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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended June 30, 2003
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from
Commission File Number: 0-31737
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(Exact name of registrant as specified in its charter)
Colorado 75-2740870
(State of incorporation) (I.R.S. Employer Identification No.)
111 Richman St., Black Hawk, Colorado 80422
(Address of principal executive offices) (Zip Code)
(303)582-3600
(Registrant's telephone number, including area code)
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.
[X] Yes [ ] No
Windsor Woodmont Black Hawk Resort Corp.
Form 10-Q
Index
Part I -- FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Balance Sheets, June 30, 2003 (unaudited) and December 31, 2002 2
Condensed Statements of Operations for the three months and six months
ended June 30, 2003 and 2002 (unaudited) 3
Condensed Statement of Comprehensive Loss for the three months and six months
ended June 30, 2003 and 2002 (unaudited) 4
Condensed Statements of Redeemable Preferred Stock and Stockholders' Equity
for the period from December 31, 1999 through June 30, 2003 (unaudited) 5
Condensed Statements of Cash Flows for the three months and six months ended
June 30, 2003 and 2002 (unaudited) 6
Notes to Condensed Consolidated Financial Statements 7 - 11
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 12 - 16
Item 3. Qualitative and Qualitative Disclosures about Market Risk 16
Item 4. Controls and Procedures 16
Part II - OTHER INFORMATION
Item 1. Legal Proceedings 17 - 18
Item 2. Changes in Securities and Use of Proceeds 18
Item 3. Defaults Upon Senior Securities 18
Item 4. Submission of Matters to a Vote of Security Holders 18
Item 5. Other Information 18
Item 6. Exhibits and Reports on Form 8-K 18
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
BALANCE SHEETS
June 30, 2003 December 31, 2002
------------- -----------------
(unaudited)
ASSETS
CURRENT ASSETS:
Cash $ 7,325,896 $ 8,020,958
Cash and cash equivalents, restricted 2,353,939 2,350,616
Accounts receivable 184,137 164,205
Inventories 264,736 330,804
Prepaid expenses 1,828,228 2,614,691
Other current assets 21,769 12,298
------------- -------------
Total current assets 11,978,705 13,493,572
Property and Equipment, net 115,527,239 119,742,091
OTHER ASSETS:
Base stock inventories/uniforms, net of accumulated amortization 122,872 142,191
Funds held in escrow and security deposits 354,386 288,845
Franchise Fees 40,000 40,000
Deferred financing costs, net 372,752 491,097
------------- -------------
TOTAL ASSETS $ 128,395,954 $ 134,197,796
============= =============
LIABILITIES AND STOCKHOLDERS' EQUITY
CURRENT LIABILITIES:
Post-Petition Liabilities
Trade accounts payable and accrued expenses $ 1,677,555 $ 2,190,962
Accrued interest 1,307,741 332,389
Other current liabilities 959,254 42,888
------------- -------------
Total Post Petition Liabilities 3,944,550 2,566,239
------------- -------------
Pre-Petition Liabilities Subject to Compromise
Current portion of long-term debt 135,190,721 130,304,360
Trade accounts payable and accrued expenses 3,352,644 4,673,381
Construction accounts payable 4,500,000 5,364,118
Accrued interest 9,584,859 9,584,859
Other current liabilities 1,642,276 1,642,276
------------- -------------
Total Pre-Petition Liabilities 154,270,500 151,568,994
------------- -------------
Total current liabilities 158,215,050 154,135,233
------------- -------------
NON CURRENT LIABILITIES
Long-term debt, less current portion -- --
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 redemption value, 29,000 shares
outstanding 2,900,000 2,900,000
Series B - 7% dividend, $100 redemption value, 30,000 shares
outstanding 1,864,805 1,827,355
Accrued dividends on preferred stock 1,815,187 1,528,175
------------- -------------
Total redeemable preferred stock 6,579,992 6,255,530
------------- -------------
Commitments and contingencies
STOCKHOLDERS' EQUITY
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 (49,364,058) (39,157,937)
------------- -------------
Total stockholders' equity (37,112,808) (26,906,687)
------------- -------------
TOTAL LIABILITIES AND STOCKHOLDERS' EQUITY $ 128,395,954 $ 134,197,796
============= =============
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
2
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENTS OF OPERATIONS
(UNAUDITED)
For the Three Months Ended For the Six Months Ended
June 30, June 30,
---------------------------- ----------------------------
2003 2002 2003 2002
------------ ------------ ------------ ------------
OPERATING REVENUES:
Casino $ 13,153,527 $ 15,249,418 $ 26,118,361 $ 31,081,029
Food and beverage 1,450,802 1,825,936 3,081,125 3,482,834
Other 231,982 284,663 475,729 479,490
------------ ------------ ------------ ------------
14,836,311 17,360,017 29,675,215 35,043,353
Less: Promotional allowances (905,083) (958,890) (1,966,281) (1,701,571)
------------ ------------ ------------ ------------
Net operating revenues 13,931,228 16,401,127 27,708,934 33,341,782
------------ ------------ ------------ ------------
OPERATING EXPENSES:
Casino 7,896,500 9,111,228 15,941,721 18,423,177
Food and beverage 1,400,957 2,018,258 2,741,293 3,748,369
Other operating expenses 275,072 511,464 579,607 994,397
General and administrative 2,528,278 2,741,917 4,963,688 5,589,584
Management fees 201,525 555,627 679,162 1,137,323
Depreciation and amortization 2,070,207 2,093,208 4,156,648 4,153,453
------------ ------------ ------------ ------------
Total operating expenses 14,372,539 17,031,702 29,062,119 34,046,303
------------ ------------ ------------ ------------
Operating Loss (441,311) (630,575) (1,353,185) (704,521)
OTHER INCOME (EXPENSE):
Interest income 8,842 13,343 19,255 116,207
Interest expense (611,307) (4,775,818) (1,232,960) (9,594,411)
Change in valuation of warrants -- 2,854,880 -- 2,854,880
------------ ------------ ------------ ------------
Other expense, net (602,465) (1,907,595) (1,213,705) (6,623,324)
------------ ------------ ------------ ------------
Loss from continuing operations before
reorganization costs and preferred stock
dividends (1,043,776) (2,538,170) (2,566,890) (7,327,845)
Reorganization costs 6,441,806 -- 7,352,219 --
------------ ------------ ------------ ------------
Net loss before preferred stock dividends (7,485,582) (2,538,170) (9,919,109) (7,327,845)
Preferred stock dividends 144,399 140,065 287,012 278,464
------------ ------------ ------------ ------------
Net loss attributable to
common stock $ (7,629,981) $ (2,678,235) $(10,206,121) $ (7,606,309)
============ ============ ============ ============
Loss per share
Basic $ (7.63) $ (2.68) $ (10.21) $ (7.61)
Diluted $ (7.63) $ (2.68) $ (10.21) $ (7.61)
Weighted Average Shares
Basic 1,000,000 1,000,000 1,000,000 1,000,000
Diluted 1,000,000 1,000,000 1,000,000 1,000,000
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
3
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENTS OF COMPREHENSIVE LOSS
(UNAUDITED)
For the Three Months Ended For the Six Months Ended
June 30, June 30,
-------------------------- --------------------------
2003 2002 2003 2002
----------- ----------- ----------- -----------
Net loss before preferred stock dividends $(7,485,582) $(2,538,170) $(9,919,109) $(7,327,845)
Unrealized gain (loss) on securities held
for sale -- -- -- (60,093)
----------- ----------- ----------- -----------
Comprehensive loss $(7,485,582) $(2,538,170) $(9,919,109) $(7,387,938)
=========== =========== =========== ===========
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
4
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENTS OF REDEEMABLE PREFERRED STOCK AND STOCKHOLDERS' EQUITY
Redeemable
Preferred Stock Common Stock
------------------------- -------------------------
Shares Amount Shares Amount
----------- ----------- ----------- -----------
Balance at December 31, 1999 -- $ -- 1,000 10
Issuance of common stock 999,000 9,990
11% Series A preferred stock 29,000 $ 2,900,000 -- --
7% Series B preferred stock 30,000 3,000,000 -- --
Warrants for common stock attached to
Series B preferred stock -- (1,315,330) -- --
Preferred stock dividends -- 417,322 -- --
----------- ----------- ----------- -----------
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 -- 37,450 -- --
Preferred stock dividends -- 287,012 -- --
----------- ----------- ----------- -----------
Balance at June 30, 2003 (unaudited) 59,000 $ 6,579,992 1,000,000 $ 10,000
=========== =========== =========== ===========
Additional Other Total
Paid In Accumulated Comprehensive Stockholders'
Capital Deficit Income Equity
------------ ------------ ------------ ------------
Balance at December 31, 1999 $ 990 $ (4,981,041) $ -- $ (4,980,041)
Issuance of common stock 12,240,260 -- -- 12,250,250
Preferred stock dividends -- (417,322) -- (417,322)
Net loss -- (5,354,482) -- (5,354,482)
Unrealized gain on investments available for
sale -- -- 286,686 286,686
------------ ------------ ------------ ------------
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 -- (287,012) -- (287,012)
Net loss -- (9,919,109) -- (9,919,109)
Unrealized gain on investments available for
sale -- -- -- --
------------ ------------ ------------ ------------
Balance at June 30, 2003 (unaudited) $ 12,241,250 $(49,364,058) $ -- $(37,112,808)
============ ============ ============ ============
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
5
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
STATEMENTS OF CASH FLOWS
(UNAUDITED)
For the Three Months Ended For the Six Months Ended
June 30, June 30,
-------------------------- --------------------------
2003 2002 2003 2002
----------- ----------- ----------- -----------
Cash flows provided (used) in operating activities
Net Loss before preferred stock dividends $(7,485,582) $(2,538,170) $(9,919,109) $(7,327,845)
Adjustments to reconcile net loss
to net cash provided by operating
activities:
Depreciation and amortization 2,070,208 2,093,208 4,156,648 4,153,453
Amortization of deferred financing costs 59,248 416,845 118,345 830,850
Amortization of debt discount -- 86,030 -- 171,990
Amortization of preferred stock discount 18,805 18,086 37,450 35,990
Write-off base stock inventory/uniforms 19,319 -- 19,319 --
Change in valuation of warrants -- (2,854,880) -- (2,854,880)
Accrued Hyatt settlement charge 5,000,000 -- 5,000,000 --
Changes in working capital:
Accounts receivable 20,336 (78,772) (19,932) (80,350)
Inventory 26,979 28,605 66,068 (7,520)
Prepaid expenses 416,865 52,904 786,463 (286,591)
Other current assets (10,172) (7,841) (9,471) (26,433)
Trade accounts payable (1,546,335) (322,694) (1,834,144) 1,889,372
Accounts payable related parties 13,759 (380,652) -- (3,309,721)
Accrued interest 433,673 3,560,875 975,352 403,878
Other current liabilities 830,501 340,417 916,366 1,315,569
----------- ----------- ----------- -----------
Net cash provided (used) in operating activities (132,396) 413,961 293,355 (5,092,238)
----------- ----------- ----------- -----------
Cash flows from investing activities:
Decrease (increase) in funds held in escrow (8,400) -- (65,541) (2,599)
Increase in base stock inventory/uniforms -- (90,479) -- (90,479)
Increase in property and equipment (758,894) (1,205,586) (805,914) (2,926,056)
Decrease (increase) in cash - restricted, cost (1,574) (7,287) (3,323) 2,671,526
Decrease (increase) in investments, cost -- -- -- 6,420,143
(Decrease) increase in construction accounts payable -- (802,511) -- (1,830,040)
----------- ----------- ----------- -----------
Net cash provided (used) in investment activities (768,868) (2,105,863) (874,778) 4,242,495
----------- ----------- ----------- -----------
Cash flows from financing activities:
Deferred offering costs incurred -- -- -- (150,000)
Payment of notes payable (113,639) (1,146,081) (113,639) (1,839,413)
----------- ----------- ----------- -----------
Net cash (used) provided by financing activities (113,639) (1,146,081) (113,639) (1,989,413)
----------- ----------- ----------- -----------
Net change in cash and cash equivalents (1,014,903) (2,837,983) (695,062) (2,839,156)
Cash and cash equivalents, beginning of period 8,340,799 9,665,965 8,020,958 9,667,138
----------- ----------- ----------- -----------
Cash and cash equivalents, end of period $ 7,325,896 $ 6,827,982 $ 7,325,896 $ 6,827,982
=========== =========== =========== ===========
Non Cash Items:
Construction in progress due to retainage $ -- $ -- $ -- $ 208,122
Supplemental Cash Flow Information:
Interest Paid $ 97,444 $ 690,003 $ 97,444 $ 8,145,955
SEE NOTES TO CONDENSED FINANCIAL STATEMENTS
6
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO CONDENSED FINANCIAL STATEMENTS
1. BASIS OF PRESENTATION AND ORGANIZATION
Basis of Presentation:
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 connection with the
Private Placement and other financing transactions described in Note 3, 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"), 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") 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 Bankruptcy Court. 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 revenue. On April 10, 2003, we entered into a
settlement agreement with Hyatt 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.
On August 6, 2003, we filed a Plan of Reorganization a related disclosure
statement with the Bankruptcy Court. See Note 6 - Subsequent Events.
Because of the ongoing nature of the Chapter 11 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 Case.
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 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
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.
7
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO CONDENSED FINANCIAL STATEMENTS
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 Case
should distinguish transactions and events that are directly associated with the
reorganization from the ongoing operations of the business. Expenses and other
items not directly related to ongoing operations are reflected separately in the
statement of operations as reorganization expenses (see note 4).
The filing of the Chapter 11 Case (i) automatically stayed actions by
creditors and other parties in interest to recover any claim that arose prior to
the commencement of the Chapter 11 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.
Accounting Policies:
The financial information at June 30, 2003, and for the three months and
six months ended June 30, 2003 and 2002 is unaudited. The financial statements
have been prepared in accordance with accounting principles generally accepted
in the United States of America for interim financial information and with the
instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do
not include all of the information and footnotes required by accounting
principles generally accepted in the United States of America for complete
financial statements. In the opinion of management, all adjustments, consisting
of normal recurring adjustments, considered necessary for a fair presentation
have been included. The results of operations for the three months and six
months ended June 30, 2003 are not necessarily indicative of the results that
will be achieved for the entire year.
These financial statements should be read in conjunction with the Annual
Report on Form 10-K for the fiscal year ended December 31, 2002.
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. Stock options
and warrants convertible into 768,720 and 863,720 shares of common stock at June
30, 2003 and December 31, 2002, respectively, were excluded from the diluted
loss per share calculation because their effects would have been anti-dilutive.
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.
2. GOING CONCERN CONSIDERATIONS
The Company is currently operating under the jurisdiction of Chapter 11 of
the Code and the Bankruptcy 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.
8
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO CONDENSED FINANCIAL STATEMENTS
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.
Under the Code, the rights of, and ultimate payments to pre-Petition 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 Chapter 11
Case, in general, or the effect of the Chapter 11 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 Petition Date will be resolved under a plan of reorganization in
accordance with the provisions of the Code. On August 6, 2003 we filed a Plan of
Reorganziation, however, there can be no assurance that the Plan will be
confirmed by the Bankruptcy Court and consummated.
The accompanying financial statements have been prepared assuming the
Company will continue as a going concern basis, 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 Chapter 11 Case, such
realization of assets and liquidation of liabilities are subject to a
significant number of uncertainties.
3. NOTES PAYABLE
Notes payable consisted of the following at June 30, 2003 and December 31,
2002:
Principal Balance
June 30, December 31,
2003 2002
------------ ------------
13% First Mortgage Notes, due March 15, 2005 $100,000,000 $100,000,000
Unsecured Claim to Hyatt (including rejection damage claim) 14,840,233 9,840,233
FF&E Note, interest at prime + 6.75% (11% at June 30, 2003) 17,680,006 17,680,006
Black Hawk Business Improvement Bonds, $975,000 at 6% interest,
due December 1, 2005 & $2,025,000 at 6.75% interest,
due December 1, 2011 2,670,482 2,784,121
------------ ------------
$135,190,721 $130,304,360
Less current maturities 135,190,721 130,304.360
------------ ------------
Long-term debt $ -- $ --
============ ============
All of the Company's long-term debt became immediately due and payable as a
result of the commencement of the Chapter 11 Case, accordingly, long-term debt
balances have been reclassified to current maturities.
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 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.
4. REORGANIZATION EXPENSES
Reorganization related expenses of $6,441,806 and 7,352,219 were incurred
during the three months and six months ended June 30, 2003, respectively. These
include 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. They also
include the $5 million dollar damage claim incurred with the rejection of the
Hyatt contract, costs incurred to re-brand the casino to the Mountain High
Casino, and the write off of the cost of Hyatt branded merchandise and operating
supplies.
9
5. 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 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
immediately prior to opening of our casino on December 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.
Legal Proceedings
The Company is involved in certain legal proceedings, claims and
litigation, including those described below. The results of legal proceedings
cannot be predicted with certainty. Management does not believe that the Company
has potential liability related to any current legal proceedings and claims that
would have material adverse effect on the Company's financial condition,
liquidity or results of operations.
For a complete list of Legal Proceedings see Item 1, Part II.
Environmental Issues
The Project is located in a 400-square mile area that has been designated
by the United States Environmental Protection Agency ("EPA") as the Clear
Creek/Central City National Priorities List Superfund Site under the
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"),
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
Project site as being within a priority area nor has it identified contamination
from the Project site to require remediation.
The Company has been informed that the Superfund Division of the Colorado
Department of Public Health and the Environment ("CDPHE"), 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. The Company has been informed that based on the results of those samples,
the EPA and the Colorado 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. Subsequent to these
initial concerns the Company placed an impervious cap over mine tailings in
Silver Gulch and continues to perform surface water monitoring.
The Project site could be among properties suspected of being a source of
contamination. If investigation or remediation of the Project site were
required, the Company could incur substantial expense.
NOTE 6. SUBSEQUENT EVENTS.
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. The Disclosure Statement is
filed to provide information of a kind and in sufficient detail to enable a
10
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
(DEBTOR-IN-POSSESSION AS OF NOVEMBER 7, 2002)
NOTES TO CONDENSED FINANCIAL STATEMENTS
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 final plan of reorganization confirmed by the Bankruptcy Court is
consistent with the Plan of Reorganization recently filed, it would result in
the following: (i) payment of the secured claim of the Black Hawk Business
Improvement District in accordance with the original terms of the pre-petition
obligations to the Black Hawk Business Improvement District; (ii) payment of the
allowed secured claim to PCL in accordance with the PCL settlement agreement;
See Part II, Item 1. Legal Proceedings; (iii) payment of the allowed secured
claim of the FF&E Lender in accordance with the FF&E settlement agreement and
subsequent agreement with the FF&E Lender; (v) restructuring of the allowed
secured claim of the First Mortgage Noteholders; (vi) payment in full in cash on
the effective date of all allowed administrative claims, allowed administrative
tax claims, allowed priority tax claims and allowed other priority claims (or
otherwise in accordance with agreements with such claimants); (vii) payment of
allowed unsecured claims in full plus interest over a period of not more than
seven years; (viii) assumption of certain contracts and leases and rejection of
other contracts and leases, including the warrants; and (ix) granting us the
power to administer the estate and distribute cash, cash equivalents, or
property to creditors.
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. The Plan and Disclosure Statement
may also be available electronically for a fee through the Bankruptcy Court's
website at www.cob.uscourts.gov. Upon Bankruptcy Court approval, we will file a
complete copy of the Plan and Disclosure Statement on a Form 8-K.
11
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
FORWARD-LOOKING STATEMENTS
Statements made in this Form 10-Q ("Quarterly Report") that are not
historical or current facts are forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934. 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 Quarterly Report are based on current expectations that involve
a number of risks and uncertainties. These forward-looking statements are based
on the following assumptions: a plan of reorganization is consistent with the
Plan of Reorganization recently filed by us will be approved by the Bankruptcy
Court, competitive and 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, 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 Quarterly Report.
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, 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 will hold 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. We
have added a new management team which includes a new General Manager, Assistant
General Manager, Director of Casino Operations and Director of Food & Beverage.
Each new member of the Mountain High Casino management team has significant
experience in the Black Hawk gaming market and our General Manager and Assistant
General Manager have casino turnaround experience in the Black Hawk gaming
market.
The following list includes some of the major operational improvements
that the new management team has implemented since taking over:
o 200 slot machines converted to new programs of the city of Black Hawk
market's most popular games
o the slot hold % on approximately 600 slot machines was lowered to
bring in line with the city of Black Hawk market average
o reconfigured the slot floor layout to improve flow and visibility
o created nine distinct themed slot areas
o created a VIP Players lounge on the casino floor
o introduced larger progressive jackpots to further attract higher
denomination players
o shifted focus of marketing programs to higher volume players
o added two poker tables and one black jack table to accommodate
increased number of players
o eliminated subsidized bus programs
o instituted in-town city shuttle service directly to the Casino for the
first time
12
o in process of securing lodging for VIP players through arrangement
with the Gold Dust Lodge (to be renamed the Mountain High Casino Inn)
located approximately two miles from the Casino
o instituted demand-based scheduling resulting in significant labor
efficiencies
o 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
o created a guest driven culture for management and front line employees
After executing a smooth operational and regulatory transition from prior
Hyatt management on May 13, the new Mountain High Casino management team
executed a record breaking Grand Opening weekend May 24 - 25. These days
generated the two highest daily totals of slot coin-in since the casino opened
on December 20, 2001, and began the process of re-positioning and re-branding
the Mountain High Casino from the Black Hawk Casino by Hyatt.
The following discussion should be read in conjunction with, and is
qualified in its entirety by, the condensed consolidated financial statements of
Windsor Woodmont Black Hawk Resort Corp., including the respective notes thereto
and other financial information included elsewhere in this report.
The following discussion should also be read in conjunction with the Annual
Report on Form 10-K for the fiscal year ended December 31, 2002.
Results of Operations
The following table sets forth certain summarized operating data for the periods
indicated.
Three Months Ended June 30,
---------------------------
2003 2002 Increase (Decrease)
----------- ----------- ----------------------
Net Revenues 13,931,228 16,401,127 (2,469,899) -15.1%
Total Operating Expenses 14,372,539 17,031,702 (2,659,163) -15.6%
----------- ----------- ----------- ------
Operating Income (Loss) (441,311) (630,575) 189,264
Add: Depreciation and Amortization 2,070,207 2,093,208 (23,001) -1.1%
----------- ----------- ----------- ------
EBITDA* 1,628,896 1,462,633 166,263 11.4%
=========== =========== =========== ======
EBITDA* Margin 11.7% 8.9% 2.8%
=========== =========== ===========
Six Months Ended June 30,
---------------------------
2003 2002 Increase (Decrease)
----------- ----------- ----------------------
Net Revenues 27,708,934 33,341,782 (5,632,848) -16.9%
Total Operating Expenses 29,062,119 34,046,303 (4,984,184) -14.6%
----------- ----------- ----------- ------
Operating Income (Loss) (1,353,185) (704,521) (648,664)
Add: Depreciation and Amortization 4,156,648 4,153,453 3,195 0.1%
----------- ----------- ----------- ------
EBITDA* 2,803,463 3,448,932 (645,469) -18.7%
=========== =========== =========== ======
EBITDA* Margin 10.1% 10.3% -0.2%
=========== =========== ===========
(1) EBITDA consists of earnings 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 revenues.
13
While the EBITDA margin for the three months ended June 30, 2003 was 11.7%,
the EBITDA margin for the month ended June 30, 2003, the first full month of
operations for the new management team, was 19.3% (compared to an EBITDA margin
of 9.9% for the month ended June 30, 2002).
Three Months Ended June 30, 2003 Compared to Three Months Ended June 30, 2002:
Total revenue for the quarter ended June 30, 2003 was $14,836,311,
$13,931,228 net of promotional allowances. This included $13,153,527 in casino
revenue, $1,450,802 in food and beverage revenue, and $231,982 of other revenue.
This compares to total revenue for the quarter ended June 30, 2002 of
$17,360,017, $16,401,127 net of promotional allowances. This included
$15,249,418 in casino revenue, $1,825,936 in food and beverage revenue, and
$284,663 of other revenue.
Casino operating expenses for the quarter ended June 30, 2003 totaled
$7,896,500, including $2,723,973 in state and local gaming taxes and device
fees. This compares to casino operating expenses for the quarter ended June 30,
2002 totaling $9,111,228, including $3,197,023 in state and local gaming taxes
and device fees. The decrease is primarily due to reduced payroll and benefit
costs, to reduced gaming taxes, and reduced rental expense associated with slot
games operated under fee participation agreements. 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 quarter ended June 30, 2003 totaled
$1,400,957, including $813,520 in cost of goods sold. This compares to Food and
beverage expenses for the quarter ended June 30, 2002 totaling $2,018,258,
including $1,240,448 in cost of goods sold. The decrease is primarily due to
reduced payroll and benefit costs and 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 quarter ended June 30, 2003 totaled
$275,072 versus $511,464 for the quarter ended June 30, 2002, and consists of
salaries, wages and benefits, contract entertainment expense, and other
operating expenses. The decrease is primarily due to reduced payroll and benefit
costs and reduced expenditures related to contract entertainment.
General and administrative expenses for the quarter ended June 30, 2003
totaled $2,528,278 versus $2,741,917 for the quarter ended June 30, 2002, and
consists of salaries, wages and benefits, utilities, insurance, property taxes,
contract services, maintenance and repairs, cleaning supplies, and other
operating expenses. The net reduction is due to decreases in payroll and benefit
costs and in contract services costs, partially offset by increases in property
taxes.
Depreciation and amortization expense for the quarter ended June 30, 2003
totaled $2,070,207 versus $2,093,208 for the quarter ended June 30, 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 quarter ended June 30, 2003 totaled $611,307,
including $59,248 in amortization of debt issuance costs. This compares to
interest expense for the quarter ended June 30, 2002, which totaled $4,775,818,
including $416,845 in amortization of debt issuance costs. 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 expenses for the quarter ended June 30, 2003 totaled
$6,441,806. 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, and it includes the write off of Hyatt branded supplies, which
can no longer be used in operations. There were no similar costs during the
quarter ended June 30, 2002.
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.
14
Six Months Ended June 30, 2003 Compared to Six Months Ended June 30, 2002:
Total revenue for the six months ended June 30, 2003 was $29,675,215,
$27,708,934 net of promotional allowances. This included $26,118,361 in casino
revenue, $3,081,125 in food and beverage revenue, and $475,729 of other revenue.
This compares to total revenue for the six months ended June 30, 2002 of
$35,043,353, $33,341,782 net of promotional allowances. This included
$31,081,029 in casino revenue, $3,482,834 in food and beverage revenue, and
$479,490 of other revenue.
Casino operating expenses for the six months ended June 30, 2003 totaled
$15,941,721, including $5,450,430 in state and local gaming taxes and device
fees. This compares to casino operating expenses for the six months ended June
30, 2002 totaling $18,423,177, including $6,580,990 in state and local gaming
taxes and device fees. The decrease is primarily due to reduced payroll and
benefit costs, reduced gaming taxes, and reduced rental expense associated with
slot games operated under fee participation agreements. 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 six months ended June 30, 2003 totaled
$2,741,293, including $1,613,526 in cost of goods sold. This compares to Food
and beverage expenses for the six months ended June 30, 2002 totaling
$3,748,369, including $2,224,373 in cost of goods sold. The decrease is
primarily due to reduced payroll and benefit costs and 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 six months ended June 30, 2003 totaled
$579,607 versus $994,397 for the six months ended June 30, 2002, and consists of
salaries, wages and benefits, contract entertainment expense, and other
operating expenses. The decrease is primarily due to reduced payroll and benefit
costs and reduced expenditures related to contract entertainment.
General and administrative expenses for the six months ended June 30, 2003
totaled $4,963,688 versus $5,589,584 for the six months ended June 30, 2002, and
consists of salaries, wages and benefits, utilities, insurance, property taxes,
contract services, maintenance and repairs, cleaning supplies, and other
operating expenses. The net reduction is due to decreases in payroll and benefit
costs and in contract services costs, partially offset by increases in property
taxes.
Depreciation and amortization expense for the six months ended June 30,
2003 totaled $4,156,648 versus $4,153,453 for the six months ended June 30,
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 six months ended June 30, 2003 totaled $1,232,960,
including $118,345 in amortization of debt issuance costs. This compares to
interest expense for the six months ended June 30, 2002, which totaled
$9,594,411, including $830,850 in amortization of debt issuance costs. 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 expenses for the six months ended June 30, 2003 totaled
$7,352,219. 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. There were no similar costs during the quarter ended June 30,
2002.
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.
Liquidity and Capital Resources
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
15
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 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 receives the
requisite acceptance by creditors and equity holders and 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 has been developed and is confirmed by the Bankruptcy
Court in the Chapter 11 Case.
After a plan of reorganization is confirmed by the Bankruptcy Court, we
estimate that cash flow from operations will be sufficient to sustain our
operations during the next fiscal year. We cannot assure you that any financing,
if necessary to meet liquidity requirements, will be available to us in the
future, or that, if available, any such financing will be on favorable terms. 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.
Item 3. Qualitative and Qualitative Disclosures about Market Risk
Not Applicable.
Item 4. Controls and Procedures
An evaluation was conducted under the supervision and with the
participation of the Company's management, including the Chief Executive Officer
(CEO) and Chief Financial Officer (CFO), of the effectiveness of the design and
operation of the Company's disclosure controls and procedures as of June 30,
2003. Based on that evaluation, the CEO and CFO 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 Securities Exchange Act of 1934, as amended, is recorded, processed,
summarized and reported within the time periods specified in Securities and
Exchange Commission rules and forms. Such officers also confirm that there was
no change in the Company's internal control over financial reporting during the
quarter ended June 30, 2003 that has materially affected, or is reasonably
likely to materially affect, the Company's internal control over financial
reporting.
16
PART II. OTHER INFORMATION
Item 1. 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, all
legal proceedings are stayed.
Paul, Hastings, Janofsky & Walker claim for legal fees. Paul, Hastings,
Janofsky & Walker (Paul Hastings) is the Los Angeles and New York based law firm
which acted as issuer's counsel for the Company in securing financing for the
Company's casino project in Black Hawk, Colorado. The approximately $110 million
in financing closed in March, 2000. The Company paid Paul Hastings a total of
$800,000 in legal fees and costs in conjunction with providing services as
issuer's counsel, including $700,000 disbursed to Paul Hastings from the closing
of the financing in March, 2000. After March, 2000, Paul Hastings submitted
additional billing statements to the Company, made several threatening
communications to the Company, and ultimately filed litigation against the
Company in California state courts in Los Angeles County in June, 2001. Paul
Hastings claimed that it was owed an additional approximately $470,000 in fees
for legal services, approximately one-half of which is allegedly based upon
services rendered on an hourly fee basis, and the other half of which
constitutes "bonus" which Paul Hastings alleges is due as a result of the
closing of the financing. The Company believed that it overpaid Paul Hastings
for the services rendered. The matter was scheduled for trial in October, 2002
in Los Angeles, but was settled at a mediation in Denver in May, 2002. The
Company agreed to pay Paul Hastings an additional $150,000, $50,000 of which was
paid in May, 2002 with the balance of $100,000 due in December, 2002. The
$100,000 payment has not been made and Paul Hastings will be treated as an
unsecured creditor in the Chapter 11 proceeding.
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. We do not anticipate that there will be any financial exposure
to the Company with respect to this claim, however, similarly situate claimants
have raised issues in the past with other property owners in the Black Hawk area
which have had the effect of temporarily clouding title and have resulted in
property owner's and/or title insurance company's entering into financial
settlements with the claimant in order to eliminate the alleged "clouds" on
title. The Company fully expects that this claim will be resolved by and at the
expense of First American Title.
The Colorado Limited Gaming Control Commission (the Commission) approved
the issuance of the appropriate and necessary gaming licenses for operation of
the Black Hawk Casino by Hyatt to the Company and Hyatt Gaming Management, Inc.
on September 20, 2001. The licenses were physically issued to the Company and
Hyatt immediately prior to opening of the casino on December 20, 2001. In the
meantime, in October 2001, GF Gaming, a gaming company operating a casino in
Central City, Colorado, filed an appeal with the Commission challenging the
issuance of the licenses to the Company and Hyatt, ostensibly on the grounds
that the Commission had failed to consider whether the casino facility met the
historic architectural intent of the Colorado gaming laws. The Company and Hyatt
requested that the appeal be dismissed for several reasons, including that GF
Gaming lacked standing and that the Commission lacked jurisdiction over
architectural compliance issues (those issues being within the exclusive
province of the municipalities in which limited gaming is permitted). In
December, 2001, the Commission dismissed the appeal based upon lack of standing
and lack of jurisdiction. In February, 2002, GF Gaming filed a notice of appeal
continuing its challenge with the Colorado Court of Appeals. All parties have
filed all required briefs with the Court of Appeals, but a decision by the Court
of Appeals was stayed by the Chapter 11 filing. All parties to this case filed a
stipulated motion with the bankruptcy court to lift the automatic stay on this
proceeding and to allow its final adjudication by the state court system, and
the Bankruptcy Court entered an order lifting the automatic stay in April 2003.
On August 14, 2003, the Colorado Court of Appeals issued its written opinion
affirming the Order of the Colorado Limited Gaming Control Commission and
denying the challenge to the Company's gaming license. There is the possibility
that GF Gaming may attempt to further appeal this matter to the Colorado Supreme
Court.
17
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 to 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 dispute
resolution process contemplated by this Agreement has been stayed. 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. A mediation between the Company
and Steelman has been set for September 22, 2003.
Item 2. Changes in Securities and Use of Proceeds
Not Applicable.
Item 3. Defaults Upon Senior Securities
Not Applicable.
Item 4. Submission of Matters to a Vote of Security Holders
Not Applicable.
Item 5. Other Information
Not Applicable.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits
31.1 Certification of Chief Executive Officer of Periodic Report
Pursuant to Rule 13a-14(a) and Rule 15d-14(a).
31.2 Certification of Chief Financial Officer of Periodic Report
Pursuant to Rule 13a-14(a) and Rule 15d-14(a).
32.1. Certification Pursuant to 18 U.S.C. 1350 as adopted pursuant
to Section 906 of the Sarbanes-Oxley Act of 2002.
(b) Form 8-K
None.
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SIGNATURES
Pursuant to the requirements 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.
Date: August 14, 2003
WINDSOR WOODMONT BLACK HAWK RESORT CORP.
/s/ Jerry L. Dauderman
----------------------
Jerry L. Dauderman, Chairman and Chief
Executive Officer
/s/ Michael L. Armstrong
------------------------
Michael L. Armstrong, Executive Vice
President, Chief Financial Officer,
Treasurer and Secretary
19