Exhibit 4.2
FORM OF NOTE
[Face of Note]
--------------------------------------------------------------------------------
This instrument has been issued with original issue discount, as such term is
defined in Section 1271 et seq. of the Internal Revenue Code of 1986, as
amended. Upon inquiry made by any holder hereof, addressed to Windsor Woodmont
Black Hawk Resort Corp. (the "Company") at 00000 Xxxxx Xxxxxx Xxxx, Xxxxx 000,
Xxxxxx, Xxxxx 00000, Attention Xxxxxxx Xxxxxxxxx, the Company will provide a
statement setting forth the issue price, the amount of original issue discount,
the issue date and the yield to maturity with respect to the instrument held by
such holder.
This instrument is subject to the terms of a Intercreditor Subordination and
Collateral Agreement dated as of March 14, 2000, between SunTrust Bank, as
trustee, Hyatt Gaming Management, Inc. and the Company (as amended in accordance
with its terms) which is incorporated herein by reference. Notwithstanding any
statement to the contrary contained in this instrument, no payment on account of
the obligations hereunder, whether of principal or interest or otherwise, shall
be made, paid, received or accepted except in accordance with the express terms
of the Intercreditor Subordination and Collateral Agreement.
CUSIP/CINS ____________
13% [Series B] First Mortgage Notes due 2005
No. ___ $____________
Windsor Woodmont Black Hawk Resort Corp.
promises to pay to _____________________________________________________________
or registered assigns,
the principal sum of ___________________________________________________________
Dollars on March 15, 2005.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Dated: March , 2000
Windsor Woodmont Black Hawk Resort Corp.
By:_____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
SunTrust Bank,
as Trustee
By: __________________________________
Authorized Signatory
================================================================================
1
[Back of Note]
13% [Series B] First Mortgage Notes due 2005
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the Private Placement Legend, if applicable pursuant to the provisions
of the Indenture]
[Insert the Unit Legend, if applicable pursuant to the provisions of the
Indenture]
[Insert the following legend if Regulation S Temporary Global Note:
THE RIGHTS ATTACHING TO THIS REGULATION S TEMPORARY GLOBAL NOTE, AND THE
CONDITIONS AND PROCEDURES GOVERNING ITS EXCHANGE FOR CERTIFICATED NOTES, ARE AS
SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). NEITHER THE HOLDER NOR THE
BENEFICIAL OWNERS OF THIS REGULATION S TEMPORARY GLOBAL NOTE SHALL BE ENTITLED
TO RECEIVE PAYMENT OF INTEREST HEREON.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS
CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (00 XXXXX XXXXXX, XXX XXXX, XXX XXXX) ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
Capitalized terms used herein shall have the meanings assigned to them in
the Indenture referred to below unless otherwise indicated.
1. Interest. Windsor Woodmont Black Hawk Resort Corp., a Colorado
corporation (the "Company"), promises to pay interest on the principal amount of
this Note at 13% per annum from March 17, 2000 until maturity and shall pay the
Liquidated Damages payable pursuant to Section 5 of the Registration Rights
Agreement referred to below. The Company will pay interest and Liquidated
Damages semi-annually in arrears on March 15 and September 15 of each year, or
if any such day is not a Business Day, on the next succeeding Business Day (each
an "Interest Payment Date"). Interest on the Notes will accrue from the most
recent date to which interest has been paid or, if no interest has been paid,
from the date of issuance; provided that if there is no existing Default in the
payment of interest, and if this Note is authenticated between a record date
referred to on the face hereof and the next succeeding Interest Payment Date,
interest shall accrue from such next succeeding Interest Payment Date; provided,
further, that the first Interest Payment Date shall be September 15, 2000. The
Company shall pay interest (including post-petition interest in any proceeding
under any Bankruptcy Law) on overdue principal and premium, if any, from time to
2
time on demand at a rate that is 1% per annum in excess of the rate then in
effect; it shall pay interest (including post-petition interest in any
proceeding under any Bankruptcy Law) on overdue installments of interest and
Liquidated Damages (without regard to any applicable grace periods) from time to
time on demand at the same rate to the extent lawful. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.1
2. Method of Payment. The Company will pay interest on the Notes (except
defaulted interest) and Liquidated Damages to the Persons who are registered
Holders of Notes at the close of business on the March 1 or September 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium and Liquidated Damages, if any, and interest
at the office or agency of the Company maintained for such purpose within or
without the City and State of New York, or, at the option of the Company,
payment of interest and Liquidated Damages may be made by check mailed to the
Holders at their addresses set forth in the register of Holders, and provided
that payment by wire transfer of immediately available funds will be required
with respect to principal of and interest, premium and Liquidated Damages on,
all Global Notes and all other Notes the Holders of which shall have provided
wire transfer instructions to the Company or the Paying Agent. Such payment
shall be in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts.
3. Paying Agent and Registrar. Initially, SunTrust Bank, the Trustee under
the Indenture, will act as Paying Agent and Registrar. The Company may change
any Paying Agent or Registrar without notice to any Holder. The Company or any
of its Subsidiaries may act in any such capacity.
4. Indenture. The Company issued the Notes under an Indenture dated as of
March 14, 2000 ("Indenture") between the Company and the Trustee. The terms of
the Notes include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (15 U.S.
Code xx.xx. 77aaa-77bbbb). The Notes are subject to all such terms, and Holders
are referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are senior secured obligations of the Company limited to $135.0 million in
aggregate principal amount.
5. Optional Redemption.
(a) Except as set forth in subparagraph (b) of this Paragraph 5, the
Company shall not have the option to redeem the Notes prior to March 15, 2002.
Thereafter, the Company may redeem all or a part of the Notes upon not less than
30 nor more than 60 days' notice, at the redemption
--------
1 [If Regulation S Temporary Global Note, add the following paragraph:
Until this Regulation S Temporary Global Note is exchanged for one or more
Regulation S Permanent Global Notes, the Holder hereof shall not be entitled to
receive payments of interest hereon; until so exchanged in full, this Regulation
S Temporary Global Note shall in all other respects be entitled to the same
benefits as other Senior Subordinated Notes under the Indenture.]
3
prices (expressed as percentages of principal amount) set forth below plus
accrued and unpaid interest and Liquidated Damages thereon, if any, to the
applicable redemption date, if redeemed during the twelve-month period beginning
on March 15 of the years indicated below:
Year Percentage
---- ----------
2002............................................ 113.000%
2003............................................ 108.666%
2004............................................ 104.333%
2005 (maturity)................................. 100.000%
(b) Notwithstanding the provisions of subparagraph (a) of this Paragraph 5,
at any time prior to March 15, 2002, the Company may redeem up to 35% of the
aggregate principal amount of Notes at a redemption price equal to 113% of the
aggregate principal amount thereof, plus accrued and unpaid interest and
Liquidated Damages, if any, to the redemption date with the net cash proceeds of
a Equity Offering; provided that (i) at least 65% in aggregate principal amount
of the Notes originally issued remain outstanding immediately after the
occurrence of such redemption and (ii) the redemption must occur within 60 days
of the date of the closing of such Equity Offering.
6. Gaming Redemption
Notwithstanding the provisions of subparagraph (a) of paragraph 5 above, if
any Gaming Authority requires that a Holder or beneficial owner of notes must be
licensed, qualified or found suitable under any applicable gaming law and such
Holder or beneficial owner fails to apply for a license, qualification or
finding of suitability within 30 days after being requested to do so by such
Gaming Authority (or such lesser period that may be required by such Gaming
Authority), or if such Holder or such beneficial owner is notified by such
Gaming Authority that such Holder or beneficial owner shall not be so licensed,
qualified or found suitable, the Company will have the right, at its option: (i)
to require such Holder or beneficial owner to dispose of such Holder's or
beneficial owner's Notes within 30 days (or such earlier date as may be ordered
by such Gaming Authority) of (x) the termination of the period described above
for such Holder or beneficial owner to apply for a license, qualification or
finding of suitability, or (y) receipt of the notice from such Gaming Authority
that such holder or beneficial owner shall not be licensed, qualified or found
suitable by such Gaming Authority; or (ii) to redeem the Notes of such holder of
beneficial owner at a redemption price equal to the lesser of the principal
amount thereof or the price at which such holder or beneficial owner acquired
such notes, together with, in either case, accrued and unpaid interest thereon
to the earlier of the date of redemption or such earlier date as may be required
by such Gaming Authority or the date of the finding of unsuitability by such
Gaming Authority, which may be less than 30 days following the notice of
redemption, if so ordered by such Gaming Authority.
7. Mandatory Redemption.
Except as set forth in paragraphs 6 above and 8 below, the Company shall
not be required to make mandatory redemption payments with respect to the Notes.
8. Repurchase at Option of Holder.
(a) If the Company or a Subsidiary consummates any Asset Sales, pursuant to
Section 4.10 of the Indenture, when the aggregate amount of Excess Proceeds
exceeds $5 million, the Company will be required to make an offer (an "Asset
4
Sale Offer") to all Holders of Notes pursuant to Section 3.10 of the Indenture
to purchase the maximum principal amount of Notes that may be purchased out of
the Excess Proceeds at an offer price in cash in an amount equal to 100% of the
principal amount thereof plus accrued and unpaid interest to the date of
purchase, which date will be no less than 30 nor more than 60 days after the
date of the Asset Sale Offer, in accordance with the procedures set forth in
Section 3.10 of the Indenture. To the extent that the aggregate amount of Notes
tendered pursuant to an Asset Sale Offer is less than the Excess Proceeds, the
Company (or such Subsidiary) may repay any principal amount, or accrued and
unpaid interest thereon, owing pursuant to the city improvement bonds, the FF&E
Financing and/or the Second Mortgage Notes (not to exceed, in the aggregate, the
amount by which the Excess Proceeds exceeds the aggregate principal amount of
Notes, plus accrued and unpaid interest thereon, tendered in such Asset Sale
Offer) and may, subject to the provisions of the Indenture and the Collateral
Documents, use any remaining Excess Proceeds for any purpose not otherwise
prohibited by the Indenture and the Collateral Documents. If the aggregate
principal amount of Notes surrendered by Holders thereof exceeds the amount of
Excess Proceeds, the Trustee shall select the Notes to be purchased in the
manner set forth in Section 3.02 of the Indenture. Holders of Notes that are the
subject of an offer to purchase will receive an Asset Sale Offer from the
Company prior to any related purchase date and may elect to have such Notes
purchased by completing the form entitled "Option of Holder to Elect Purchase"
on the reverse of the Notes.
(b) Within 120 days after the end of each Operating Year of the Company,
beginning with the first Operating Year after the Black Hawk Casino becomes
operating, the Company will make an offer to all Holders (an "Excess Cash Flow
Offer") to purchase the maximum principal amount of Notes that is an integral
multiple of $1,000 that may be purchased with (i) 50% of the Company's Excess
Cash Flow in respect of the four consecutive fiscal quarters ending on or
immediately following the last day of such Operating Year plus (ii) any amounts
disbursed from the Cash Collateral Accounts and the Hyatt Cash Collateral
Accounts pursuant to Section 11 of the Cash Collateral and Disbursement
Agreement that the Company elects, in its sole discretion, to include any Excess
Cash Flow Offer (the sum of the foregoing clauses (i) and (ii), collectively,
the "Excess Cash Flow Offer Amount"), at a purchase price in cash equal to 101%
of the principal amount of Notes to be purchased, plus accrued and unpaid
interest to the purchase date (the "Excess Cash Flow Purchase Price"), in
accordance with the procedures set forth in Section 3.10 of the Indenture. To
the extent that the aggregate principal amount of Notes tendered pursuant to any
Excess Cash Flow Offer is less than the Excess Cash Flow Offer Amount with
respect thereto, the Company may repay any principal amount, or accrued and
unpaid interest thereon, owing pursuant to the City Improvement Bonds, the FF&E
Financing and/or the Second Mortgage Notes (not to exceed, in the aggregate, the
amount by which the Excess Cash Flow Offer amount exceeds 101% of the aggregate
principal amount of Notes, plus accrued and unpaid interest thereon, tendered in
such Excess Cash Flow Offer) and may, subject to the other provisions of the
Indenture and the Collateral Documents, use any remaining excess cash flow for
general corporate purposes and the amount of Excess Cash Flow shall be reset at
zero. Holders of Notes that are the subject of an offer to purchase shall
receive an Excess Cash Flow Offer from the Company prior to any related purchase
date and may elect to have such notes purchased by completing the form entitled
"Option of Holder to Elect Purchase" on the reverse of the Notes.
(c) Subject to the conditions set forth below, within 90 days after any
Event of Loss with respect to any Collateral, the Company or the affected
Restricted Subsidiary of the Company, as the case may be, shall so notify the
5
Trustee, describing in such notice the nature of the Event of Loss in reasonable
detail, and shall (i) apply the Net Loss Proceeds from such Event of Loss to the
rebuilding, repair, replacement or construction of the improvements to the Black
Hawk Casino, with no concurrent obligation to make any offer to purchase any
Notes; (ii) if the Casino is not Operating and the Net Loss Proceeds exceed $1.0
million, deposit the Net Loss Proceeds in the Construction Disbursement Account
to be disbursed in accordance with the procedures set forth in the Disbursement
Agreement; (iii) if the Net Loss Proceeds exceed $1.0 million, deliver to the
Trustee within 60 days after such Event of Loss a written opinion from a
nationally recognized architect that the Black Hawk Casino, with at least the
Minimum Facilities, can be rebuilt, repaired, replaced or constructed and
Operating within not more than 360 days after the Event of Loss (but in no event
later than the date that is six months prior to the maturity date of the Notes);
and (iv) if the Net Loss Proceeds exceed $1.0 million, deliver an Officers'
Certificate certifying that the Company has available from Net Loss Proceeds or
other sources sufficient funds to complete the rebuilding, repair, replacement
or construction described in clause (i) above and in accordance with clause
(iii) above.
Upon the occurrence of an Event of Loss with respect to any Collateral
having a fair market value or a replacement cost greater than $20 million, or if
upon the occurrence of any Event of Loss the Company is unable or fails to
furnish the written opinion from a nationally recognized architect as required
by clause (iii) above, then the Company shall, simultaneously with the delivery
of the notice to the Trustee as set forth above, deliver to the Holders a notice
(an "Event of Loss Notice") providing for the following: an option either (x) to
allow the Company to apply the Net Loss Proceeds to the rebuilding, repair,
replacement or construction of the improvements to the Black Hawk Casino or (y)
to require that the Company purchase the maximum principal amount of Notes that
may be purchased out of the Net Loss Proceeds, at a purchase price in cash in an
amount equal to 100% of the principal amount thereof, plus accrued and unpaid
Interest and Liquidated Damages, if any, thereon to the date of purchase (an
"Event of Loss Offer").
If Holders of a majority of the aggregate principal amount of the Notes
then outstanding provide a written request (an "Event of Loss Acceptance")
within 30 days after the Event of Loss Notice that the Company effect an Event
of Loss Offer, then the Company shall, within 10 days after the Event of Loss
Acceptance, effect an Event of Loss Offer. The Event of Loss Offer shall be
conducted in accordance with Section 3.10 of the Indenture and shall be
consummated not less than 30 nor more than 60 days after the date of such Event
of Loss Offer. To the extent that the aggregate principal amount of Notes
tendered pursuant to an Event of Loss Offer exceeds the Net Loss Proceeds, the
Trustee shall select the Notes to be purchased in the manner described under
Section 3.02 hereof. To the extent that the aggregate amount of Notes tendered
pursuant to an Event of Loss Offer is less than the Net Loss Proceeds, the
Company may repay any principal amount, or accrued and unpaid interest thereon,
owing pursuant to the City Improvement Bonds, the FF&E Financing and/or the
Second Mortgage Notes (not to exceed, in the aggregate, the amount by which the
Net Loss Proceeds exceeds the aggregate principal amount of Notes, plus accrued
and unpaid interest thereon, tendered in such Event of Loss Offer) and may,
subject to the other provisions of the Indenture and the Collateral Documents,
use any remaining Net Loss Proceeds for any purpose not otherwise prohibited by
the Indenture.
9. Notice of Redemption. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address (unless a shorter period is
required by a Gaming Authority with respect to a redemption pursuant to
6
Paragraph 6 of this Note). Notes in denominations larger than $1,000 may be
redeemed in part but only in whole multiples of $1,000, unless all of the Notes
held by a Holder are to be redeemed. On and after the redemption date interest
ceases to accrue on Notes or portions thereof called for redemption.
10. Denominations, Transfer, Exchange. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and the
Company may require a Holder to pay any taxes and fees required by law or
permitted by the Indenture. The Company need not exchange or register the
transfer of any Note or portion of a Note selected for redemption, except for
the unredeemed portion of any Note being redeemed in part. Also, the Company
need not exchange or register the transfer of any Notes for a period of 15 days
before a selection of Notes to be redeemed or during the period between a record
date and the corresponding Interest Payment Date.2
11. Persons Deemed Owners. The registered Holder of a Note may be treated
as its owner for all purposes.
12. Amendment, Supplement and Waiver. Subject to certain exceptions, the
Indenture or the Notes may be amended or supplemented with the consent of the
Holders of at least a majority in principal amount of the Notes then outstanding
(including, without limitation, consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Notes), and any existing default or
compliance with any provision of the Indenture or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the Notes then
outstanding (including consents obtained in connection with a tender offer or
exchange offer for Notes). Without the consent of the Holders of at least 66
2/3% in aggregate principal amount of the Notes then outstanding, an amendment
or waiver may not affect the Liens in favor of the Trustee and the Holders
created under the Collateral Documents in a manner adverse to the Holders (other
than pursuant to the release of Collateral in accordance with the provisions of
the Indenture and of the applicable Collateral Documents) or release all or any
material portion of the Collateral. Without the consent of any Holder of a Note,
the Indenture or the Notes may be amended or supplemented to cure any ambiguity,
defect or inconsistency, to provide for uncertificated Notes in addition to or
in place of certificated Notes, to provide for the assumption of the Company's
obligations to Holders of the Notes in case of a merger or consolidation, to
make any change that would provide any additional rights or benefits to the
Holders of the Notes or that does not adversely affect the legal rights under
the Indenture of any such Holder, to comply with the requirements of the SEC in
order to effect or maintain the qualification of the Indenture under the Trust
Indenture Act, to provide for the issuance of additional notes in accordance
with the limitations set forth in the Indenture or to provide for additional
Subordinated Guarantors.
--------
2 [If Regulation S Temporary Global Note, add the following paragraph: This
Regulation S Temporary Global Note is exchangeable in whole or in part for one
or more Global Notes only (i) on or after the termination of the 40-day
restricted period (as defined in Regulation S) and (ii) upon presentation of
certificates (accompanied by an opinion of counsel, if applicable) required by
Article 2 of the Indenture. Upon exchange of this Regulation S Temporary Global
Note for one or more Global Notes, the Trustee shall cancel this Regulation S
Temporary Global Note.]
7
13. Defaults and Remedies. Events of default include: (a) default for 30
days in the payment when due of Interest on, or Liquidated Damages, if any, with
respect to, the Notes; (b) default in the payment when due of principal of or
premium, if any, on the Notes; (c) failure to comply with any of the provisions
of Section 4.07, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14, 4.15, 4.16, 4.17, 4.18,
4.19, 4.20, 4.21, 4.25, 4.28, 4.29, 4.30, 4.31, 4.32 or 5.01 of the Indenture;
(d) a Change of Control shall occur; (e) the Company or any of its Restricted
Subsidiaries for 30 days after notice thereof fails to comply with the
provisions of any of the other agreements in the Indenture not set forth in
clause (c) above; (f) a default occurs under any mortgage, indenture or
instrument under which there may be issued or by which there may be secured or
evidenced any Indebtedness for money borrowed by the Company or any of its
Subsidiaries (or the payment of which is guaranteed by the Company or any of its
Subsidiaries) whether such Indebtedness or guarantee now exists, or is created
after the Closing Date, if that default: (i) is caused by a failure to pay
principal of, or interest or premium, if any, on such Indebtedness prior to the
expiration of the grace period provided in such Indebtedness on the date of such
default (a "Payment Default"); or (ii) results in the acceleration of such
Indebtedness prior to its express maturity, and, in each case, the principal
amount of any such Indebtedness, together with the principal amount of any other
such Indebtedness under which there has been a Payment Default or the maturity
of which has been so accelerated, aggregates $1.0 million or more; (g) the
Company or any of its Restricted Subsidiaries fails to pay final judgments
aggregating in excess of $5.0 million, which judgments are not paid, discharged
or stayed for a period of 60 days; (h) (i) the Company, the LLC or any of their
respective Affiliates breaches any material representation or warranty in the
Collateral Documents or any certificates delivered in connection therewith, (ii)
the Company, the LLC or any of their respective Affiliates fails after written
notice thereof to comply with any material covenant or agreement set forth in
the Collateral Documents, (iii) the Company, the LLC or their respective
Affiliates repudiates any of its obligations under the Collateral Documents,
(iv) the Collateral Documents become unenforceable against the Company, the LLC
or their respective Affiliates or perfection or priority of the Liens granted by
the Company, the LLC or their respective Affiliates thereunder is lost for any
reason, which in the case of clauses (i) and (ii) remains uncured for a period
of 30 days after written notice specifying such breach or default; (i) the
Company or any of its Significant Subsidiaries or any group of Subsidiaries
that, taken as a whole, would constitute a Significant Subsidiary pursuant to or
within the meaning of Bankruptcy Law: (i) commences a voluntary case, (ii)
consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a custodian of it or for all or
substantially all of its property, (iv) makes a general assignment for the
benefit of its creditors, or (v) generally is not paying its debts as they
become due; or (j) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that: (i) is for relief against the Company or any of
its Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary in an involuntary case; (ii)
appoints a custodian of the Company or any of its Significant Subsidiaries or
any group of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary or for all or substantially all of the property of the Company or any
of its Significant Subsidiaries or any group of Subsidiaries that, taken as a
whole, would constitute a Significant Subsidiary; or (iii) orders the
liquidation of the Company or any of its Significant Subsidiaries or any group
of Subsidiaries that, taken as a whole, would constitute a Significant
Subsidiary; and the order or decree remains unstayed and in effect for 60
consecutive days; (k) the revocation, termination, suspension or other cessation
of effectiveness for a period of more than 90 consecutive days of any Gaming
License results in the cessation or suspension of gaming operations at any
Gaming Facility; or (l) the Black Hawk Casino fails to be Operating by
8
the Operating Deadline or fails to remain Operating thereafter, except (a) as
the hours of operation of the Black Hawk Casino may be limited by any Gaming
Authority or Gaming Law or (b) for a period of time not to exceed 30 days during
any 45-day period and not to exceed 60 days during any one-year period;
provided, however, that, in any event, there shall not be an Event of Default
under this clause if the failure to remain Operating during such period results
from an Event of Loss pursuant to the terms of this Indenture. If any Event of
Default occurs and is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Notes may declare all the Notes to be
due and payable immediately. Notwithstanding the foregoing, in the case of an
Event of Default arising from certain events of bankruptcy or insolvency, all
outstanding Notes will become due and payable immediately without further action
or notice. Holders may not enforce the Indenture or the Notes except as provided
in the Indenture. Subject to certain limitations, Holders of a majority in
principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. In the event the Trustee is required by the
holders or otherwise required by the Indenture or the collateral documents to
take any action which may reasonably result in environmental-related liability
to the Trustee, the Trustee may require additional indemnities regarding such
liability. If such indemnities are not obtained, the Trustee may resign. In the
case of any event of default occurring by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding payment of the premium that the Company would have had to pay if the
company then had elected to redeem the notes pursuant to the optional redemption
provisions of the Indenture, an equivalent premium will also become and be
immediately due and payable to the extent permitted by law upon the acceleration
of the Notes. The Holders of a majority in aggregate principal amount of the
Notes then outstanding by notice to the Trustee may on behalf of the Holders of
all of the Notes waive any existing Default or Event of Default and its
consequences under the Indenture except a continuing Default or Event of Default
in the payment of interest on, or the principal of, premium and Liquidated
Damages, if any, on the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default or Event of Default, to deliver to
the Trustee a statement specifying such Default or Event of Default.
14. Trustee Dealings with Company. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
15. No Recourse Against Others. A director, officer, employee, incorporator
or stockholder, of the Company, as such, shall not have any liability for any
obligations of the Company under the Notes or the Indenture or for any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder by accepting a Note waives and releases all such liability. The
waiver and release are part of the consideration for the issuance of the Notes.
16. Security. The due and punctual payment of the principal of, interest
and premium, if any, and liquidated damages, if any, on the Notes when and as
the same shall be due and payable, whether on an interest payment date, at
maturity, by acceleration, repurchase, redemption or otherwise, and interest and
Liquidated Damages (to the extent permitted by law), if any, on the Notes and
performance of all other obligations of the Company to the Holders of Notes or
the Trustee under the Indenture and the Notes, according to the terms hereunder
or thereunder, shall be ratably secured by a lien on the collateral owned by the
Company, subject to certain permitted liens. Each Holder of Notes, by its
acceptance thereof, consents and agrees to the terms of the Collateral
9
Documents (including, without limitation, the provisions providing for
foreclosure and release of collateral) as the same may be in effect or may be
amended from time to time in accordance with its terms and authorizes and
directs the Trustee to enter into the collateral documents and to perform its
obligations and exercise its rights thereunder in accordance therewith.
17. Authentication. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
18. Abbreviations. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
19. Additional Rights of Holders of Restricted Global Notes and Restricted
Definitive Notes. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the A/B Exchange Registration
Rights Agreement dated as of March 14,2000, between the Company and the parties
named on the signature pages thereof or, in the case of additional notes,
holders of restricted global notes and restricted definitive notes shall have
the rights set forth in one or more registration rights agreements, if any,
between the Company and the other parties thereto, relating to the rights given
by the Company to the purchasers of any additional notes (collectively, the
"Registration Rights Agreement").
20. CUSIP Numbers. The Company in issuing the notes, may use a "cusip"
number. No representation is made as to the accuracy of such numbers either as
printed on the Notes or as contained in any notice of redemption and reliance
may be placed only on the other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture and/or the Registration Rights Agreement.
Requests may be made to:
Windsor Woodmont Black Hawk Resort Corp.
00000 Xxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
10
Assignment Form
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
--------------------------------------------------------------------------------
(Insert assignee's Soc. Sec. or tax I.D. no.)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type Assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: ____________________________
Your Signature: ____________________________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*: __________________________________________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
11
Option of Holder to Elect Purchase
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10, 4.28 or 4.29 of the Indenture, check the appropriate box below:
[ ] Section 4.10 [ ] Section 4.28 [ ] Section 4.29
If you want to elect to have only part of the Note purchased by the Company
pursuant to Section 4.10, 4.28 or 4.29 of the Indenture, state the amount you
elect to have purchased:
$______________________________
Date: _________________________
Your Signature: ____________________________________________
(Sign exactly as your name appears on the face of this Note)
Tax Identification No.: ___________________________________
Signature Guarantee*: _________________________________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
12
SCHEDULE OF EXCHANGES OF [REGULATION S TEMPORARY
GLOBAL NOTE] [INTERESTS IN THE GLOBAL NOTE]*
The following exchanges of a part of this [Regulation S Temporary Global
Note] [Global Note] [for an interest in another Global Note, or of other
Restricted Global Notes for an interest in this Regulation S Temporary Global
Note] [for an interest in another Global Note or for a Definitive Note, or
exchanges of a part of another Global Note or Definitive Note for an interest in
this Global Note], have been made:
Principal Amount of this Signature of authorized
Amount of decrease in Amount of increase in Global Note following officer of Trustee or
Principal Amount Principal Amount of such decrease Note Custodian
Date of Exchange of this Global Note this Global Note (or increase) --------------
---------------- ------------------- ---------------- -------------
* This schedule should be included only if the Note is issued in global form.
13
