Exhibit 10.29
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "Agreement") is entered into this 28th day of
March, 2000, by X. X. Xxxxxxxx & Sons, Inc., a Minnesota corporation
("Xxxxxxxx"); Windsor Woodmont Black Hawk Resort Corp., a Colorado corporation
("WW"); and Norwest Bank Minnesota, N.A. ("Escrow Agent") (the above are at
times referred to herein collectively as the "Parties"), and is effective upon
execution and delivery by the Parties.
RECITALS
X. Xxxxxxxx and Windsor Woodmont, L.L.C., as WW's predecesor-in-interest
("WW LLC"), entered into that certain: (i) Standard Form of Agreement Between
Owner and Contractor (AIA Document A101/CMa), dated May 14, 1998, (ii)
Supplement to AIA Document A101/CMa Standard Form of Agreement Between Owner and
Contractor, dated May 14, 1998, (iii) Amendment, dated June 15, 1998, and (iv)
Second Amendment to Standard Form of Agreement Between Owner and Contractor,
dated December 31, 1999 (collectively, the "Contract").
X. Xxxxxxxx and WW LLC have entered into that certain Settlement Agreement
dated January 31, 2000, with respect to the Contract (the "Settlement
Agreement").
C. WW LLC assigned all of its right, title and interest in and to the
Contract and the Settlement Agreement to WW pursuant to that certain General
Assignment, dated as of March 14, 2000.
D. This Agreement is entered into pursuant to paragraph 1 of the Settlement
Agreement pursuant to which WW is required to deposit the amount of $877,995.00
into escrow to secure payment to Xxxxxxxx of Xxxxxxxx'x final payment request
under the Contract.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
1. Appointment of Escrow Agent. Pursuant to the Settlement Agreement, WW
and Xxxxxxxx hereby appoint the Escrow Agent as escrow agent to establish an
escrow for the benefit of Xxxxxxxx (the "Escrow") and to accept and deposit into
the Escrow, and distribute amounts from the Escrow, for the benefit of WW and
Xxxxxxxx, pursuant to the terms and conditions of this Escrow Agreement.
2. Amounts to be Deposited. WW shall deliver to the Escrow Agent, and the
Escrow Agent shall deposit into the Escrow, the amount of $877,995.00 (which
amount, together with all interest thereon, is referred to herein as the "Escrow
Funds"), to be held in the Escrow for the benefit of WW and Xxxxxxxx and
disbursed by the Escrow Agent pursuant to the terms of this Agreement.
4. Disbursement of Escrow Funds.
(a) WW and Xxxxxxxx agree that the Escrow Agent is hereby authorized and
directed to disburse the Escrow Funds upon receipt of written notice from Xxxxx
X. Xxxxxxxx, Xx. - Vice President - General Counsel of Xxxxxxxx in the form of
"Exhibit A" attached hereto and made a part hereof (a "Letter of Direction"),
together with a mechanics lien waiver as set forth in Paragraph 4(c).
(b) Xxxxxxxx agrees that it will issue a Letter of Direction to the
Escrow Agent directing the Escrow Agent to disburse all or a portion of the
Escrow Funds from the Escrow if, and only if, (i) Xxxxxxxx has submitted a
complete Application for Payment to WW pursuant to paragraph 11 of the Second
Amendment to the Contract, (ii) Xxxxxxxx has not received a written notice from
2
WW contesting the amount of the payment due under the applicable Application for
Payment (the "Delinquent Payment") on or prior to the due date as provided under
paragraph 11 of the Second Amendment to the Contract, (iii) Xxxxxxxx has
provided written notice to WW that Xxxxxxxx has not received the Delinquent
Payment (a "Non-Payment Notice"), and (iv) Xxxxxxxx has not received the
Delinquent Payment within five (5) business days after delivery of the
Non-Payment Notice to WW. Notwithstanding the foregoing, the Letter of Direction
shall not request any Escrow Funds in excess of the amount of the Delinquent
Payment.
(c) Xxxxxxxx shall deliver a mechanic's lien waiver to WW waiving any
lien rights for the work performed as set forth in the Application for Payment
and in an amount equivalent to the Delinquent Payment or the total Escrow Funds,
whichever is less, as a condition to the disbursement of the Escrow Funds
pursuant to the Letter of Direction.
(d) In addition to all other remedies available to Xxxxxxxx under the
Contract, Xxxxxxxx shall have the right to demand that prior to resuming work
under the Contract, WW shall replenish the funds in the Escrow in the event any
disbursement from the Escrow occurs.
(e) Xxxxxxxx agrees that at the time Xxxxxxxx receives final payment
under the Contract, it shall immediately issue a Letter of Direction to the
Escrow Agent in the form of Exhibit B attached hereto and made a part hereof,
that it has received final payment and the Escrow Agent shall, thereupon,
promptly remit to WW any remaining escrow account funds.
(f) WW has issued that certain Notice To Proceed under the Contract to
Xxxxxxxx which Notice to Proceed shall be deemed effective as of the date that
funding of the Escrow occurs and accepted by Xxxxxxxx upon Escrow Agent's
confirmation of funding of the Escrow. The Parties agree that Xxxxxxxx may draw
upon the Escrow Funds to cover any mobilization expenses and costs reasonably
3
incurred by Xxxxxxxx in the event an unconditional Bench Excavation Permit is
not issued by the City of Black Hawk.
(g) Nothing in this Agreement shall modify in any way Xxxxxxxx or WW's
rights or obligations under the Contract.
5. Exculpation and Indemnification of Escrow Agent.
(a) WW and Xxxxxxxx agree that absent any negligence or willful
misconduct on the part of the Escrow Agent or any of its officers, employees or
agents, WW and Xxxxxxxx shall indemnify and hold harmless the Escrow Agent from
any liability pursuant to this Agreement.
(b) The Escrow Agent shall not be required to resolve any dispute which
may arise between Xxxxxxxx and WW. In the event of a dispute, the Escrow Agent
shall have the right to deposit the Escrow Funds with the District Court of
Jefferson County, Colorado, and the Parties shall subject themselves to
jurisdiction in such court. The Escrow Agent may assume the sufficiency and
adequacy of any written directions received or given by Xxxxxxxx hereunder,
provided they comply with the requirements specifically set forth herein, and
the Escrow Agent may rely in good faith upon the advice of counsel in taking or
omitting to take any action under this Agreement.
6. Ownership of Amounts in Escrow. While the Escrow Agent holds the Escrow
Funds in the Escrow, WW shall be deemed to be the beneficial owner of such
Escrow Funds. The Escrow Funds will be invested by Escrow Agent in Xxxxx Fargo
Stagecoach 100% Treasury Fund, and all interest earned thereon shall remain in
the Escrow.
7. Expenses. Any and all fees and expenses of the Escrow Agent incurred
under and in connection with this Agreement shall be paid by WW, pursuant to the
fee schedule attached hereto as Schedule A and incorporated herein.
4
8. Information. The Escrow Agent, upon request by any of the Parties, shall
provide any and all information concerning the Escrow Funds so requested by such
Parties. Escrow Agent shall send any statements to the Parties upon request at
the address set forth below.
9. Miscellaneous.
(a) Governing Law. This Agreement and all documents executed and
delivered hereunder shall be construed in accordance with the laws of the State
of Colorado.
(b) Amendment. No provision of this Agreement shall be altered, amended,
revoked or waived, except in writing signed by all of the Parties.
(c) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective heirs,
successors and assigns.
(d) Jurisdiction. In the event suit or action is instituted on account
of the breach of this Agreement by any of the Parties, the District Court of
Jefferson County, Colorado shall have the exclusive jurisdiction to adjudicate
any such dispute.
(e) Notices. All notices and other communications required or permitted
to be given or made under this Agreement shall be in writing and shall be deemed
to have been duly given and received, regardless of when and whether received,
either (a) on the day of hand delivery; (b) on the date of confirmation of
receipt of electronic facsimile transmission; or (c) on the third day after
sent, when sent by United States certified mail, postage and certification fee
prepaid, return receipt requested, addressed as follows:
If to Xxxxxxxx: Xxxxx X. Xxxxxxxx, Xx., Esq.
X. X. Xxxxxxxx & Sons, Inc.
000 Xxxxxx Xx. 00
Xxxx, XX 00000-0000
Fax: (000) 000-0000
5
with a copy to: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx Xxxxxxxxx Xxxxxxxx Xxxxxxxx, LLC
0000 Xxxxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Fax: (000) 000-0000
If to WW: Mr. Xxxxxxx Xxxxxxxxx
0000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxxxx, Esq.
Xxxxxx, Xxxxxxxxx & Xxxx, P.C.
Denver Xxxx Xxxxxx Xxxx
Xxxxx 000, Xxxxxxxx 00
0000 Xxxx Xxxx.
Xxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to: SunTrust Bank
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
with a copy to: Hyatt Gaming Management, Inc.
Madison Plaza, 39th Floor
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
If to Escrow Agent: Norwest Bank Minnesota, N.A.
Master Trust & Custody
0000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, Xxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx
Fax: (000) 000-0000
or at such other address as the specified entity most recently may have
designated in writing in accordance with this paragraph to the others. Any
notice to the Escrow Agent under this Agreement shall be deemed effective only
upon receipt.
6
(f) Entire Agreement. This Agreement and the agreements referenced
herein contains the entire agreement among the Parties with respect to the
subject matter hereof and supersedes any and all prior agreements,
understandings and commitments, whether oral or written. This Agreement may be
amended only by a writing signed by duly authorized representatives of all
Parties.
(g) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed an original and all of which together shall constitute
one and the same agreement. For purposes of this Agreement, the Parties agree to
exchange signatures by facsimile and to treat such signatures as originals, and
then to exchange promptly thereafter manually executed originals of this
Agreement.
X. X. XXXXXXXX & SONS, INC., WINDSOR WOODMONT BLACK
a Minnesota corporation HAWK RESORT CORP., a Colorado
corporation
By: /s/ Xxxxx X. Xxxxxxxx, Xx. By: /s/ Xxxxxxx Xxxxxxxxx
---------------------------------- ------------------------------
Xxxxx X. Xxxxxxxx, Xx. Xxxxxxx Xxxxxxxxx
Vice President and General Chief Financial Officer
Counsel
NORWEST BANK MINNESOTA, N.A.
By: /s/ Xxxx X. Lake
----------------------------------
Xxxx X. Lake
Assistant Vice President
7
Exhibit A
---------
Letter of Direction for Disbursement to Xxxxxxxx
------------------------------------------------
[Date]
Norwest Bank Minnesota, N.A.
0000 X. Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
SunTrust Bank, as Trustee
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Hyatt Gaming Management, Inc.
Madison Plaza, 39th Floor
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Re: Windsor Woodmont Black Hawk Resort Corp.
----------------------------------------
Ladies and Gentlemen:
This letter of direction ("Letter of Direction") is delivered to you
pursuant to that certain Escrow Agreement, dated as of March 28, 2000 (the
"Escrow Agreement"), by and among X. X. Xxxxxxxx & Sons, Inc., a Minnesota
corporation ("Xxxxxxxx") and Windsor Woodmont Black Hawk Resort Corp., a
Colorado corporation (the "WW"), and Norwest Bank Minnesota, N.A., a national
banking association ("Escrow Agent"). All initial capitalized terms used, but
not defined, herein shall have the meanings set forth in the Escrow Agreement.
Xxxxxxxx hereby represents, warrants and certifies to each of you as
follows:
1. Xxxxxxxx has (i) submitted a complete Application for Payment to WW
pursuant to paragraph 11 of the Second Amendment to the Contract.
2. Xxxxxxxx has not received a written notice from WW contesting the
amount of the payment due under the applicable Application for Payment (the
"Delinquent Payment") on or prior to the due date as provided under paragraph 11
of the Second Amendment to the Contract.
3. Xxxxxxxx has provided a Non-Payment Notice notice to WW that Xxxxxxxx
has not received the Delinquent Payment.
A-1
4. Xxxxxxxx has not received the Delinquent Payment within five (5)
business days after delivery of the Non-Payment Notice to WW.
5. Blatter is entitled to receive a disbursement of, and Xxxxxxxx hereby
directs the Company to disburse to Xxxxxxxx pursuant to the wire instructions or
other method of delivery requested by Xxxxxxxx, Escrow Funds from the Escrow in
respect of the Delinquent Payment in the amount of ____________________ Dollars
($__________).
6. This Letter of Direction shall be binding upon Xxxxxxxx, and inure to
the benefit of each of you.
7. Xxxxxxxx acknowledges and agrees that each of the parties to the
Escrow Agreement are entitled to rely on the foregoing certifications in
authorizing and making the disbursement of the Escrow Funds thereunder, and
performing their respective obligations thereunder.
X. X. Xxxxxxxx & Sons, Inc.
By:
Name:
Title:
A-2
Exhibit B
---------
Letter of Direction for Disbursement to WW
------------------------------------------
[Date]
Norwest Bank Minnesota, N.A.
0000 X. Xxxxxx, 0xx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Xx. Xxxxxx X. Xxxxx
SunTrust Bank, as Trustee
000 Xxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxx
Xxxxx Gaming Management, Inc.
Madison Plaza, 39th Floor
000 X. Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Re: Windsor Woodmont Black Hawk Resort Corp.
----------------------------------------------
Ladies and Gentlemen:
This letter of direction ("Letter of Direction") is delivered to you
pursuant to that certain Escrow Agreement, dated as of March 28, 2000 (the
"Escrow Agreement"), by and among X. X. Xxxxxxxx & Sons, Inc., a Minnesota
corporation ("Xxxxxxxx") and Windsor Woodmont Black Hawk Resort Corp., a
Colorado corporation (the "WW"), and Norwest Bank Minnesota, N.A., a national
banking association ("Escrow Agent"). All initial capitalized terms used, but
not defined, herein shall have the meanings set forth in the Escrow Agreement.
Xxxxxxxx hereby represents, warrants and certifies to each of you as
follows:
1. WW is entitled to receive a disbursement of, and Xxxxxxxx hereby
directs the Company to disburse to WW, all remaining Escrow Funds from the
Escrow, and to terminate the Escrow.
2. This Letter of Direction shall be binding upon Xxxxxxxx, and inure to
the benefit of each of you.
3. Xxxxxxxx acknowledges and agrees that each of the parties to the
Escrow Agreement are entitled to rely on the foregoing certifications in
authorizing and making the disbursement of the Escrow Funds thereunder, and
performing their respective obligations thereunder.
B-1
X. X. Xxxxxxxx & Sons, Inc.
By:
Name:
Title:
B-2
Schedule A
WINDSOR WOODMONT BLACK HAWK RESORT CORPORATION
X.X. XXXXXXXX & SONS, INC.
ESCROE FEE SHCEDULE
ACCEPTANCE FEE: $1,500.00
For initial services including examination of the Escrow Agreement and all
supporting documents. This is a one-time fee 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:
--------------------------------
Its
----------------------------
Date
-------------------------------
Norwest Bank Minnesota, N. A.
By: /s/ Xxxx X. Lake
--------------------------------
Xxxx X. Lake
Assistant Vice President
Date
-------------------------------
