Exhibit 10.27
ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into as of this 29th day of
March, 2000, by and between the CITY OF BLACK HAWK, COLORADO (the "City"),
WINDSOR WOODMONT BLACK HAWK RESORT CORP., a Colorado corporation (the
"Developer"), and NORWEST BANK MINNESOTA, N.A. (the "Escrow Agent").
R E C I T A L S:
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A. The City and Developer have entered into a Site Improvement Agreement
pursuant to Section 18-241(3) of the City of Black Hawk Municipal Code.
B. Pursuant to paragraph 2 of the Site Improvement Agreement and Section
18-241(3) of the City of Black Hawk Municipal Code, the Developer is required to
provide Completion Funds to the City in the amount of Five Million Seven Hundred
Ninety-four Thousand Five Hundred Twenty-two and 80/100 Dollars ($5,794,522.80),
which amount constitutes 110% of the amount necessary to complete the Excavation
Project which is the subject matter of the Site Improvement Agreement.
C. The Completion Funds are to be held in escrow for the benefit of the
City to be utilized and disbursed pursuant to the terms of this Escrow
Agreement.
D. The Escrow Agent has agreed to hold the funds in escrow, as provided in
the Site Improvement Agreement and pursuant to this Escrow Agreement.
NOW, THEREFORE, in consideration of the above Recitals, which are a
material part of this Agreement, and the mutual promises and covenants
hereinafter set forth, the parties hereto agree as follows:
1. The Developer has deposited the sum of Five Million Seven Hundred
Ninety-four Thousand Five Hundred Twenty-two and 80/100 Dollars ($5,794,522.80)
(the "Completion Funds") in Account No. ▇▇▇▇▇▇▇▇, at Norwest Bank Minnesota,
N.A. (the "Escrow Account"), to be held in the name of Escrow Agent for the use
and benefit of the Developer and the City, pursuant to the terms set forth
below.
2. The Completion Funds are to be used solely and exclusively for the
completion of an excavation project to be performed by ▇.▇. ▇▇▇▇▇▇▇▇ & Sons,
Inc. (the "Excavation Contractor") for the Developer on a development project in
the City commonly known and referred to as Black Hawk Casino by Hyatt. The
Excavation Contractor and Developer have entered into the Standard Form of
Agreement between Owner and Contractor dated May 14, 1998, as amended by an
Amendment dated June 15, 1998 and by a Second Amendment dated December 31, 1999
(collectively the "Excavation Contract"). The Excavation Contract is
incorporated herein by reference.
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3. The Escrow Agent is directed and authorized to disburse the Completion
Funds from the Escrow Account to the Excavation Contractor upon the satisfaction
of the following requirements:
(A) Receipt of an Application for Payment from the Excavation
Contractor (which Application shall be made no more than once per month and
shall be tied to progress toward completion of the excavation project, as
identified in the Application), approved for payment by the Developer, and RE
Tech & Incorporated, as the Independent Construction Consultant (the AICC@),
pursuant to that certain Cash Collateral and Disbursement Agreement among Sun
Trust Bank, Hyatt Gaming Management, Inc., First American Heritage Title
Company, RE Tech & Incorporated, and Developer dated as of March 14, 2000 (the
ACCDA@); and
(B) Written acknowledgment from the Development Coordinator of the
City that the Application for Payment may be paid. The City's affirmation shall
not constitute approval by the City of the Excavation Project, or any portion
thereof.
4. Upon approval of an Application for Payment from the Excavation
Contractor by the Developer, Developer shall provide a complete copy of the
Application for Payment to the City together with written notice that the
Developer has approved the same. Upon receipt of the Application for Payment and
Developer=s notice of approval, the City shall have five (5) business days
within which to provide the acknowledgment referenced in paragraph 3(B) above to
the Escrow Agent. Such acknowledgment shall not be unreasonably denied or
withheld by the City.
5. Upon completion of the Excavation Contract by the Developer, as provided
in Section 18-254 of the City of Black Hawk Municipal Code, Escrow Agent shall
be jointly directed and authorized by the City and the Developer to return all
undisbursed Completion Funds then remaining in the Escrow Account to the
Developer. Such funds shall be transferred by Escrow Agent to, and deposited in
the Construction Disbursement Accounts under the CCDA.
6. Notwithstanding any provision herein to the contrary, in the event work
is stopped on the Excavation Contract, for a period of ten (10) consecutive days
or more, other than for a demonstrated force majeure, the Escrow Agent is
authorized and directed to, and the Escrow Agent shall disburse then remaining
Completion Funds from the Escrow Account to the City, upon demand by the City,
pursuant to paragraph 3 of the Site Improvement Agreement. The form of
instruction to be provided by the City to the Escrow Agent is attached hereto
and incorporated herein as Exhibit A.
7. The Escrow Agent shall not make any disbursement of Completion Funds to
the Excavation Contractor pursuant to paragraph 3 above unless and until all
conditions to such disbursement under Section 9.2 of the CCDA have been
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fulfilled, and such disbursement shall be subject to all the conditions and
requirements of a disbursement out of the Construction Disbursement Accounts
under the CCDA.
8. All notices required under this Escrow Agreement shall be in writing and
shall be hand delivered or sent by registered or certified mail, return receipt
requested, postage prepaid, to the addresses of the parties herein set forth.
All notices to be given shall be considered effective upon hand delivery or 72
hours after deposit in the United States Mail (in the event of mailed notice, it
shall also be sent by facsimile transmission to the numbers set forth below,
with confirmed receipt). Either party by notice so given may change the address
to which future notices shall be sent.
Notice to the City:
Development Coordinator
City of Black Hawk
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Black Hawk City Attorney
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notice to Developer:
Windsor Woodmont Black Hawk Resort Corp.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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With a copy to:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Notice to Escrow Agent:
Norwest Bank Minnesota, N.A.
Master Trust and Custody
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
9. The laws of the state of Colorado shall govern the validity, performance
and enforcement of this Escrow Agreement. Should any party institute legal suit
or action for enforcement of any obligation contained herein, it is agreed that
venue of such suit or action shall be in ▇▇▇▇▇▇ County, Colorado.
10. Developer shall be responsible for payment of all fees and expenses of
Escrow Agent, pursuant to the schedule attached hereto and incorporated herein
as Exhibit B.
IN WITNESS WHEREOF, the parties have set their hands and seals as of the
date and year first above written.
CITY OF BLACK HAWK, COLORADO
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Mayor
ATTEST:
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, CMC,
City Clerk
APPROVED AS TO FORM:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
City Attorney
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WINDSOR WOODMONT BLACK HAWK
RESORT CORP.
BY: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇,
President
STATE OF Colorado )
) SS.
COUNTY OF Jefferson)
The foregoing instrument was acknowledged before me this 29th day of March,
2000 by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, as President of Windsor Woodmont Black Hawk Resort
Corp., a Colorado corporation.
My commission expires: 4/12/2004
WITNESS my hand and official seal.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Notary Public
NORWEST BANK MINNESOTA, N.A.
BY: /s/ ▇▇▇▇ ▇. Lake
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▇▇▇▇ ▇. Lake
Assistant Vice President
STATE OF Nevada)
) SS.
COUNTY OF ▇▇▇▇▇)
The foregoing instrument was acknowledged before me this 29th day of March,
2000 by /s/ ▇▇▇▇ ▇. Lake as Assistant Vice President of Norwest Bank Minnesota,
N.A.
My commission expires:
WITNESS my hand and official seal.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇
Notary Public
EXHIBIT A
FORM OF INSTRUCTION TO ESCROW AGENT
The undersigned a duly authorized representative of the CITY OF BLACK HAWK
COLORADO (the "City"), hereby instructs Norwest Bank of Minnesota (the "Escrow
Agent") with reference to Paragraph 6 of the Escrow Agreement, a copy of which
is attached hereto, to disburse the remaining Completion Funds from the Escrow
Account to the City of Black Hawk.
IN WITNESS WHEREOF, City has extended and delivered this Instruction to the
Escrow Agent as of the day of , 2000.
CITY OF BLACK HAWK, COLORADO
By:
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Name
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Title
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EXHIBIT B
WINDSOR WOODMONT BLACK HAWK RESORT CORPORATION
CITY OF BLACK HAWK
ESCROE FEE SHCEDULE
ACCEPTANCE FEE: $1,500.00
For initial services including examination of the Escrow Agreement and all
supporting documents. This is a one-time fee payable upon the opening of the
account.
ADMINISTRATION FEE: $1,500.00
An annual charge or any portion of a 12-month period thereof. This fee is
payable upon the opening of the account and annually thereafter. This charge is
not prorated for the first year.
All balances will be maintained in Well Fargo Stagecoach Money Market Funds.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aformentioned, a special per
hour charge will be made to commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports
and record-keeping, unusual certification, etc.
Fee schedule is in effect 3/22/00 through 12/31/2002.
Windsor Woodmont Black Hawk Resort Corporation
By:
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Its
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Date
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Norwest Bank Minnesota, N. A.
By: /s/ ▇▇▇▇ ▇. Lake
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▇▇▇▇ ▇. Lake
Assistant Vice President
Date
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