EXHIBIT 10
AMENDMENT TO ASSET PURCHASE AGREEMENT
THIS AMENDMENT TO ASSET PURCHASE AGREEMENT (this "Amendment") is entered
into as of August 3, 2004, by and between Windsor Woodmont Black Hawk Resort
Corp., a Colorado corporation ("Seller"), as debtor in possession in that
certain proceeding entitled "In re Windsor Woodmont Black Hawk Resort
Corporation," Case No. 02-28089-ABC, United States Bankruptcy Court, District of
Colorado (the "Bankruptcy Case"), and Ameristar Casinos, Inc., a Nevada
corporation ("Buyer").
RECITALS
WHEREAS, Seller and Buyer are parties to that certain Asset Purchase
Agreement, dated as of May 28, 2004 (the "Agreement"), pursuant to which, among
other things, Buyer or its assignee will purchase the Acquired Assets from
Seller;
WHEREAS, Seller and Buyer have determined that it is in their respective
best interests to amend the Agreement as specified herein;
WHEREAS, Seller and Buyer have agreed that Buyer will provide the Common
Stock Consideration (defined below) and Two Million Dollars ($2,000,000) of
additional cash consideration to Seller for the Acquired Assets in substitution
for the contingent consideration provided in Section 2.5(b) of the Agreement in
order, among other business reasons, to avoid uncertainty and complications
created by contingent consideration;
WHEREAS, the parties have agreed to amend the Agreement as specified
herein; and
WHEREAS, capitalized terms used, but not otherwise defined herein, shall
have the meanings given to such terms in the Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein made, and
in consideration of the representations, warranties, and covenants herein
contained, the parties agree as follows:
AGREEMENT
1. Section 1.1 of the Agreement is hereby amended by inserting the
following alphabetically as appropriate:
""Common Stock Consideration" has the meaning set forth in
Section 2.5(b).
"Resale Registration Statement" has the meaning set forth in
Section 4.10.
"SEC" has the meaning set forth in Section 4.10.
"Securities Act" has the meaning set forth in Section 4.10."
2. Section 1.1 of the Agreement is hereby amended by deleting the
following:
""EBITDA" means, for any applicable period, earnings before
interest, taxes, depreciation and amortization, such amounts to be
calculated consistently with Buyer's past practice and, to the extent
applicable, as reported in, or consistent with, the publicly-issued
earnings press release of Buyer covering the earnings for such period."
3. Section 1.1 of the Agreement is hereby amended by deleting the phrase
"Second Amended Plan of Reorganization" and replacing such phrase with "Plan of
Liquidation Proposed by Debtor Dated: August __, 2004" with respect to the
definition of "Plan".
4. Section 1.1 of the Agreement is hereby amended by deleting the word
"contingent" with respect to the definition of "Purchase Price".
5. Section 2.1(r) of the Agreement is hereby amended by deleting the
word "and" at the end of such section.
6. Section 2.1(s) of the Agreement is hereby amended by deleting the
period at the end of such section and appending "; and" at the end of such
section.
7. Section 2.1 of the Agreement is hereby amended by appending the
following after Section 2.1(s):
"(t) all Tax credits, Tax loss carryovers and other Tax
attributes of Seller."
8. Section 2.2(a) of the Agreement is hereby amended by deleting the
phrase ", and all tax credits and other tax attributes of Seller" from such
section.
9. Section 2.5(a) of the Agreement is hereby amended by deleting the
amount "One Hundred Fifteen Million Dollars ($115,000,000)" and replacing it
with "One Hundred Seventeen Million Dollars ($117,000,000)".
10. Section 2.5(b) of the Agreement is hereby amended by deleting the
entirety of such section and replacing it with the following:
"(b) pay Seller, as additional consideration for the Acquired
Assets, such number of shares of common stock of Buyer as shall have a
market value of Two Million Five Hundred Thousand Dollars ($2,500,000),
based upon the average of the daily closing price of Buyer's common
stock on each of the ten (10) consecutive trading days ending
immediately prior to the Closing Date (the "Common Stock Consideration);
and"
11. Section 2.6(b)(i) of the Agreement is hereby amended by deleting the
amount "One Hundred Eleven Million Dollars ($111,000,000)" and replacing it with
"One Hundred Thirteen Million Dollars ($113,000,000)".
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12. Article II of the Agreement is hereby amended by appending the
following sections at the end of Article II:
"2.12 Common Stock Consideration.
At the Closing, in addition to any other obligations of Seller
and Buyer hereunder, including, but not limited to, the provisions of
Article VI and Exhibit C hereto, Buyer shall cause the Common Stock
Consideration to be delivered in such manner as shall be specified by
Seller in a letter of instruction to be delivered to Buyer at least two
(2) business days prior to the Closing Date. No fractional shares of
Buyer's common stock shall be issued in connection with the delivery of
the Common Stock Consideration; if necessary, the number of shares
issued as the Common Stock Consideration shall be reduced such that no
such fractional shares are so issued."
"2.13 Plan of Reorganization.
The Plan, Agreement and Amendment, together, shall constitute a
plan of reorganization for U.S. federal income tax purposes, including,
but not limited to, Sections 368(a)(1), 354(a), 354(b)(1)(B) and 361(a)
of the Code, and corresponding provisions of applicable state laws (and
any successor provisions)."
13. Schedule 3.4(c) of the Agreement is hereby amended by deleting the
first portion of the first sentence of the last paragraph and replacing it with
the following:
"Seller shall supplement this Schedule 3.4(c) by July 2, 2004,
to provide such additional specificity and detail with respect to the
Tangible Property as Buyer may reasonably request;".
14. Article IV of the Agreement is hereby amended by appending the
following section at the end of Article IV:
"4.10 Buyer's Common Stock.
The common stock of Buyer to be issued as the Common Stock
Consideration shall be duly authorized, validly issued, fully paid and
nonassessable when issued. The common stock issued as the Common Stock
Consideration will either be: (a) issued in a transaction exempt from
registration under the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder (the "Securities Act"), and under
applicable state securities laws, if any; or (b) registered under the
Securities Act and under applicable state securities laws. Assuming that
the persons to whom the Common Stock Consideration will be issued will
not be "affiliates" (as defined in Rule 405 of the Securities Act) of
Buyer, such common stock shall not constitute "restricted securities"
within the meaning of the Securities Act and shall bear no legends or
other restrictions on transfer whatsoever; provided that, in the event
that Buyer elects to file with the Securities and Exchange Commission
(the "SEC") a resale
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registration statement (the "Resale Registration Statement") pursuant to
Rule 415 of the Securities Act, the persons to whom the Common Stock
Consideration will be issued have provided to Buyer the representations
and warranties required by Section 5.14(b) below."
15. Section 5.2(a) of the Agreement is hereby amended by deleting the
first sentence thereof and replacing it with the following:
"As soon as practicable, but not later than August 11, 2004,
Seller shall file, or cause to be filed, the Disclosure Statement and
the Plan."
16. Section 5.11 of the Agreement is hereby amended by deleting the
entirety of such section.
17. Article V of the Agreement is hereby amended by appending the
following section at the end of Article V:
"5.14 Delivery of Buyer's Common Stock.
(a) Seller agrees to deliver the Common Stock Consideration to
holders of Seller's Series A and Series B preferred stock in exchange
for such interests. Seller further agrees that the Common Stock
Consideration will be the sole consideration delivered to the Series A
and Series B preferred stockholders in their capacities as preferred
stockholders of Seller and Seller will not deliver any portion of the
Common Stock Consideration to any other person or for any other purpose.
(b) In the event that Buyer elects to file with the SEC the
Resale Registration Statement, Seller shall use its commercially
reasonable efforts to cause each holder of Seller's Series A and Series
B preferred stock to whom the Common Stock Consideration will be issued
to provide to Buyer representations and warranties: (i) regarding such
holder's status as an "accredited investor" (as defined in Rule 501 of
the Securities Act) and (ii) as to the accuracy of the written
information relating to such holder that such holder has provided to
Buyer expressly for inclusion in the Resale Registration Statement."
18. Article V of the Agreement is hereby amended by appending the
following section at the end of Article V:
"5.15 Section 368(a)(1)(G) Reorganization.
Each of the parties intends that the transactions contemplated
by this Agreement will qualify, for federal income tax purposes, as a
reorganization under the provisions of Section 368(a)(1)(G) of the Code,
and any treasury regulations thereunder, and will use all commercially
reasonable efforts to take all action and to do all things necessary,
proper, or advisable in order to ensure that the transactions so
qualify."
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19. Section 6.2 of the Agreement is hereby amended by appending the
following:
"(h) the Bankruptcy Court shall have confirmed the Plan which
Plan shall provide for the delivery of the Common Stock Consideration to
Seller's Series A and Series B preferred stockholders in dissolution of
Seller."
20. Section 6.3 of the Agreement is hereby amended by appending the
following:
"(e) in the event that Buyer elects to file with the SEC the
Resale Registration Statement, the Resale Registration Statement shall
have been declared effective by the SEC; provided, that if Seller waives
this condition, Seller shall be deemed to have waived Section 4.10, with
the exception of the first sentence thereof."
21. Section 7.1(b)(iv) of the Agreement is hereby amended by deleting
the date "October 15, 2004" and replacing it with "November 15, 2004".
22. Section 7.1(d)(ii) of the Agreement is hereby amended by deleting
the date "October 15, 2004" and replacing it with "November 15, 2004".
23. Exhibit C of the Agreement is hereby amended by adding the following
to the end of such exhibit:
"(f) the Common Stock Consideration, as provided in Section
2.5(b)."
24. Except as expressly set forth in this Amendment, the Agreement shall
remain in full force and effect and shall not be deemed to have been modified or
amended by this Amendment. Each of the parties understands and agrees that by
executing and delivering this Amendment the other parties do not hereby waive
any of their respective rights or remedies under the Agreement.
25. This Amendment, together with the Agreement, constitutes the entire
understanding of the parties with respect to the subject matter hereof, and any
other prior or contemporaneous agreements, whether written or oral, with respect
thereto are expressly superseded hereby.
26. This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement. Any signature delivered by facsimile shall be deemed to
be an original signature hereunder.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the date first above written.
SELLER:
WINDSOR WOODMONT BLACK HAWK RESORT
CORP., a Colorado corporation
By: /s/ Jerry L. Dauderman
------------------------------------
Name: Jerry L. Dauderman
Title: CEO
BUYER:
AMERISTAR CASINOS, INC.,
a Nevada corporation
By: /s/ Peter C. Walsh
------------------------------------
Name: Peter C. Walsh
Title: Senior Vice President and
General Counsel
Consenting to Amendment pursuant to
Section 9.9 of the Agreement:
AD HOC COMMITTEE
By: /s/ Kevin Genda
------------------------------------
Name: Kevin Genda
Title:
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