operate the Casino and meet our obligations under a reorganization
plan. A recession or economic slowdown could cause a reduction in visitation to
the Casino, which would adversely affect our operating results.
WE FACE RISKS THAT A MINING CLAIM MAY ADVERSELY AFFECT OUR PROPERTY
RIGHTS. Black Hawk is located in an area that was actively mined for many years.
Conflicts between mining claims that have certain statutory priorities and
surface rights derived from the town can affect the use or ownership of property
located in Black Hawk. These conflicts are the result of mining claims which
pre-date the township patent granted on April 11, 1873.
Although the government agencies responsible for analyzing such claims
have been reluctant to adversely affect ownership rights that have been treated
as settled, occasional claims based on asserted mining rights have been made
adverse to the interests of casino developments and other property in Black
Hawk. These mining claims may be raised in respect of the land we own in Black
Hawk. If raised, these claims or similar challenges to title could distract our
management and could force us to make payments to settle the claims. We have
obtained title insurance which we believe will protect us against such claims.
IN THE EVENT OF FORECLOSURE, NOTE HOLDERS MAY BE UNABLE TO COLLECT THE
FULL VALUE OF THE FIRST MORTGAGE NOTES. The First Mortgage Notes are secured by
a first priority lien on substantially all of our assets other than:
- certain furniture, fixtures and equipment;
- the assets of our future unrestricted subsidiaries; and
- assets subject to certain permitted liens, as well as by a
second priority lien on the loan proceeds from the issuance of
the Second Mortgage Notes.
The right of the trustee under the indenture governing the First
Mortgage Notes to foreclosure on and/or dispose of its collateral is
significantly impaired by applicable bankruptcy law in the Chapter 11 Case.
Absent approval of the Bankruptcy Court, the trustee under the indenture
governing the First Mortgage Notes is prohibited from proceeding to foreclose
and/or dispose of its collateral.
In addition, under Colorado gaming laws, the trustee under the
indenture governing the First Mortgage Notes could be precluded from or
otherwise limited or delayed in exercising powers of attorney or selling
collateral, including slot machines, at a foreclosure sale since only persons
licensed by the Colorado gaming authorities may have slot machines in their
possession. In addition, the trustee may encounter difficulty in selling
collateral due to various legal restrictions, including requirements that the
purchaser or the operator of the gaming facility be licensed by state
authorities or that prior approval of a sale or disposition of collateral be
obtained. Since potential purchasers who wish to operate the Casino must satisfy
such requirements, the number of potential purchasers in a sale of the Casino
could be less than in the sale of other types of facilities. Additionally, these
requirements may delay the sale of, and may adversely affect the price paid for,
the collateral.
In addition to gaming law restrictions, the ability of the trustee to
repossess and dispose of collateral will be subject to the procedural and other
restrictions of state real estate law and commercial law and our existing
contractual relationships.
SOME PERSONS WHO PROVIDE SERVICES OR MATERIALS IN CONNECTION WITH THE
CASINO MAY HAVE A LIEN ON THE PROJECT WITH PRIORITY OVER THE LIENS GRANTED TO
SECURE THE FIRST MORTGAGE NOTES. Colorado law provides architects, engineers,
contractors, subcontractors, suppliers and others with a mechanic's lien on the
real property being improved by their services or materials in order to secure
their right to be paid. Following compliance with applicable Colorado law, such
parties may foreclose on their mechanic's liens if they are not paid in full.
Any actions taken to foreclose upon mechanics liens have been stayed pending
resolution of the Chapter 11 Case. The priority of all mechanic's liens arising
out of a construction project relates back to the date on which the construction
of the project commenced. Parties who provide services or materials in
connection with the Casino, including
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parties providing services or materials prior to the Petition Date of the
Chapter 11 Case may have a lien on the project, senior in priority to the
unsecured creditors.
ADDITIONAL LEGALIZATION OF GAMING IN COLORADO OR THE IMPOSITION OF A
TAX ON GAMING REVENUES COULD ADVERSELY EFFECT OUR BUSINESS. Additional
legalization of gaming in or near any area from which the Casino is expected to
draw customers would adversely affect the Casino's business. Colorado law
requires statewide voter approval for any expansion of limited gaming into
additional locations and depending on the authorization approved by the
statewide vote, may also require voter approval from the locality in question.
Several attempts have been made by various parties in recent years to expand
gaming in Colorado, including an amendment in November 2003 to include Video
Lottery Terminals in dog tracks located along the front range of Colroado.
However, to date none of this legislation has been passed. However, there can be
no assurance that such legislation will not be implemented in Colorado. If such
legislation is approved by the Colorado legislature or Colorado voters, it could
likely have a material adverse impact on our future operating results.
Additionally, from time to time, certain federal legislators have
proposed the imposition of a federal tax on gaming revenues. Any such tax could
adversely affect on our financial condition or results of operations.
THERE IS CURRENTLY NO ESTABLISHED MARKET FOR OUR SECURITIES. The First
Mortgage Notes are our only securities which have been registered under the
Securities Act. We do not intend to apply for a listing of the First Mortgage
Notes on a securities exchange or on any automated dealer quotation system.
There is currently no established market for the First Mortgage Notes and we
cannot assure you as to the liquidity of any market that may develop for the
notes, your ability to sell the notes or the price at which you would be able to
sell the notes. If such markets were to exist, the First Mortgage Notes could
trade at prices that may be lower than their principal amount or purchase price
depending on many factors, including our Chapter 11 Case, the prevailing
interest rates and markets for similar securities. Further, there is no
established trading market for our common stock, and we cannot assure you that
one will ever develop.
The liquidity of, and trading market for, the First Mortgage Notes also
may be adversely affected by changes in the overall market for high yield
securities and by further adverse changes in our financial performance or
prospects or in the prospects for companies in our industry. As a result, we
cannot assure you that an active trading market will develop for the First
Mortgage Notes.
ENVIRONMENTAL PROBLEMS ARE POSSIBLE AND CAN BE COSTLY. The Casino is
located in a 400 square mile area that has been designated by the United States
Environmental Protection Agency as the Clear Creek/Central City National
Priorities List Superfund Site under the Comprehensive Environmental Response,
Compensation and Liability Act, as a result of hazardous substance contamination
caused by historical mining activity in Black Hawk. This is a broad national
priorities list site, within which the EPA has identified several priority areas
of contamination from historical mining activities, including draining mines and
mine dumps, for active investigation and/or remediation. To date, the EPA has
not identified the Casino site as being within a priority area nor has it
identified contamination on or from the Casino site to require remediation.
We have been informed that the Superfund Division of the Colorado
Department of Public Health and the Environment ("Superfund Division"), working
with the EPA, has sampled surface water in or near North Clear Creek near where
a portion of the project site called Silver Gulch discharges surface water into
North Clear Creek. Based on the results of those samples, the EPA and the
Superfund Division have expressed preliminary concern that soil and rock
associated with historic mining operations in Silver Gulch may be a source of
contamination to North Clear Creek. Even minor contamination could form a basis
for the EPA Superfund Division to require owners and operators of properties
which have been the source of contamination to investigate and remediate
contamination on or from their property or to reimburse costs incurred by the
government in connection with such remediation. The Casino site could be among
the properties suspected of being a source of contamination. If investigation or
remediation of the Casino site were required, the costs associated with
investigation and remediation could have a material adverse effect upon our
business.
Windsor Woodmont, LLC conducted a phase I and modified phase II
environmental assessment of the site of the Casino. The environmental assessment
has identified the remnants of historic mining activities on the site, including
a tunnel, prospect pits, mining waste rock piles, a mine mill, mill tailings and
plugged mine working
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entrances. The environmental assessment also indicated that metal analyses of
samples of certain soil and rock associated with historic mining activities were
above concentrations allowed by Black Hawk Ordinance No. 93-3 for property
proposed for excavation or development and that the soils had the potential for
acid rock drainage.
As a result of the elevated concentrations of metals in the soil and
rock analyses, Windsor Woodmont, LLC prepared plans regarding the handling,
consolidation and permanent disposal of contaminated soils and rock and
submitted those plans to the City of Black Hawk. Those plans call for any
contaminated soil and rock piles in areas of the property other than Silver
Gulch to be excavated and consolidated in Silver Gulch with contaminated soil
and rock piles historically located there.
The mining related soil and rock which we have excavated and
consolidated in Silver Gulch has been covered with a protective soil cap, and
water flows onto the Gulch have been managed to attempt to eliminate or
significantly reduce contact of water with the historic mining material already
located in Silver Gulch and the consolidated material. The soil cap was covered
with the general construction and excavation debris from the construction
operations necessary to create the site for the Casino. Water quality in Silver
Gulch has significantly improved since the installation of the protective soil
cap.
We cannot assure you that we will not be subject to claims or
requirements for contribution or remediation by private parties, the EPA or the
Superfund Division relating to previous mining activities conducted at the
Casino site, to the disposal of excavated soil and rock from the Casino site
which has been consolidated at Silver Gulch, to other contaminated soil and rock
that might be discovered during excavation or construction at the Casino site or
to surface water or groundwater contamination potentially connected with
historic mining materials currently located on, or disposed on, the Casino site.
Moreover, governmental trustees acting under the Comprehensive Environmental
Response, Compensation and Liability Act could make claims for damages to
natural resources as a result of past mining activity at the Casino site as well
as existing conditions or construction activities. Further, conditions that are
imposed in connection with regulatory approvals or permits could cause
construction costs to increase due to costs of handling this excavated material.
THE RATE OF TAXATION ON GAMING PROFITS MAY INCREASE IN THE FUTURE. The
Colorado Constitution permits a gaming tax of up to 40% on adjusted gross gaming
proceeds. Effective July 1, 1999, the Colorado Gaming Commission has set a
gaming tax rate of .25% on adjusted gross gaming proceeds up to and including $2
million, 2% over $2 million up to and including $4 million, 4% over $4 million
up to and including $5 million, 11% over $5 million up to and including $10
million, 16% over $10 million up to and including $15 million, and 20% over $15
million. These fees are set to pay the costs of ongoing regulation by the
Division of Gaming. Black Hawk has imposed an annual device fee of $750 per
gaming device and it revises the same from time to time. The Colorado Gaming
Commission has eliminated its annual device fee for gaming machines. The
Colorado Gaming Commission may revise the gaming tax or re-impose the state
device fee at any time and has been conducting annual reviews to reconsider and
reevaluate the gaming taxes on or about July 1st of each year. We cannot assure
you that the tax rates applicable to the Casino will not be increased in the
future.
ITEM 2. PROPERTY
BLACK HAWK, COLORADO.
We own the Mountain High Casino, a casino located in Black Hawk,
Colorado. The land we own upon which the Casino is situated is comprised of
approximately 106 acres of land located at the intersection of Richman Street
and Highway 119 in Black Hawk. The tract of land upon which the actual Casino is
located is comprised of an approximately 5.7 acre parcel, on which our new
Casino was constructed in 2001. The Casino includes 425,000 square feet of
space, including 57,000 square feet is currently used for gaming, parking for
approximately 1,450 vehicles, three restaurants including: the Steakhouse at the
Mountain High Casino, a steak and seafood restaurant, the Kitchens of the World
Action Buffet, a high quality action-station buffet, a Wolf Gang Puck's Express
restaurant and a food court featuring various quick service food offerings. In
addition, the Casino includes an indoor/outdoor plaza area featuring Starbucks
Coffee and a gift shop.
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ITEM 3. LEGAL PROCEEDINGS
We are involved in certain legal proceedings, claims and litigation,
including those described below. Further, we may become involved in other such
proceedings in the future. The results of legal proceedings cannot be predicted
with certainty. Except as otherwise indicated below, management does not believe
that we have potential liability related to any current legal proceedings and
claims that would have material adverse effect on our financial condition,
liquidity or results of operations. As of the result of the Chapter 11 Case,
except where noted, legal proceedings are stayed. For a complete description of
our Chapter 11 Case, see "Proceedings under Chapter 11 of the Bankruptcy Code."
First Place LLC filed a lawsuit against the Company generally asserting
that it has an ownership interest in a small sliver of property upon which the
Company has built and is operating the Mountain High casino. The property which
First Place contends it has an ownership in consists of approximately 6,000
square feet. The Company timely referred the issue to its title insurance
company, First American Title. The Company has a $33.5 million owner's title
insurance policy with First American. First American has advised the Company
that the claim will be covered by the Company's title insurance and the title
insurance company has been and is vigorously defending the claim. After a trial
in June, 2002, the trial court determined that First Place does have an
ownership interest in a strip of property containing approximately 3,000 square
feet which the Company believed it owned. Certain post trial motions had been
granted and were pending final determination by the Court at the time of the
Chapter 11 filing. On August 7, 2003, the Bankruptcy Court entered an order
lifting the automatic stay, thus allowing this case to proceed to conclusion in
the state courts. On September 12, 2003, the state trial court liquidated the
First Place claim, based upon application of the "relative hardship" doctrine,
in the amount of $73,500 and decreed that upon payment of that amount the
Company would own the 3,000 square feet. First Place has appealed this case to
the Colorado Court of Appeals and it is anticipated the appeal will be concluded
in late 2004 or early 2005. We do not anticipate that there will be any
financial exposure to the Company with respect to this claim, and fully expects
that this claim will be resolved by and at the expense of First American Title.
PCL Construction Services, Inc. acted as the general contractor for the
Company in the construction of the Black Hawk Casino by Hyatt project. The
Substantial Completion Date for the project was originally to have been October
29, 2001 and was subsequently amended by Change Order to November 15, 2001. In
fact, construction of the casino was not at a point where the casino could open
for business until December 20, 2001 and certain components of the project were
not completed until early 2002. In early 2002, PCL and its subcontractors
claimed to be owed an aggregate of approximately $7,200,000 on the project,
recorded mechanic's liens and filed mechanic's lien foreclosure and breach of
contract litigation against the Company. The Company filed litigation against
PCL for PCL's misrepresentations and contractual breaches concerning completion
of the project. This litigation was not at issue with all parties as of the date
of the Chapter 11 filing and has been stayed. The Company and PCL engaged in
extensive settlement discussions starting in January, 2003 and entered into a
settlement agreement in May 2003. The Bankruptcy Court approved the agreement on
July 7, 2003. Under the agreement, the Company agreed to pay PCL and its
subcontractors a total of $4.5 million, $2.3 million of which was paid July 28,
2003, $1.4 million of which was paid in January 2004, $400,000 to be paid in
October 2004, and $400,000 to be paid in April 2005.
Paul Steelman was the project architect for the Black Hawk Casino by
Hyatt project. Paul Steelman claims that it is owed an additional approximately
$200,000 for architectural work performed at the project. The Company believes
that it does not owe Paul Steelman the $200,000 and further believes that Paul
Steelman owes the Company approximately $2,000,000 for Paul Steelman's failure
to properly prepare and complete architectural plans and specifications for the
project in a timely fashion. Prior to the Chapter 11 filing, the Company and
Steelman had entered into a Dispute Resolution Agreement providing for
mediation, to be followed by binding arbitration, if necessary. The Company and
Steelman filed a stipulated motion lifting the stay from this dispute and
allowing its determination by Dispute Resolution Agreement, and an order
approving the motion was entered in May 2003. Mediation between the Company and
Steelman did not result in a resolution of these claims and a binding
arbitration of the claims is scheduled for September 2004.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
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No matters were submitted by us to a vote of our security holders
through the solicitation of proxies or otherwise, during the fourth quarter of
the fiscal year covered by this Annual Report.
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
MARKET INFORMATION. Our common stock has not been registered under the
Securities Act and there is no public trading market for our common stock.
HOLDERS. As of April 2, 2004 there were 51 holders of record of our
common stock.
DIVIDENDS. No dividends have been declared or paid on our common stock
and we do not intend to pay a dividend on shares of our common stock in the
future. In addition, the payment of cash dividends on our common stock is
subject to any preferences which may be applicable to our Series A and Series B
preferred stock and our ability to declare dividends on our common stock is
restricted by the terms of our Series B preferred stock. In addition, the Hyatt
Settlement and Release Agreement limits our ability to pay dividends. The
indenture governing our First Mortgage Notes also limits our ability to pay
dividends. Consequently, no cash dividends are expected to be paid on our common
stock in the foreseeable future. Further, there can be no assurance that our
proposed operations will generate the funds needed to declare a cash dividend or
that we will have legally available funds to pay dividends. In addition, we may
fund part of our operations in the future from indebtedness, the terms of which
may prohibit or restrict the payment of cash dividends. If a holder of common
stock is disqualified by the regulatory authorities from owning such shares,
such holder will not be permitted to receive any dividends with respect to such
stock. See Item 1, "Description of Business -- Regulatory Structure - Gaming
Licenses."
VOLUNTARY STOCK OPTION EXCHANGE. On January 29, 2003, the Company
entered into voluntary stock option exchange agreements (the "Option Exchange
Agreements") to exchange outstanding options to purchase shares of our the
Common Stock granted under the 2000 Stock Incentive Plan held by eligible
employees or eligible directors for new options under the same option plans. The
Option Exchange Agreements required an optionee to cancel and terminate their
old stock options previously granted to the optionee with the result that the
same number of new options with a exercise price to be the fair market value of
the Common Stock on a new grant date exactly six months and one day after the
date of the Option Exchange Agreements. Stock options to acquire a total of
95,000 shares of the Company's Common Stock with exercise prices ranging from
$16.50 to $20.00 were exchanged under the Option Exchange Agreements. The
Exchange Program was designed to comply with FASB Interpretation No. 44,
"Accounting for Certain Transactions involving Stock Compensation," for fixed
plan accounting. As of the date of this Annual Report, the new stock options had
not been granted under the Option Exchange Agreements.
ITEM 6. SELECTED FINANCIAL DATA
The following selected historical financial information has been
derived from the financial statements of the Company and should be read in
conjunction with the financial statements and notes thereto, and Management's
Discussion and Analysis of Plan of Operation included elsewhere in this Form
10-K.
23
FOR THE YEAR ENDED DECEMBER
---------------------------
Statement of Operations Data 2003 2002 2001 2000 1999
------------ ------------ ------------ ------------ ------------
Net Operating Revenues $ 55,567,444 $ 65,863,813 $ 2,802,134 - -
Operating Loss (4,237) (849,642) (4,044,577) $ (317,316) $ (435,900)
------------ ------------ ------------ ------------ ------------
Interest Income 21,335 142,405 1,978,602 3,810,304 -
Interest Expense (2,419,914) (16,774,290) (5,839,058) (8,834,934) (240,500)
Change in Valuation of Warrants - 2,854,880 - (12,536) -
------------ ------------ ------------ ------------ ------------
Other Expense, net (2,398,579) (13,777,005) (3,860,456) (5,035,166) (240,500)
------------ ------------ ------------ ------------ ------------
Net Loss before Reorganization items (2,402,816) (14,626,647) (7,905,033) (5,354,312) (676,400)
and Preferred Stock Dividends
Reorganization Items (8,716,907) (4,762,559) - - -
Preferred Stock Dividends (581,603) (559,599) (551,254) (471,322) -
------------ ------------ ------------ ------------ ------------
Loss Attributable to Common Stock $(11,701,326) $(19,948,805) $ (8,456,287) $ (5,771,804) $ (676,400)
============ ============ ============ ============ ============
Loss Per Common Share $ (11.70) $ (19.95) $ (8.46) $ (7.21) $ (676.40)
Balance Sheet Data 2003 2002 2001 2000 1999
---- ---- ---- ---- ----
Total Assets $123,389,308 $134,197,796 $152,931,820 $126,724,347 $ 31,380,573
Total Current Liabilities 154,370,768 154,135,233 22,217,138 10,403,260 36,360,573
Long Term Obligations 713,720 713,720 131,989,258 109,534,004 -
Redeemable Preferred Stock 6,912,833 6,255,530 5,623,213 5,001,992 -
Stockholders' Equity (Deficit) $(38,608,013) $(26,906,687) $ (6,897,789) $ 1,785,091 $ (4,980,041)
The following table sets forth certain summarized operating data for the periods
indicated.
Year Ended December 31,
----------------------------
2003 2002 Increase (Decrease)
------------ ------------ ----------------------
Net Operating Revenues $ 55,567,444 $ 65,863,813 $(10,296,369) -15.6%
Total Operating Expenses 55,571,681 66,713,455 (11,141,774) -16.7%
------------ ------------ ------------
Operating Loss (4,237) (849,642) 845,405 99.50%
Add: Depreciation and Amortization 8,356,921 8,405,412 (48,491) -0.6%
------------ ------------ ------------
EBITDA* $ 8,352,684 $ 7,555,770 $ 796,914 10.5%
============ ============ ============ ======
EBITDA* Margin 15.0% 11.5% 3.5%
============ ============ ============
1. EBITDA consists of earnings (loss) before interest, income taxes,
depreciation and amortization. EBITDA is presented solely as a supplemental
disclosure because management believes that it is a widely used measure of
operating performance in the gaming industry. EBITDA and EBITDA Margin are not
determined in accordance with generally accepted accounting principles. EBITDA
should not be construed as an alternative to operating income, as an indicator
of the Company's operating performance, as an alternative to cash flows from
operating activities, or as a measure of liquidity. The Company's definition of
EBITDA may not be identical to other companies'. The above table reconciles
EBITDA to operating income included in the financial statements presented in
Item 1, Part 1.
2. EBITDA margin is EBITDA as a percentage of net operating revenues.
As a result of the major operational improvements implemented by the
Company after assuming management of the casino from Hyatt Gaming, the EBITDA
margin for the period June 1, 2003 through December 31, 2003 was 19.8% compared
to 8.25% for the period January 1, 2003 through May 31, 2003.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
OVERVIEW
On November 7, 2002, we filed a voluntary petition for reorganization
under Chapter 11 of the Bankruptcy Code. Under Chapter 11, we are operating our
business as a debtor-in-possession. Under the Bankruptcy Code,
24
actions to collect pre-petition indebtedness or enforce pre-petition contractual
obligations, as well as most other pending actions against us or property of our
estate, are stayed. On April 10, 2003, we entered into the Hyatt Settlement and
Release Agreement with Hyatt Gaming whereby Hyatt Gaming holds certain allowed
pre-petition unsecured claims in the Chapter 11 Case and the Hyatt Management
Agreement was deemed rejected. On May 14, 2003, we assumed management of the
Casino and the Casino's name was changed to the Mountain High Casino.
Since the Company assumed management of the Casino on May 14, 2003, the
new management team has implemented numerous cost saving and what management
believes to be revenue enhancing programs including:
- converted hundreds of slot machines to new programs of the
City of Black Hawk market's most popular games
- lowered the slot hold % on our slot machines mix to bring it
in line with the City of Black Hawk market average
- reconfigured the slot floor layout to improve flow and
visibility
- created a VIP Players lounge on the casino floor
- shifted focus of marketing programs to higher volume players
- added additional table games (poker and black jack) to
accommodate increased number of players
- eliminated subsidized bus programs
- instituted in-town city shuttle service directly to the Casino
for the first time
- secured lodging for VIP players through arrangement with the
Gold Dust Lodge (renamed the Mountain High Casino Inn) located
approximately two miles from the Casino
- instituted demand-based scheduling resulting in significant
labor efficiencies
- consolidated or eliminated various management positions that
has improved communication, and along with other labor saving
initiatives, has allowed the Casino to reduce employee counts
and related expenses
- created a guest-driven culture for management and front-line
employees
The following discussion should be read in conjunction with, and is
qualified in its entirety by, the financial statements of Windsor Woodmont Black
Hawk Resort Corp., including the respective notes thereto and other financial
information included elsewhere in this Annual Report.
FOR THE YEAR ENDED DECEMBER 31, 2003 COMPARED TO THE YEAR ENDED DECEMBER 31,
2002
Total operating revenues for the year ended December 31, 2003 was
$59,284,608 ($55,567,444 net of promotional allowances). This included
$52,351,744 in casino revenue, $5,980,324 in food and beverage revenue, and
$952,540 of other revenue. This compares to total revenues for the year ended
December 31, 2002 of $70,003,031 ($65,863,813 net of promotional allowances) and
represented a decrease of 15.31% of total revenues (15.63% net of promotional
allowances). This included $61,288,720 in casino revenue, $7,639,860 in food and
beverage revenue, and $1,074,451 of other revenue. The reduced total operating
revenues was primarily the result of reduced customer visits because of a
general downturn in the Black Hawk gaming market.
Casino operating expenses for the year ended December 31, 2003 totaled
$30,522,177, including $9,555,363 in state and local gaming taxes and device
fees. This compares to casino operating expenses for the year ended December 31,
2002 totaling $36,818,164, including $10,503,097 in state and local gaming taxes
and device fees. This represents a decrease of 17.1% in casino expenses. The
decrease is primarily due to reduced payroll and benefit costs, reduced gaming
taxes, reduced rental expense associated with slot games operated under fee
participation agreements, and reduced marketing costs. The gaming taxes were
reduced due to reduced gaming revenue. Other casino operating expenses consist
principally of salaries, wages and benefits, marketing costs, and other
operating expenses of the casino.
Food and beverage expenses for the year ended December 31, 2003 totaled
$5,393,684, including $3,326,281 in cost of goods sold. This compares to food
and beverage expenses for the year ended December 31, 2002 totaling $7,281,030,
including $4,438,672 in cost of goods sold, representing a decrease of 25.92% in
food and beverage expenses. The decrease is primarily due to reduced employees
working within the Company's food and
25
beverage area, which results in reduced payroll and benefit costs and reduced
revenue associated with food and beverage which results in reduced cost of goods
sold. Other food and beverage expenses consist principally of salaries, wages
and benefits, and other operating expenses of the food and beverage operations.
Other operating expenses for the year ended December 31, 2003 totaled
$1,035,430 versus $1,928,632 for the year ended December 31, 2002, and consist
of salaries, wages and benefits, contract entertainment expense, and other
operating expenses. This represents a decrease of approximately 46.31% and is
primarily due to reduced payroll and benefit costs and reduced expenditures
related to contract entertainment.
General and administrative expenses for the year ended December 31,
2003 totaled $9,584,307 versus $10,184,926 for the year ended December 31, 2002,
and consist of salaries, wages and benefits, utilities, insurance, property
taxes, contract services, maintenance and repairs, cleaning supplies, and other
operating expenses. The net reduction represents a decrease of approximately
5.90% and is due to decreases in payroll and benefit costs and in contract
services costs, partially offset by increases in utilities and property taxes.
Depreciation and amortization expense for the year ended December 31,
2003 totaled $8,356,921 versus $8,405,412 for the year ended December 31, 2002.
These expenses relate to property and equipment in service and vary with the
addition or replacement of new items of property and equipment.
Interest expense for the year ended December 31, 2003 totaled
$2,419,914, including $237,295 in amortization of debt issuance costs. This
compares to interest expense for the year ended December 31, 2002, which totaled
$16,774,290, including $1,666,263 in amortization of debt issuance costs and
represents a decrease of 85.57%. The reduction in interest expense is a result
of interest not being accrued on the First and Second Mortgage Notes payable
during the course of our bankruptcy proceedings, and the write-off at December
31, 2002 of unamortized debt discount and deferred financing costs related to
the First and Second Mortgage Notes.
Reorganization items for the year ended December 31, 2003 totaled
$8,716,907. This includes costs incurred for legal, financial advisor services
received in connection with our debt restructuring efforts, travel related
expenses and other costs directly related to our debt restructuring efforts. It
also includes the $5,000,000 damage claim incurred with the rejection of the
Hyatt contract. This compares to reorganization items for the year ended
December 31, 2002, which totaled $4,762,599 and represents and increase of
approximately 83.03%.
Future operating results will be subject to significant business,
economic, regulatory and competitive uncertainties and contingencies, many of
which are beyond our control. While we believe that our casino will be able to
attract a sufficient number of patrons and achieve the level of activity and
revenues necessary to permit us to meet our payment obligations, we cannot
assure you that we will achieve these results.
FOR THE YEAR ENDED DECEMBER 31, 2002 COMPARED TO THE YEAR ENDED DECEMBER 31,
2001
Our operating loss is derived from the operation of the Casino during
the year ended December 31, 2002. Our other expense, net, consists of interest
expense on our outstanding indebtedness, interest income on our restricted cash
and income from the change in valuation of warrants.
Operating revenues and operating expenses for the year ended December
31, 2002 are not comparable to the operating revenues and operating expenses for
the year ended December 31, 2001 due to the fact the Casino opened on December
20, 2001, and accordingly included only 11 days of operating results, compared
to a full year of operating results for the year ended December 31, 2002.
Interest income for the year ended December 31, 2002 compared to the
year ended December 31, 2001 decreased as a function of (a) the amount of funds
invested was reduced to fund construction costs and (b) a reduction in the
interest rate on invested funds during 2002 compared to 2001.
Interest charges for the year ended December 31, 2002 totaled
approximately $16.8 million compared to approximately $16.7 million on December
31, 2001. During 2001, $10.9 million of the interest was capitalized and $5.8
million was expensed. In 2002, no interest charges were capitalized. On November
7, 2002, the Petition Date,
26
we stopped accruing interest expense on the First Mortgage Notes and on the
Second Mortgage Notes, as they are considered under-secured and thus not
entitled to interest during the Chapter 11 Case.
Start-up costs are expensed as incurred. The decrease in start-up costs
for the year ended December 31, 2002 compared to the year ended December 31,
2001 is attributable to start-up costs ending in connection with the opening of
the Casino on December 20, 2001.
Depreciation and amortization expenses for the year ended December 31,
2002 was approximately $8.4 million compared to $246,000 in the year ended
December 31, 2001. This increase is a function of the property being in service
and subject to depreciation for the entire year 2002, versus only being in
service and subject to depreciation in 2001 for the 11 day period beginning on
December 20, 2001.
Reorganization related expenses of $4,762,559 were incurred during the
year ended December 31, 2002. These include costs incurred for legal and
financial advisor services received in connection with our debt restructuring
efforts, travel related expenses and other costs directly related to our debt
restructuring efforts. Such costs also include the write-off of unamortized debt
discount and deferred financing costs related to the First Mortgage Notes and
the Second Mortgage Notes in the amount of $897,794 and $3,440,651, respectively
in accordance with accounting policies for entities in reorganization under the
Bankruptcy Code.
LIQUIDITY AND CAPITAL RESOURCES
Following is a schedule of Total Contractual Cash Obligations and Other
Commercial Commitments as of December 31, 2003.
Payments Due by Period
Contractual Obligations Total Less than 1 year 1-3 years 4-5 years After 5 years
Long-term Debt (1)
Obligations $134,405,896 $134,405,896
Operating Leases $ 165,354 $ 82,965 $ 82,389
Mountain High Inn(2) $ 669,167 $ 401,500 $267,667
Total Contractual Cash
Obligations $135,240,417 $134,890,361 $350,056
(1) Our First Mortgage Notes and Second Mortgage Notes have been
classified as current because we are in default of the First Mortgage
Notes and Second Mortgage Notes due to non-payment of interest.
(2) Represents amounts paid to Blackhawk Development Corp. for hotel
rooms.
Under the Bankruptcy Code, actions to collect pre-petition indebtedness
or enforce pre-petition contractual obligations, as well as most other pending
actions against the Company or property of its estate are stayed. Therefore the
commitments shown in the above table may not reflect actual cash outlays in the
future periods.
We generate cash flows from operating activities, as reflected on the
Statements of Cash Flows. We believe that these cash flows reflect the impact of
our management of the Casino and the success of our marketing programs and cost
containment. During the fiscal year ended December 31, 2003, net cash flows
provided by operating activities was $2,780,639, as compared to net cash flow
used in operating activities of $1,817,559 during the fiscal year ended December
31, 2002.
Cash flows used in investing activities during the fiscal year ended
December 31, 2003 was $1,620,029 as compared cash flows provided by investing
activities of $3,637,252. The $1,620,029 cash used in investing activities for
the year ended December 31, 2003 is comprised principally of fixed asset
additions of $1.6 million, payments of construction accounts payable of $2.3
million, less a use of restricted cash of $2.4 million. For 2002, cash provided
by investing activities of $3,637,252 is comprised principally of proceeds from
investments of $6.4 million plus use of restricted cash of $2.7 million less
purchases of property and equipment of $3.3 million and payments of construction
accounts payable of $2 million.
27
Cash flows used in financing activities was $898,464 during the fiscal
year ended December 31, 2003, as compared to $3,465,873 during the fiscal year
ended December 31, 2002. The decrease was primarily the result of reduced
payments of notes payable. For the fiscal year ended December 31, 2003, use of
cash was solely for the payment of notes payable. For the fiscal year ended
December 31, 2002, the $3,465,873 use of cash was for payment of notes payable
of $3.4 million and deferred offering costs of $130,000.
We use the cash flows generated by operations to fund operations. Our
cash and cash equivalents totaled $8,283,104 at December 31, 2003, compared to
$8,020,958 at December 31, 2002. After confirmation of a plan of reorganization,
we believe that cash flow from operations and our existing cash balances will be
sufficient to satisfy our working capital needs, capital expenditures and other
liquidity requirements for our existing operations over the next 12 months.
However, in the event that cash flow from operations and our existing cash
balances are insufficient to meet our capital needs, there can be no assurance
that any financing will be available, or that, if available, any such financing
will be on favorable terms. In addition, we cannot assure you that our
reasonably foreseeable liquidity needs are or will be accurate or that new
business developments or other unforeseen events will not occur, resulting in
the need to raise additional funds.
We expect that the adequacy of our operating cash flow will depend,
among other things, upon our ability to reorganize, the general state of the
economy, both local and national, our ability to manage the Casino, the
continued development of the Black Hawk market as a gaming destination, the
intensity of the competition, the efficiency of operations, depth of customer
demand, and the effectiveness of our marketing and promotional efforts.
RECENTLY ISSUED ACCOUNTING STANDARDS
The Company has reviewed all recently issued accounting pronouncements
and does not believe that any of the pronouncements will have a material impact
on its financial statements.
CRITICAL ACCOUNTING POLICIES
In accordance with recent Securities and Exchange Commission guidance,
those material accounting policies that the Company believes are the most
critical to an investor's understanding of the Company's financial results and
condition and/or require complex management judgment have been expanded and are
discussed below. Information regarding the Company's other accounting policies
is included in Note 1 to the Company's financial statements.
Financial Reporting by Entities in Reorganization Under the Bankruptcy
Code - Because we are operating as a debtor-in-possession under Chapter 11 of
the United States Bankruptcy Code, we follow the guidance of Statement of
Position 90-7, "Financial Reporting by Entities in Reorganization Under the
Bankruptcy Code" (SOP 90-7).
Under SOP 90-7, the balance sheet of an entity in Chapter 11
distinguishes prepetition liabilities subject to compromise from those that are
not and postpetition liabilities. Prepetition liabilities, including claims that
become known after a petition is filed, are reported on the basis of the
expected amount of the allowed claims in accordance with FASB Statement No. 5,
"Accounting for Contingencies", as opposed to the amounts for which those
allowed claims may be settled. In the statement of operations, revenues,
expenses, realized gains and losses, and provisions for losses resulting from
the reorganization and restructuring of the business are reported separately as
reorganization items. Interest expense is reported only to the extent that it
will be paid during the proceeding or that it is probable that it will be an
allowed priority, secured or unsecured claim.
The "fresh start" provisions of SOP 90-7 are applicable for entities
whose plans have been confirmed by the court and have thereby emerged from
Chapter 11. Accordingly, if we are successful in emerging out of Chapter 11,
those provisions will be followed by the Company. The most significant of those
provisions are as follows:
- The reorganization value of the entity will be allocated to
the entity's assets in conformity with the procedures
specified by FASB Statement No. 141, Business Combinations. If
any portion of the reorganization value cannot be attributed
to specific tangible assets or identified intangible assets of
28
the emerging entity, such amounts will be reported as goodwill
in accordance with paragraph 6 of FASB Statement No. 142,
Goodwill and Other Intangible Assets.
- Each liability existing at the plan confirmation date, other
than deferred taxes, will be stated at present values of
amounts to be paid determined at appropriate current interest
rates.
- Deferred taxes will be reported in conformity with generally
accepted accounting principles. Benefits realized from
preconfirmation net operating loss carryforwards will first
reduce reorganization value in excess of amounts allocable to
identifiable assets and other intangibles until exhausted and
thereafter be reported as a direct addition to paid-in
capital.
- Changes in accounting principles that will be required in the
financial statements of the emerging entity within the twelve
months following the adoption of fresh-start reporting will be
adopted at the time fresh-start reporting is adopted.
Revenue Recognition - Casino revenue is the net win from gaming
activities, which is the difference between gaming wins and losses. The
incremental amount of unpaid progressive jackpots is recorded as a liability and
a reduction of casino revenue in the period during which the progressive jackpot
increases. Promotional allowances reduce revenues in determining net operating
revenue.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
At April 2, 2004, we did not have any derivative instruments that
increased our exposure to market risks for interest rates, foreign currency
rates, commodity prices or other market price risks. We do not use derivatives
for speculative purposes. Currently, our exposure to market risks results
primarily from changes in interest rates. We do not use swaps or other interest
rate protection agreements to hedge this risk.
ITEM 8. FINANCIAL STATEMENTS
The response to this item is submitted as a separate section of this
Annual Report beginning on page F-1.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND
FINANCIAL DISCLOSURE
On May 20, 2002, we dismissed Arthur Andersen, LLP ("Andersen"), as our
independent public accountants. Our Audit Committee participated in and approved
the decision to dismiss Andersen. The reports by Andersen on our financial
statements during the preceding two years contained no adverse opinion or
disclaimer of opinion and was not qualified or modified as to uncertainty, audit
scope, or accounting principles.
During the preceding two fiscal years and through May 20, 2002, there
were no disagreements between the Company and Andersen on any matter of
accounting principles or practices, financial statement disclosure, or audit
scope or procedure, which, if not resolved to Andersen's satisfaction, would
have caused Andersen to make reference to the subject matter of the
disagreements in connection with Andersen's report on the Company's financial
statements. During the preceding two fiscal years and through May 20, 2002,
there were no reportable events required to be disclosed pursuant to Item
304(a)(1)(v).
On May 13, 2002, we announced that the Company's Board of Directors
voted to approve the engagement of Deloitte & Touche LLP as the Company's
independent auditor for the year ending December 31, 2002, subject to customary
client acceptance procedures. On August 13, 2002, Deloitte & Touche LLP notified
the Company that Deloitte & Touche LLP declined to accept this engagement.
Deloitte & Touche LLP has not reviewed, audited or rendered any report on any
financial statements of the Company as of any date or for any period.
On January 14, 2003 we employed Grant Thornton LLP as our new
independent accountants, which employment was approved by the Bankruptcy Court
on February 6, 2003. During the preceding two fiscal years and through December
31, 2002, the Company had not consulted with Grant Thornton LLP regarding the
matters described in, and required to be disclosed pursuant to Item 304(a)(2)(i)
or Item 304(a)(2)(ii) of Regulation S-K.
29
ITEM 9A. CONTROLS AND PROCEDURES
An evaluation was conducted under the supervision and with the
participation of the Corporation's management, including Jerry L. Dauderman, the
Company's Chief Executive Officer and Michael L. Armstrong, the Corporation's
Chief Financial Officer, of the effectiveness of the design and operation of the
Company's disclosure controls and procedures as of December 31, 2003. Based on
that evaluation, Mr. Dauderman and Mr. Armstrong concluded that the Company's
disclosure controls and procedures were effective as of such date to ensure that
information required to be disclosed in the reports that it files or submits
under the Exchange Act, is recorded, processed, summarized and reported within
the time periods specified in SEC rules and forms. Such officers also confirm
that there was no change in the Company's internal control over financial
reporting during the year ended December 31, 2003 that has materially affected,
or is reasonably likely to materially affect, the Company's internal control
over financial reporting.
PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS, PROMOTERS AND CONTROL PERSONS;
COMPLIANCE WITH SECTION 16(A) OF THE EXCHANGE ACT
This item has been omitted from this Annual Report and is incorporated
by reference to Windsor Woodmont Black Hawk Resort Corporation's definitive
proxy statement to be filed with the Securities and Exchange Commission within
120 days after the end of the fiscal year covered by this report.
ITEM 11. EXECUTIVE COMPENSATION
This item has been omitted from this Annual Report and is incorporated
by reference to Windsor Woodmont Black Hawk Resort Corporation's definitive
proxy statement to be filed with the Securities and Exchange Commission within
120 days after the end of the fiscal year covered by this report.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
This item has been omitted from this Annual Report and is incorporated
by reference to Windsor Woodmont Black Hawk Resort Corporation's definitive
proxy statement to be filed with the Securities and Exchange Commission within
120 days after the end of the fiscal year covered by this report.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
This item has been omitted from this Annual Report and is incorporated
by reference to Windsor Woodmont Black Hawk Resort Corporation's definitive
proxy statement to be filed with the Securities and Exchange Commission within
120 days after the end of the fiscal year covered by this report.
ITEM 14. PRINCIPAL ACCOUNTANT FEES AND SERVICES
This item has been omitted from this Annual Report and is incorporated
by reference to Windsor Woodmont Black Hawk Resort Corporation's definitive
proxy statement to be filed with the Securities and Exchange Commission within
120 days after the end of the fiscal year covered by this report.
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(a) 1. Financial Statements
The following financial statements of the Company are included in Part
II, Item 8:
Report of Independent Certified Public Accountants - Grant Thornton LLP
30
Report of Independent Public Accountants - Arthur Andersen LLP
Balance Sheets as of December 31, 2003 and 2002
Statements of Operations for the years ended December 31, 2003, 2002
and 2001
Statements of Comprehensive Loss for the years ended December 31, 2003,
2002 and 2001
Statements of Redeemable Preferred Stock and Stockholders' Equity
(Deficit) for the years ended December 31, 2003, 2002 and 2001
Statements of Cash Flows for the years ended December 31, 2003, 2002
and 2001
Notes to Financial Statements
2. Financial Statement Schedules.
Financial Statement Schedule II is included in Part II, Item 8. All
other schedules are omitted because they are not applicable, not required or
because the required information is included in the financial statements or the
notes thereto.
3. Exhibits.
A list of the exhibits included as part of this Form 10-K is set forth
in the Exhibit Index that immediately precedes such exhibits, which is
incorporated herein by reference.
(b) Reports on Form 8-K for the Quarter ended December 31, 2003
None.
31
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized.
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(Registrant)
Date: April 14, 2004 By: /s/ Jerry L. Dauderman
----------------------------------------------
Jerry L. Dauderman, Chairman of the Board and
Chief Executive Officer (principal executive
officer)
In accordance with the Exchange Act, this report has been signed below by the
following persons on behalf of the registrant and in the capacities and on the
dates indicated.
Date: April 14, 2004 /s/ Timothy G. Rose
-------------------------------------------------
Timothy G. Rose, Chief Operating Officer,
President and Director
Date: April 14, 2004 /s/ Irving C. Deal
-------------------------------------------------
Irving C. Deal, Director
Date: April 14, 2004 /s/ Michael L. Armstrong
-------------------------------------------------
Michael L. Armstrong, Executive Vice President,
Chief Financial Officer, Treasurer and Secretary
(principal financial officer)
Date: April 14, 2004 /s/ Garry Saunders
-------------------------------------------------
Garry Saunders, Director
32
INDEX TO FINANCIAL STATEMENTS
Page
----
Audited Financial Statements of Windsor Woodmont Black Hawk Resort Corp.:
Report of Independent Certified Public Accountants - Grant Thornton LLP..................... F-2
Report of Independent Public Accountants - Arthur Andersen LLP.............................. F-3
Balance Sheets.............................................................................. F-4
Statements of Operations.................................................................... F-5
Statements of Comprehensive Loss............................................................ F-6
Statements of Redeemable Preferred Stock and Stockholders' Equity (Deficit)................. F-7
Statements of Cash Flows.................................................................... F-8
Notes to Financial Statements............................................................... F-9
F-1
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Windsor Woodmont Black Hawk Resort Corp.:
We have audited the accompanying balance sheets of Windsor Woodmont
Black Hawk Resort Corp. (Debtor-in-Possession) (a Colorado corporation) (The
"Company") as of December 31, 2003 and 2002 and the related statements of
operations, comprehensive loss, redeemable preferred stock and stockholders'
equity (deficit) and cash flows for the years then ended. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits. The financial statements of Windsor Woodmont Black Hawk Resort Corp.
for the year ended December 31, 2001 were audited by other auditors who have
ceased operations. Those auditors expressed an unqualified opinion on those
financial statements in their report dated March 15, 2002, except for note 4, as
to which the date is March 22, 2002.
We conducted our audits in accordance with auditing standards generally
accepted in the United States of America. Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our opinion, the 2003 and 2002 financial statements referred to
above present fairly, in all material respects, the financial position of
Windsor Woodmont Black Hawk Resort Corp. (Debtor-in-Possession) as of December
31, 2003 and 2002, and the results of its operations and its cash flows for the
years then ended, in conformity with accounting principles generally accepted in
the United States of America.
As discussed in Note 1, the Company filed for reorganization under
Chapter 11 of the United States Bankruptcy Code. The accompanying financial
statements do not purport to reflect or provide for the consequences of the
bankruptcy proceedings. In particular, such financial statements do not purport
to show (a) as to assets, their realizable value on a liquidation basis or their
availability to satisfy liabilities; (b) as to prepetition liabilities, the
amounts that may be allowed for claims or contingencies, or the status and
priority thereof; (c) as to stockholder accounts, the effect of any changes that
may be made in the capitalization of the Company; or (d) as to operations, the
effect of any changes that may be made in its business.
The accompanying financial statements have been prepared assuming that
the Company will continue as a going concern. As discussed in Note 2, as a
result of the bankruptcy filing, realization of assets and satisfaction of
liabilities, without substantial adjustments and/or changes in ownership, are
subject to uncertainty and raise substantial doubt about the Company's ability
to continue as a going concern. Management's plan concerning these matters is
also discussed in Note 2. The financial statements do not include any
adjustments that might result from the outcome of this uncertainty.
/S/ GRANT THORNTON LLP
Denver, Colorado,
February 27, 2004
F-2
The report that appears below is a copy of the report issued by the
Company's previous independent auditor, Arthur Andersen, LLP, who has not
reissued their report. That firm has discontinued performing auditing and
accounting services.
REPORT OF INDEPENDENT PUBLIC ACCOUNTANTS
To the Board of Directors and Stockholders of
Windsor Woodmont Black Hawk Resort Corp.:
We have audited the accompanying consolidated balance sheets of Windsor
Woodmont Black Hawk Resort Corp. (a Colorado corporation) as of December 31,
2001 and 2000, and the related consolidated statements of operations,
comprehensive loss, changes in stockholders' deficit and cash flows for the
years ended December 31, 2001, 2000 and 1999. These financial statements are the
responsibility of the Company's management. Our responsibility is to express an
opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally
accepted in the United States. Those standards require that we plan and perform
the audit to obtain reasonable assurance about whether the financial statements
are free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements. An
audit also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above
present fairly, in all material respects, the financial position of Windsor
Woodmont Black Hawk Resort Corp. as of December 31, 2001 and 2000, and the
results of its operations and its cash flows for the years ended December 31,
2001, 2000 and 1999, in conformity with accounting principles generally accepted
in the United States.
ARTHUR ANDERSEN LLP
/s/ ARTHUR ANDERSEN LLP
- -----------------------
March 15, 2002 (except as discussed in Note 4,
as to which the date is March 22, 2002)
Las Vegas, Nevada
F-3
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
BALANCE SHEETS
December 31, 2003 December 31, 2002
----------------- -----------------
ASSETS
CURRENT ASSETS:
Cash $ 8,283,104 $ 8,020,958
Cash and cash equivalents, restricted -- 2,350,616
Accounts receivable 144,400 164,205
Inventories 225,805 330,804
Prepaid expenses 1,819,513 2,614,691
Other current assets 33,043 12,298
----------------- -----------------
Total current assets 10,505,865 13,493,572
Property and Equipment, net 112,112,265 119,742,091
OTHER ASSETS:
Base stock inventories/uniforms, net of accumulated amortization 103,335 142,191
Funds held in escrow and security deposits 374,041 288,845
Franchise Fees 40,000 40,000
Deferred financing costs, net 253,802 491,097
----------------- -----------------
TOTAL ASSETS $ 123,389,308 $ 134,197,796
================= =================
LIABILITIES AND STOCKHOLDERS' (DEFICIT)
CURRENT LIABILITIES:
Post-Petition Liabilities
Trade accounts payable and accrued expenses $ 3,430,973 $ 2,190,962
Accrued interest 49,882 332,389
Other current liabilities 901,754 42,888
----------------- -----------------
Total Post Petition Liabilities 4,382,609 2,566,239
----------------- -----------------
Pre-Petition Liabilities Subject to Compromise
Current portion of long-term debt 134,405,896 130,304,360
Trade accounts payable and accrued expenses 3,302,429 4,673,381
Construction accounts payable 2,200,000 5,364,118
Accrued interest 8,437,558 9,584,859
Other current liabilities 1,642,276 1,642,276
----------------- -----------------
Total Pre-Petition Liabilities 149,988,159 151,568,994
----------------- -----------------
Total current liabilities 154,370,768 154,135,233
----------------- -----------------
NON CURRENT LIABILITIES
Warrants issued on common stock 713,720 713,720
----------------- -----------------
Total non current liabilities 713,720 713,720
----------------- -----------------
REDEEMABLE PREFERRED STOCK
Series A - 11% dividend, $100 per share liquidation value, 29,000 shares
outstanding 2,900,000 2,900,000
Series B - 7% dividend, $100 per share liquidation value, 30,000 shares
outstanding 1,903,055 1,827,355
Accrued dividends on preferred stock 2,109,778 1,528,175
----------------- -----------------
Total redeemable preferred stock 6,912,833 6,255,530
----------------- -----------------
Commitments and contingencies -- --
STOCKHOLDERS' (DEFICIT)
Common stock, $0.01 par value, 10,000,000 shares authorized,
1,000,000 shares outstanding 10,000 10,000
Additional paid in capital 12,241,250 12,241,250
Accumulated Deficit (50,859,263) (39,157,937)
----------------- -----------------
Total stockholders' (deficit) (38,608,013) (26,906,687)
----------------- -----------------
TOTAL LIABILITIES AND STOCKHOLDERS' (DEFICIT) $ 123,389,308 $ 134,197,796
================= =================
SEE NOTES TO FINANCIAL STATEMENTS
F-4
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENTS OF OPERATIONS
For the Year Ended
December 31,
------------------------------------------------
2003 2002 2001
------------ ------------ ------------
OPERATING REVENUES:
Casino $ 52,351,744 $ 61,288,720 $ 2,620,931
Food and beverage 5,980,324 7,639,860 268,154
Other 952,540 1,074,451 42,054
------------ ------------ ------------
59,284,608 70,003,031 2,931,139
Less: Promotional allowances (3,717,164) (4,139,218) (129,005)
------------ ------------ ------------
Net operating revenues 55,567,444 65,863,813 2,802,134
------------ ------------ ------------
OPERATING EXPENSES:
Casino 30,522,177 36,818,164 1,028,125
Food and beverage 5,393,684 7,281,030 265,871
Other operating expenses 1,035,430 1,928,632 290,681
General and administrative 9,584,307 10,184,926 360,417
Start-up costs -- -- 4,522,740
Management fees 679,162 2,095,291 132,247
Depreciation and amortization 8,356,921 8,405,412 246,630
------------ ------------ ------------
Total operating expenses 55,571,681 66,713,455 6,846,711
------------ ------------ ------------
Operating loss (4,237) (849,642) (4,044,577)
OTHER INCOME (EXPENSE):
Interest income 21,335 142,405 1,978,602
Interest expense (excluding $14,853,330 in
2003 and $2,237,594 in 2002 of post petition
interest at contracted rates) (2,419,914) (16,774,290) (5,839,058)
Change in valuation of warrants -- 2,854,880 --
------------ ------------ ------------
Other expense, net (2,398,579) (13,777,005) (3,860,456)
------------ ------------ ------------
Loss before reorganization items
and preferred stock dividends (2,402,816) (14,626,647) (7,905,033)
Reorganization items (8,716,907) (4,762,559) --
------------ ------------ ------------
Net loss before preferred stock dividends (11,119,723) (19,389,206) (7,905,033)
Preferred stock dividends 581,603 559,599 551,254
------------ ------------ ------------
Net loss attributable to common stock $(11,701,326) $(19,948,805) $ (8,456,287)
============ ============ ============
Loss per share
Basic $ (11.70) $ (19.95) $ (8.46)
Diluted $ (11.70) $ (19.95) $ (8.46)
Weighted Average Shares
Basic 1,000,000 1,000,000 1,000,000
Diluted 1,000,000 1,000,000 1,000,000
SEE NOTES TO FINANCIAL STATEMENTS
F-5
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENTS OF COMPREHENSIVE LOSS
For the Year Ended
December 31,
------------------------------------------------
2003 2002 2001
------------ ------------ ------------
Net loss before preferred stock dividends $(11,119,723) $(19,389,206) $ (7,905,033)
Reclassification adjustment for gains on securities included
in net loss -- (60,093) (226,593)
------------ ------------ ------------
Comprehensive loss $(11,119,723) $(19,449,299) $ (8,131,626)
============ ============ ============
SEE NOTES TO FINANCIAL STATEMENTS
F-6
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENT OF REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY (DEFICIT)
Redeemable
Preferred Stock Common Stock
---------------------------------------------------
Shares Amount Shares Amount
------ ---------- --------- ----------
Balance at December 31, 2000 59,000 $5,001,992 1,000,000 $ 10,000
Amortization of value of warrants attached to
Series B preferred stock -- 69,967 -- --
Preferred stock dividends -- 551,254 -- --
------ ---------- --------- ----------
Balance at December 31, 2001 59,000 5,623,213 1,000,000 10,000
Amortization of value of warrants attached to
Series B preferred stock -- 72,718 -- --
Preferred stock dividends -- 559,599 -- --
------ ---------- --------- ----------
Balance at December 31, 2002 59,000 6,255,530 1,000,000 10,000
Amortization of value of warrants attached to
Series B preferred stock -- 75,700 -- --
Preferred stock dividends -- 581,603 -- --
------ ---------- --------- ----------
Balance at December 31, 2003 59,000 $6,912,833 1,000,000 $ 10,000
====== ========== ========= ==========
Additional Other Total
Paid In Accumulated Comprehensive Stockholders' Equity
Capital Deficit Income (Deficit)
------------ ------------ ------------- --------------------
Balance at December 31, 2000 $ 12,241,250 $(10,752,845) $ 286,686 $ 1,785,091
Preferred stock dividends -- (551,254) -- (551,254)
Net loss -- (7,905,033) -- (7,905,033)
Unrealized gain on investments available for sale -- -- (226,593) (226,593)
------------ ------------ ------------ ------------
Balance at December 31, 2001 12,241,250 (19,209,132) 60,093 (6,897,789)
Preferred stock dividends -- (559,599) -- (559,599)
Net loss -- (19,389,206) -- (19,389,206)
Unrealized gain on investments available for sale -- -- (60,093) (60,093)
------------ ------------ ------------ ------------
Balance at December 31, 2002 12,241,250 (39,157,937) -- (26,906,687)
Preferred stock dividends -- (581,603) -- (581,603)
Net loss -- (11,119,723) -- (11,119,723)
------------ ------------ ------------ ------------
Balance at December 31, 2003 $ 12,241,250 $(50,859,263) $ -- $(38,608,013)
============ ============ ============ ============
SEE NOTES TO FINANCIAL STATEMENTS
F-7
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENTS OF CASH FLOWS
For the Year Ended
December 31,
------------------------------------------------
2003 2002 2001
------------ ------------ ------------
Cash flows provided by (used in) operating activities
Net loss before preferred stock dividends $(11,119,723) $(19,389,206) $ (7,905,033)
Adjustments to reconcile net loss before preferred
stock dividends to net cash provided by (used in)
operating activities:
Depreciation and amortization 8,356,921 8,405,412 246,630
Amortization of deferred financing costs 237,295 1,450,434 1,431,699
Amortization of debt discount -- 292,576 344,226
Amortization of preferred stock discount 75,700 72,718 69,967
Write-off base stock inventory/uniforms 33,092 -- --
Change in valuation of warrants -- (2,854,880) --
Accrued Hyatt settlement charge 5,000,000 -- --
Changes in working capital:
Accounts receivable 19,805 59,306 (223,511)
Inventories 104,999 (48,059) (282,745)
Prepaid expenses 795,178 (746,806) (859,704)
Other current assets (20,745) (12,298) --
Trade accounts payable (130,941) 253,631 6,610,712
Accrued interest (1,429,808) 5,940,342 1,547,427
Other current liabilities 858,866 1,429,007 256,157
------------ ------------ ------------
Net cash provided by (used in) operating activities
before reorganization items 2,780,639 (5,147,823) 1,235,825
------------ ------------ ------------
Cash flows from reorganization items:
Payments made in connection with Chapter 11
proceedings -- (1,008,181) --
Write-off unamortized debt/preferred stock discount -- 897,794 --
Write-off unamortized deferred finance costs -- 3,440,651 --
------------ ------------ ------------
Net cash provided by (used in) in operating
activities 2,780,639 (1,817,559) 1,235,825
------------ ------------ ------------
Cash flows from investing activities:
Increase in funds held in escrow (85,196) (53,694) (185,151)
Increase in base stock inventory/uniforms (23,292) (90,478) (284,344)
Increase in franchise fees -- -- (40,000)
Increase in property and equipment (1,562,157) (3,320,539) (68,611,052)
Decrease in cash - restricted 2,350,616 2,661,860 25,109,744
Decrease in investments, cost -- 6,420,143 29,708,398
Decrease in construction accounts payable (2,300,000) (1,980,040) (492,719)
------------ ------------ ------------
Net cash provided by (used in) investing activities (1,620,029) 3,637,252 (14,795,124)
------------ ------------ ------------
Cash flows from financing activities:
Deferred offering costs incurred -- (130,000) (802,767)
Proceeds from notes payable -- -- 23,800,000
Payment of notes payable (898,464) (3,335,873) --
------------ ------------ ------------
Net cash provided by (used in) financing activities (898,464) (3,465,873) 22,997,233
------------ ------------ ------------
Net increase (decrease) in cash and cash equivalents 262,146 (1,646,180) 9,437,934
Cash and cash equivalents, beginning of year 8,020,958 9,667,138 229,204
------------ ------------ ------------
Cash and cash equivalents, end of year $ 8,283,104 $ 8,020,958 $ 9,667,138
============ ============ ============
Non Cash Items:
Construction in progress due to retainage $ -- $ -- $ (2,203,329)
Settlement of payables for construction that reduced
capitalized buildings and improvements $ 864,118 $ -- $ --
Supplemental Cash Flow Information:
Interest Paid $ 2,597,444 $ 8,948,240 $ 13,379,590
SEE NOTES TO FINANCIAL STATEMENTS
F-8
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
1. ORGANIZATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
ORGANIZATION:
Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation (the
"Company" or "Resort Corp.") was incorporated on January 9, 1998. Windsor
Woodmont, LLC (the "LLC") was formed as a limited liability company, under the
laws of the State of Colorado, on July 17, 1997. These companies were formed for
the purpose of developing an integrated limited stakes gaming casino,
entertainment and parking facility in Black Hawk, Colorado (the "Project"),
which opened December 20, 2001. Prior to December 20, 2001, the Company and the
LLC were development stage enterprises.
The Company was a wholly owned shell company subsidiary of the LLC with
no significant assets, liabilities or operating activity. In 2000, in connection
with the issuance of the first mortgage notes and other financing transactions
described in note 4, the LLC contributed all of its assets and liabilities to
the Company in exchange for stock of the Company and the contribution has been
accounted for as a recapitalization of entities under common control whereby the
assets and liabilities are recorded at the historical cost basis of the LLC. The
Company completed the development of the Project, and operated the Project under
a management agreement with Hyatt Gaming Management, Inc. ("Hyatt Gaming") until
assuming management of the project in May, 2003. The LLC's ownership in the
Company was subsequently reduced through the refinancing of the LLC's debt by
conversion into the Company's common stock and the issuance of additional common
stock for cash.
BANKRUPTCY PROCEEDINGS:
On November 7, 2002 (the Petition Date), the Company (debtor) filed a
voluntary petition for protection under Chapter 11 of the United States
Bankruptcy Code in the Federal District of Delaware in order to facilitate the
restructuring of the Company's debt, trade liabilities and other obligations.
The Company is currently operating as a debtor-in-possession under the
supervision of the United States District Court for the District of Colorado.
The bankruptcy petition was filed in order to preserve cash and to give the
Company the opportunity to restructure its obligations.
On December 13, 2002, we filed a motion for court approval of the
rejection of the Hyatt Management Agreement. The rejection of the Hyatt
Management Agreement eliminates the payment of the Hyatt Management fee, thereby
reducing operating costs and increasing net income. On April 10, 2003, we
entered into a settlement agreement with Hyatt Gaming Management, Inc. where
they will not contest the rejection of the Hyatt Management Agreement (the
"Hyatt Settlement and Release Agreement"). On April 25, 2003, the Bankruptcy
Court entered an order approving the Hyatt Settlement and Release Agreement. On
May 14, 2003, we assumed management of the casino and the casino name was
changed to the Mountain High Casino.
Pursuant to the Hyatt Settlement and Release Agreement, Hyatt Gaming
holds an allowed unsecured claim in the Chapter 11 Case in the aggregate amount
of $18,413,244 (the amount of $18,318,369 set forth in the Hyatt Settlement and
Release Agreement plus an additional $94,875 in incentive management fees from
the Petition Date through May 13, 2003); provided, however, that in the event
that the value of the Company's assets exceed the value of the liens senior to
the Second Mortgage Note (including the liens of the Black Hawk B.I.D., PCL
Construction Services, Inc., the FF&E Lender and the First Mortgage
Noteholders), Hyatt Gaming's claim based on the Second Mortgage Note will be
secured to such extent. The unsecured claim is recorded in the financial
statements through a $5,000,000 contract rejection claim in notes payable,
second mortgage notes of $9,870,233 in notes payable, and the balance of the
unpaid claims is included in trade accounts payable and accrued expenses. The
treatment of Hyatt Gaming's allowed claim (including certain changes to such
treatment that Hyatt Gaming asserts are in violation of the Hyatt Settlement
Agreement and to which Hyatt Gaming has not consented) is reflected in the Plan
of Reorganization (as defined below). Hyatt Gaming has indicated that, in
addition to its pre-petition claims against the Company, it may assert an
administrative claim in the Chapter 11 Case for damages arising from alleged
breaches of the terms of the Hyatt Settlement and Release Agreement.
On or about February 19, 2003, we entered into a stipulation with David
R. Belding, our furniture, fixture and equipment lender (the "FF&E Lender")
pursuant to which all issues between the Company and the FF&E Lender
F-9
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
concerning the amount and priority of the FF&E Lender's claim and the treatment
of such claim under a plan of reorganization were resolved. On February 19,
2003, the Company filed its Motion to Approve Stipulation Regarding (1)
Allowance and Payment of Secured Claim of David R. Belding; and (2) Mutual
Release of Claims Relating to Disputes Over Funds in Wells Fargo Bank Account
(the "FF&E Stipulation"). Thereafter, objections to the FF&E Stipulation were
filed by the First Mortgage Noteholders and PCL (as defined below), and SunTrust
and the Unsecured Creditors Committee filed joinders to the objection filed by
the First Mortgage Noteholders (PCL later withdrew its objection to the FF&E
Stipulation). The objections asserted, among other things, that the initiation
of an adversary proceeding may be required to obtain the relief sought in the
FF&E Stipulation.
The Company, the FF&E Lender, and the objecting parties agreed to
proceed with the issues raised in connection with the FF&E Stipulation and the
objections thereto by way of an adversary proceeding and such matter was
converted to an adversary proceeding. Thereafter, the parties reached an
agreement whereby the adversary proceeding on the FF&E Stipulation was held in
abeyance and the issues relating to the FF&E Stipulation were resolved or
reserved for a later date. On June 24, 2003, the Company filed an Amended
Stipulation Regarding (1) Allowance and Payment of Secured Claim of David R.
Belding; and (2) Mutual Release of Claims Relating to Disputes Over Funds in
Wells Fargo Bank Account (the "FF&E Settlement Agreement"), which was approved
by the Bankruptcy Court by order entered June 30, 2003. The FF&E Settlement
Agreement provides, among other things, that the FF&E Lender will receive
payments of up to $500,000 per month during the Chapter 11 Case and will be paid
certain amounts on the effective date of a plan of reorganization. After the
approval of the FF&E Settlement Agreement, the Company and the FF&E Lender
agreed to more favorable treatment to the Company, including a reduction in the
required effective date payment to the FF&E Lender and a one-year extension on
the repayment of the amounts due to the FF&E Lender, which treatment is
reflected in the Plan of Reorganization (as defined below).
On August 6, 2003, we filed a Plan of Reorganization and a related
disclosure statement with the Bankruptcy Court. See Note 12 - Plan of
Reorganization.
Because of the ongoing nature of the reorganization case, the outcome
of which is not presently determinable, the financial statements contained
herein are subject to material uncertainties and may not be indicative of the
results of the Company's future operations or financial position. No assurance
can be given that the Company will be successful in reorganizing its affairs
within the Chapter 11 bankruptcy proceedings.
The financial statements contained herein have been prepared in
accordance with accounting principles generally accepted in the United States of
America applicable to a going concern, and do not purport to reflect or to
provide for all of the possible consequences of the ongoing Chapter 11
reorganization case. Specifically, the financial statements do not present the
amount which will ultimately be paid to settle liabilities and contingencies
which may be required in the Chapter 11 reorganization case or the effect of any
changes which may be made in connection with the Company's capitalization or
operations resulting from a plan of reorganization.
As a result of the items discussed above, there is substantial doubt
about the Company's ability to continue as a going concern. The ability of the
Company to continue as a going concern is dependent upon, but not limited to,
formulation, approval, and confirmation of a plan of reorganization, adequate
sources of capital, customer and employee retention, the ability to provide a
high quality gaming experience and the ability to sustain positive results of
operations and cash flows sufficient to continue to operate. The financial
statements do not include any adjustments to the recorded amounts or
classification of assets or liabilities or reflect any amounts that may
ultimately be paid to settle liabilities and contingencies which may be required
in the Chapter 11 reorganization or the effect of any changes which may be made
in connection with the Company's capitalization or operations resulting from a
plan of reorganization.
ACCOUNTING UNDER BANKRUPTCY:
The financial statements have been prepared in accordance with AICPA
Statement of Position 90-7, "Financial Reporting by Entities in Reorganization
under the Bankruptcy Code" (SOP 90-7). Pursuant to SOP 90-7, an objective of
financial statements issued by an entity in Chapter 11 is to reflect its
financial evolution during the proceeding. For that purpose, the financial
statements for periods including and subsequent to filing the Chapter 11
petition should distinguish transactions and events that are directly associated
with the reorganization from the ongoing operations of the business.
F-10
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
Expenses and other items not directly related to ongoing operations are
reflected separately in the statement of operations as reorganization items (see
note 5).
The filing of the Chapter 11 case by the Debtor (i) automatically
stayed actions by creditors and other parties in interest to recover any claim
that arose prior to the commencement of the case, and (ii) served to accelerate,
for purposes of allowance, all pre-petition liabilities of the Company, whether
or not those liabilities were liquidated or contingent as of the Petition Date.
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Cash and Cash Equivalents, Restricted
The Company considers all highly liquid investments with a maturity at
the time of purchase of six months or less to be cash equivalents. At December
31, 2002, amounts were held in several trust accounts by Wells Fargo Bank (as
cash disbursement agent) and were restricted in use to the development of the
Black Hawk Casino by Hyatt in Black Hawk, Colorado or for the 13% First Mortgage
Notes interest payments. Included in December 31, 2002 restricted cash
equivalents were two certificates of deposit in the amounts of $919,718 and
$526,776 which were pledged as collateral on two irrevocable letters of credit
in like amounts which constitute required collateral for public improvements
under the Subdivision Agreement and site remediation collateral for a bench
excavation permit. The letter of credit in the amount of $919,718 expired April
30, 2002, and the letter of credit in the amount of $526,776 expired September
1, 2002. The restrictions on these accounts were released in connection with a
settlement agreement between the Company and PCL Construction Services, Inc.
("PCL"), and the funds were paid to PCL under the terms of the settlement
agreement. There were no cash equivalents, restricted at December 31, 2003.
Fair Value of Financial Instruments
The Company calculates the fair value of financial instruments and
includes this additional information in the notes to its financial statements
when the fair value does not approximate the carrying value of those financial
instruments. The Company's financial instruments include cash and cash
equivalents and long-term debt. Fair value is determined using quoted market
prices whenever available. When quoted market prices are not available, the
Company uses alternative valuation techniques such as calculating the present
value of estimated future cash flows utilizing risk-adjusted discount rates. The
Company's carrying value of financial instruments approximates fair value at
December 31, 2003 and 2002, except for its debt, the fair value of which cannot
be reasonably estimated because the Company is in Chapter 11.
Inventories
Inventories consist of food and beverage, retail merchandise, and
operating supplies and are stated at the lower of cost or market, cost being
determined on a first-in, first-out basis.
Property and equipment
Property and equipment is recorded at cost. Depreciation and
amortization of property and equipment began accumulating upon the commencement
of gaming operations (December 20, 2001) and is computed using the straight-line
method over the following estimated useful lives:
Years
-----
Slot machines 3
Furniture, fixtures and equipment 5-10
Buildings and improvements 15-39
The Company reviews long-lived assets for possible impairment whenever
events or circumstances indicate that the carrying amount of an asset may not be
recoverable. If there is an indication of impairment, which is estimated as the
difference between anticipated undiscounted future cash flows and carrying
value, the carrying amount of the asset is
F-11
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
written down to its estimated fair value by a charge to operations. Fair value
is estimated based on the present value of estimated future cash flows using a
discount rate commensurate with the risk involved. Estimates of future cash
flows are inherently subjective and are based on management's best assessment of
expected future conditions. During 2001 FASB issued SFAS No. 144, "Accounting
for the Impairment or Disposal of Long-Lived Assets" which is effective for
fiscal years beginning after December 15, 2001. SFAS No. 144 supersedes SFAS No.
121, "Accounting for the Impairment of Long-Lived Assets and for Long-Lived
Assets to Be Disposed Of". While SFAS No. 144 retains many of the provisions of
SFAS No. 121, it provides guidance on estimating future cash flows to test
recoverability, among other things. The adoption of SFAS No. 144 did not have a
material impact on the Company's financial statements.
Warrants Issued on Common Stock
Warrants issued in connection with the Company's various financing
transactions (see Note 4), exercisable for $.01 per share, contain a "put
option" permitting the warrant holder to redeem the warrant for cash. The value
of the warrants were initially provided by the Company's Placement Agent, U.S.
Bancorp Libra. The warrants issued with the first mortgage notes and second
mortgage notes were valued at $1.64 million and $160,000, respectively. The
warrants issued with the Series B preferred stock have been valued at $1.37
million. The value of warrants issued to the Placement Agent was $383,000. Due
to the cash based put option features of the warrants, the total warrant value
has been recorded as a liability in the accompanying balance sheets and recorded
at fair value each reporting period. As of December 31, 2003 and 2002, a
liability for the estimated fair market value of the warrants of $ 0.71 million
was recorded in the accompanying balance sheets and a corresponding change in
valuation of warrants of $2.85 million was recorded in the accompanying
statement of operations for the year ended December 31, 2002.
Stock-Based Compensation
In 2002 the Company adopted Statement of Financial Accounting Standards
No. 148 (SFAS 148), "Accounting for Stock-based Compensation - Transition and
Disclosure", which amends the disclosure requirements of Statement of Financial
Accounting Standards No. 123 (SFAS 123), "Accounting for Stock-Based
Compensation" to require prominent disclosure in both annual and interim
financial statements about the method of accounting for stock-based employee
compensation and the effect of the method used on reported results. SFAS 148
also provides alternative methods of transition for a voluntary change to fair
value based methods of accounting which have not been adopted at this time. SFAS
123 encourages, but does not require, companies to record compensation cost for
stock-based employee compensation plans at fair value. The Company has chosen to
account for stock-based compensation for employees using the intrinsic value
method prescribed in Accounting Principles Board Opinion No. 25 (APB 25),
"Accounting for Stock Issued to Employees", and related Interpretations.
Accordingly, compensation cost for stock options is measured as the excess, if
any, of the quoted market price of the Company's stock at the date of the grant
over the amount an employee must pay to acquire that stock. The Company values
stock-based compensation grants to non-employees at fair value.
At December 31, 2003, the Company had two stock-based employee
compensation plans, but awards had only been made under one of the plans. The
Company accounts for the plans under the recognition and measurement principles
of APB 25, and related Interpretations. No stock-based compensation cost is
reflected in net loss, as all options granted under the plan had an exercise
price equal to the market value of the underlying common stock on the date of
the grant. The following table illustrates the effect on net loss if the Company
had applied the fair value recognition provisions of SFAS 123, to stock-based
employee compensation.
December 31,
2003 2002 2001
---- ---- ----
Net Loss
As reported $ (11,701,326) $ (19,948,805) $ (8,456,287)
Employee stock-based compensation (62,625) (131,070) (284,460)
-------------- -------------- --------------
Pro forma $ (11,763,951) $ (20,079,875) $ (8,740,747)
============== ============== ==============
F-12
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
Basic loss per share
As reported $ (11.70) $ (19.95) $ (8.46)
Employee stock-based compensation ( .06) ( .13) ( .28)
-------------- -------------- --------------
Pro forma $ (11.76) $ (20.08) $ (8.74)
============== ============== ==============
Diluted loss per share
As reported $ (11.70) $ (19.95) $ (8.46)
Employee stock-based compensation ( .06) ( .13) ( .28)
-------------- -------------- --------------
Pro forma $ (11.76) $ (20.08) $ (8.74)
============== ============== ==============
As the Company's stock is not publicly traded, the fair value of each option was
estimated on the grant date using the minimum value method (which excludes a
volatility assumption), with the following assumptions (there were no grants
during 2003):
2003 2002 2001
---- ---- ----
Risk-free interest rate N/A 4.88% 5.21%
Expected life in years N/A 10 years 10 years
Dividend yield N/A 0.0% 0.0%
Capitalized Interest
The Company capitalized interest costs associated with the debt
incurred in connection with the Project in accordance with Statements of
Financial Accounting Standards No. 34 - "Capitalization of Interest Cost."
Interest capitalization ceased once the Project was substantially complete on
December 20, 2001. No interest was capitalized during 2003 and 2002. During the
year ended December 31, 2001, $10,935,152 of interest costs was capitalized.
Funds Held in Escrow
Funds held in escrow at December 31, 2003 and 2002 represent cash held
by the Black Hawk Business Improvement District under various bond agreements
associated with the construction of the Project.
Comprehensive Loss
Comprehensive loss includes net loss and all other non-stockholder
changes in equity, or other comprehensive loss. Elements of the Company's other
comprehensive loss are reported in the accompanying statements of comprehensive
loss and statements of redeemable preferred stock and stockholders' (deficit),
and the cumulative balances of these elements consisted entirely of unrealized
holding gains on securities.
Operating Segments
The Company is managed in one segment, which is the casino operation in
Black Hawk, Colorado.
Income Taxes
The Company accounts for Income Taxes according to Statement of
Financial Accounting Standards No. 109, "Accounting for Income Taxes" ("SFAS
109"). SFAS 109 requires the recognition of deferred tax assets, net of an
applicable valuation allowance, related to net operating loss carry-forwards and
certain temporary differences. The standard requires recognition of a future tax
benefit to the extent that the realization of such benefit is more likely than
not. Otherwise, a valuation allowance is applied.
Deferred Financing Costs
Debt discount and issuance costs are capitalized and amortized using
the effective interest rate method over the
F-13
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
term of the related debt. Unamortized debt discount and issuance costs related
to the First Mortgage Notes and Second Mortgage Notes were written off at
November 7, 2002 in connection with the bankruptcy filing, and the related
valuation of these items at face value. The write-off of the unamortized
balances was charged to reorganization items. Accumulated amortization,
including costs written off in 2002, was $528,965 and $4,141,672 at December 31,
2003 and 2002, respectively.
Use of Estimates
The preparation of financial statements in accordance with accounting
principles generally accepted in the United States of America requires
management to make estimates and assumptions relating to the reporting of assets
and liabilities and the disclosure of contingent assets and liabilities, and
related revenues and expenses. Actual results could differ from those estimates.
Loss Per Share
Basic loss per share is computed by dividing net loss applicable to
common stock by the weighted average common shares outstanding during the
period. Diluted loss per share is based on the weighted average number of common
shares outstanding during the respective periods, plus the common equivalent
shares, if dilutive, that would result from the exercise of stock options. Total
common stock equivalents of 768,720, 863,720 and 846,720 for the years ended
December 31, 2003, 2002 and 2001 were excluded from the diluted loss per share
calculation because their effects would have been anti-dilutive.
Start-up Costs
Start-up costs have been expensed as incurred. Start-up costs consist
of salaries, benefits, training, marketing, licensing and other costs incurred
in connection with the opening of the Project. During the fiscal year December
31, 2001, the Company incurred start-up costs of approximately $4.5 million.
Revenue Recognition
Casino revenue is the net win from gaming activities, which is the
difference between gaming wins and losses. Food and beverage operating revenues
are recognized as services are performed. The incremental amount of unpaid
progressive jackpot is recorded as a liability and a reduction of casino revenue
in the period during which the progressive jackpot increases.
Players Club
In February 2001, the Emerging Issues Task Force ("EITF") of the
Financial Accounting Standards Board issued a partial consensus on EITF 00-22,
"Accounting for "Points" and Certain Other Time-Based or Volume-Based Sales
Incentive Offers, and Offers for Free Products or Services to be Delivered in
the Future." The consensus requires that vendors recognize the cash rebate or
refund obligation associated with time or volume-based cash rebates as a
reduction of revenue based on a systematic and rational allocation of the cost
of honoring rebates or refunds earned and claimed to each of the underlying
revenue transactions that result in progress by the customer toward earning the
rebate or refund. The liability for such obligations should be based on the
estimated amount of rebates or refunds to be ultimately earned, including an
estimate of breakage if it can be reasonably estimated.
Our players' club allows customers to earn certain complimentary
products and/or cash based on the volume of the customers' gaming activity. The
Company has recorded a liability for the estimated cost of the products and/or
cash to be earned by customers. In accordance with EITF 00-22, the Company has
recorded the charge for progress towards the complimentary services/cash rebates
as a reduction of revenues, which totaled $3.2 million, $3.9 million and $.08
million for the years ended December 31, 2003, 2002 and 2001, respectively.
Promotional Allowances
F-14
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
In the fourth quarter of 2000, the EITF reached a consensus on Issue
00-14, "Accounting for Certain Sales Incentives." EITF 00-14 requires that sales
incentives be recorded as a reduction of revenue. The Company's policy relating
to food and beverage and other non-casino revenues complies with EITF 00-14 and
are reported as a reduction of revenues, which totaled $3.72 million, $4.14
million and $.13 million for the years ended December 31, 2003, 2002 and 2001,
respectively. The estimated cost of providing such promotional allowances is
included in casino expenses which totaled $1.96 million, $2.29 million, and
$0.10 million for the years ended December 31, 2003, 2002, and 2001,
respectively.
Advertising
The Company expenses advertising costs the first time the advertising
takes place. Advertising expense, which is generally included in casino
expenses, was $6.09 million, $7.61 million, and $0.13 million for the years
ended December 31, 2003, 2002, and 2001, respectively.
Recently Issued Accounting Standards
Effective July 1, 2003 the Company adopted SFAS No. 150, "Accounting
for Certain Financial Instruments with Characteristics of both Liabilities and
Equity". SFAS No. 150 establishes standards for how an issuer classifies and
measures certain financial instruments with characteristics of both liabilities
and equity, including mandatorily redeemable preferred stock. Adoption of SFAS
No. 150 had no effect on the Company's financial statements.
The Company has reviewed all recently issued accounting pronouncements,
including FASB Interpretation No. 46(R), "Consolidation of Variable Interest
Entities, an Interpretation of ARB No. 51" and SFAS No. 149, "Amendment of
Statement 133 on Derivative Instruments and Hedging Activities", and does not
believe that any of the pronouncements will have a material impact on its
financial statements.
Reclassifications
Certain amounts in the December 31, 2002 and 2001 financial statements
have been reclassified to conform with the current year presentation.
2. GOING CONCERN CONSIDERATIONS
The Company is currently operating under the jurisdiction of Chapter 11
of the United States Bankruptcy Code and the Court, and the continuation of the
Company as a going concern is contingent upon, among other things, its ability
to restructure successfully, including refinancing its debts, and the ability of
the Company to generate sufficient cash to fund future operations. There can be
no assurance in this regard.
The Company intends to utilize the Chapter 11 process to reorganize its
financial and operational affairs with the goal of preserving and enhancing the
assets of the Company for the benefit of creditors and shareholders. The Company
expects the business to operate as usual, our valued employees to be retained,
and for our post-bankruptcy obligations to be satisfied.
The Company's objective is to achieve the highest possible recoveries
for all creditors and shareholders, consistent with the Company's ability to pay
and to continue the operation of the Company's business. However, there can be
no assurance that the Company will be able to attain these objectives or to
achieve a successful reorganization. Further, there can be no assurance that the
liabilities of the Company will not be found to exceed the fair value of its
assets. This could result in claims being paid at less than 100% of their face
value and the equity of the Company's shareholders being diluted or cancelled.
Under the Code, the rights of, and ultimate payments to pre-Filing Date
creditors and shareholders may be substantially altered from their contractual
terms. At this time, it is not possible to predict the outcome of the Case, in
F-15
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
general, or the effect of the Case on the business of the Company or on the
interests of creditors and shareholders.
The Company anticipates that substantially all liabilities of the
Company as of the Filing Date will be resolved under one or more plans of
reorganization to be proposed and voted on in the Case in accordance with the
provisions of the Code. Although the Company intends to file and seek
confirmation of such a plan or plans, there can be no assurance as to when the
Company will file such a plan or plans, or that such plan or plans will be
confirmed by the Court and consummated.
The accompanying financial statements have been prepared assuming the
Company will continue as a going concern, which contemplates the realization of
assets and the satisfaction of liabilities in the normal course of business.
However, as a result of the filing of the Case, such realization of assets and
liquidation of liabilities are subject to a significant number of uncertainties.
3. PROPERTY AND EQUIPMENT
Property and equipment consists of the following:
December 31,
2003 2002
------------- -------------
Property and equipment
Land and land improvements $ 17,915,989 $ 17,915,989
Buildings and improvements 88,573,590 89,224,255
Furniture, fixtures and equipment 22,034,013 20,997,179
Construction in progress 335,948 24,079
------------- -------------
128,859,540 128,161,502
Less: accumulated depreciation and amortization (16,747,275) (8,419,411)
------------- -------------
Net property and equipment $ 112,112,265 $ 119,742,091
============= =============
4. NOTES PAYABLE
Notes payable consisted of the following at December 31, 2003 and 2002:
Principal Balance
at December 31,
-----------------------------
2003 2002
------------ ------------
13% First Mortgage Notes, due March 15, 2005 $100,000,000 $100,000,000
15.5% Second Mortgage Notes, due March 15, 2010 9,840,233 9,840,233
HGMI contract rejection claim, unsecured (note 1) 5,000,000 --
FF&E Note, interest at prime + 6.75% (10.75% and 11% at
Dec. 31, 2003 and 2002) 17,012,798 17,680,006
Black Hawk Business Improvement District Bonds, original amount
of $975,000 at 6% interest, due December 1, 2005 + original
amount of $2,025,000 at 6.75% interest, due December 1, 2011 2,552,865 2,784,121
------------ ------------
$134,405,896 $130,304,360
Less current maturities 134,405,896 130,304,360
------------ ------------
Long-term debt $ -- $ --
============ ============
As described in Note 2 above, all of the Company's long-term debt
became immediately due and payable as a result of the commencement of the Case,
accordingly, long-term debt balances have been reclassified to current
maturities. The Company is only paying interest on the Black Hawk Business
Improvement District Bonds and the FF&E Note because they are the only fully
secured creditors under the Bankruptcy Plan. The other notes are not fully
secured and, in accordance with SOP 90-7, no interest is paid or accrued on
those notes.
F-16
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
Substantially all of the Company's assets are pledged as collateral for
long-term debt. On October 15, 2002, the Company failed to make the interest
payments initially due on September 15, 2002, that it had elected to defer until
October 15, 2002 on the First Mortgage Notes and Second Mortgage Notes. The
Company's failure to pay the interest constituted an "Event of Default" under
the applicable agreements. On November 7, 2002, the Company filed a voluntary
petition for relief under Chapter 11 of the Bankruptcy Code. As a result of the
failure to make required interest payments, and the filing of the bankruptcy
petition, the Company was not in compliance with all of its debt covenants.
5. REORGANIZATION ITEMS
Reorganization related items of $8,716,907 and $4,762,559 were incurred
during the year ended December 31, 2003 and 2002, respectively. These include
the following costs:
December 31, 2003 December 31, 2002
----------------- -----------------
Debt restructuring efforts:
Legal services $ 2,423,990 $ 210,671
Financial advisor services 643,410 169,618
Other 444,700 43,826
Hyatt damage claim (note 1) 5,000,000 --
Costs to rebrand casino to Mountain High Casino 128,744 --
Write off of Hyatt branded merchandise and supplies 76,063 --
Write off of unamortized debt discount and
deferred financing costs related to the First
Mortgage Notes and the Second Mortgage Notes -- 4,338,444
----------------- -----------------
Total Reorganization Items $ 8,716,907 $ 4,762,559
================= =================
6. BENEFIT PLANS
Prior to the rejection of the Hyatt Management Agreement, and the
Company's assumption of the management of the casino on May 14, 2003, all casino
employees were employees of Hyatt Gaming. Subsequent to May 14, 2003 the casino
employees became employees of the Company, and in connection therewith, the
Company adopted a 401(k) plan and health insurance plans for its employees.
401(k) Plan
The Company maintains a defined contribution 401(k) plan which covers
all employees who meet certain age and length of service requirements. Plan
participants can elect to defer before-tax compensation through payroll
deductions. These deferrals are regulated under Section 401(k) of the Internal
Revenue Code. The Company matches 50% of eligible participants' deferrals which
do not exceed 5% of their salaries (subject to limitations imposed by the
Internal Revenue Code). The Company's matching contributions were $60,405 for
the year ended December 31, 2003.
Health Insurance Plan
The Company maintains a qualified employee health insurance plan
covering all employees who work an average of 32 hours or more per week on a
regular basis. The plan, which is self-funded by the Company with respect to
claims below a certain maximum amount, requires contributions from eligible
employees and their dependants. The Company's contribution expense for the plan
was approximately $484,000 for the year ended December 31, 2003.
7. REDEEMABLE PREFERRED STOCK
As of December 31, 2003 and 2002, the Company has outstanding 29,000
shares of its preferred stock as "Series A" preferred stock and 30,000 shares of
its preferred stock as "Series B" preferred stock. The holders of both the
Series A and Series B preferred stock have no voting rights. The Series A
preferred stock is non-convertible, accrues
F-17
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
cumulative, non-compounding dividends at the rate of 11% per annum and has a
liquidation preference of $100 per share. Holders of the Series A preferred
stock may require the Company to redeem their shares at a price per share equal
to their liquidation preference plus accrued and unpaid dividends thereon at any
time after the later of (1) one year after the First Mortgage notes are paid in
full, whether at maturity or upon redemption or repurchase and (2) one year
after the second mortgage notes issued to Hyatt Gaming are paid in full, whether
at maturity or upon redemption or repurchase. The Series B preferred stock is
non-convertible, accrues dividends on a cumulative basis, compounding quarterly
at a rate of 7% per annum and has a liquidation preference of $100 per share.
Holders of the Series B preferred stock may require the Company to redeem their
shares at a price equal to their liquidation preference plus accrued and unpaid
dividends thereon at March 15, 2015. In conjunction with the issuance of the
Series B preferred stock, the Company also issued warrants for the purchase of
257,058 shares of the Company's common stock (see note 1 - warrants issued on
common stock). The proceeds were allocated between the warrants and the Series B
preferred stock on a relative fair value basis. The series B preferred stock
discount resulting from the proceeds allocated to the warrants is being
amortized over fifteen years (the period from issuance to the redemption date)
using the effective interest method.
8. COMMITMENTS AND CONTINGENCIES
Gaming Regulation Licensing
The Company's ability to conduct gaming operations in the State of
Colorado is subject to the licensability and qualifications of the Company and
its common stockholders. The Company received the required gaming licenses on
September 20, 2001. Additionally, upon receipt of a gaming license, such
licensing and qualifications are reviewed periodically by the gaming authorities
in Colorado and there are no guarantees such licenses will be renewed. In
September 2003, the Company received the required gaming license renewals, which
expire September 20, 2004, at which time we will apply for license renewals.
Self-Funded Employee Health Care Insurance Program
The Company's employee health care benefits is self-funded up to a
maximum amount per claim. Claims in excess of this maximum amount are fully
insured through a stop-loss insurance policy. Accruals are based on claims filed
and estimates of claims incurred but not reported. At December 31, 2003, the
Company's liabilities for unpaid and incurred but not reported claims totaled
$0.3 million, and are included in accrued expenses in the accompanying balance
sheets. While the total cost of claims incurred depends on future developments,
in management's opinion, recorded reserves are adequate to cover the payment of
future claims.
Legal Proceedings
We are involved in certain legal proceedings, claims and litigation,
including those described below. Further, we may become involved in other such
proceedings in the future. The results of legal proceedings cannot be predicted
with certainty. Except as otherwise indicated below, management does not believe
that we have potential liability related to any current legal proceedings and
claims that would have material adverse effect on our financial condition,
liquidity or results of operations. As of the result of the Chapter 11 Case,
except where noted, legal proceedings are stayed.
First Place LLC filed a lawsuit against the Company generally asserting
that it has an ownership interest in a small sliver of property upon which the
Company has built and is operating the Black Hawk Casino by Hyatt. The property
which First Place contends it has an ownership in consists of approximately
6,000 square feet. The Company timely referred the issue to its title insurance
company, First American Title. The Company has a $33.5 million owner's title
insurance policy with First American. First American has advised the Company
that the claim will be covered by the Company's title insurance and the title
insurance company has been and is vigorously defending the claim. After a trial
in June, 2002, the trial court determined that First Place does have an
ownership interest in a strip of property containing approximately 3,000 square
feet which the Company believed it owned. Certain post trial motions had been
granted and were pending final determination by the Court at the time of the
Chapter 11 filing. On August 7, 2003, the Bankruptcy Court entered an order
lifting the automatic stay, thus allowing this case to proceed to conclusion in
the state courts. On September 12, 2003, the state trial court liquidated the
First Place claim, based upon application of the "relative hardship" doctrine,
in the amount of $73,500 and decreed that upon payment of that amount the
Company would own the
F-18
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
3,000 square feet. First Place has appealed this case to the Colorado Court of
Appeals and it is anticipated the appeal will be concluded in late 2004 or early
2005. We do not anticipate that there will be any financial exposure to the
Company with respect to this claim, and fully expects that this claim will be
resolved by and at the expense of First American Title.
PCL Construction Services, Inc. acted as the general contractor for the
Company in the construction of the Black Hawk Casino by Hyatt project. The
Substantial Completion Date for the project was originally to have been October
29, 2001 and was subsequently amended by Change Order to November 15, 2001. In
fact, construction of the casino was not at a point where the casino could open
for business until December 20, 2001 and certain components of the project were
not completed until early 2002. In early 2002, PCL and its subcontractors
claimed to be owed an aggregate of approximately $7,200,000 on the project,
recorded mechanic's liens and filed mechanic's lien foreclosure and breach of
contract litigation against the Company. The Company filed litigation against
PCL for PCL's misrepresentations and contractual breaches concerning completion
of the project. This litigation was not at issue with all parties as of the date
of the Chapter 11 filing and has been stayed. The Company and PCL engaged in
extensive settlement discussions starting in January, 2003 and entered into a
settlement agreement in May 2003. The Bankruptcy Court approved the agreement on
July 7, 2003. Under the agreement, the Company agreed to pay PCL and its
subcontractors a total of $4.5 million, $2.3 million of which was paid July 28,
2003, $1.4 million of which was paid in January 2004, $400,000 to be paid in
October 2004, and $400,000 to be paid in April 2005.
Paul Steelman was the project architect for the Black Hawk Casino by
Hyatt project. Paul Steelman claims that it is owed an additional approximately
$200,000 for architectural work performed at the project. The Company believes
that it does not owe Paul Steelman the $200,000 and further believes that Paul
Steelman owes the Company approximately $2,000,000 for Paul Steelman's failure
to properly prepare and complete architectural plans and specifications for the
project in a timely fashion. Prior to the Chapter 11 filing, the Company and
Steelman had entered into a Dispute Resolution Agreement providing for
mediation, to be followed by binding arbitration, if necessary. The Company and
Steelman filed a stipulated motion lifting the stay from this dispute and
allowing its determination by Dispute Resolution Agreement, and an order
approving the motion was entered in May 2003. Mediation between the Company and
Steelman did not result in a resolution of these claims and a binding
arbitration of the claims is scheduled for September 2004.
Lease Commitments
Minimum rental obligations under all non-cancelable operating leases
with terms of one year or more as of December 31, 2003 are as follows:
For the year ending December 31,
--------------------------------
2004 $ 82,965
2005 46,922
2006 35,467
2007 --
---------
$ 165,354
=========
Rental expense for all operating leases for years ended December 31,
2003, 2002 and 2001 was $83,166, $70,230 and $264.
9. INCOME TAXES
The benefit for income taxes attributable to net loss for the years
ended December 31, 2003, 2002, and 2001 is as follows:
2003 2002 2001
---- ---- ----
Current -- -- --
Deferred -- -- --
---- ---- ----
Total Provision $ -- $ -- $ --
==== ==== ====
F-19
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
The income tax benefit associated with the Company's net loss for the
year ended December 31, 2003, 2002 and 2001 differs from the amount computed at
the federal income tax statutory rate as a result of the following:
2003 2002 2001
----------- ----------- -----------
Amount at statutory rate $(3,780,707) $(6,592,330) $(2,687,711)
State income tax (benefit), net of
Federal income tax benefit (339,797) (592,495) (241,562)
Miscellaneous items -- 22,481 --
Valuation allowance for deferred
tax assets 4,120,504 7,162,344 2,929,273
----------- ----------- -----------
Total Provision $ -- $ -- $ --
=========== =========== ===========
The components of the deferred taxes at December 31, 2003, 2002 and
2001 consisted of the following:
2003 2002 2001
------------ ------------ ------------
Deferred tax assets - federal and state
Net operating loss $ 19,365,493 $ 14,078,181 $ 5,556,544
Change in warrant valuation -- -- 4,645
Start-up costs 1,076,075 1,434,767 1,793,458
Bond issue costs and bond discount 935,335 1,607,646 --
------------ ------------ ------------
21,376,903 17,120,594 7,354,647
Less: Valuation allowance (18,041,961) (13,921,457) (6,759,113)
------------ ------------ ------------
3,334,942 3,199,137 595,534
Deferred tax liabilities - federal and state
Depreciation (1,711,308) (1,609,616) (387,439)
Change in warrant valuation (1,053,253) (1,053,253) --
Accruals, reserves, and other (570,381) (536,268) (208,095)
------------ ------------ ------------
Net deferred tax asset $ -- $ -- $ --
============ ============ ============
As discussed in Note 1, prior to the Private Placement, the operations
of the Company were associated with the LLC, which was a nontaxable entity.
Consistent with SFAS 109, deferred tax assets and a corresponding valuation
allowance of $ 1.6 million were recorded at the date the LLC contributed all of
its assets and liabilities to the Company.
At December 31, 2003, the Company had a net operating loss of $ 52.26
million, that expires at various dates through 2022. The use of these losses may
be limited in the event of a change in control of the Company.
At December 31, 2003, the Company believes that it is not more likely
than not that any of its deferred tax assets are realizable because of the
absence of accurate future projected taxable income. Accordingly, all deferred
tax assets are fully reserved as of December 31, 2003.
10. RELATED PARTY TRANSACTIONS
We have a financial consulting arrangement with one of our former
directors. During the year ended December 31, 2001 this director earned $208,000
for services related to the FF&E loan from Wells Fargo Bank and provided $40,000
in additional services. Trade accounts payable and accrued expenses include
$208,000 payable to this director at December 31, 2003 and 2002.
Our former Secretary and director provided legal and professional
services to the Company. During the year ended December 31, 2002, he provided
$26,794 in legal services. During the year ended December 31, 2001, he provided
$63,496 in legal services. Trade accounts payable and accrued expenses include
$3,912 payable to this director at December 31, 2003 and 2002, respectively.
F-20
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
11. STOCK INCENTIVE PLAN
On April 14, 2000, our board of directors approved the 2000 Stock
Incentive Plan, which provides for the grant of options to purchase an aggregate
of not more than 150,000 shares of our common stock. The purpose of the plan is
to promote our long-term growth and profitability by providing key people with
incentives to improve stockholder value and contribute to our growth and
financial success and by enabling us to attract, retain and reward the
best-available persons. The plan was approved by the shareholders in August,
2000.
On March 25, 2002, our board of directors approved the 2002 Stock
Incentive Plan, which provides for the grant of options to purchase an aggregate
of not more than 45,000 shares of our common stock. The purpose of the plan is
to promote our long-term growth and profitability by providing key people with
incentives to improve stockholder value and contribute to our growth and
financial success and by enabling us to attract, retain and reward the
best-available persons. The plan was approved by the shareholders in April,
2002.
The plans provide for the granting of both incentive stock options
qualifying under Section 422 of the Internal Revenue Code of 1986 and
nonqualified stock options, stock appreciation rights, restricted or
unrestricted stock awards, phantom stock and performance awards. Awards of
incentive stock options under the plan are limited to employees and must have an
exercise price at least equal to the fair market value of our common stock at
the date of grant, but nonqualified stock options may have an exercise price
less than fair market value.
The plans will be administered by the board of directors or by a
committee appointed by the board of directors which determines the persons to be
granted options under the plan, the number of shares subject to each option, the
exercise price of each option and the option period.
The Company has not yet granted any option or award under the 2002
Stock Incentive Plan.
All options granted are exercisable at the grant date. A summary of
stock option activity and weighted average exercise prices under the 2000 Stock
Incentive Plan is as follows:
Weighted
Average
Number Exercise
Of Shares Price
-------- --------
Balance December 31, 2000 108,000 $16.50
Granted at market price 25,000 $25.00
Exercised -- --
Forfeited -- --
-------- ------
Balance December 31, 2001 133,000 $18.10
Granted at market price 17,000 $20.00
Exercised -- --
Forfeited -- --
-------- ------
Balance December 31, 2002 150,000 $18.31
Granted at market price -- --
Exercised -- --
Forfeited (95,000) $17.68
-------- ------
Balance December 31, 2003 55,000 $16.50
======== ======
The weighted average fair value and remaining contract life of options
granted was $16.50, $18.31 and $18.10 and 6.3 years, 7.8 years and 8.6 years,
respectively, for the fiscal years ended December 31, 2003, 2002, and 2001.
On January 29, 2003, the Company entered into voluntary stock option
exchange agreements (the "Option Exchange Agreements") to exchange outstanding
options to purchase shares of our the Common Stock granted under the
F-21
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
2000 Stock Incentive Plan held by eligible employees or eligible directors for
new options under the same option plans. The Option Exchange Agreements required
an optionee to cancel and terminate their old stock options previously granted
to the optionee with the result that the same number of new options with an
exercise price to be the fair market value of the Common Stock on a new grant
date exactly six months and one day after the date of the Option Exchange
Agreements. Stock options to acquire a total of 95,000 shares of the Company's
Common Stock with exercise prices ranging from $16.50 to $20.00 were exchanged
under the Option Exchange Agreements. The Exchange Program was designed to
comply with FASB Interpretation No. 44, "Accounting for Certain Transactions
Involving Stock Compensation," for fixed plan accounting. As of the date of this
report, the new stock options had not been granted under the Option Exchange
Agreement.
12. PLAN OF REORGANIZATION
On August 6, 2003, we filed a Plan of Reorganization (the "Plan of
Reorganization" or the "Plan") and a related disclosure statement (the
"Disclosure Statement") with the Bankruptcy Court. On November 20, 2003, the
Company filed its first amended Plan of Reorganization and its first amended
Disclosure Statement. The Disclosure Statement is filed to provide information
of a kind and in sufficient detail to enable a typical holder of claims or
interests in a class impaired under the Plan to make an informed judgment about
the Plan. To approve the form of disclosure statement, the Bankruptcy Court must
determine that the Disclosure Statement contains "adequate information" to make
an informed judgement in voting to accept or reject the Plan. Upon the
Bankruptcy Court's findings that the Disclosure Statement contains "adequate
information," we will be authorized to transmit the Plan and Disclosure
Statement to holders of impaired claims in connection with the solicitation of
votes under the Plan. Bankruptcy Court approval of the Disclosure Statement does
not constitute a determination by the Bankruptcy Court as to the merits of the
Plan or an indication that the Bankruptcy Court will confirm the Plan.
If the Plan of Reorganization is confirmed by the Bankruptcy Court,
substantially all pre-petition liabilities will be subject to restructuring. Any
plan of reorganization is voted upon by creditors and equity holders and is
subject to the approval of the Bankruptcy Court. A plan of reorganization must
be confirmed by the Bankruptcy Court upon certain findings being made by the
Bankruptcy Court as required by the Bankruptcy Code. The Bankruptcy Court may
confirm a plan or reorganization notwithstanding the non-acceptance of the plan
by an impaired class of creditors or equity security holders if certain
requirements of the Bankruptcy Code are met. There can be no assurance that the
Plan of Reorganization will be confirmed by the Bankruptcy Court, or that any
such plan will be consummated.
Until the Plan is confirmed by the Bankruptcy Court the recoveries of
holders of pre-petition claims are subject to change. The Disclosure Statement
includes detailed information about the Plan, financial performance projections
over the 7-year Plan period, financial estimates regarding our reorganized
business enterprise value including support for the "best interest" requirements
for the Plan under the Bankruptcy Code; and events leading up to our Chapter 11
case. The Plan and the transactions contemplated thereunder are more fully
described in the Disclosure Statement, a copy of which is available to the
public at the office of the clerk of the Bankruptcy Court, U.S. Customs House,
721 19th Street, Denver, Colorado 80202-2508.
During the Chapter 11 Case, we continue to operate our business in the
ordinary course without interruption and without material impact on our
employees, customers and suppliers.
At this time it is not possible to predict the effect of the Chapter 11
Case on our business, various creditors and equity security holders or when we
will be able to conclude our Chapter 11 Case. Our future results are dependent
upon, among other things, the confirmation and implementation of a plan of
reorganization.
13. SELECTED QUARTERLY FINANCIAL RESULTS (UNAUDITED)
Year Ended December 31, 2003 - Quarter
------------------------------------------------------------------------------------
First Second Third Fourth Total
------------ ------------ ------------ ------------ ------------
Net operating revenues $ 13,777,706 $ 13,931,228 $ 14,963,103 $ 12,895,407 $ 55,567,444
Operating income (loss) (911,874) (441,311) 918,400 430,548 (4,237)
F-22
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO FINANCIAL STATEMENTS
Income (loss) from before reorganization
items and preferred stock dividends (1,523,114) (1,043,776) 339,393 (175,319) (2,402,816)
Reorganization items (910,413) (6,441,806) (734,093) (630,595) (8,716,907)
Net loss before preferred stock dividends (2,433,527) (7,485,582) (394,700) (805,914) (11,119,723)
Preferred stock dividends 142,613 144,399 146,261 148,330 581,603
Net loss attributable to
common stock (2,576,140) (7,629,981) (540,961) (954,244) (11,701,326)
Loss per share
Basic $ (2.58) $ (7.63) $ (0.54) $ (0.95) $ (11.70)
Diluted $ (2.58) $ (7.63) $ (0.54) $ (0.95) $ (11.70)
Year Ended December 31, 2002 - Quarter
------------------------------------------------------------------------------------
First Second Third Fourth Total
------------ ------------ ------------ ------------ ------------
Net operating revenues $ 16,940,655 $ 16,401,127 $ 18,347,586 $ 14,174,445 $ 65,863,813
Operating income (73,946) (630,575) 438,290 (583,411) (849,642)
Loss from continuing operations before
reorganization costs and preferred stock
dividends (4,789,6750) (2,538,170) (4,315,159) (2,983,643) (14,626,647)
Reorganization costs -- -- (209,111) (4,553,448) (4,762,559)
Net loss before preferred stock dividends (4,789,675) (2,538,170) (4,524,270) (7,537,091) (19,389,206)
Preferred stock dividends 138,399 140,065 141,801 139,334 559,599
Net loss attributable to
common stock (4,928,074) (2,678,235) (4,666,071) (7,676,425) (19,948,805)
Loss per share
Basic $ (4.93) $ (2.68) $ (4.67) $ (7.68) $ (19.95)
Diluted $ (4.93) $ (2.68) $ (4.67) $ (7.68) $ (19.95)
F-23
EXHIBIT INDEX
Exhibit
No. Description
--- -----------
3.1(1) First Amended and Restated Articles of Incorporation of Windsor Woodmont Black Hawk
Resort Corp.
3.2(1) First Amended and Restated Bylaws of Windsor Woodmont Black Hawk Resort Corp.
4.1(1) Indenture, dated as of March 14, 2000, by and between Windsor Woodmont Black Hawk
Resort Corp. and SunTrust Bank, as trustee
4.2(1) Form of 13% First Mortgage Notes, series B
4.3(1) Form of series A Warrant certificates dated March 14, 2000 issued to unit purchasers
for the purchase of up to 342,744 shares of common stock, issued to Hyatt Gaming
Management, Inc. for the purchase of up 33,887 shares of common stock and issued to
U.S. Bancorp Libra, as placement agent, for the purchase of up to 80,031 shares of
common stock
4.4(1) Form of series B Warrant certificates dated March 14, 2000 to purchase up to 257,058
shares of common stock issued to the purchasers of the series B Preferred Stock
4.5(1) First Warrant Agreement dated as of March 14, 2000, by and Windsor Woodmont Black
Hawk Resort Corp. and SunTrust Bank, as warrant agent, relating to the issuance to
the unit purchasers of warrants for the purchase of 342,744 shares of common stock,
the issuance to Hyatt Gaming Management, Inc. of warrants to purchase 33,887 shares
of common stock and the issuance to U.S. Bancorp Libra, as placement agent, of
warrants to purchase 80,031 shares of common stock
4.6(1) Second Warrant Agreement, dated as of March 14, 2000, by and between Windsor Woodmont
Black Hawk Resort Corp. and SunTrust Bank, as warrant agent, relating to the issuance
to the purchasers of the series B Preferred Stock of warrants for the purchase of
257,058 shares of common stock
4.7(1) A/B Exchange Registration Rights Agreement, dated as of March 14, 2000, among Windsor
Woodmont Black Hawk Resort Corp. and the unit purchasers
4.8(1) Warrant Registration Rights Agreement, dated as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., each of the purchasers of the units, Hyatt
Gaming Management, Inc., each of the purchasers of the series B Preferred Stock and
U.S. Bancorp Libra
10.1(1) Management Agreement dated as of February 2, 2000, by and between Windsor Woodmont
Black Hawk Resort Corp. and Hyatt Gaming Management, Inc. and First Amendment to
Management Agreement
10.2(1) Subordination, Non-Disturbance and Attornment Agreement dated as of March 14, 2000,
by and among Windsor Woodmont Black Hawk Resort Corp., Hyatt Gaming Management, Inc.
and SunTrust Bank, a trustee
10.3(1) Architect's Agreement dated as of January 31, 2000 by and between Windsor Woodmont,
LLC and Paul Steelman, Ltd.
10.4(1) Construction Management Agreement dated February 1, 2000 by and between Windsor
Woodmont, LLC and Building Sciences, Inc.
10.5(1) Construction Agreement dated as of January 11, 2000 by and between Windsor Woodmont,
LLC and PCL Construction Services, Inc.
10.6(1) Excavation Agreement dated as of December 31, 1999, by and between Windsor Woodmont,
LLC and D.H. Blattner & Sons, as amended
10.7(1) Subdivision Agreement dated December 29, 1997 by and between Windsor Woodmont, LLC
and the City of Black Hawk, including the First Addendum, dated March 25, 1998,
Second Addendum, dated May 27, 1998, and Third Addendum, dated March 29, 2000,
thereto
10.8(1) Deed of Trust to Public Trustee, Security Agreement, Fixture Filing and Assignment of
Rents, Leases and Leasehold Interest, dated as of March 14, 2000, by Windsor Woodmont
Black Hawk Resort Corp.
10.9(1) Security Agreement, dated as of March 14, 2000, by and between Windsor Woodmont Black
Hawk Resort Corp. and SunTrust Bank, as trustee
10.10(1) Pledge and Assignment Agreement, dated as of March 14, 2000, by and among Windsor
Woodmont Black Hawk Resort Corp. in favor of SunTrust Bank, as trustee
10.11(1) Collateral Assignment, dated as of March 14, 2000, by and between Windsor Woodmont
Black Hawk Resort Corp. in favor of SunTrust Bank, as trustee
10.12(1) Subordinated Loan Agreement, dated as of March 14, 2000, by and between Windsor
Woodmont Black Hawk Resort Corp. and Hyatt Gaming Management, Inc.
10.13(1) Hyatt Gaming Deed of Trust to Public Trustee, Security Agreement, Fixture Filing and
Assignment of Rents, Leases and Leasehold Interests,, dated as of March 14, 2000, by
Windsor Woodmont Black Hawk Resort Corp. to the Public trustee of the County of
Gilpin, Colorado, for the benefit of Hyatt Gaming Management, Inc.
10.14(1) Hyatt Gaming Security Agreement, dated as of March 14, 2000, by and between Windsor
Woodmont Black Hawk Resort Corp. and Hyatt Gaming Management, Inc.
10.15(1) Hyatt Gaming Pledge and Assignment Agreement, dated as of March 14, 2000, by and
among Windsor Woodmont Black Hawk Resort Corp. in favor of Hyatt Gaming Management,
Inc.
10.16(1) Hyatt Gaming Collateral Assignment, dated as of March 14, 2000, by and between
Windsor Woodmont Black Hawk Resort Corp. in favor of Hyatt Gaming Management, Inc.
10.17(1) General Assignment made as of March 14, 2000 by Windsor Woodmont, LLC in favor of
Windsor Woodmont Black Hawk Resort Corp.
10.18(1) Intercreditor Subordination and Collateral Agreement, dated as of March 14, 2000, by
and among SunTrust Bank, as trustee, Hyatt Gaming Management, Inc. and Windsor
Woodmont Black Hawk Resort Corp.
10.19(1) Cash Collateral and Disbursement Agreement dated as of March 14, 2000 by and among
SunTrust Bank, as trustee, Windsor Woodmont Black Hawk Resort Corp., Hyatt Gaming
Management, Inc., Norwest Bank Minnesota, N.A., as disbursement agent, First American
Heritage Title Company, as construction escrow agent, and RE TECH+, Inc., as
independent construction consultant
10.20(1) Account Agreement, dated as of March 14, 2000, by and among Windsor Woodmont Black
Hawk Resort Corp., SunTrust Bank, as trustee, and Norwest Bank Minnesota, N.A., as
securities intermediary
10.21(1) Interim Interest Reserve Account Agreement, dated as of March 14, 2000, by and among
Windsor Woodmont Black Hawk Resort Corp., SunTrust Bank, as trustee, and Norwest Bank
Minnesota, N.A., as securities intermediary
10.22(1) Interest Reserve Account Agreement, dated as of March 14, 2000, by and between
Windsor Woodmont Black Hawk Resort Corp. and SunTrust Bank, as trustee and securities
intermediary
10.23(1) Hyatt Gaming Account Agreement, dated as of March 14, 2000, by and among Windsor
Woodmont Black Hawk Resort Corp., Hyatt Gaming Management, Inc. and Norwest Bank
Minnesota, N.A., as securities intermediary
10.24(1) Shareholders Agreement, dated as of March 14, 2000
10.25(1) Office Lease between Dallas Office Portfolio, L.P., as landlord, and Windsor Woodmont
Black Hawk Resort Corp., as tenant
10.26(1) Site Improvement Agreement, dated March 29, 2000, by and between the City of Black
Hawk, Colorado, and Windsor Woodmont Black Hawk Resort Corp.
10.27(1) Escrow Agreement, dated March 29, 2000, by and between the City of Black Hawk,
Colorado, Windsor Woodmont Black Hawk Resort Corp. and Norwest Bank Minnesota, N.A.
10.28(1) Settlement Agreement, dated January 31, 2000, by and between Windsor Woodmont, LLC
and D.H. Blattner & Sons, Inc.
10.29(1) Escrow Agreement, dated March 28, 2000, by and among D.H. Blattner & Sons, Inc.
Windsor Woodmont Black Hawk Resort Corp. and Norwest Bank Minnesota, N.A.
10.30(1) Incentive Stock Option Plan
10.31 Hyatt Settlement and Release Agreement, dated April 10, 2003 by and between Windsor
Woodmont Black Hawk Resort Corp. and Hyatt Gaming Management, Inc.
16.1(1) Letter from PricewaterhouseCoopers re: change in certifying accountant
31.1 Certification of Principal Executive Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
31.2 Certification of Principal Financial Officer pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
32.1 Certification of Principal Executive Officer and Chief Financial Officer Pursuant to
18 U.S.C. 1350 as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
- ------------------------
(1) Filed as an exhibit to Windsor Woodmont Black Hawk Resort Corp.'s
Registration Statement on Form S-4 filed July 12, 2000, as amended (File No.
333-41292), and incorporated herein by reference.