ex10-1c.htm

EXHIBIT 10-1C

    SETTLEMENT AND RELEASE
AGREEMENT

    


     

    THIS SETTLEMENT AND RELEASE AGREEMENT
(“Agreement”)
is made and entered into as of December 31, 2007 (the “Effective Date”), by
and among Century Casinos Tollgate, Inc., a Delaware corporation (“CCTI”), CC Tollgate
LLC, a Delaware limited liability company (the “Company”), and
Central City Venture, LLC, a Colorado limited liability company (“Venture”).  The
above referenced parties are sometimes referred to herein individually as a
“Party” and
collectively as the “Parties.”  Defined
terms not otherwise defined herein shall have the meaning given them in the
Limited Liability Company Agreement of the Company, as amended (the “Operating
Agreement”).

    


    RECITALS

    


    1.           
On October 12, 2004, CCTI and Venture entered into a Contribution Agreement
whereby the parties created a newly-formed Delaware limited liability company,
CC Tollgate LLC, for purposes of developing a casino in Central City,
Colorado.

    


    2.           
Section 8.3 of
the Operating Agreement gives CCTI the option of purchasing Venture’s Units in
the Company (the “Venture Units”) at
certain specified prices and under certain specified circumstances.

    


    3.           
CCTI and Venture have engaged in discussions regarding the potential exercise of
CCTI’s option to purchase all the Venture Units.

    


    4.           
Venture disputes the amount CCTI is required to pay for the Venture
Units.

    


    5.           
The Parties desire to settle their disputes without any admission of fault or
liability.

    


    6.           
Through this Agreement, the Parties desire to completely terminate their
business relationship and all contractual obligations arising therefrom, other
than those obligations set forth in this Agreement.

    


    AGREEMENT

    


    NOW THEREFORE, in consideration of the
mutual covenants contained herein, the sufficiency of which is hereby
acknowledged, the Parties agree as follows:

    


    Section
1. Assignment of
Units.  Subject to the terms and conditions of this Agreement,
on the Effective Date and simultaneous with the execution of this Agreement,
Venture hereby sells, transfers and assigns to CCTI and CCTI hereby purchases
from Venture all of the Venture Units, free and clear of any liens, encumbrances
or claims whatsoever, and further free of any restrictions on transfer, options,
warrants, purchase rights, contracts, commitments, equities, claims and demands,
other than restrictions under federal or state securities laws and as provided
in the Operating Agreement and as may be provided in the Credit Agreement, as
hereafter defined, and the Subordination Agreement, as hereinafter defined, at a
purchase price equal to the Settlement Payment.  Venture shall deliver
to CCTI a duly executed Unit Power in the form attached hereto as Exhibit A and any
other documents that are necessary to transfer to CCTI good title to all of the
Venture Units.

    


    
      
        
        

      

      
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    Section
2. Settlement Payment; Purchase
of Note.  On the Effective Date and simultaneous with the
delivery of the Unit Power by Venture to CCTI, CCTI or one of its Affiliates
shall pay to Venture $2,050,000 by wire transfer or delivery of other
immediately available funds (the “Settlement
Payment”).  In addition, on the Effective Date and simultaneous
with the delivery to CCTI of the promissory note dated December 30, 2004, from
the Company to Venture in the original principal amount of $1,000,000 together
with the Allonge to Promissory Note dated November 18, 2005 (collectively, the
“Note”) and a
duly executed Assignment of Note in the form attached hereto as Exhibit B, CCTI or
one of its Affiliates shall purchase the Note from Venture without recourse by
wire transfer or delivery of other immediately available funds for an amount
equal to $1,000,000 plus accrued but unpaid interest on the Note to the
Effective Date.  The Parties agree that the accrued, but unpaid
interest as of the Effective Date shall be $240,219.18.

    


    Section
3. Valuation Consultant’s
Report. CCTI shall deliver to Venture upon receipt the report of OnPointe
Financial Valuation Group, LLC (the “Valuation
Consultant”), an independent valuation consultant, which will value the
assets of the Company as of December 31, 2007. A summary of the Valuation
Consultant's valuation methodology is attached to this Agreement as Exhibit
C.  In connection therewith, the Parties acknowledge that the
items of 751(a) property as that term is generally defined by the Internal
Revenue Code of 1986 as amended and regulations promulgated thereunder
substantially consist of Section 1245 property of the type reflected in
lines 19(b) and 19(c) of Form 4562 in the 2006 partnership tax return of
the Company (“2006
Company Return”) and inventory as reflected on Schedule L of the
2006 Company Return.  The Parties agree that pursuant to the terms of
the Operating Agreement, income, if any, attributable to the sale of 751(a)
assets on the transfer of the Venture Units contemplated hereunder is allocable
to Venture in proportion to the units owned by Venture in the Company (i.e.,
35%).  Each Party agrees to report its respective tax treatment of the
transactions contemplated by this Agreement in a manner that is consistent with,
and based upon the values contained in, the Valuation Consultant's report and
the provisions hereof to the extent the Valuation Consultant’s report is
substantially consistent with the methodology in Exhibit C.

     

    Section
4. Mutual
Release.

        (a) Except
for the Parties’ respective obligations hereunder, and for and in consideration
of the mutual promises and covenants contained herein, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, upon receipt of the Settlement Payment referenced in Section 2, Venture
for itself and its Affiliates (including without limitation Tollgate Venture LLC
and KJE Investments, LLC), officers, directors, shareholders, members (including
without limitation John and Jan Zimpel), employees, agents, successors and
assigns (collectively, the “Tollgate Parties”),
does hereby and forever discharge each of CCTI, the Company, Century Casinos,
Inc., a Delaware corporation, and each of their respective Affiliates, officers,
directors, shareholders, employees, agents, successors and assigns
(collectively, the “Century Parties”), of
and from any and all manner of claims, contractual obligations, demands,
actions, causes of action, suits, debts, sums of money, promises or damages
whatsoever, in law or in equity, whether heretofore asserted or not and whether
known or unknown (“Claims”), which any
of the Tollgate Parties has, had or claims to have against any or all of the
Century Parties, including without limitation Claims arising out of, or
occurring as a result of, or in any way connected with or related to the Venture
Units, the Operating Agreement, the Casino Management Agreement, the
Contribution Agreement, the Tollgate Parties’ investment in the Company or the
business of the Company or of the Century Parties.

     

    
      
        
        

      

      
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          (b) Except
for the Parties’ respective obligations hereunder, and for and in consideration
of the Settlement Payment and the mutual promises and covenants contained
herein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, upon receipt of the Unit Power referenced in
Section 1 and
the Assignment of Note referenced in Section 2, CCTI for
itself and each of the Century Parties, does hereby and forever discharge the
Tollgate Parties, of and from any and all manner of Claims, which any of the
Century Parties has, had or claims to have against any or all of the Tollgate
Parties, including without limitation Claims arising out of, or occurring as a
result of, or in any way connected with or related to the Venture Units, the
Operating Agreement, the Casino Management Agreement, the Contribution
Agreement, the Tollgate Parties’ investment in the Company or the business of
the Company or of the Tollgate Parties.

    

     

        (c) For
purposes of this Agreement, “Affiliate” means,
with respect to any Person (as defined below), any Person that controls, is
controlled by or is under common control with such Person, together with its and
their respective members, managers, partners, venturers, directors, officers,
shareholders, agents, employees, and representatives.  A Person shall
be presumed to have control when it possesses the power, directly or indirectly,
to direct, or cause the direction of, the management or policies of another
Person, whether through ownership of voting securities, by contract, or
otherwise.  “Person” means an
individual, partnership, limited liability company, association, corporation, or
other entity.

     

            Section
5. Warranties and
Representations of the Parties.  Each Party hereto represents
and warrants to the other Party as follows:

     

        (a) In
connection with the purchase and sale of the Venture Units and the Note, such
Party and its Affiliates have had the opportunity to ask questions of and
receive answers from representatives of the Company concerning the Company’s
business, financial condition and prospects and affairs.

     

        (b) Each of
this Agreement, the Unit Power attached as Exhibit A and the
Assignment of Promissory Note attached as Exhibit B has been
duly authorized, executed and delivered by such Party and is the legal, valid
and binding agreement of such Party, enforceable against such Party in
accordance with its terms.

     

        (c) It has
read this Agreement and knows and understands its contents fully.  It
understands that it is giving up any claims it may have against other Parties,
and that it may never bring a lawsuit to recover for claims, related to or in
any way connected with, the dispute referenced herein.

     

        (d) It
voluntarily executes this Agreement, after consulting with counsel and without
being pressured or influenced by any statement or representation of any person
acting on behalf of any other Party, including any other Party’s officers,
directors, employees, agents and attorneys.

     

    
      
        
        

      

      
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    Section
6. Warranties, Representations
and Agreements of Venture.  Venture represents and warrants to
and agrees with CCTI as follows:

     

        (a) Venture has not assigned any of its
rights under the Operating Agreement, the Venture Units or the Note to any other
Person, and Venture has full authority for itself and the Tollgate Parties to
fully release the Century Parties as specified in Section
4above.

     

        (b)  Venture owns of record and
beneficially, and shall transfer to CCTI on the Effective Date, the Venture
Units and the Note, free and clear of any liens, encumbrances or claims
whatsoever, and further free of any restrictions on transfer, options, warrants,
purchase rights, contracts, commitments, equities, claims and demands, other
than restrictions under federal or state securities laws and as provided in the
Operating Agreement and as may be provided in the Credit Agreement and
Subordination Agreement.

     

        (c) Except as
to claims of Wells Fargo, Venture shall defend and hold harmless the Century
Parties from and against any claims against any of the Century Parties by any of
the Tollgate Parties, arising out of this Agreement.

     

    Section
7. Warranties, Representations
and Agreements of CCTI.  CCTI represents and warrants to and
agrees with Venture as follows:

     

    (a) The
inventory of the Company as of the Effective Date has not changed substantially
from the inventory as shown on the 2006 Company Tax Return.

     

        (b) The
purchase of the Note does not breach the terms and provisions of the Credit
Agreement, dated November 18, 2005, by and between the Company, each lender
which is a party to the Credit Agreement, and Wells Fargo Bank, National
Association, as administrative and collateral agent for the lenders (“Credit Agreement”) or
the Payment Subordination Agreement, dated November 18, 2005, by and between
Venture and Wells Fargo Bank, National Association, as administrative and
collateral agent for the lenders (“Subordination
Agreement”).

     

        (c) The
schedules attached to Exhibit D are
good faith estimates of the net book values of the assets of the Company listed
therein and a comparison of net book values and tax basis for such assets, in
each case as of the Effective Date and subject to year-end closing
adjustments.

     

    
      
        
        

      

      
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              Section
8. No
Admission.  Neither this Agreement nor any discussions or
proceedings relating to the settlement of the dispute referenced herein is to be
considered, interpreted or construed as an admission or acknowledgement by any
Party of fault, liability, or wrongdoing.

    

     

            Section
9. Cooperative
Drafting.  Each Party has cooperated in the drafting and
preparation of this Agreement.  In any construction to be made of this
Agreement, the same will not be construed against any Party on the basis that
such Party drafted or prepared this Agreement.

     

            Section
10. Enforcement.  If
any Party to this Agreement files an action to enforce this Agreement, the
prevailing Party shall be entitled to recover reasonable attorneys’ fees and
costs.  A prevailing party shall be considered the Party who
substantially prevailed on the merits of the claims brought to enforce this
Agreement.

     

            Section
11. Authority. Each person signing this
Agreement in a representative capacity represents that he or she is authorized
to agree to the terms and conditions of, and to execute this Agreement on behalf
of the Party or Parties whom he or she represents.

     

            Section
12. Invalid
Provisions.  If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present or future laws, such
provision shall be fully severable, and the remaining provisions shall
constitute the Parties’ agreement.

     

            Section
13. Disclosure. The
Parties agree to keep the contents of this Agreement confidential and not to
disclose it or its terms except as required by law.  Notwithstanding
the first sentence of this Section, the Parties shall be permitted to disclose
the contents of this Agreement to lenders, regulatory agencies or other persons
or entities to which they are required by law or binding written agreement to
make disclosure.

     

            Section
14. Counterpart Execution;
Facsimile and Electronic Signatures.  This Agreement and the
Exhibits hereto may be signed in multiple counterparts and each counterpart when
taken with the other executed counterpart shall constitute a binding agreement
among the Parties executed as of the date first written above. This Agreement
and the Exhibits hereto may be evidenced by facsimile or electronic signatures,
which shall have the same force and effect as manually signed original
documents.

     

            Section
15. Amendment.  This
Agreement may be amended, modified or terminated only by a written instrument
executed by all Parties to the Agreement.

     

            Section
16. Governing
Law.  This Agreement and the agreements referenced in the
Exhibits shall be interpreted in accordance with the laws of the State of
Delaware without giving effect to the conflicts of law principles
thereof.

     

    
      
        
        

      

      
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              Section
17. Choice of
Forum.  The Parties agree that any action arising out of or
under this Agreement shall be filed in a court of competent jurisdiction in the
State of Colorado.

    

     

            Section
18. Entire
Agreement.  This Agreement represents the entire agreement
between the Parties hereto.

     

            Section
19. Representations and
Warranties.  All representations and warranties shall survive
the execution and delivery of this Agreement and execution and delivery of the
Unit Power attached as Exhibit A and
the Assignment of Promissory Note attached as Exhibit
B.

     

    IN
WITNESS WHEREOF, this Agreement has been executed as of the Effective
Date.

     

    


    CENTURY
CASINOS TOLLGATE, INC.

    By:  /s/ Larry Hannappel

    Larry
Hannappel

    Chief
Executive Officer and Secretary

     

     

    CC
TOLLGATE LLC

    By:
Century Casinos Tollgate, Inc., its Manager

     

    
      By:  /s/ Larry
Hannappel

    

    Larry
Hannappel

    Chief
Executive Officer and Secretary

    


    


    CENTRAL
CITY VENTURE LLC

    
      By:  /s/ John
Zimpel

    

    John
Zimpel

    Managing
Member

    
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